What Family Rifts at Funerals can Teach Us About Pardoning Presidents

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Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

 

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Hatchet Speed Arrested on a Small Part of his $50,000 “Panic Buying” Arsenal

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Last month, I reminded readers that every single one of the 5,000 people in whom the FBI might still have an investigative interest relating to January 6 — even just the trespassers — could be the next Ricky Shiffer: a Trump supporter mobilized by Trump’s false claims of victimhood who attempted to breach an FBI office, only to be killed in a shootout with police.

That’s because there are 5,000 more like him out there.

I don’t mean, there’s a shit-ton of Trump supporters who could go postal at any moment. There are far more than 5,000 of them.

I mean, there are 5,000 people who participated in January 6 that the FBI might have predicated investigative interest in, but has not yet arrested.

That’s a fairly conservative number. In recent days, DOJ passed the 850 arrest mark for January 6 defendants. There are probably 1,500 to 2,000 more people who entered the Capitol on January 6 whose arrest would be comparatively easy (because their trespass is fairly easy to prove) who have not yet been arrested. There are probably 250 identified suspected assailants still at large (over 530 people, including those who’ve been arrested, are listed on the FBI site). And there were probably 10,000 people who breached the external barricades but did not enter the building that DOJ would only arrest if there were something extra — the political profile of Ryan Kelley or Couy Griffin, the pre-existing Deferred Prosecution Agreement of Owen Shroyer, conspiracy ties like Stewart Rhodes — to justify the arrest. Sure, the people who attended the January 5 rally, as Shiffer did, were more likely to participate in more radicalized online networks; those people weren’t in DC just to hear the loser of an election speak.

But at every moment that DOJ has been investigating the leaders that orchestrated January 6 (which provably started within weeks of the attack) and at every moment that DOJ has been investigating Trump’s other criminal acts, DOJ and FBI have been trying to deal with the growth of political violence that Trump has deliberately fostered. DOJ spent the weeks after January 6 doing triage, trying to arrest enough people to get visibility on the very real plans for follow-on attacks before or at the Inauguration. DOJ spent the year after January 6 trying to incapacitate the militia networks that served as an organizing structure for the attack. And DOJ has spent the last six months, as it turned more overtly to investigate several sets of crimes by the former President, trying to anticipate which of those 5,000 veterans of January 6 would, alone or in concert, attempt to reignite a civil war.

I hope that, given the Shiffer example, impatient people who’ve never bothered to understand the crime scene itself will remember that everyone they’ve dismissed for a year as low-level January 6 trespassers may be the next Ricky Shiffer. It’s easy to imagine that if you just arrest Trump all that political violence will dissipate. But that wouldn’t even have been true in 2019, if Mueller had indicted, and it sure as hell isn’t true now. And every step DOJ takes to get closer to arresting Trump, or even just hold the butchers like Fitzsimons who took up arms on January 6 accountable, the mob of people that Trump radicalized on January 6 remains an urgent threat.

In that post, I referenced an earlier one focused on January 6 misdemeanants where I explained why a similar misdemeanor arrest, that of Hatchet Speed, might be among the trespassing arrests that carried far greater significance.

One reason I said that is because a cleared defense contractor with ties to the Proud Boys — who in his arrest affidavit was described as just another face in the crowd — poses a particularly urgent concern.

This is the kind of guy — a cleared defense contractor who went to the insurrection with some Proud Boys “with whom he keeps in contact” — whose cooperation DOJ has used fruitfully in the past. He’s also the kind of guy who presents the ongoing urgent concern about our Deep State being riddled with militia sympathizers.

It turns out that, by the time the FBI arrested him for the DC crime, they already knew he spent the months after Joe Biden’s inauguration “panic buying” an arsenal of weapons and speaking approvingly of a whole ideological swath of terrorists.

That was disclosed yesterday in an affidavit unsealed along with an indictment for three unregistered silencers in Virginia (Seamus Hughes first found the arrest).

5. The FBI has obtained evidence that, in the months following January 6, 2021, SPEED purchased numerous firearms and firearm parts. In a meeting with an FBI undercover employee (UCE-1), SPEED made comments suggesting that he was “panic buying” during this time.

6. As reflected in ATF Form 4473s completed at the time of sale, SPEED purchased at least twelve firearms between February 11, 2021, and May 26, 2021 :

a. On February 11,2021, SPEED purchased an FN 509 (9mm pistol) from Vienna Arsenal;

b. On February 15,2021, SPEED purchased a Smith & Wesson Mod 10-6 (.38 SPL revolver) from Herndon Arms;

c. On March 12,2021, SPEED purchased a Glock 27 (.40 pistol), Mossberg 590 Shockwave (12-gauge shotgun), and Tikka T3X (6.5 Creedmoor rifle) from Vienna Arsenal;

d. On March 30, 2021, SPEED purchased a Sig Sauer MCX (.300 Blackout pistol) and a Benelli Supernova (12-gauge shotgun) from Vienna Arsenal;

e. On April 30, 2021, SPEED purchased a Sig Sauer Virtus (multiple caliber rifle) and Walther P22 (.22 pistol) from Vienna Arsenal;

f. On May 21, 2021, SPEED purchased an S&W Mod 60 (.38 SPL revolver) and S&W Mod 36 (.38 SPL revolver) from Vienna Arsenal;

g. On May 26, 2021, SPEED purchased a Sig Sauer MCX Virtus (5.56 pistol) from Vienna Arsenal.

7. Financial statements and other evidence collected in the course of the investigation reveal that SPEED purchased more than $50,000 at firearm and/or firearm part retailers, including the purchase of the twelve firearms described above, in the months after January 6, 2021. For example, financial statements from one of SPEED’s credit cards show that, just in the one-month period between February 15, 2021, and March 16, 2021, SPEED made the following purchases at firearms and/or firearm part retailers:

a. February 16,2021 – $4,109.00 at Silencer Shop in Texas;

b. February 16,2021 – $980.41 at Alamo Ammo in Texas;

c. February 16,2021 – $207.00 at Trex Arms in Tennessee;

d. March 3, 2021 – $668.99 at Reeds Family Outdoors in Minnesota;

e. March 8, 2021 – $194.90 at Greenacres Sporting Goods in Florida;

f. March 8, 2021 – $5,389.97 at OpticsPlanet, Inc., in Illinois;

g. March 8, 2021 – $100.42 at OutdoorLimited.com in North Carolina;

h. March 8, 2021- $215.31 at SGAmmo LLC in Oklahoma;

i. March 9,2021 – $1,137.29 at Ammo Freedom in Texas;

j. March 10,2021 – $1,919.99 at Guns Dot Com in Minnesota;

k. March 11,2021 – $80 in MidwayUSA in Missouri; 1

l. March 11, 2021 – $4,207.13 at SP & G Shooting Range in Virginia;

m. March 12,2021 – $660.99 at OutdoorLimited.com;

n. March 12,2021 – $290.74 at Armageddon Gear LLC in Georgia;

o. March 12,2021 – $297.80 at Freedom Munitions in Idaho;

p. March 12,2021 – $189.46 at EuroOptic Ltd Online in Pennsylvania;

q. March 12, 2021 – $695.00 at ESAD Arms LLC in Texas;

r. March 14,2021 – $568.00 at MidwayUSA in Missouri;

s. March 14,2021 – $374.12 at Silencer Shop in Texas;

t. March 15,2021 – $328.95 at Peak Case in Utah

At a meeting in March, Speed described to an undercover FBI officer how he liked to read Eric Rudolph and Ted Kaczynski so he could figure out how to improve on their game plans.

13. At the meeting on March 1, 2022, SPEED stated that he thought what Rudolph did was a mistake and that the bombing did not accomplish anything. But SPEED noted that Rudolph “was a right winger that got tired of what was happening and he wrote a book over his several year[ s] running from the FBI.” SPEED said that he “thought that was cool and … lover d] the fact that [Rudolph] can say what he did because he ha[ d] nothing to lose by writing [the book].” SPEED noted that he was “trying to find more books like that because [he] love[d] reading about people that are like ok, yeah, you’re assassinating bad guys, that’s cool, but if it’s approved then you’re always killing the small fry, you’re never actually going after the people who actually … ,” and then trailing off.

14. During the same meeting, SPEED also stated that he “like[ d] to read more stuff like that, like Ted Kaczynski,” who is commonly known as the “Unabomber.” SPEED stated the following (with my emphasis added):

Kaczynski wrote a manifesto and once again, like the stuff he did was not effective, but I can commiserate with where he was coming from. Because I think as people who can see their country fall deeper and deeper into wherever we’re going, we all know we have to do something so it’s useful to see what worked and what didn’t work. So, it’s useful to get into these people’s heads and you know, try and come up with a better game plan than they had.

15. During a meeting with UCE-l on March 15,2022, SPEED discussed Eric Rudolph again. In doing so, SPEED suggested Rudolph went wrong because he targeted rich people, when it is not about the money. SPEED said that instead it is “about power.” [emphasis FBI’s]

Speed spoke approvingly of kidnappings and talked about how he might pick victims.

27. In this conversation, SPEED continued by describing how kidnappings would be more effective than killing people. SPEED stated the following:

[K]idnappings are harder than killing people but they’re more effective. What I would love to see is you take somebody out, and they simply disappear. Nobody knows what happened to them. That means we can’t report on it, the media doesn’t know how to spin it. … And all of those people who were left behind have … no way to close that bridge, no way to know if they’re in danger. … We need to foster distrust within the opposite side, just like they do for us…. If you leave nothing behind, they never find the body.

This affidavit was submitted in conjunction with his arrest in June (and was the basis for putting him on house arrest with it). Since then, though, he has been permitted to attend weekend drill exercises as a member of the Navy Reserve at (!!!) Andrews Air Force Base.

Yesterday’s indictment feels like a stub for something else. It’s based on his possession, when he was arrested in June, of those three silencers. And while the government submitted his bond conditions in that docket, it’s not even clear whether he remained in possession of the three silencers after he was released after his June arrest.

EDVA started the paperwork to arrest him last Wednesday, September 2. That was two days after he requested to travel to Tampa Bay, ostensibly for a medical appointment, on September 11.

A number of militia members charged in January 6 are from the area. And Sarasota is where a lot of Trump’s — and Mike Flynn’s — post January 6 plotting has taken place.

This arrest presumably also derails any attempt Trevor McFadden would make (as he suggested he might back in July), at a scheduled status hearing on September 30, to accept a plea from Speed and release him with a hand-slap.

This is a man with a highly trained skillset and an arsenal who has been thinking a lot about terrorism in recent months. But before June, he was just another January 6 trespasser in the crowd.

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NARA May Have Pre-Existing Legal Obligations with Respect to Documents Covered by Aileen Cannon’s Order

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On Monday, Aileen Cannon told the government that it can only access 11,282 documents legally owned by the National Archives and currently possessed by DOJ to do an assessment of the damage Trump did by storing those records in a poorly-secured storage closet and desk drawer.

We’ll learn more in coming days about how the government will respond to Cannon’s usurpation of the President’s authority over these documents.

But I want to note that there may be competing legal obligations, on NARA at least, that may affect the government’s response.

NARA has been responding to at least four pending legal obligations as the fight over Trump’s stolen documents has gone on:

  • A series of subpoenas from the January 6 Committee that the Supreme Court has already ruled has precedence over any claims of privilege made by Trump
  • Two subpoenas from DOJ’s team investigating January 6, one obtained in May, covering everything NARA has provided to the J6C, and a second one served on NARA on August 17; these subpoenas would also be covered under SCOTUS’ ruling rejecting Trump’s privilege claims
  • Discovery in Tom Barrack’s case, whose trial starts on September 19 (DOJ informed Barrack they had requested Trump White House materials from NARA on April 5)
  • A subpoena from Peter Strzok in his lawsuit over his firing and privacy act violations

For all of them, NARA has a legal obligation that precedes Judge Cannon’s order. So if any of the material owned by NARA that Cannon has enjoined for Trump’s benefit is covered by these subpoenas and the Barrack discovery request, it will give NARA an additional need to intervene, on top of the fact that Cannon has made decisions about property owned by NARA.

I don’t hold out hope that the August 8 seizure has much pertaining to either January 6 investigation. Given that none of the boxes include clippings that post-date November, its unlikely they include government documents from the same period.

 

Plus, given the timing, I suspect the more recent subpoena from Thomas Windom to NARA pertains to materials turned over to NARA by Mark Meadows after the Mar-a-Lago search. Because Meadows originally turned those communications over to J6C directly, they would not have been covered by the prior subpoena, which obtained everything NARA turned over to J6C, which wouldn’t have included Meadows’ texts.

Meadows’ submission to the Archives was part of a request for all electronic communications covered under the Presidential Records Act. The Archives had become aware earlier this year it did not have everything from Meadows after seeing what he had turned over to the House select committee investigating January 6, 2021. Details of Meadows’ submissions to the Archives and the engagement between the two sides have not been previously reported.

“It could be a coincidence, but within a week of the August 8 search on Mar-a-Lago, much more started coming in,” one source familiar with the discussions said.

The second subpoena would have been served days after Meadows started providing these texts.

The possibility that some of the documents seized on August 8 would be discoverable in Barrack’s case is likely higher, particularly given the news that Trump had hoarded at least one document about “a foreign government’s nuclear-defense readiness.” Barrack is accused of working to influence White House policy on issues pertaining to UAE, Saudi Arabia, and Qatar that might be implicated by classified documents. If the date of clippings in a particular box reflect the age of the government documents also found in that box, then about 18 boxes seized in August (those marked in purple, above) include records from the period covered by Barrack’s superseding indictment.

That said, whether any such materials would count as being in possession of DOJ is another issue. They are currently in possession of team at DOJ that significantly overlaps with the people prosecuting Barrack for serving as an Agent of the Emirates without telling the Attorney General.

Strzok’s subpoena may be the most likely to cover materials either turned over belatedly or seized on August 8 (though his subpoena was scoped, with DOJ involvement, at a time after the FBI was aware of Trump’s document theft). It asks for:

  1. Records concerning Sarah Isgur’s engagement with reporters from the Washington Post or New York Times about Peter Strzok and/or Lisa Page on or about December 1 and 2, 2017.
  2. Records dated July 1, 2017 through December 12, 2017 concerning or reflecting any communications with members of the press related to Peter Strzok and/or Lisa Page.
  3. Records dated July 1, 2017 through December 12, 2017 concerning or reflecting text messages between Peter Strzok and Lisa Page.
  4. Records dated July 1, 2017 through August 9, 2018 concerning Peter Strzok’s employment at the FBI.

That materials covered by this subpoena made their way at some point to Mar-a-Lago is likely. That’s because of the obsession with records relating to Crossfire Hurricane in the days when Trump was stealing documents — virtually all of those would “concern” Strzok’s FBI employment.

In Mr. Trump’s last weeks in office, Mr. Meadows, with the president’s blessing, prodded federal law enforcement agencies to declassify a binder of Crossfire Hurricane materials that included unreleased information about the F.B.I.’s investigative steps and text messages between two former top F.B.I. officials, Peter Strzok and Lisa Page, who had sharply criticized Mr. Trump in their private communications during the 2016 election.

The F.B.I. worried that releasing more information could compromise the bureau, according to people familiar with the debate. Mr. Meadows dismissed those arguments, saying that Mr. Trump himself wanted the information declassified and disseminated, they said.

Just three days before Mr. Trump’s last day in office, the White House and the F.B.I. settled on a set of redactions, and Mr. Trump declassified the rest of the binder. Mr. Meadows intended to give the binder to at least one conservative journalist, according to multiple people familiar with his plan. But he reversed course after Justice Department officials pointed out that disseminating the messages between Mr. Strzok and Ms. Page could run afoul of privacy law, opening officials up to suits.

None of those documents or any other materials pertaining to the Russia investigation were believed to be in the cache of documents recovered by the F.B.I. during the search of Mar-a-Lago, according to a person with knowledge of the situation.

Side note: NYT’s sources are blowing smoke when they suggest DOJ under Trump would avoid new Privacy Act violations against Strzok and Page; a set of texts DOJ released on September 24, 2020 as part of Jeffrey Jensen’s effort to undermine the Mike Flynn prosecution had already constituted a new Privacy Act violation against them.

Notably, Strzok has been pursuing records about a January 22, 2018 meeting Jeff Sessions and Matt Whitaker attended at the White House.

Hours after that meeting (and a half hour call, from 3:20 to 3:50, between then Congressman Mark Meadows and the Attorney General), Jeff Sessions issued a press release about Strzok and Lisa Page.

Discovery has confirmed that the Attorney General released a press statement via email from Ms. Isgur to select reporters between 5:20 and 8:10 PM on January 22, roughly three hours after Attorney General Sessions returned from the White House. The statements promised, “If any wrongdoing were to be found to have caused this gap [in text messages between Mr. Strzok and Ms. Page], appropriate legal disciplinary action measure will be taken” and that the Department of Justice would “leave no stone unturned.” (See, e.g., Exhibit F). Based on Mr. Strzok’s review of the documents, it does not appear that this statement was planned prior to the January 22 White House meeting. It is not apparent from the documents produced in this action what deliberation lead to the issuance of that statement. For example, Mr. Strzok has not identified any drafts of the press release.

Any back-up to the White House side of that meeting — whether it has made its way back to NARA or not — would be included within the scope of Strzok’s subpoena. And even if NYT’s sources are correct that no Crossfire Hurricane documents were included among those seized in August (an uncertain claim given how much lying to the press Trump’s people have been doing), records covering Strzok’s firing would be broader than that.

The red rectangles, above, show the 17 documents seized in August for which the clippings would be in the temporal scope of Strzok’s subpoena.

I have no idea what happens if some of the boxes seized on August 8 include material responsive to these legal demands on NARA.

But if those boxes do include such materials, then it presents a competing — and pre-exisitng — legal obligation on the lawful owner of these records.

Update: Viget alerted me that I had not put an “X” by the leatherbound box reflecting its classified contents. I’ve fixed that!

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The FBI Seized No Boxes with Press Clippings that Postdate November 2020

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As I noted in this post, the government wrote their May 11 subpoena to cover all government records in Trump’s possession, not just those that had come from the White House and not just those that were in Florida.

Although the SDFL Motion indicates that FPOTUS directed his staff to conduct a review of boxes moved “from the White House to Florida,” the subpoena was not so limited, instead seeking “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings,” without limitation to where they were stored.

They clearly believed then that some of the documents Trump stole might not be at Mar-a-Lago. Indeed, Evan Corcoran’s insistence on June 3 that he was instructed to search only the records that had moved from the White House to Florida may have exacerbated that concern.

That makes something revealed in the more detailed inventory released yesterday more alarming.

None of the boxes seized by the FBI include press clippings that postdate November 2020.

 

The most innocent explanation anyone has offered for Trump’s theft of government documents — call it the Maggie Haberman theory of compulsive pack-rattery — is that Trump just kept making piles of documents, including both news articles and Top Secret government documents, on the dining room table where he preferred to work. Those stacks got put into boxes, and staffers kept swapping out the boxes as they filled up. That was the filing system employed by the most powerful man in the world.

That explanation does seem to accord with many of the boxes of the detailed inventory. In the inventory, the FBI counted every fucking clipping Trump kept, along with the dates. Over the last month, FBI Agents have cataloged 1,673 clippings, dating back to October 1995, that were stored with government documents. Every box has at least one press clipping; even Trump’s leatherbound box of treasures had almost 100 clippings stored alongside his Top Secret/SCI documents. And if you track the entire inventory by the date ranges of the press clippings, you see that those boxes overlap.

There seems to have been no Chief of Staff, not even retired General John Kelly, who could cure him of the habit.

But none of those boxes — not even the collection including 357 government documents seized from his office (see item 4) — includes a single clipping that post-dates November 2020.

There are no clippings from the final two months of his Presidency — the months he plotted a coup.

And so if we adhere to the Maggie Haberman theory of compulsive pack-rattery, the most innocent explanation for Trump’s theft of government documents, there may still a serious problem. Because if every box in which Trump stored government documents should also have press clippings he read at the same time as those government documents, it means there would be no government documents at Mar-a-Lago from the period when Trump was plotting a coup.

Perhaps Trump already turned in those boxes. Perhaps the post-November 2020 press clippings were delivered to the Archives on January 17, 2022, just a year late.

But Paul Sperry said that the reason Trump was withholding records from the Archives was to keep documents of interest to the January 6 Committee from being available to the Archives that it might turn over to the Committee. (h/t Ron Filipkowski)

And if the dates of the clippings in the boxes are any indication of the dates of the records in the boxes, then it suggests the FBI may still not have all the records Trump stole from the White House. Indeed, it suggests the FBI might still be missing some of the most important records, not just for the January 6 Committee’s work, but also for our understanding of key policy steps Trump took in that period, including developments in the Abraham Accords and possibly even Trump’s withdrawal from the Open Skies Treaty (which happened close to the end of November 2020). This is the period, too, when Acting Secretary of Defense Chris Miller cut off briefings to the incoming Biden folks.

Again, there may be an innocent explanation for the fact that the FBI seized no press clippings from after November. But the absence of any clippings from after that date — not one! — is the most remarkable thing disclosed by the detailed inventory.

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Kellye SoRelle: Oath Keeper Capper or Potential Pivot?

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The government arrested Kellye SoRelle yesterday via an indictment charging three counts of obstruction and one count of trespassing. She’s best known as the lawyer for the Oath Keepers, though for a period she was acting as the President of the militia.

That she was arrested was not surprising. It has been known for some time that she’s the person who advised Rhodes to start deleting evidence of his activities on January 6, which he and others did. She even admitted it to MoJo’s Dan Friedman. Those who did delete their comms have all been charged for deleting evidence. The government even included that in Joshua James’ statement of offense, who is now cooperating with the government.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

So it’s unsurprising that she was also charged under 18 USC 1512(b)(2) for corruptly persuading and attempting to corruptly persuade others to delete evidence.

On its face, the indictment against SoRelle is all about capping off the Oath Keeper conspiracy. Her arrest warrant lists the two conspiracies, 22-cr-15 (the Rhodes seditious conspiracy) and 21-cr-28 (the lesser conspiracy now named after Donovan Crowl), as related cases, landing her case before Judge Amit Mehta. All seven of the Oath Keeper prosecutors were listed on the motion to seal her arrest warrant.

At that level, charging her seems like a way to ensure defendants in the sedition trial cannot foist all the blame for deleting those communications off on an uncharged co-conspirator.  In fact, Gateway Pundit, which has invented some of the central conspiracy theories about this case (including one spun directly by SoRelle), yesterday complained that DOJ only charged SoRelle because she recently agreed to testify in Rhodes’ defense.

Gateway Pundit’s earlier conspiracy theory, based on claims made by another cooperating Oath Keeper witness, Jason Dolan, appears to be one of the ways prosecutors managed to argue that her communications were not privileged.

As such, much of this indictment is about capping off the Oath Keeper case. But there are a few details that I find interesting.

First, unlike Michael Greene (the field commander for the Oath Keepers the day of the attack), who was superseded into the Crowl (lesser) conspiracy case on June 22, SoRelle was charged via indictment with conspiracy by herself. By comparison, when DOJ spun Jonathan Walden off onto his own indictment, the conspiracy charge against him was dropped.

Perhaps DOJ treated her this way because she mostly just interacted with Rhodes on January 6, but since she didn’t do anything meriting a sedition charge, she was charged by herself?

But there are other details that make me wonder whether DOJ isn’t doing something more by charging her.

SoRelle was charged by the same grand jury that did the bulk of the investigative work against all January 6 attackers for all of 2021, but which focused especially on the Oath Keepers. Its work seemed to culminate in January with the seditious conspiracy indictment. Since then, its main public work was to supersede Greene into the lesser conspiracy, 17 months after it was convened, as well as supserseding the Rhodes indictment to tweak how sedition was charged, also in that 17th month.

But the indictment against SoRelle means that grand jury is still at work in the 19th month after it was convened. Grand juries are usually convened for 18 months, so this seems to suggest the Oath Keeper grand jury has been extended, and extended (thus far) solely to charge someone whose phone the government seized last September.

Meanwhile, SoRelle’s indictment seems to have been initialed by Jocelyn Ballantine.

Up until now, Ballantine was known only to have a (behind-the-scenes) role in managing the Proud Boys investigation, which is not only less orderly than the Oath Keepers investigation, but seems to be understaffed, particularly as compared to the consistent 7-person team that has relentlessly pursued the Oath Keepers.

One reason you might charge SoRelle, by herself, on a conspiracy indictment is to add others to it. And while she’s best known for her role with the Oath Keepers and this indictment is closely tied to the Oath Keepers prong of the investigation, she actually has a number of ties to other key players in January 6.

She was present at the January 4, 2021 parking garage meeting between Rhodes and Enrique Tarrio, for example. She would have been a key facilitator for it. At the time, she was serving as the lawyer for both the Oath Keepers and Latinos for Trump. (It was via Tarrio’s involvement in Latinos for Trump that he went on December tour of the White House, arranged by Bianca Gracia, who was also at that garage meeting.)

As Ryan Reilly noted yesterday, SoRelle was also a volunteer for Lawyers for Trump, and in that guise, Rhodes tried to get her to put him in touch with people in Trump’s orbit. SoRelle claims that she declined to do that.

In the weeks leading up to the Jan. 6 attack on the Capitol, Oath Keepers founder Stewart Rhodes tried to get the organization’s general counsel, Kellye SoRelle, to put him in touch with the White House, she told NBC News.

In addition to her work with the Oath Keepers, SoRelle was a volunteer for Lawyers for Trump during the 2020 election and was in contact with many of the people fighting a doomed legal battle to try to overturn the 2020 presidential election and keep former President Donald Trump in office. The contacts include, she said, people in Rudy Giuliani’s and Sidney Powell’s camps, as well as those inside the administration, although she added that she “wasn’t, like, communicating with Trump directly.”

Rhodes wanted her to put him in touch with the White House. “He was hitting me up for a contact,” said SoRelle, a family law lawyer who previously ran for the Texas state House. “He didn’t have any access points.”

As he prepared an open letter calling on Trump to invoke the Insurrection Act in the weeks leading up to Jan. 6, 2021, Rhodes asked SoRelle to send it to the White House. She says she declined.

SoRelle has been caught making false claims to the press before.

Finally, in the clip of SoRelle’s testimony to the January 6 Committee that has been made public, she described how Roger Stone, Alex Jones, and Ali Alexander took the lead on planning the Stop the Steal events.

JAMIE RASKIN: Kelly Sorrell, a lawyer who assists the Oath Keepers and a volunteer lawyer for the Trump campaign, explained to the committee how Roger Stone and other figures brought extremists of different stripes and views together. [Begin videotape]

UNKNOWN: You mentioned that Mr. Stone wanted to start the Stop the Steal series of rallies. Who did you consider the leader of these rallies? It sounds like from what you just said, it was Mr. Stone, Mr. Jones, and Mr. Ali Alexander. Is that correct?

KELLY SORRELL: Those are the ones that became like the — the center point for everything. [End videotape]

In other words, while SoRelle didn’t breach the Capitol in body armor like the rest of the Oath Keepers, she was (along with Roger Stone) one of the key pivots between the Oath Keepers and the rest of the organizing effort behind January 6. She was networked with other planners in a way that even Rhodes was not.

For over a year, I’ve been describing that the elegant thing about the obstruction conspiracy charges DOJ has used to charge the Oath Keepers, Proud Boys, and others, is those separate conspiracies might one day start to coalesce via the nodes between them. Kellye SoRelle has, by all appearances, been charged in a conspiracy with the Oath Keepers.But if she also conspired on other aspects of January 6 with other people and organizations, including White House lawyers, then the various existing conspiracies might network into a larger conspiracy.

The lead prosecutor on SoRelle’s case, incidentally, also happens to be the lead prosecutor on Owen Shroyer’s prosecution.

Update: Corrected that SoRelle stepped down as President when Rhodes was arrested.

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Christina Bobb, Custodian of Records and Coup Conspirator

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According to Donald Trump’s whack-ass filing the other day, he personally has yet to receive a subpoena in the investigation of his  suspected theft of classified documents and obstruction of one or more investigations by hiding, ripping, or flushing documents. Instead, his hospitality company and Christina Bobb have.

DOJ sent the June 22 subpoena for surveillance footage at Mar-a-Lago to the Custodian of Records at the Trump Organization.

On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government.

The WaPo explained that it was sent to Trump Organization, not Trump, because that’s who actually owns Mar-a-Lago.

By the way, that means that Trump Organization could have, but thus far has not, intervened in the August 8 search as well as Donald. Indeed, that may have been what Magistrate Judge Bruce Reinhart, who has read the search warrant affidavit, was alluding to when he memorialized his order asking DOJ to provide more justification for its review. He noted that neither Trump nor any other “purported owner” of Mar-a-Lago had intervened.

Neither Former President Trump nor anyone else purporting to be the owner of the Premises has filed a pleading taking a position on the Intervenors’ Motions to Unseal.

In fact, when Trump intervened in the Michael Cohen search in 2018 — and did so after just four days — he did so in the persons of Trump Organization lawyer Alan Futerfas and Futerfas’ partner Ellen Resnick. Having Trump Organization ask for a Temporary Restraining Order would have been another way to intervene in more timely and competent way than Trump has done so far — but Trump Organization has been rather distracted preparing for depositions in Tish James’ investigation and the October trial testimony of their former CFO in a New York City trial.

In any case, it is totally normal for a grand jury to subpoena the “Custodian of Records” of a corporation from which it wants records. In the case of the surveillance video (and presumably a renewed subpoena after the search), that just happened to place the legal obligation to respond on an entity that has a whole heap of other legal problems right now.

In Trump’s whack filing, though, the hero of our story Donald J. Trump magnanimously instructed Trump Organization to accept service and provide the video (it appears that Eric or the failson would have been the ones legally to give that order), otherwise known as “complying with a subpoena.”

It’s the other subpoena I find more interesting.

On May 11, 2022, Movant voluntarily accepted service of a grand jury subpoena addressed to the custodian of records for the Office of Donald J. Trump, seeking documents bearing any classification markings. President Trump determined that a search for documents bearing classification markings should be conducted — even if the marked documents had been declassified — and his staff conducted a diligent search of the boxes that had been moved from the White House to Florida. On June 2, 2022, President Trump, through counsel, invited the FBI to come to Mar-a-Lago to retrieve responsive documents. [italics Trump’s, bold mine]

There’s a lot going on in this passage. Whereas the earlier passage described the government sending the subpoena, here Trump’s team only describes that service for it was accepted, “voluntarily,” it notes in italics, which is not a thing.

It’s a subpoena, you don’t get a choice.

The passage dates that acceptance to May 11 — the day after, we now know, that the Acting Archivist Debra Steidel Wall had informed Evan Corcoran, acting as Trump’s attorney, that she would not respect Trump’s “protective assertion of executive privilege.” The dates are almost certainly related, but we can’t be sure how, because we can’t be sure when DOJ subpoenaed Trump for the rest of the classified documents he was hoarding.

More interesting, to me, is the way this passage introduces a second role (and third) it will rely on heavily to describe what must be a core focus of the obstruction investigation, that Custodian of Records of the Office of Donald J. Trump. The Custodian of Records accepted the subpoena (and so would be on the legal hook for it), “his staff conducted a diligent search,” and then his counsel — Corcoran — “invited” Jay Bratt to come get the additional classified documents that would constitute proof Trump had violated the Espionage Act. Trump doesn’t reveal who did the search (though other reports have said Corcoran did it). But as presented, this process implicated three different roles, at least one role performed by a guy who signed this very whack filing that works so hard to obscure all this.

All that is set-up for the meeting on June 3, which will carry a great deal of legal import going forward, not least in an inevitable Fourth Amendment suppression motion. Here’s the tale the whack filing, written in part by Evan Corcoran, tells:

The next day, on June 3, 2022, Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, came to Mar-a-Lago, accompanied by three FBI agents. President Trump greeted them in the dining room at Mar-a-Lago. There were two other attendees: the person designated as the custodian of records for the Office of Donald J. Trump, and counsel for President Trump. Before leaving the group, President Trump’s last words to Mr. Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”

Responsive documents were provided to the FBI agents. Mr. Bratt asked to inspect a storage room. Counsel for President Trump advised the group that President Trump had authorized him to take the group to that room. The group proceeded to the storage room, escorted by two Secret Service agents. The storage room contained boxes, many containing the clothing and personal items of President Trump and the First Lady. When their inspection was completed, the group left the area.

Once back in the dining room, one of the FBI agents said, “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.” Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter.

This passage is designed to portray Trump’s response as completely cooperative, which is set up for a claim the warrant was not necessary. As such, it describes an FBI comment undoubtedly designed, legally, to reiterate that a consensual search — of the storage room — was indeed consensual, as if it means something else, that the FBI had had all its questions answered. But when Trump eventually receives the affidavit that relies on this FBI agent’s first-hand observations during a consensual search to show probable cause for a warrant to come back and search the storage room further, Trump will have ceded the consensual nature of it and therefore his ability to suppress the August 8 search.

Evan Corcoran will one day be underbussed for agreeing (and in this filing, attesting) to this consensual search; given the way he’s portrayed in this WaPo story, the underbussing may have already begun. But for now, it is the stated version Trump wants to tell.

What I’m interested in, though, is that according to this version — a version that makes absolutely no mention of the declaration Jay Bratt required Trump’s team provide after that consensual search of the storage room — the roles that Corcoran and Christina Bobb played were different, and different in a way that holds legal weight. They don’t name names, but because Corcoran is known to have done the things attributed to “counsel” in this whack filing, he must be the counsel in the meeting and Bobb, by process of elimination, was the Custodian of Records. So Bobb was the person on the hook for the subpoena response.

As a reminder, here’s the most complete description of the declaration that Corcoran neglected to mention in the whack filing, from an NYT article that studiously avoids mentioning that obstruction is one of the crimes under investigation.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Bobb, performing the role as the Custodian of Records and so the person on the legal hook for the search, is the one who signed the declaration, based off a search that unnamed Trump “staff” members — described as a third role separate from that of Custodian of Records Christina Bobb and counsel Evan Corcoran — conducted.

Who knows whether Bobb really played the legal function of Custodian of Records at the Office of Donald J. Trump? I’ll come back to that in a bit.

Whatever Bobb really is, though, three pages later, Trump’s Custodian of Records gets a dizzying demotion to one of “three attorneys in the general area” who showed up to observe the search. That demotion may serve the legal function of justifying a claim, made another 11 pages later, that the search warrant receipts Bobb signed do not meet the standards required by Rule 41.

Among other actions taken after being notified of this unprecedented event, counsel for President Trump contacted three attorneys in the general area who agreed to go to Mar-a-Lago. Once they arrived, they requested the ability to enter the mansion in order to observe what the FBI agents were doing, which the Government declined to permit.

After approximately nine hours, the FBI concluded its search. An FBI agent provided one of the attorneys who had been waiting outside for nearly the full nine hours with a copy of the Search Warrant. TheFBI also provided a three-page Receipt for Property. Receipt for Property

[Case 9:22-mj-08332-BER, ECF 17 at 5-7 of 7]. That list provided almost no information that would allow a reader to understand what was seized or the precise location of the items.

[snip]

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed. R. Crim. P. 41(f). The “Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

[snip]

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Government should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

Rolling Stone has a piece explaining that this whack filing is not actually the significant Fourth Amendment filing we were promised. That one, a bid to demand that Trump get these files back, is still coming.

[T]he former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows  “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

But this whack filing is meant to lay the groundwork for the future promised significant Fourth Amendment whack filing.

And the success of both depends on a claim that poor Christina Bobb, who in her role as the Custodian of Records is either a witness or suspect in the obstruction side of this investigation, was on the day of the search just a pretty little lawyer who happened to be walking her dog in the neighborhood, and who asked the nice FBI agents to let her watch the search but wasn’t allowed to, which is why she signed off on the receipt without asking for more details on the front end. This entire scheme will fail when the FBI points out that a suspected co-conspirator didn’t do the due diligence Trump is now claiming (falsely) is legally required according to the standards of Rule 41.

It would almost certainly fail anyway, but it will especially fail when DOJ points out that Bobb is not just some lady walking her dog in the neighborhood, but played the role of the Custodian of Records, and so had the competence to demand a more complete receipt on the day of the search, but did not. The Office of Donald J. Trump has effectively already waived the issue of the receipts.

But consider the import of the claim that Christina Bobb functioned at the Custodian of Records for the Office of Donald J. Trump, particularly given Paul Sperry’s claim (h/t Ron Filipkowski) that Trump withheld these documents because he knew that if he turned them over, the Archives would in turn provide them to the January 6 Committee (and now, DOJ’s January 6 investigation).

Christina Bobb is not only not just a lady walking her dog in the neighborhood of Mar-a-Lago, she also played a key role in the coup attempt.

She was the first author of the draft Executive Order attempting to seize the voting machines.

That document is nearly identical to a draft executive order the National Archives has shared with the Jan. 6 committee, and that POLITICO published last month. Metadata on the document says it was created by a user named Christina Bobb, and later updated by an unnamed person. A One America News anchor by that name was involved in Giuliani’s work for Trump, and previously worked in the Department of Homeland Security during the Trump administration.

The Washington Post reported that Bobb was on at least one conference call about setting up alternate slates of electors for the Jan. 6 certification vote, and that she was at the Willard hotel “command center” that Trump’s allies used as a home base to coordinate efforts to overturn the election. The emails did not cast light on Bobb’s ties to the draft executive order beyond her name’s appearance in the metadata, and she did not respond to requests for comment.

And as Seth Abramson first confirmed, after leaving the Cannon Office Building at 1PM on January 6, Bobb spent the rest of the day in the Willard right alongside Rudy.

While the Archives spent a year trying to get Trump to return identified documents, some reports say things came to a head in December.

WaPo reports that Trump personally oversaw the packing of boxes to be returned to the Archives, and they were retrieved on January 17.

What followed was a tortured standoff among Trump; some of his own advisers, who urged the return of documents; and the bureaucrats charged by the law with maintaining and protecting presidential records. Trump only agreed to return some of the documents after a National Archives official asked a Trump adviser for help, saying they may have to soon refer the matter to Congress or the Justice Department.

Nearly a year later, on Jan. 17, 2022, Trump returned 15 boxes of newspaper clips, presidential briefing papers, handwritten notes and assorted mementos to the National Archives. That was supposed to settle the issue.

[snip]

It could not be determined who was involved with packing the boxes at Mar-a-Lago or why some White House documents were not sent to the Archives, though people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides. Philbin and another adviser who was contacted by the Archives in April have told others that they had not been involved with the process and were surprised by the discovery of classified records.

What’s clear is that effort to pack up boxes, an effort Trump personally oversaw, was happening during the same period when Trump was trying to prevent the Archives from handing over records to the January 6 Committee.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

Any tampering with already packed boxes may have happened after the DC Circuit ruled in favor of the Committee, but in any case, in courts in DC, such tampering happened during a period when Trump was legally fighting to hide records that would implicate him … and Christina Bobb.

I’m still not convinced that the January 6 investigation(s) are the primary thing that Trump was trying to retain, though I think there’s a decent chance they’re included among the investigation(s) that Trump is suspected of obstructing by hiding, ripping, and flushing documents.

But to the extent that Trump was attempting to obstruct parallel investigations of his efforts to steal the 2020 election, Bobb’s role as both a co-conspirator in the coup plan and as Custodian of Records would raise additional concerns for the FBI.

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The Day After Paul Sperry Claimed Trump Had Been Hiding January 6 Documents, DOJ Subpoenaed the Archives Again

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CNN reported today that Thomas Windom, the lead AUSA on January 6 investigations targeting Trump and his cronies, sent a second subpoena to NARA.

The Justice Department has issued a new grand jury subpoena to the National Archives for more documents as part of its investigation into the January 6, 2021, attack on the US Capitol, two sources familiar with the investigation tell CNN.

This latest subpoena, issued on August 17, is in addition to a subpoena the Department of Justice sent to the Archives earlier this year, requesting the same documents and information that the Archives had previously handed over to the House select committee investigating January 6.

This new subpoena, which has not been previously reported, is understood to request additional documents and data from the Archives, pertaining to a period of time both before and after January 6.

Thomas Windom, an Assistant US Attorney, who is leading the criminal probe into the effort to impede the transfer of power after the 2020 election, including the potential role played by former President Donald Trump and allies to organize a group of fake electors who could keep Trump in power despite losing the election.

As a reminder, NYT reported that Windom subpoeaned all the stuff that the Archives had turned over to the January 6 Committee, for which the J6C had gone through the tedious process of getting an Executive Privilege waiver.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

There are, to be sure, a number of possible explanations for this: Perhaps Windom believes he’ll get information on the Secret Service or DHS that eluded the deletion effort shortly after Joe Biden’s inauguration. Perhaps Windom knows of someone else covered by the Archives that the January 6 Committee hasn’t yet identified, one not covered by Executive Privilege.

But I can’t help but notice that Windom obtained the subpoena the day after Paul Sperry claimed the Trump had been hoarding documents at Mar-a-Lago with the intent of thwarting the January 6 Committee. (h/t Ron Filipkowski)

Anything seized in the raid would, by definition, be evidence of a crime (the obstruction already under investigation). And Windom might have been able to craft the subpoena to obtain everything January 6 related that Trump had withheld, without the privilege waiver from Biden.

And if Windom issued this subpoena in response to Sperry’s comment, then it’ll increase the likelihood that responsive materials will be turned over before any further legal stalling happens.

In other words, by hoarding the documents he most wanted to withhold from the Committee, he may have made it easier for prosecutors to get the materials.

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Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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Last December, when the DC Circuit ruled that the Archives should share Donald Trump’s materials relating to January 6 with the January 6 Committee, it emphasized the “rare and formidable alignment of factors supports the disclosure of the documents at issue.”

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

It likewise pointed to the careful attention (and month-long reviews) the Biden White House gave to each tranche of materials at issue.

Still, when the head of the Executive Branch lays out the type of thoroughgoing analysis provided by President Biden, the scales tilt even more firmly against the contrary views of the former President.

Judge Patricia Millet’s opinion even found that the due consideration Biden exercised was enough to reject Trump’s claim that the Presidential Records Act had given him “unfettered discretion to waive” his own Executive Privilege claim.

Lastly, former President Trump argues that, to the extent the Presidential Records Act is construed to give the incumbent President “unfettered discretion to waive former Presidents’ executive privilege,” it is unconstitutional. Appellant Opening Br. 47. There is nothing “unfettered” about President Biden’s calibrated judgment in this case.

Citing Mazars, the opinion also noted SCOTUS’ deference to information-sharing accommodations between the Political Branches, the Executive and Legislative Branches.

Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents. President Biden agrees with Congress that its need for the documents at issue is “compelling[,]” and that it has a “sufficient factual predicate” for requesting them. First Remus Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result, blocking disclosure would derail an ongoing process of accommodation and negotiation between the President and Congress, and instigate an interbranch dispute.

The Supreme Court has emphasized the importance of courts deferring to information-sharing agreements wrestled over and worked out between Congress and the President. See Mazars, 140 S. Ct. at 2029, 2031.

In other words, the request of a coequal branch of government, made with the assent of the incumbent President, presented a very powerful legal case for sharing Trump’s January 6 records with Congress.

When the Supreme Court considered the question, only Ginni Thomas’ spouse disagreed (Brett Kavanaugh did attempt to limit the decision).

The courts may well have come to this same conclusion had Merrick Garland’s DOJ subpoenaed records from the Archives for its own investigation of Donald Trump directly. A “subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding” is one of the three exceptions the Presidential Records Act makes to the parts of the law that restrict access to the materials for a period after the President’s Administration.

But constitutionally, it would have been a very different legal and political question.

Importantly, the only way to obtain a privilege waiver from Biden in that situation would be to violate DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations, and so the request would either have lacked that waiver from the incumbent President, or would risk politicizing the DOJ investigation.

The Biden White House’s strict adherence to that Contacts Policy is what allowed Karine Jean-Pierre to make a categorical denial of any advance warning of the search on Trump’s home and to use that as a reaffirmation of the rule of law last week.

She’ll probably get similar questions today, and make the same categorical denial of any White House knowledge.

All that is the predictable background to the NYT report that, after the January 6 Committee subpoenaed these records, and after the Archives gave both Presidents an opportunity to weigh in, and after the DC Circuit and Supreme Court ruled against Trump’s complaints, DOJ subpoenaed all the same material from the Archives themselves.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

While the NYT doesn’t say it, it seems likely that the Archives gave these already privilege-reviewed documents to prosecutor Thomas Windom with nary a squeak, and we’re just learning about it — indeed Trump may have just learned about it, which is where the subpoena probably came from — four months later. We’re just learning about it, importantly, after the FBI seized another 27 boxes of documents that Trump had refused to turn over to the Archives, including records (if you can believe Paul Sperry) pertinent to January 6.

When I predicted this would happen in December, I went out of my way to ask constitutional lawyers if they had another solution to the puzzle of getting Trump’s documents without violating that Contacts Policy, and no one even engaged with a question — how to overcome Executive Privilege — that had been a real problem for Robert Mueller, when he was investigating Donald Trump.

People will wail about the timing of this request and others, including the NYT, will falsely claim this is proof that DOJ is following the January 6 Committee.

Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.

There were covert steps taken before that, including the (admittedly belated) request for call records at least a month earlier.

In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.

And we’ve already seen proof that the fake electors investigation, at least, has pursued leads that the Committee had not yet made public before DOJ was including them in subpoenas.

Furthermore, the subpoena was issued before the Committee started its public hearings on June 9.

There are a couple of other notable details about this timing.

First, in addition to coming after the SCOTUS decision, this subpoena came after Mark Meadows and Ivanka made efforts to comply with the Presidential Records Act by providing the Archives copies of official business they conducted on their own email and Signal accounts. It also came after any responsive documents from the 15 boxes of records that Trump did provide to the Archives earlier this year were identified. DOJ made its request at a time when the Archives were more complete than they had been when the Committee started identifying big gaps in the records.

The only thing we know remains missing from those Archives (aside from documents seized last week) is Peter Navarro’s ProtonMail account, which DOJ sued to obtain earlier this month.

The Archives’ request also came after Trump had largely given up the effort to fight individual releases.

As NYT correctly noted, DOJ only issued this subpoena at a time when it was issuing other subpoenas (the fact of, but not the substance, of Brandon Straka’s cooperation had been made public in January, and Ali Alexander’s excuses for his actions at the Capitol had already been debunked in January after Owen Shroyer, who was arrested a year ago, made the very same excuses).

The subpoena was issued to the National Archives around the same time that it became publicly known that the Justice Department was looking beyond the rioters who were present at the Capitol and trying to assess the culpability of people who had helped organize pro-Trump rallies in Washington on Jan. 6. In the spring, for instance, Mr. Windom issued a grand jury subpoena to Ali Alexander, a prominent organizer of “Stop the Steal” events who complied by submitting records to prosecutors and testifying before the grand jury.

We don’t know what steps DOJ took before May (aside from those that have shown in cases like Straka’s). We do know that at that point, DOJ started taking overt steps that would build on previous covert ones. We also know that we keep learning about steps that DOJ took months ago, when people were wailing that they would know if DOJ had taken such steps.

I can’t prove that this was always the plan from the time, 375 days ago, when I first observed how DOJ was getting privilege waivers from Biden without violating their new Contacts Policy. I can’t prove it was the plan when I wrote an entire post in December about the puzzle of Executive Privilege waivers. I had no idea that DOJ was issuing that subpoena when I stated that it was probably doing so in May, the month it occurred.

We should assume the same kind of [synthesis with a Congressional investigation as happened with Mueller] is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

What I can say with no doubt, though, is that Merrick Garland’s DOJ solved one of the most challenging constitutional problems facing an investigation of a former President. And it solved that problem months ago.

And no one knew about it.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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Pat Philbin Knows Why the Bodies Are Buried

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Back on August 11, I predicted that Pat Philbin would have been one of the witnesses whom DOJ interviewed in advance of the search of Trump’s golf resort.

Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

Yesterday, Maggie Haberman confirmed that I was correct (and also reported that Pat Cipollone was also interviewed; Cipollone may have been the lawyer the Archives called after Philbin failed to get Trump to return the documents).

Mr. Philbin was interviewed in the spring, according to two of the people familiar with the matter, as investigators reached out to members of Mr. Trump’s circle to find out how 15 boxes of material — some of it marked as classified — made its way to Mar-a-Lago. It was unclear when Mr. Cipollone was interviewed.

Mr. Cipollone and Mr. Philbin were two of Mr. Trump’s representatives to deal with the National Archives; they were named to the positions shortly before the president’s term ended, in January 2021. Another was Mark Meadows, the former White House chief of staff.

At some point after National Archives officials realized they did not have Trump White House documents, which are required to be preserved under the Presidential Records Act, they contacted Mr. Philbin for help returning them.

A spokesperson for Mr. Philbin did not immediately respond to a request for comment.

Mr. Philbin tried to help the National Archives retrieve the material, two of the people familiar with the discussions said. But the former president repeatedly resisted entreaties from his advisers.

“It’s not theirs, it’s mine,” several advisers say Mr. Trump told them.

For the reasons I laid out above, it’s unsurprising that FBI interviewed Philbin (and Cipollone, if he is the other lawyer NARA appealed to). This was a referral from NARA, and they would have explained to FBI what CNN explained in February: that NARA had worked patiently with Philbin, but that Philbin failed to persuade Trump to comply with the Presidential Records Act.

Philbin’s early role in DOJ’s investigation is complicated, however, because the investigation implicates (at least!) three legal relationships Philbin has had with Trump:

  1. As a member of the White House Counsel Office that, among other things, first altered, and then withheld the full transcript of the Perfect Phone Call between Trump and Volodymyr Zelenskyy, provided legal advice about classification issues, and also advised staff as Trump’s team packed up
  2. As a member of Trump’s first impeachment defense team, which might have turned out differently if that full transcript had been shared with Congress
  3. As a liaison with NARA at a time when Trump was no longer President, probably formally within the context of his designation as a Trump representative to NARA

Philbin’s ethical obligations and legal exposure from all three of those relationships are different, but knowledge gained from all three positions would be of acute interest to the FBI.

Plus, Philbin has a deep background in national security law from the George W. Bush Administration. He played a key role in the review of John Yoo’s shoddy OLC memos and the related hospital confrontation between Jim Comey and Dick Cheney. Particularly after NARA referred the issue to FBI, it wouldn’t take long for Philbin to have appreciated the problem posed by all those unprotected files sitting in a closet in a golf resort targeted by foreign intelligence services. Nor would Philbin miss the legal gravity under the Espionage Act — for Trump, as well as for anyone who conspired with the person refusing to return stolen classified documents — implicated by Trump’s refusal to turn over what he had taken. And as a lawyer with at least another decade of private practice before him, I imagine Philbin would want to keep his clearance.

Those factors are important because Philbin knows why the bodies are buried — the decision-making process Trump used to handle classified information and the rationale Trump gave him during the period when Philbin was trying to negotiate the documents’ return.

Philbin may not have recent knowledge of where the bodies are buried: where Trump stored documents at Mar-a-Lago. But because he tried to chase these documents down in 2021, he would have a general understanding of what Trump’s storage practices were until such time as someone else inherited the problem, including whether they complied with CFR rules about minimum standards for storing classified documents (DOJ told Trump in June that they did not).

He would have a general idea of what bodies are buried. Because he tried to negotiate their return over the course of months, he would know the general scope of the documents Trump took with him in 2020 and may well have specific knowledge of individual documents NARA identified to be missing. He may know, for example, about specific documents that Trump was particularly opposed to returning. Speaking just hypothetically, that could even include the full transcript of that Perfect Phone Call that Philbin’s office had helped to keep out of the hands of Congress, potentially a violation of 18 USC 1519. It might also include documents Philbin saw in the lead-up to January 6, documents that would have been responsive to the known January 6 Committee subpoenas to NARA for Trump’s records. That means Philbin is among the people who may have been able to confirm to the FBI that documents excluded from the 15 boxes returned earlier this year were at Mar-a-Lago during the period he was negotiating their return. Such information is the kind of thing that the FBI would have included in the subpoena to search MAL.

But the most important thing that Philbin would know from his various interactions with Trump has to do with motive: Why the bodies got buried. Maggie quotes several advisers, possibly including one or both of the two Pats, that Trump told them, “It’s not theirs, it’s mine.” And it may be that’s the only motivation Trump ever expressed to Philbin. Trump is such a narcissist he really may just verbalize his theft of these documents by claiming ownership. But Philbin had firsthand knowledge of other efforts to withhold materials, as evidenced by the Perfect Phone Call transcript. He likely knows of Trump’s habit of ripping up burning eating or flushing damning documents. Philbin was still trying to get Trump to return documents after the time the January 6 Committee was convened, so Trump may have stated to Philbin what Paul Sperry claimed yesterday: that the reason Trump is withholding documents is because he knows NARA is legally obligated to share those documents with J6C.

Given the complex ethical issues he’d face, Philbin might not have been able or willing to share some of what he knows with the FBI, at least not at first. But the risks of an Espionage Act and obstruction investigation, including 18 USC 793g, which can be used to charge anyone involved in refusing to return classified documents even if they don’t share the motive of refusing to return them, might change Philbin’s ethical calculus. An experienced NatSec lawyer like Philbin would know that the Espionage Act carries an affirmative obligation to give classified documents back, particularly if their lawful owner, NARA, has asked. Once FBI got involved, Philbin would want to avoid any legal liability for his failure to convince Trump to comply, and Trump’s continued failure to comply would be a crime that might give Philbin the ethical leeway to do that.

When NARA asked Philbin to help them get those documents back, Philbin failed. That puts him in situation where he may have real incentive to explain both what Trump said to explain his refusal to comply with the Presidential Records Act, but also what, in Philbin’s personal knowledge gained two years as Deputy WHCO, several months during an impeachment defense, and much of a year as Trump’s NARA representative, Trump did when he took steps to make documents covered by the PRA unavailable to the NARA.

Update: As you consider the import of Philbin’s testimony, consider the significance of this reference in the government opposition to further unsealing of the Trump warrant.

Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.

Philbin has been subpoenaed in other investigations of Trump. But this passage suggests that if the extent and terms of his cooperation are made public, it may lead him and others to hesitate before cooperating in other investigations.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

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There Are 5,000 More Like Ricky Shiffer

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In the last week, the serial revelations that DOJ had interviewed high level Trump associates, served at least two overt subpoenas, and searched the former President’s golf resort have demonstrated that the army of TV lawyers insisting that “we would know” if Merrick Garland’s DOJ was aggressively investigating Trump were utterly wrong, and wrong for reasons that every single one of them is competent to have known.

Even with your garden-variety alleged white collar criminal (like former Congressman TJ Cox, who was indicted yesterday), DOJ prefers to conduct its investigations secretly, because such investigations are more likely to succeed.

All the more so for a guy with an army of heavily-armed supporters and a history of witness tampering. As the motion to continue sealing the Trump search warrant affidavit states explicitly, many Trump associates will only cooperate so long as they can avoid the backlash and real physical peril that testifying overtly will bring.

[I]nformation about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation. 5 Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.

5 This is not merely a hypothetical concern, given the widely reported threats made against
law enforcement personnel in the wake of the August 8 search. See, e.g., Alan Feuer et al.,
“Armed Man Is Killed After Trying to Breach FBI’s Cincinnati Office,” N.Y. Times (Aug. 11,
2022), available at https://www.nytimes.com/live/2022/08/11/us/fbi-cincinnati-shootingnews; Josh Margolin, “Authorities Monitoring Online Threats Following FBI’s Mar-a-Lago
Raid,” ABC News (Aug. 11, 2022), available at https://abcnews.go.com/US/authoritiesmonitoring-online-threats-fbis-mar-lago-raid/story?id=88199587.

The risk of political violence in response to investigations of Trump has come to a head in the last week. In the Kyle Fitzsimons bench trial yesterday, for example, witnesses leaving the DC courtroom were harassed by supporters of even this low profile assault defendant. And, as the government noted in their motion to oppose unsealing, last week an armed Trump supporter responded to Trump’s incitement by attempting to breach the Cincinnati FBI office, before being killed in a confrontation with cops later that day.

The guy who tried to breach the FBI office was not just any Trump supporter. He’s a Navy veteran who was at the Capitol on January 6.

A man identified by two law enforcement sources as Ricky Shiffer, who died in a confrontation with police after he fired a nail gun at a Cincinnati FBI building, appeared to post online in recent days about his desire to kill FBI agents shortly after former President Donald Trump’s Mar-a-Lago residence was searched.

Two law enforcement officials confirmed Shiffer’s name. Shiffer was at the Capitol riot on Jan. 6, 2021, according to three people aiding law enforcement who saw him in photos taken from the day of the attack; however, it’s unclear whether he went inside the building. Shiffer frequently posted about his attendance at the Capitol on social media.

On Truth Social, a social media platform founded by Trump’s media company, Trump Media & Technology Group, Shiffer appeared to have posted a message detailing his failed attempt to gain entry to the FBI building.

“Well, I thought I had a way through bullet proof glass, and I didn’t. If you don’t hear from me, it is true I tried attacking the F.B.I., and it’ll mean either I was taken off the internet, the F.B.I. got me, or they sent the regular cops while,” the account @RickyWShifferJr wrote at 9:29 a.m. ET, shortly after police allege the shooting occurred.

In fact, the FBI was already investigating him before he launched his attack.

The officials said federal investigators had been looking into whether the man, Ricky Shiffer, 42, of Columbus, had been involved in the Jan. 6 attack on the U.S. Capitol. They also said the F.B.I. had received a tip about Mr. Shiffer in May that was unrelated to Jan. 6, and agents opened a separate inquiry that included conducting interviews in Florida and Ohio.

The F.B.I. acknowledged in a statement that it had received information about Mr. Shiffer before Thursday, but said that the information “did not contain a specific and credible threat.” The bureau said agents from multiple offices had tried to find and interview him, but had not been successful. A neighbor at an apartment complex in Columbus where Mr. Shiffer lived, who declined to give his name, said federal agents had visited the property a few weeks ago and had asked him questions about Mr. Shiffer, including what time he left home most days and when he returned.

Law enforcement officials separately said they were investigating whether Mr. Shiffer appeared in a video posted on Facebook on Jan. 5, 2021, showing him attending a pro-Trump rally at Black Lives Matter Plaza in Washington the night before the Capitol was stormed.

This time around, as people start to ask, “if they FBI knew about this guy why didn’t they do something?” the FBI could (and should, but won’t) simply respond, “because everyone, from Trump opponents, law and order judges, Republicans in Congress, to TV lawyers told us to stop pursuing January 6 trespassers.” While Trevor McFadden and GOP Congresspeople have told DOJ to stop pursuing January 6 trespassers for different reasons, purportedly to protect political speech, Trump’s critics have said, explicitly, repeatedly, ignorantly, that suspected January 6 trespassers like Shiffer are low-level foot soldiers of little import to the country or to holding Trump accountable.

At this point (and, seemingly, for quite some time), DOJ really doesn’t seem to be arresting random trespassers. While the reasons for FBI’s heightened interest in a particular trespasser isn’t always clear (sometimes it is), most misdemeanor arrests these days seem to fit one or another investigative priority. In response to a recent claim DOJ was wasting its time with ongoing arrests of those who breached the Capitol, for example, I noted that recent arrests consisted of:

Compared to those arrests, Shiffer probably looked to the FBI just like another rabid Trump supporters whose uncertain movements around January 6 and transient recent history made him especially difficult to arrest, but whose military background and that recent tip generated active investigative interest. Yes, he was a rabid Trump supporter who, any moment, could turn — could be turned — into an imminent threat.

But at least given what we know thus far, the FBI likely had few clues that he was going to be the one whose online calls for war would turn to action.

That’s because there are 5,000 more like him out there.

I don’t mean, there’s a shit-ton of Trump supporters who could go postal at any moment. There are far more than 5,000 of them.

I mean, there are 5,000 people who participated in January 6 that the FBI might have predicated investigative interest in, but has not yet arrested.

That’s a fairly conservative number. In recent days, DOJ passed the 850 arrest mark for January 6 defendants. There are probably 1,500 to 2,000 more people who entered the Capitol on January 6 whose arrest would be comparatively easy (because their trespass is fairly easy to prove) who have not yet been arrested. There are probably 250 identified suspected assailants still at large (over 530 people, including those who’ve been arrested, are listed on the FBI site). And there were probably 10,000 people who breached the external barricades but did not enter the building that DOJ would only arrest if there were something extra — the political profile of Ryan Kelley or Couy Griffin, the pre-existing Deferred Prosecution Agreement of Owen Shroyer, conspiracy ties like Stewart Rhodes — to justify the arrest. Sure, the people who attended the January 5 rally, as Shiffer did, were more likely to participate in more radicalized online networks; those people weren’t in DC just to hear the loser of an election speak.

But at every moment that DOJ has been investigating the leaders that orchestrated January 6 (which provably started within weeks of the attack) and at every moment that DOJ has been investigating Trump’s other criminal acts, DOJ and FBI have been trying to deal with the growth of political violence that Trump has deliberately fostered. DOJ spent the weeks after January 6 doing triage, trying to arrest enough people to get visibility on the very real plans for follow-on attacks before or at the Inauguration. DOJ spent the year after January 6 trying to incapacitate the militia networks that served as an organizing structure for the attack. And DOJ has spent the last six months, as it turned more overtly to investigate several sets of crimes by the former President, trying to anticipate which of those 5,000 veterans of January 6 would, alone or in concert, attempt to reignite a civil war.

I hope that, given the Shiffer example, impatient people who’ve never bothered to understand the crime scene itself will remember that everyone they’ve dismissed for a year as low-level January 6 trespassers may be the next Ricky Shiffer. It’s easy to imagine that if you just arrest Trump all that political violence will dissipate. But that wouldn’t even have been true in 2019, if Mueller had indicted, and it sure as hell isn’t true now. And every step DOJ takes to get closer to arresting Trump, or even just hold the butchers like Fitzsimons who took up arms on January 6 accountable, the mob of people that Trump radicalized on January 6 remains an urgent threat.

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