Trump’s Attorney Debunked Trump’s Claim to Have Invoked Executive Privilege Two Weeks Ago

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Since WaPo first reported as BREAKING NEWS that they had been duped by Steve Bannon, I’ve spent a whole bunch of time pointing out that the claims multiple outlets were falsely reporting as true — specifically, that Trump had invoked Executive Privilege over Bannon’s testimony — were instead news only because it was a transparent lie.

I laid out all the reasons why it could not be the case that an Executive Privilege invocation was the reason Bannon had refused to testify:

  • The January 6 Committee asked for things that Bannon’s own attorney, Robert Costello, acknowledged weren’t privileged
  • Trump’s attorney, Justin Clark, provided broad guidance about claiming privileges generally but did not do the things — like making individualized privilege claims — required to invoke Executive Privilege
  • Clark acknowledged that some of the things DOJ asked for weren’t privileged at all
  • Clark also twice warned Costello that his guidance did not extend to immunity from testifying entirely, which Costello had repeatedly claimed it did

I even provided links — so all the journalists getting their ass handed to them by Steve Bannon — could check for themselves.

Those same journalists plus Mar-a-Lago stenographer might also refer to the letter that Trump’s attorney, Justin Clark, sent  Costello, which among other things acknowledges that the subpoena calls for records and testimony,

including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.

That’s a far cry from invoking Executive Privilege over the things that might actually be privileged, and it concedes that not all potentially privileged materials are covered by Executive Privilege and further concedes the subpoena is “not limited” to information that might be privileged. So even if Bannon’s decision to blow off the Committee was entirely guided by that letter, it would be inaccurate to say Trump properly invoked Executive Privilege or that Executive Privilege was the only issue.

That’s pertinent because among other things these bozos wanted to do was claim attorney-client privilege over meetings between non-attorney Mike Flynn and non-attorney Bannon.

The journalists plus Mar-a-Lago stenographer might also check out the two emails that Clark sent Costello, which made it clear that his instructions didn’t go beyond that ambivalent letter, and sure as hell didn’t give him immunity from showing up and answering questions, which is (contra to what the WaPo claims) what distinguishes Bannon from Mark Meadows and Dan Scavino, on whose behalf Trump did claim immunity from testifying, valid or not. [my emphasis]

I should have just waited.

In a motion in limine from the government seeking to exclude Bannon’s latest manufactured stunt from his trial, DOJ revealed that a surprise witness identified in a recent filing was in fact Trump’s lawyer, Justin Clark, and Clark confirmed much of what I had laid out in my post.

On June 29, 2022, former President Donald Trump’s attorney, who sent the letter on which the Defendant claimed his noncompliance was based, confirmed what his correspondence has already established: that the former President never invoked executive privilege over any particular information or materials; that the former President’s counsel never asked or was asked to attend the Defendant’s deposition before the Select Committee; that the Defendant’s attorney misrepresented to the Committee what the former President’s counsel had told the Defendant’s attorney; and that the former President’s counsel made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance.3 Even the Defendant’s claim that the reason he is now willing to testify is because the former President is “waiving” executive privilege is subject to question given all of the evidence and law that has been addressed in this case, of which he must be aware, demonstrating that executive privilege never provided a basis for total noncompliance in the first place.

3 The Government provided an FBI report of the interview in which the attorney made these statements to the Defendant on June 30, 2022, the day after the interview was conducted. [my emphasis]

In other words, Justin Clark has testified (and may, at Bannon’s trial) that what Trump has gotten a bunch of credulous journalists reporting as fact is a lie.

Trump’s own attorney says Trump is lying (and by association, the journalists got badly duped).

DOJ’s filing says a number of other things I’ve been saying too. First, if Bannon had really changed his mind about cooperating, he would have already turned over documents.

First, the Defendant apparently has not told the Committee he wishes to provide documents responsive to the subpoena, so his eleventh-hour efforts do nothing to begin to cure his failure to produce records.

Costello may have already known about this filing when he claimed, after Kyle Cheney asked him specifically about it, that he was going to work on documents — in the future — too.

It even points out what I did about instance of Maggie humiliating herself for Trump: In addition to sharing a lawyer with Rudy Giuliani, Bannon also shares lawyer Evan Corcoran with Trump.

The Government notes as well that news reports indicate the Defendant’s attorney in this case now also works for the former President and that his law firm is being paid by the former President’s Super PAC.4

4 “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges,” N.Y. Times, June 18, 2022, available at https://www.nytimes.com/2022/06/18/us/politics/trump-jan-6- legal-defense.html (last accessed July 10, 2022); “Trump Group Pays for Jan. 6 Lawyers, Raising Concerns of Witness Pressure,” N.Y. Times, June 30, 2022, available at https://www.nytimes.com/2022/06/30/us/trump-jan-6-lawyers-witness-pressure.html (last accessed July 10, 2022)

Let’s be clear: From the start, the headlines from this latest Trump-Bannon stunt should have been that Justin Clark debunked it months ago.

But now, for the reporters who are too lazy to read the court record they’re purportedly reporting on, DOJ just made that so clear that even the credulous reporters should understand now.

Steve Bannon, 30 Second Man

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Predictably, multiple outlets are following the WaPo in serving as Steve Bannon’s chumps. The Guardian, CNN, and NYT reported Bannon’s false claims that the reason he blew off the January 6 Committee subpoena last year was because of Executive Privilege as if they were true.

So I’d like to point out another way in which these outlets have been manipulated by Bannon.

Back on June 29 (less than two weeks ago), Bannon moved to delay his trial until October, claiming — as many other accused January 6 criminals have — that publicity associated with the January 6 Committee makes it impossible to get a fair trial. It was a reasonable claim for the Proud Boys to make. But thus far, Bannon has no more figured in the hearings than other passing faces in the mob.

Indeed, DOJ mocked Bannon’s claim, noting that he had been mentioned just twice in more than fourteen hours of hearings, one of which was just a description that he had blown off the Committee subpoena.

To date, the Committee has held seven hearings, spanning more than 14 hours in total.1 The Defendant was not mentioned at all during five of them, and was featured only in passing in the Committee’s June 9 and June 21, 2022, hearings—for a combined total of less than 30 seconds. These are the two instances that the Defendant cites in his brief, couching them in the language of “for instance,” and “[a]nother example,” ECF No. 88 at 11, to suggest that they are just two of many more such instances, when in fact they are the only ones.

But a closer look even at these two brief mentions of the Defendant by the Committee demonstrate that they do not call prejudicial attention toward the Defendant with respect to his criminal trial, and are nothing like the dramatic cases that the Defendant attempts to marshal in support of his motion. First, in its June 9, 2022, hearing, the Committee’s ranking minority member, Rep. Liz Cheney, mentioned the Defendant’s podcast as part of her opening statement. In particular, Rep. Cheney said, “And on the evening of January 5th, the President’s close advisor, Steve Bannon, said this on his podcast.” The Committee then played a clip of the Defendant speaking three sentences on his own media program—“All Hell is going to break lose tomorrow. Just understand this. All Hell is going to break loose tomorrow”—without further commentary. See June 9, 2022, Hearing, at 51:42-52:01.2 Rep. Cheney’s neutral introduction to the Defendant’s own statement and the Defendant’s statement include no reference to the crimes for which the Defendant has been charged or commentary on the Defendant’s commission of the charged offense. And at the Committee’s hearing on June 21, 2022, as part of her concluding comments during a hearing that spanned nearly three hours on topics wholly unrelated to the Defendant, Rep. Cheney said, “Others, like Steve Bannon and Peter Navarro, simply refused to comply with lawful subpoenas. And they have been indicted.” June 21, 2022, Hearing at 2:44:30-2:44:37.3 The Defendant makes no argument about how this factual statement regarding his non-compliance and his subsequent indictment will result in the potential jury being “so aroused against” him that he will not receive a fair trial. Haldeman, 559 F.2d at 62.

In fourteen hours of hearings, Bannon merited no more than thirty seconds of attention.

Presciently, DOJ noted that no one but Steve Bannon and his lawyers are talking about Steve Bannon.

Further, while the Defendant’s motion describes media coverage of the Committee’s hearings overall, the Defendant does not cite a single media article covering the Committee’s hearing that mention the Defendant. That is because there are none. In fact, the Defendant and his attorneys have caused far more pretrial publicity about this case than the Committee hearings have by holding press conferences at the courthouse and speaking with reporters.

Bannon responded on July 6, just four days ago, presenting entirely irrelevant data that counted how many times his name has shown up in the press, then attributing all of that to the Committee, and not his own big mouth.

Then he opened his own big mouth and caused what he claims he’s trying hard to avoid: a press torrent of mostly inaccurate reporting.

Two weeks ago, Steve Bannon needed to be something more than a thirty second man in hopes of delaying his trial. And multiple outlets jumped to do his bidding.

WaPo Says It’s Breaking News That They’ve Been Duped by Latest Trump-Bannon Lie

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The Washington Post treats as BREAKING NEWS that they’ve been duped by the latest Trump-Bannon lie — in this case, that the reason Steve Bannon blew off the January 6 Committee is because Trump invoked Executive Privilege.

Former President Donald Trump is considering [1] sending a letter to Stephen K. Bannon saying that he is waiving his claim of executive privilege, potentially clearing the way for his former chief strategist to testify before the House select committee investigating the pro-Trump riot at the Capitol. [2]

The letter would reiterate [3] that Trump invoked executive privilege in September 2021, when Bannon was first subpoenaed by the House committee. But it would say that the former president is now willing to give up that claim — the validity of which has been disputed [4] — if Bannon can reach an agreement on the terms of an appearance before the panel. The letter was described by three people familiar with it, who spoke on the condition of anonymity because of the matter’s sensitivity.

Some advisers were seeking to talk Trump out of signing the letter. [5]

Let’s start with claim 1 and 5. This BREAKING story is about a letter … that Trump has not signed and may not sign.

Which means it’s not so much a news story as an intervention, presumably by the “some advisers” trying to convince Trump not to sign this.

But even if the letter had been signed, it would be news primarily because it was a lie, not because — as asserted in claim 2 — it “clear[ed] the way for his former chief strategist [sic]” to testify. One way three named journalists (or perhaps two, plus WaPo’s Mar-a-Lago stenographer) might figure out that claim 2 is false is by looking at the subpoena to Bannon, which among other things asked for any references he made to the insurrection on his podcasts, something which (even his attorney Robert Costello conceded) could not be covered by any claim of privilege.

In fact, Costello conceded that seven of seventeen things included in the subpoena could not be covered by any Executive Privilege invocation.

Those same journalists plus Mar-a-Lago stenographer might also refer to the letter that Trump’s attorney, Justin Clark, sent  Costello, which among other things acknowledges that the subpoena calls for records and testimony,

including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.

That’s a far cry from invoking Executive Privilege over the things that might actually be privileged, and it concedes that not all potentially privileged materials are covered by Executive Privilege and further concedes the subpoena is “not limited” to information that might be privileged. So even if Bannon’s decision to blow off the Committee was entirely guided by that letter, it would be inaccurate to say Trump properly invoked Executive Privilege or that Executive Privilege was the only issue.

That’s pertinent because among other things these bozos wanted to do was claim attorney-client privilege over meetings between non-attorney Mike Flynn and non-attorney Bannon.

The journalists plus Mar-a-Lago stenographer might also check out the two emails that Clark sent Costello, which made it clear that his instructions didn’t go beyond that ambivalent letter, and sure as hell didn’t give him immunity from showing up and answering questions, which is (contra to what the WaPo claims) what distinguishes Bannon from Mark Meadows and Dan Scavino, on whose behalf Trump did claim immunity from testifying, valid or not.

And not to be persnickety, but even if claim 2 — that Trump had invoked Executive Privilege — were true, all those communications got sent in October, not September.

Claim 4? That alleged dispute about Trump’s claims of Executive privilege? If anyone is disputing that it’s not valid, they’re defying the ruling of the Supreme Court, which is about as undisputed as one can get.

The entire premise of this story is wrong. But because the WaPo accepted several false premises, it served as cover for an excuse for Bannon to change his mind about testifying before the Committee before his trial starts in less than two weeks.

It is rather interesting that Bannon, possibly in coordination with Trump, is reconsidering his willingness to go to jail to obstruct the Committee. Perhaps, as happened in similar fashion in 2018, Trump wants to script Bannon to give false claims to the Committee, partly in an effort to learn what the Committee knows. Perhaps Bannon would simply show up and do what Mike Flynn and Roger Stone did, plead the Fifth to everything — including, in Flynn’s case, whether he believes in the peaceful transfer of power.

A report on which of those things were going on would make an interesting news story.

But the WaPo isn’t reporting on the game that Trump and Bannon are playing. Instead, they are being gamed.

Robert Costello Reveals He Was Working for Steve Bannon a Year before He Was Publicly Hired

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After belatedly joining Steve Bannon’s defense team as DOJ was collecting evidence about whether his claims matched the available evidence, Robert Costello is now asking to withdraw, citing a concern — one DOJ raised in a phone call on December 2, the same day he filed his notice of appearance — that he might have to serve as a witness.

The decision to withdraw just days before trial is interesting in any case.

All the more so given Costello’s claim that he has represented Bannon for the past three years.

Maybe he has … maybe he has!

Curiously, though, that conflicts with the known timeline of how his relationship with Bannon came about. You’ll recall that until November 6, 2020, Bannon was ably represented — through a serially evolving story in the Mueller investigation — by Bill Burck. But then, on November 5, 2020, Bannon threatened to behead the FBI Director and the COVID Czar.

So Burck essentially fired Bannon. According to Burck’s court filing, Bannon was, at that point, hiring new counsel.

A month later, on December 11, 2020, at a time when according to public reports, Trump was offering pardons to those, like Bannon, implicated in the Build the Wall fraud, in exchange to those who helped his coup attempt, Costello filed his notice of appearance for Bannon — at least by context, he was the new counsel.

Maybe my math is off, but December 11, 2020 is less than three years ago — less than two, even!!

All that said, Costello — who was implicated in the Mueller investigation for attempting to broker a pardon to keep Michael Cohen silent — was being hired by someone roughly three years ago, though it wasn’t Bannon. It was this guy, Rudy Giuliani, the guy through whom Costello had previously attempted to broker a pardon.

The legal representation of Trumpsters is always so incestuous it’s hard to tell where representation for one person begins and the other ends (as a reminder, Bannon’s other two lawyers either used to — David Schoen — or reportedly still do — Evan Corcoran — also represent Trump). But at least according to Costello’s filing, he’s been representing both Bannon and Rudy all this time.

Georgia Grand Jury Subpoenas Include False State Farm Arena Claims

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As multiple outlets have reported, Fulton County DA Fani Willis has obtained subpoenas for Rudy Giuliani, Kenneth Cheesebro, John Eastman, Jenna Ellis, Jacki Pick Deason, Cleta Mitchell, and Lindsey Graham. (Thanks to Georgia Public Radio for releasing all the documents.)

The subpoenas reveal that the scope of the investigation is broader than originally understood (which previously was limited to Trump’s call to Brad Raffensperger to ask him for almost 12,000 votes).

For example, a number of the subpoenas have language similar to this, from Rudy’s subpoena.

As part of those efforts, on December 3, 2020, the Witness and other individuals known to be associated with both him and the Trump Campaign appeared publicly before the Georgia State Senate at the Georgia State Capitol in Atlanta, Fulton County, Georgia. At that hearing, the Witness provided testimony, additional witnesses, and documentary evidence purporting to demonstrate the existence of election fraud in multiple Georgia counties during the administration of the November 2020 election. Among the evidence offered by the Witness was a video recording of election workers at State Farm Arena in Atlanta that purported to show election workers producing “suitcases” of unlawful ballots from unknown sources, outside the view of election poll watchers. Within 24 hours of the December 3, 2020, legislative hearing, the Georgia Secretary of State’s Office debunked the State Farm video and explained that its investigation revealed no voter fraud of any kind had taken place at State Farm Arena. Despite this, the Witness made additional statements, both to the public and in subsequent legislative hearings, claiming widespread voter fraud in Georgia during the November 2020 election and using the now-debunked State Farm video in support of those statements. There is evidence that the Witness’s appearance and testimony at the hearing was part of a multi-state, coordinated plan by the Trump Campaign to influence the results of the November 2020 election in Georgia and elsewhere.

That is, the investigation appears to have expanded to include the false claims made about the counting at State Farm Arena, including the vicious attacks on Shaye Moss and her mother.

Which means the investigation may incorporate threats not just against senior officials like Raffensperger, but also line workers like Moss who were terrorized by Rudy’s false claims.

South Carolinians Converging at the East Door … and Hampton Inn

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I’d like to look at how two men from South Carolina who stayed at the Hampton Inn together, George Tenney and Robbie Norwood, serially played key roles in opening the East Door on January 6.

As I noted in a post last July, Tenney was arrested with a former Marine named Darrell Youngers, though the subsequent investigation seems to have confirmed that they first met that day. The two of them entered the Capitol together at 2:19PM and went fairly directly to the East door by 2:24PM, where Tenney was the first to attempt to open that door to admit the thousands who had assembled outside. After tussling with the cops for a bit, the two gave up and left the Capitol.

Youngers was charged with just trespassing, but Tenney was charged with three felonies — obstruction, civil disorder, and assault — reflecting in part his contact with the cops and presumably also his premeditation in the weeks leading up to January 6.

When the men first started talking about pleading guilty, Youngers’ lawyer suggested they were sharing information with the government (though that doesn’t show up in their guilty pleas).

On March 30, Youngers pled guilty to parading, the trespassing charge most misdemeanor defendants plead to. His statement of offense focused on three things: Tenney’s efforts to open the East doors (and the contact he had with cops in doing so), Youngers’ own description of the “multiple doors” involved in breaching the Capitol, and an interview he and Tenney gave with William Norwood later that night.

12. YOUNGERS and Tenney proceeded to the area inside the Rotunda Doors. Tenney tried to force open the Rotunda Doors to allow more rioters to enter the Capitol, and he had contact with multiple federal employees in the course of doing so. Tenney and others succeeded in getting the Rotunda Doors open, allowing others to enter the Capitol.

13. YOUNGERS and Tenney eventually moved into the Rotunda. Before leaving the area of the Rotunda Doors, YOUNGERS said, “Two stories. Two floors. Multiple doors. The Capitol Building’s been breached.” YOUNGERS and Tenney retreated to the Rotunda and made their way to the area near Senate Wing Doors, exiting the Capitol Building through a window at approximately 2:32 p.m.

14. That evening, YOUNGERS gave an interview from a hotel room with Tenney and William Robert Norwood III, where they wore masks and head coverings to conceal their identities.

Here’s that interview, which Youngers, Norwood, and Tenney (from left to right) gave while masked.

Norwood — who according to his first bail hearing used to be in a militia, about three years ago — was arrested months earlier than the other two. He had been turned in by family members shortly after the attack after he bragged (falsely) about assaulting a cop. He does appear to know Tenney from South Carolina, but entered the Capitol separately, four minutes after him at 2:23. In a second motion for detention, the government alleged that Norwood led rioters to Nancy Pelosi’s office before joining the later effort to open the East door — the one that led to the Oath Keepers and others breaching the building. After allegedly asking his estranged wife to lie about his case, he was detained, though he and the government are in plea discussions.

Youngers’ plea agreement included the standard language January 6 misdemeanor pleas include, consisting of either a social media review and/or an interview with the FBI, suggesting (though the inclusion of such boilerplate is not reliable) he had not yet done so.

Your client agrees to allow law enforcement agents to conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing. Your client can accomplish this through an in-person meeting with a law enforcement agent to allow the law enforcement agent to look through social media accounts on your client’s phone or other device.

The plea agreement Tenney entered into last Thursday, however, lacks that language, which may suggest he already did one or some interviews with the FBI. If Tenney did, he didn’t get much of a deal: he pled to two of the felonies against him: civil disorder and obstruction, avoiding only an assault charge for wrestling with cops. Depending on whether DOJ succeeds in persuading Judge Thomas Hogan to apply an 8-level enhancement for official victim/property damage, Tenney’s sentencing guidelines will be 21 to 27 months (without the enhancement) or 41 to 51 months (with it) — the latter of which would be one of the stiffest sentences to date for a prosecution that didn’t involve assaulting a cop, but which might be appropriate for the tactically critical role that opening that East door played in occupying the Capitol.

But I’m more interested in Tenney’s statement of offense, particularly how it compares to his and Youngers’ arrest affidavit. That is, I’m interested in any sign that DOJ has learned why and how Tenney came to head right through the Capitol to the East side to open that door, where thousands were waiting, or whether Norwood’s subsequent successful efforts (as part of a larger group) to open the East doors was related.

With Tenney’s guilty plea, the government has included slightly more language from December 28 indicating that Tenney was coordinating with people who were planning for all eventualities.

In two bail proceedings the government focused on Norwood’s lies about leaving the vest and helmet he stole at the hotel. But he also appears to have lied about with whom he was staying at the Hampton, claiming he stayed with an older couple from Ohio rather than people close to his same age from nearby in South Carolina.

Finally, NORWOOD claimed that upon leaving the Capitol grounds, he and his wife met an older couple from Ohio, who invited them to stay in their hotel room at the Hampton Inn for the night. NORWOOD claimed that he left the police vest and helmet inside the hotel room, but he could not provide interviewing agents with any further details about the hotel.

After Norwood was interviewed. by the FBI, he let Tenney know about it, because Tenney told the FBI that he knew about it in an (similarly misleading) interview little over two weeks later.

TENNEY said that he was only inside the Capitol Building for three or four minutes before he and the people he was with realized that something bad was happening, prompting them to leave. He indicated that he did not think he was doing anything wrong at the time, but, in hindsight, wishes he had not gone inside the Capitol Building. TENNEY further stated that he did not engage in any violence inside or cause property damage. Instead, he said, he told people to stop damaging things and helped officers who had fallen to the ground to get back on their feet.

[snip]

During his February 9 interview, TENNEY also mentioned two other names: “Darnell,” (YOUNGERS’ first name is “Darrell”) and a person he identified as “Robbie” from Greenville, S.C., whom he said had already been interviewed by the FBI. TENNEY admitted to having met “Robbie” in the crowd at the January 6 rally, before he entered the Capitol.

In an interview after his arrest, Norwood admitted sharing a hotel room with Tenney.

In a subsequent interview on February 26, 2021, Norwood mentioned sharing a hotel room the night of January 6 with an individual named “George,” which is TENNEY’s first name.

What happened in that hotel room appears to be some of the substance of what Norwood was trying to convince his estranged wife to renege her testimony on months later, leading up to January (when prosecutors first asked Judge Emmet Sullivan to revoke Norwood’s bail).

The content of the defendant’s text messages with his estranged wife, appended as attachments to Pretrial’s Violation Report, show what appears to be a sustained campaign by the defendant to coerce, intimidate, threaten, and corruptly persuade a potential government witness to recant her statements to law enforcement and to obstruct justice. Communications between the estranged wife and defense counsel, which are also appended as attachments to Pretrial’s Violation Report, provide context for the text messages between the defendant and his estranged wife: “Robert Norwood has been trying to [coerce] me into emailing you, stating that, anything from my statements to the FBI were not true. However, I do not feel comfortable lying [sic] about anything. . . . I do not feel comfortable in anything that he was telling me to do.”

[snip]

The estranged wife’s communications with Norwood and with Norwood’s counsel show that the defendant has, at the very least, been pressuring his estranged wife to recant her statements to the FBI, to not be truthful, and to “keep [her] mouth shut.” ECF No. 29, Att. 3. In fact, when the estranged wife texted the defendant, “I will tell the whole truth,” the defendant responded, “No you won’t . . . You’ll tell them you reached out to me and made the offer. That I didn’t respond to you . . . Do not throw me under the bus . . . What part of spousal privilege don’t you get???” Id. Additionally, when the estranged wife texted the defendant, “I refuse to write another bogus f***ing email,” the defendant responded, “It’s not bogus, and it will help us both. . . . Do what you said you already did. You lied to me. STUP F***ING LYING ABOUT EVERYTHING AND HELP ME LIKE YOU SAID YOU WOULD.”

To be clear: it’s not clear what relationship there is between Tenney and Norwood, aside from their shared hotel room and proximity in South Carolina. It’s their shared focus on the East door.

At 2:24, after making a beeline through the Capitol, Tenney was the first person to open the East door.

And about fourteen minutes later, Norwood similarly helped open the East door.

Then later that night, the two men donned masks and told their stories of the day, stories that presumably explain how both came to help rioters amassed on the East side of the building open a second front of attack.

By December 28, 2020, Tenney knew of plans to siege the Capitol. On January 6, he and fellow South Carolinian Norwood both played key roles in that siege.

So what happened in between?

Thanks to @CapitolHunters for pointing me to this video, which takes forever to download, which shows both breaches, and to talk me through some of the other people of interest who have yet to be arrested.

Amid Claims of Witness Tampering, Revisiting Peter Navarro’s Alleged Contempt

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Last week, Steve Bannon engaged in a stunt, claiming that a Carl Nichols order requiring DOJ to provide official documents on things like executive privilege and testimonial immunity must cover DOJ’s declination decision with respect to Mark Meadows and Dan Scavino.

The stunt itself isn’t all that interesting.

Bannon claimed that he refused to testify in part on the same basis that Mark Meadows and Dan Scavino did, and so understanding how DOJ had distinguished them (whose prosecution DOJ declined) from him (who got charged) would reflect official policy.

The letters Trump lawyer Justin Clark sent to Meadows and Scavino made one difference clear, however (which the Bannon filing obliquely acknowledges). In instructing Meadows and Scavino to refuse to testify to the January 6 Committee as much as possible, Clark included language invoking testimonial immunity, on top of Executive Privilege.

Furthermore, President Trump believes that Mr. Meadows is immune from compelled congressional testimony on matters related to his official responsibilities. See Testimonial Immunity Before Congress of the Former Counsel to the President, [citing the Don McGahn OLC opinion]

The letter that Clark sent Bannon on the same day, October 6, had no such language on testimony immunity.

Indeed, after Robert Costello kept making claims about Trump instructing Bannon not to testify, Clark emailed him twice more, the first time to resend the same letter, and the second time to explicitly say that they didn’t think Bannon had testimonial immunity.

In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

Effectively, Trump’s team told Bannon to stall, but gave him no legal tools to do so. Bannon didn’t entirely ignore testimonial immunity. In a footnote, he accused Carl Nichols of misapplying the law with respect to immunity and privilege.

Finally, on this question, the Court’s oral Order of June 15, 2022, appears to indicate a view by the Court that Justin Clark’s view on the question of “immunity” is either relevant or somehow undercuts the invocation of executive privilege. It certainly is not relevant – immunity, unlike, executive privilege is not a legal concept for the President to invoke or confer and his view on “immunity” is of no consequence at all on the question of whether executive privilege was invoked. It was.

But he said the common invocation of Executive Privilege was itself enough to merit a more formal comparison (ignoring, of course, that Meadows provided some materials to the Committee that did not involve the President, whereas Bannon withheld even his public podcasts).

Though some of the news reports he cites name Peter Navarro, Bannon doesn’t invoke his case. In Navarro’s now-withdrawn lawsuit against the Committee, he invoked both testimonial immunity and Executive Privilege. But he cites no letter from Trump; instead, he relies on the same Don McGahn OLC opinion Bannon invoked in his filing. Of course, by the time Navarro was subpoenaed — February 9, as compared to the September 23 subpoenas for Bannon, Meadows, and Scavino (as well as Kash Patel) — SCOTUS had already ruled against Trump’s privilege claim.

So it may be that DOJ’s decision tree regarding charges looks like this:

Bannon’s filing may be a stunt, but he may be right that DOJ didn’t charge Meadows and Scavino because they could claim to have been covered by both Executive Privilege and testimonial immunity (and in Meadows’ case, even attempted to comply with non-privileged materials).

Given the evidence in Tuesday’s hearing that Trump and his associates continued to try to influence Cassidy Hutchinson’s testimony at least through March 7, I want to return to something I noted before: because Navarro didn’t lawyer up, whatever communications he exchanged with Trump’s lawyers would not be privileged.

After Bannon got indicted for contempt, DOJ obtained the call records for his lawyer, Robert Costello’s, communications going all the way back to when Costello’s previous representation of Bannon ended. If they did that with Navarro, they could get more than the call records, though.

Whatever else DOJ did with their charging decision, they also allowed themselves the greatest visibility into ongoing obstruction, while sustaining the case in chief.

The Men Disputing Cassidy Hutchinson’s Retelling of Trump’s SUV Lunge Got Warnings about Plans to Flood the Capitol

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Since Cassidy Hutchinson’s startling testimony on Tuesday, credulous journalists have reported anonymous sources pushing back against one of her most dramatic stories: that when told he was not going to the Capitol on January 6, Donald Trump lunged towards the steering wheel of the SUV taking him back to the White House and then went after the clavicle of the head of his detail, Bobby Engel.

On top of being anonymous, the pushback never disputed Hutchinson’s claim: that she was told this story by Tony Ornato, the Secret Service Officer that Trump elevated into an important political position at the White House, Deputy Chief of Staff, in front of Engel, who did not dispute the story. Plus, Alyssa Farrah has described that Ornato, in the past, has disputed things she said under oath (about Trump’s stunt in Lafayette Square), without himself going under oath.

Nevertheless, that anonymous pushback has distracted from a far more alarming detail in Tuesday’s testimony that Ornato and Engel have not disputed, neither on or off the record: that they got warnings about plans to occupy buildings in DC and, implicitly, warnings about Proud Boy involvement.

That revelation came just before Hutchinson affirmed a detail I’ve been almost alone in reporting for over a year: Not just Roger Stone, but also Rudy Giuliani, had links to the Proud Boys.

Cheney: US Secret Service was looking at similar information and watching the planned demonstrations. In fact, their Intelligence Division sent several emails to White House personnel, like Deputy Chief of Staff Tony Ornato and the head of the President’s protective detail Robert Engel, including certain materials listing events like those on the screen.

Cheney: The White House continued to receive updates about planned demonstrations, including information regarding the Proud Boys organizing and planning to attend events on January 6. Although Ms. Hutchinson has no detailed knowledge of any planning involving the Proud Boys for January 6, she did note this:

{video}

Hutchinson: I recall hearing the word[s], “Oath Keeper,” hearing the word[s], “Proud Boys,” closer to the planning of the January 6 rally when Mr. Giuliani would be around.

The reference to Ornato and Engel is among the first in Tuesday’s hearing: while Cheney had previewed Hutchinson’s interactions with Ornato and the Secret Service in her introduction, this reference was the first substantive description of Ornato’s activities. That description, as well as Hutchinson’s explanation of how she told Trump’s National Security Advisor Robert O’Brien that Ornato had had a conversation with Mark Meadows about the warnings of violence, came even before Cheney cued Hutchinson to explain what an important role the Deputy Chief of Staff played.

Some time later, the hearing revealed texts between Hutchinson and Ornato reflecting the latter’s awareness that Trump’s supporters were trying to avoid the metal detectors.

Importantly, Cheney mentioned something about this text exchange that doesn’t appear in the texts shown on the screen: a discussion between the two of them — Hutchinson and Ornato — about an “OTR,” an “off the record” movement to get Trump to the Capitol. The Committee appears to be withholding precisely what those texts say — involving Trump personally, and so colorably covered under Executive Privilege.

That may not be the only thing the Committee withheld from its presentation: note in my transcription above that Cheney doesn’t say Ornato and Engel received the warnings that were flashed on the screen. She says they received, “certain materials listing events like those on the screen.” [my emphasis] Particularly given the reports that the Committee met in a secure facility in advance of this hearing, that phrasing could allow for other records, records too sensitive to show publicly, tying the Proud Boys to plans to occupy buildings on January 6.

The story of Trump lunging in the SUV is a distraction, and Ornato, a loyal Trumpster, is likely using his pushback to distract from far more damning details of Hutchinson’s testimony:

  • Both Engel and Ornato had warnings of plans to occupy buildings
  • Hutchinson linked Rudy Giuliani in advance of the attack to both militias that attacked the Capitol
  • Ornato discussed these warnings in advance with Mark Meadows, who pushed Hutchinson away twice during the early moments of the attack
  • In spite of foreknowledge of a plan to occupy buildings and the involvement of militias, Ornato nevertheless continued to plan to take Trump to the Capitol

Secret Service loyalists, for all their anonymous pushback, are denying none of these far more damning details, details that put them — and Meadows and Trump — in far more complicit position with respect to the attack.

Pat Cipollone Predicted the Obstruction and ConFraudUS Prosecutions

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This morning, for the second time in two weeks, Liz Cheney called out former White House Counsel Pat Cipollone, by name, to cooperate with the January 6 Committee.

Yesterday’s testimony from Cassidy Hutchinson revealed one reason why his testimony would be so important. He predicted — on January 3 or 4th — that Trump might be prosecuted under the very same crimes DOJ has been charging for well over a year: conspiracy to defraud the United States and obstruction of the vote certification.

Cheney: We understand, Ms. Hutchinson, that you also spoke to Mr. Cipollone on the morning of the Sixth, as you were about to go to the rally on the Ellipse. And Mr. Cipollone said something to you like, “make sure the movement to the Capitol does not happen.” Is that correct?

Hutchinson: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning and Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”

Cheney: And do you remember which crimes Mr. Cipollone was concerned with?

Hutchinson: In the days leading up to the sixth, we had conversations about obstructing justice of defrauding the electoral count.

Cheney: Let’s hear about some of those concerns that you mentioned earlier in one of your interviews with us.

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Hutchinson: … having a private conversation with Pat on the after noon of third or fourth, um, that Pat was concerned it would look like we were obstructing justice, or obstructing the electoral college count. I apologize for probably not being very firm with my legal terms here.

Or rather, Cipollone didn’t predict Trump would be charged with ConFraudUS and obstruction. He predicted “we” would, presumably including himself and even Hutchinson.

Here I’ve thought I was ahead of the curve by predicting — last August — that if Trump were prosecuted, it would be for those crimes. It turns out that Trump’s White House Counsel was way ahead of me, predicting the same even before the insurrection!

Cipollone’s recognition of this legal exposure is important for a number of reasons. First, it validates DOJ’s approach — and does so in advance of the DC Circuit’s consideration of DOJ’s appeal of Carl Nichols’ outlier opinion rejecting such an application.

Those are also the crimes named in the warrant served on Jeffrey Clark last week.

But Cipollone’s awareness of this exposure also may explain why Cipollone has been reluctant to testify (though it’s possible he has testified with DOJ and simply doesn’t want that to be public). Hutchinson laid out a number of things that Cipollone did on January 6 that made it clear he was not willingly going along with Trump’s actions, most notably his efforts to get Trump to call off his mob before Trump re-ignited them with his 2:24 text attacking Mike Pence again. If there was a conspiracy to obstruct the vote certification, he took overt acts to leave that conspiracy before and during the conspiracy on January 6.

By that point, however, it may have been too late for Cipollone to avoid all exposure to Trump’s corrupt actions. That’s because Cipollone would have been involved in the pardons of those — Cheney focused on Roger Stone and Mike Flynn last night, but Bernie Kerik and Paul Manafort also got pardons — who would go on to play key roles in Trump’s insurrection. (I assume Cipollone was not involved in the Bannon pardon that came after the attack, and I noted in real time that Cipollone likely prevented a bunch of other pardons that would have made obstruction more likely.) That is, Cipollone might have exposure for obstruction for actions already taken by January 3 or 4 when he explained this legal exposure to Hutchinson.

Even Bill Barr said that rewarding false testimony with a pardon would be obstruction. And Roger Stone, Mike Flynn, and Paul Manafort all delivered on that quid pro quo.

For all Liz Cheney’s specific exhortations, Cipollone may know better than to testify to Congress. Because without testifying to DOJ, first, that may cause him more legal trouble than his current (presumed) silence.

Update: As a number of people in comments noted, the Committee has formally subpoenaed Cipollone.

Cassidy Hutchinson Proves that Trump Knew the Mob He Sicced on Mike Pence Was Armed

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Cassidy Hutchinson just gave absolutely historic testimony implicating Donald Trump, Mark Meadows, and other in January 6. (My live tweet is here.) The woman is incredibly poised and courageous. Her testimony might help to turn the tide against Trumpism in this country.

But her testimony is not enough, yet, to charge Trump in January 6.

Without taking anything away from her dramatic testimony, I’d like to boil down what she said that will be useful in holding Trump accountable.

She only recently committed to delivering this testimony

The Committee announced Hutchinson’s testimony just yesterday, less than 24-hours before her testimony, in spite of the fact that she had already sat for three interviews with the committee, as well as a fourth quite recently. The decision to testify was so recent that members of the Committee had to fly back from their recess to attend.

A key reason she was willing to testify more forthrightly, it seems clear, is she recently (earlier this month) replaced her lawyer from a Trump loyalist to Jody Hunt. Hunt, once Attorney General Jeff Sessions’ Chief of Staff, is still a conservative Republican, but he has spent years holding up principle against Trump.

Particularly given his ties to the department, it’s likely that Hunt will happily guide Hutchinson to share this testimony with DOJ.

For those asking why DOJ didn’t have this testimony earlier, the answer is simple: It has taken a process for Hutchinson to get here.

She is a firsthand witness to important details

A number of things Hutchinson said are damning direct evidence against Trump or others. But it’s important to break that down, because while all of it would be admissible in a conspiracy, not all of it would be admissible against Trump.

  • In a conversation on January 2, Giuliani told Hutchinson Trump was going to go to the Capitol; when she asked Meadows about this, he said “things might get real bad on the Sixth.” This implicates both Rudy and Meadows in foreknowledge, though not Trump directly.
  • Hutchinson provided evidence that there was intelligence warning of violence (and that John Ratcliffe knew about it); she did not say — though it’s likely — that Meadows and Trump had the same awareness.
  • Hutchinson described that there were mentions of militia in advance in discussions implicating Rudy in advance of the insurrection. These would need to be more specific to be worthwhile evidence, but she may be able to point DOJ to where to get more specifics.
  • Hutchinson described advance knowledge of Trump supporters bringing weapons both in advance of January 6 and that day. Hutchinson specifically said that Meadows did not act on these warnings. She also made it clear that Deputy Chief of Staff Tony Ornato had spoken to the President about the weapons, but she did not say she knew what happened in that conversation.
  • Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.
  • Some of Hutchinson’s most damning testimony involved his insistence on going to the Capitol. Some of this — the most damning, her description of how he lunged at his Secret Service detail when he refused to take Trump to the Capitol — was second-hand. It would require Ornato or Trump Secret Service Agent in Charge Bobby Engel to present that in a trial. Plus, Trump would offer less incriminating explanations for why he wanted to go to the Capitol. Hutchinson mentioned he wanted to enter the chamber, though, which should be developed more (because he would require an invitation). The Secret Service is now pushing back on this.
  • During the rally at the Ellipse, Mark Meadows twice pushed Hutchinson away when she was trying to warn him of violence at the Capitol. This squandered 20-25 minutes in which he might have responded to the initial violence, but since he did nothing for hours anyway, it made little difference. It does, however, reflect Meadows’ own disinterest in protecting the country.
  • Hutchinson’s description of efforts to keep belligerent language out of Trump’s speech reflects on Pat Cipollone’s foreknowledge of Trump’s criminal exposure, but probably would require Cipollone’s testimony to be admissible against Trump. Hutchinson described Cipollone’s legal concerns about going to the Capitol, as well, but not necessarily that he explained that to Trump.
  • Hutchinson alluded to discussions involving Mark Meadows, Rudy, and Scott Perry about what they would have done if Trump had made it to the Capitol, but she explicitly said she wasn’t sure which of those plans were shared with Trump.
  • At Trump’s request, Mark Meadows remained in the loop with Mike Flynn and Roger Stone on January 5 which may help implicate Meadows in the militia planning; Hutchinson discouraged Meadows from attending the War Room at the Willard in person, but he did call in.
  • After the attack started Hutchinson described, Meadows telling Cipollone that “he doesn’t want to do anything,” suggesting the President didn’t want to respond at all to the Capitol attack. But that would require testimony from one or both of them to clarify the meaning.
  • Perhaps the most damning part of her testimony described that Meadows and Cipollone were in the Oval with Trump discussing the hang Mike Pence chants just before Trump put up the 2:24 tweet claiming Pence hadn’t shown courage. It’s in that conversation where Trump said, “Mike deserves it.” This goes a long way to proving the deliberate effort by Trump to put Pence at more risk. But DOJ would need another witness and/or some corroboration for the timeline to place the “Mike deserves it” comment to just before Trump sent the tweet.
  • The Committee presented some of the calls from others, including Ivanka, for Trump to call off the rioters; Hutchinson’s testimony will be one part of the evidence that Trump did nothing during the attack (though Meadows’ comment that “Trump didn’t want to do anything” may be more important to show affirmative refusal, but DOJ would need to get Meadows’ testimony on that point).
  • Hutchinson also testified that both Rudy and Meadows wanted a pardon after January 6, which implicates them, but not Trump.

Hutchinson may lead to or force the testimony of others

Whether it happens with the January 6 Committee or DOJ, Hutchinson’s is the kind of testimony that might identify witnesses who would cooperate with DOJ or against whom Hutchinson’s testimony could be used to coerce cooperation.

For example, there’s a greater (Cipollone) or lesser (Kevin McCarthy) that her testimony will embarrass or otherwise convince other witnesses to cooperate with the Committee.

Her testimony identified other White House staffers who were also witnesses to Trump’s demands that the Secret Service ditch the magnetometers or that he go to the Capitol, who would make key witnesses for DOJ.

If Ornato and Trump’s Secret Service detail have been unwilling to testify, this may make it easier to obtain their testimony.

Hutchinson’s testimony tied Rudy to the militias in advance. She also established Rudy’s foreknowledge of a plan to go to the Capitol. These might be really important details implicating Rudy (plus she was witness to some of his earlier efforts to sow the Big Lie.

Her testimony tied Meadows into the plotting at the Willard (on Trump’s orders). And she otherwise depicted Meadows as taking no action because Trump didn’t want to. The case against Meadows would/will need to be far more robust, but having testified against him publicly, she’s likely to be able to offer DOJ far more.

Liz Cheney raised witness tampering in this hearing, without naming names. It’s quite possible Hutchinson has firsthand knowledge of that.

Trump sicced a mob he knew to be armed on his Vice President

To sum up, the most important pieces of testimony show that Trump knew well a significant number of the people at his rally were armed. And after siccing them on his Vice President (and trying to join them), instead of calling them off, he instead further incited violence against Pence, claiming at the moment he did so that they were right to attack Pence.