Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

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I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

The L-Word Not Used [UPDATE-1]

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[NB: Check the byline, thanks. Update at the bottom of this post. /~Rayne]

I wish MSNBC did a better job of getting their content up on YouTube; I really need a link to Nicolle Wallace’s interview of Morgan State University’s Dr. Jason Johnson and his reaction to testimony by Fulton County GA election worker Shaye Moss. (temporary link: https://youtu.be/fEHkOzfa9Zs)

Before answering Wallace’s request for reaction, Johnson expressed concern about ‘performative Blackness’ — behaving as whites might expect of a Black American — but his fury was absolutely righteous.

Johnson acknowledged Shaye and her family should not have been subjected to the harassment unleashed on them by Donald Trump, but he went a bit further. He could identify with Moss’s grandmother as his own. This assault on the conduct of elections was personal.

Many of us are shocked, angry, dismayed by the harrying intimidation Moss and her mother and grandmother endured simply because Moss and her mother were election workers. Some of us have been moved to tears.

But what we’re missing is what Dr. Johnson avoided saying in his care to avoid offending white Americans with ‘performative Blackness’.

What was described by the testimony today was the mobilization of a lynch mob.

When watching or reading news coverage of today’s hearing, written, produced, and delivered by predominantly white Americans, listen closely for the generalization of terror. Election workers in multiple states were all subjected to harassment by angry protesters incited by Trump.

But Shaye Moss and her family endured another layer of terror — that of recognizing the horror aimed at Black Americans since the Civil War for having the temerity of exercising their rights as citizens, for supporting others’ right to vote.

As Johnson explained it, election officials — all of them white — were able to avail themselves of some security provided by the state due to their governmental roles.

But Moss and her mother and grandmother were only election workers, not officials.

They were on their own to work out how to protect themselves from the threat of mob violence over months’ time.

The white election officials will go on about their lives, perhaps facing the occasional in-your-face annoyance from Trumpers, but they won’t have to worry they’ll continue to be targets of violence.

Moss and her family know how lynch mobs work. Her visually obvious stress today may reflect this deep cultural knowledge unfamiliar to white Americans.

This is not to minimize the experience of officials like Rusty Bowers, whose daughter was not only seriously ill but likely mortally so as she passed away 22 days after January 6. It must have been horrifying to know his wife and daughter were subjected to harassment at such a critical time in their lives.

It must have horrifying to know one’s young teen was alone at home in the case of another election official, unable to predict how the protesters would act as time went on.

Neither, though, were targeted simply for being election workers who were Black in a white-minority county, doing their jobs while not having any authority to change anything about the election.

Hunted down and harassed by a mob because mother Ruby passed her daughter Shaye a mint. Fearful going forward, always looking over their shoulder, because they know these kinds of mobs and how they operate.

White pundits and reporters have and will discuss the terror Trump inflicted on election officials, but they’ve not yet mentioned the specific kind of terror Moss and her family experienced and continue to experience.

~ ~ ~

There’s another facet which surfaced as Moss testified and her mother’s testimony was streamed. Moss explained how she enjoyed serving her community’s exercise of the vote, in keeping with her grandmother’s teaching that the vote was critically important.

This was an expression of secular communion — ministering to the community especially those most in need of aid to participate.

Where Arizona’s Rusty Bowers explained his belief in a spiritual link between the nation’s founders and the drafting of the Constitution as well as his deep respect for that relationship, Moss expressed a link which was similar to that bond between members of faith communities. It is a vital thing which brings the community together regularly and unifies them in the act of perpetuating democracy.

The lynch mob Trump dispatched broke that link, severing Moss from that which her forebear impressed upon her.

This was a psychic and spiritual injury inflicted by Trump, his minions and mob, upon a Black American family and community.

Those of us who have been moved to tears at the loss Moss and her family experienced may not be able to articulate what this damage was because we have not been taught to value this social act of unification. For white Americans in particular this damage may not be perceived as lasting.

But it’s real and it was shredded by that racist entitled monster Trump.

~ ~ ~

This post may disturb community members here, most of whom are white. They may feel discomfort at the idea of a lynch mob incited by an American president when white election officials were also targeted by angry protesters (waiting for the hashtag NotAllElectionOfficials).

Don’t give into this discomfort. Do not be blind to role race plays when the GOP congressional caucus has obstructed voter rights protections, when states with GOP-led legislatures have failed to ensure voter suppression targeting BIPOC voters has ended.

Lynching isn’t always violent physical death or terror which diminishes Black Americans’ lives. Sometimes it’s the slow whittling away of their citizenship, one squelched civil rights bill at a time.

You want to make it up to Moss and her family and her community? Figure out how to fix this and ensure their full civil rights including the right to vote. The filibuster, for example, should never impede civil rights to which all Americans are entitled.

~ ~ ~

UPDATE-1 — 2:50 PM ET 22-JUN-2022 —

Susan A. Kitchens captured the entire segment on MSNBC’s Deadline with Nicolle Wallace, posting it in a Twitter thread. Dr. Jason Johnson’s remarks are a must-watch.


The attempt to overturn the 2020 election for the corrupt benefit of Donald J. Trump wasn’t just seditious conspiracy or obstruction of government proceedings, or conspiracy to defraud the United States.

It was a massive attack on civil rights by intimidation of election workers and officials in an effort to deny Americans their voting rights. This cannot go undeterred and unpunished; failure to do so represents a collapse of American democracy.

House January 6 Committee: Public Hearings – Day 4

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This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Tuesday June 21, 2022 at 1:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: TBD

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?521075-1/fourth-hearing-investigation-capitol-attack

C-SPAN’s YouTube page: https://youtu.be/7KakS8YmwTc

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1539226449718038529

ABC, NBC, CBS will carry the hearings live on broadcast; CNN and MSNBC will carry on their cable networks.

Twitter accounts live tweeting the hearing:

Marcy’s Twitter thread: https://twitter.com/emptywheel/status/1539293768993603619

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1538831520592539649 (Buchman’s thread breaks, check her main feed as necessary)

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1539292006903693312

Laura Rozen: https://twitter.com/lrozen/status/1539293133309190144 (Rozen’s thread breaks several times, check her main feed as necessary)

If you know of any other credible source tweeting the coverage, please share a link in comments.

The witnesses anticipated for today’s hearing are:

Panel 1:

Brad Raffensperger, GA secretary of state

Gabe Sterling, GA election official

Rusty Bowers, Arizona House Speaker

Pane 2:

Wandrea ArShaye “Shaye” Moss, former Georgia election worker

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the day progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

ADDER: 

Something’s going on with Twitter. It looks like they’ve been gamed. There’s no event showing up on my mobile app and instead the POS right-wing crap outlet Newsmax is at the top of Trends.

I have it on my desktop but not my on mobile device which is why I could grab the link.

Anybody else have this same experience? Let me know in comments, thanks.

 

Maybe Merrick Garland Already Made Some of the Decisions Everyone Thinks Are Pending?

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Jack Goldsmith has weighed in on the debate over whether and if so how Trump should be charged in the NYT. He tries to capture three things that Merrick Garland might consider before charging Trump, which include:

  • Whether charging Trump would require a Special Counsel to avoid any conflict of interest stemming from Garland’s appointment by Joe Biden
  • Whether there’s enough evidence to convict the former President
  • Whether the national interest is served by such a prosecution

It’s a worthwhile piece that has, at least, generated some substantive discussion.

Garland might face a prosecutorial decision on something other than obstruction

But I wanted to throw out some things that might change the calculus on these three questions. First, Goldsmith’s column is premised on prosecuting Trump for crimes relating to January 6, focusing on 18 USC 1512(c)(2) and 18 USC 371.

The two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.

Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.

I think it’s not necessarily the case that the first prosecutorial decision Garland would face for Trump would be for one of these January 6 crimes, nor is it certain that these would be the January 6 charges he would be considering.

For example, Trump has potential criminal exposure that dates to before and after his time in the Presidency, which for various reasons might be easier to charge sooner. Trump has criminal exposure in Georgia for trying to cheat; if he were charged there, it might make it easier to charge him federally with an associated crime (including 18 USC 371). Similarly, other charges in relation to January 6 might be easier to charge, including aiding and abetting the violence, conspiring in violation of 18 USC 372 to intimidate Pence out of certifying the vote, or wire fraud in conjunction with the way he monetized the Big Lie.

It’d be one thing, after all, to charge Trump for pressuring Pence and another thing to charge him for trying to get Pence killed. The mens rea requirements for other charges would not give Trump the same invitation to pretend he really believed he had won. And with regards to Trump’s grift, even Laura Ingraham reacted negatively to the evidence of his Big Grift (though that may only because Republicans are seeking a way to clear the decks for Ron DeSantis).

So the prosecutorial decision that Garland might face would differ considerably based on what crime line prosecutors and US Attorneys were asking for approval to charge.

DOJ has already put in place measures to guard the independence of the investigation

Second, my impression is that Garland would view appointing a Special Counsel not only as unnecessary, but also counterproductive.

I wrote about why it would be counterproductive here. The short version of that is that if Trump committed a crime in conjunction with January 6, he did so in part by conspiring some subset of the 1,000 people who have already been charged or are being investigated now, in an investigation that upwards of 140 prosecutors have worked.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through.

If Trump were to be charged with conspiring with any number of those 1,000 people, then you’d want to use one of the grand juries that has already reviewed big chunks of this investigation. In my opinion, you’d want to make sure that Trump’s prosecution was charged via the same process that the thousand other alleged criminals involved that day were, in part to make it clear that his was the crime of a violent mob, not a backoffice presidential decision.

And even as it would be counterproductive to appoint a Special Counsel in this investigation, I think Garland has already taken steps to ensure the independence of the investigation. For starters, while Deputy Attorney General Lisa Monaco’s office has kept a very close watch on the investigation (many would say too close a watch), the prosecutorial decisions are being made out of DC US Attorney’s Office. And while Garland was confirmed with broad approval, Matthew Graves had no recorded opposition at his confirmation (though Ron Johnson held up the confirmation). No Special Counsel will have any more recorded buy-in from Republicans than the existing team does.

Meanwhile, among the things Garland’s DOJ did, at a moment when prosecutors may have realized a Trump prosecution was possible, was to set up a framework under which prosecutors could obtain sensitive information on Trump’s role in January 6 without any involvement from Joe Biden. The most important of those is the privilege review for January 6-related materials the January 6 Committee deems material to their investigation. It has gone like this:

  • Jan 6 Committee makes requests
  • The Archives identifies materials responsive to those requests
  • Biden reviews those materials and either waives privilege or withholds the information
  • Trump sues to withhold the materials but the Supreme Court denies his lawsuit
  • The Committee receives the materials

Once materials have been through that process, DOJ could simply serve a warrant on the Archives to obtain the same materials. Neither Trump nor Biden nor any of the rest of us would know (and this is consistent with things past investigations into Presidents have done, including the Mueller investigation). This process would bypass one of the problems Mueller had investigating Trump, in which Trump waived privilege for the investigation but not for any further use of it.

But DOJ would have various other means to obtain pertinent potentially privileged information, including:

  • Using a January 6-specific warrant to obtain materials seized from Rudy Giuliani in response to a warrant approved on Lisa Monaco’s first day in office; as I laid out here, the privilege review of those materials included all materials through the date of seizure
  • Obtain a warrant to Chapman University for all John Eastman emails that Judge David Carter approved to be turned over to the January 6 Committee
  • Review for an obstruction determination all the emails and texts sent over personal accounts that Mark Meadows had originally withheld from the Archives in violation of the Presidential Records Act
  • Review the already identified materials tied to the referral for stealing classified information from NARA
  • Obtain a January 6-specific warrant for materials already obtained from Sidney Powell in the fraud-related investigation into her grift

I wrote more about some of these methods here.

Obtaining sensitive information like this doesn’t eliminate the political sensitivities of an Attorney General appointed by Joe Biden making a prosecutorial decision regarding Trump. But it ensures that DOJ can entirely shield the investigation from any Biden involvement.

None of these things make the question easier. But they do suggest that Garland may have already put into place ways of addressing them.

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

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Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

  • Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
  • Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
  • Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
  • Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
  • Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
  • Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
  • Reconfirmation that Trump never called Pence to check on the Vice President’s safety
  • Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

Why January 6 Committee Transcripts Are Urgent: Proud Boy Jeremy Bertino

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On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

The fact that Matt Olsen, National Security Division head, is on this letter suggests the concern pertains to the militias (and, indeed, the charged militia witnesses who appeared were Tarrio and Stewart Rhodes). Similarly, Nick Quested’s testimony may be inconsistent with other information DOJ has obtained.

Some pundits who’ve never done any original reporting on the topic claimed upon seeing this letter that it’s proof DOJ has been “twiddling its thumbs” while the Jan6 Committee has been doing all the work.

They’re saying that, though, when DOJ fairly explicitly said that grand juries have interviewed witnesses that Jan6 — and so, by association, lazy pundits — may not be aware of.

These are the kinds of surprises that can kill entire cases, after a year and a half of painstaking investigation.

House January 6 Committee: Public Hearings – Day 3

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This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 16, 2022 at 1:00 p.m. ET.

Any updates to this post will appear at the bottom.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s direct stream: https://january6th.house.gov/legislation/hearings/061622-select-committee-hearing

House J6 Committee’s YouTube page: https://www.youtube.com/c/January6thCmte

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520944-1/president-trumps-campaign-influence-vice-president-pence

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

C-SPAN’s YouTube stream for this hearing: https://www.youtube.com/watch?v=8zkZHb2kA2c

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter will carry multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1536343313325821952

ABC, NBC, CBS will carry the hearings live on broadcast; MSNBC and CNN will carry on their cable networks.

Twitter accounts live tweeting the hearing today:

Marcy’s thread: https://twitter.com/emptywheel/status/1537481194299920385 thread broke, second portion at: https://twitter.com/emptywheel/status/1537482856330858496

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1537479772502204417

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1537479344116875266

Jennifer Taub: https://twitter.com/jentaub/status/1537481664821174278

If you know of any other credible source tweeting the coverage, please share a link in comments.

An agenda for this hearing has not yet been published on the committee’s website and may not be as it didn’t publish one in advance for the last two hearings.

Expected to testify today:

Greg Jacob, former Vice President Mike Pence’s counsel

J. Michael Luttig, retired federal judge, U.S. Court of Appeals-Fourth Circuit, and informal advisor to Pence  (opening statement available online)

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

ADDER — 12:58 P.M. ET —

Worth reading or re-reading: Michael Luttig published an op-ed in CNN on April 27 this year, Opinion: The Republican blueprint to steal the 2024 election which contained this warning:

As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.

The “We the People Plan” Is Evidence of Tarrio’s Motive, But Not His Plan

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As part of a renewed motion for bond for her client Zach Rehl, Carmen Hernandez released a copy of the “We the People” plan referenced in the indictments that include Enrique Tarrio. The document is disturbing and in some way reflects the plan to occupy the Capitol achieved during the insurrection on January 6. And it is evidence reflecting Tarrio’s — though not necessarily Rehl’s — motive. But it is not Tarrio’s plan.

We the People Plan

The plan itself consists of nine pages. The last two — intended for public consumption as a recruiting device — issue a demand for a new election on January 20, pledge fondness for Rand Paul and Ron DeSantis, and include a map.

The other seven pages lay out the plan to occupy Congressional office buildings and CNN but not the Capitol itself (one of the points Hernandez makes in her bond motion). The goal was to occupy the buildings with as “many people as possible inside these buildings” and then “present[] our demands in unity.”

The plan envisioned spending January 1 through 5, as well as on January 6 itself, recruiting as many participants as possible, using the public flier. Then, in advance of the attack on January 6, the buildings would be scouted by people wearing suits to blend in. For each building, the plan aspired to recruit a “covert sleeper” who would use a ruse to get inside the building and let others in, with a backup if the first person is discovered. This plan to have someone from the inside open doors to let others in does resemble something that happened on the East side of the Capitol, as Joe Biggs, the Oath Keepers, and the mob led there by Alex Jones all assembled in time for someone to open that door from inside.

The plan advocated using COVID masking to obscure identities (something none of the Proud Boys did, though one of Rehl’s co-travelers, as well as a few others, did a superb job of hiding his face via other means). It also proposed ways to distract by occupying other locations (like hotels and WalMart) and to block select roads in DC. There were conflicting chants — the same people who would chant “No Trump, No America” were also going to demand, “Free and fair elections,” which Trump lost. The plan advocating “sit[ting] in” key Senators’ offices, but then didn’t really understand what to do next.

One area where the plan most closely matches the one ultimately implemented by the Proud Boys was in timing: The mob was supposed to meet at 1PM, then an assessment would be made at 1:22PM if “enough people are around?,” then at 1:30, “Wait for sign from lead, storm the building.” Compare that timeline to this one put together by the Sedition Hunters. Both, importantly, were tied to the vote certification, not Trump’s speech.

The plan appears to have been developed by one or another of the “patriot” groups, which were separate from but with which the Proud Boys had some ties (and, at least in the case of some “Patriots” from Texas, fundraising ties). DOJ has only charged individual pairs of such rioters with conspiracy, even though there was a larger network passing such plans back and forth.

But this was their plan, not the Proud Boys’ plan.

Zach Rehl’s disproportionate charging

And that’s one of the points that Hernandez made in the bond motion. Rehl — and the other charged defendants — had no awareness of the document (though that would not include Jeremy Bertino, who is not currently a charged defendant).

The document was never shared or otherwise discussed with Mr. Rehl. 1776 Returns was sent to Mr. Tarrio by a female acquaintance. Mr. Rehl does not know the woman who sent the document and has not had any conversations with her. The government has represented that Tarrio did not forward the document to Mr. Rehl or the other defendants. And that Tarrio did not discuss the document or its contents with Mr. Rehl and the other defendants.

As I’ll show below, in the government’s theory of the conspiracy, in which Tarrio was a hierarchical head of the militia, that may not matter. The government has accused Rehl of following Tarrio’s plan, not this one.

Hernandez makes another point I find much more persuasive, though. Rehl is included in a sedition conspiracy with Tarrio, the hierarchical leader, Joe Biggs and Ethan Nordean, the onsite leaders who discussed an orally agreed plan starting on January 5, and Dominic Pezzola, whose actions were absolutely crucial from a tactical standpoint. Compared to them, he did play a smaller role in the conspiracy. As conspiracies work legally, that doesn’t necessarily help him much at trial, but this is a bond motion, and it might.

Hernandez cites one of Rehl’s co-travelers, who include Isaiah Giddings, Brian Healion, and Freedom Vy, stating that Rehl wasn’t really in charge and they just entered the Capitol to take a peak.

After the initial breach, [defendant] was with Zach [and two others]. [They] wanted to “go in and take a peek” and that they made the decision to enter the Capitol Building as a group. [Defendant] was curious as to what was going on inside the CapitolBuilding. . . . They left the building as a group.”

It’s true that these three men have, thus far, just been charged with a misdemeanor. But after Hernandez filed this filing yesterday, the prosecutor in their case, Alexis Loeb, filed for a continuance so prosecutors could continue to discuss a pre-charging resolution with these defendants.

The parties therefore request a 69-day continuance to allow defense counsel to continue their review of the discovery in this case. The requested continuance will also allow the government to continue to make progress providing additional discovery and continue discussions potential pre-charging resolution of this matter.

Hernandez also cites Jeff Finley’s treatment, who was with Rehl for part of the day (Hernandez refers to Finley having a cooperation agreement, which may confirm something that was fairly clear from his treatment).

By his own admission, on January 6, Finley marched with the Proud Boys from the start and participated and posted on the Boots on the Ground telegram chat. Id. (ECF 38) at ¶ 8. Finley watched as the barricades were torn down; after the crowd overran law enforcement, he followed the crowd onto the west terrace of the Capitol; and also invited other members of his chapter to join him at the Capitol. During these events, Finley 8 posed for a photograph with Mr. Rehl and three other Philadelphia Proud Boys “on the Upper West Terrace of the U.S. Capitol during the breach.” 9

After entering the Capitol and observing barricades torn down and the crowd overrunning law enforcement, Finley posted a video message, which among other things celebrated the events of the day and congratulated Mr. Rehl (“Yo, [Zach Rehl], proud of your (sic) fucking boy”). Finley (ECF 38) at ¶ 23. Finley deleted social media posts and photographs of himself and other Proud Boys at the Capitol and directed members of his chapter to do the same. Id. Despite almost identical 10 conduct by Finley and notwithstanding the allegations that Finley obstructed justice by deleting and directing members of his chapter to delete posts, the government did not consider Finley a risk of danger and did not seek his detention pretrial.

10 “Following the events at the Capitol on January 6, 2021, Finley took measures to obstruct the government’s investigation into criminal conduct at the Capitol. Among other things, Finley deleted his social media accounts and deleted photos and videos of himself and other Proud Boys at the Capitol. Finley also directed members of his chapter to delete their photographs and advised the presidents of other Proud Boys chapters of his actions, writing in an encrypted message, “Deleted all photos I may have had, advised my boys to as well. No talks about dc on telegram whatsoever and gathering #s as we speak.” Finley (ECF 38) at ¶ 24

According to Hernandez, the single thing that distinguishes Rehl from Finley is that Rehl was a member of the Ministry of Self Defense that Tarrio created in December 2020 as a leadership structure for what came next. She argues, in defiance of years of Proud Boy modus operandi, that the group was formed to avoid violence (rather than to better to incite it from others). And several things she cites actually hurt her argument. She cites Tarrio’s demand for a top-down structure, for example.

Now that goes with the whole thing. I don’t want this – this isn’t a foke (phonetic) thing. This isn’t a fuckin’, a thing where it’s going to be a fuckin’ super militant fuckin’ thing, but we do need to organize better and in order to do that, we need to have a top down structure, right.

She makes much of Tarrio’s demand that the Proud Boys will not, henceforth, be the ones to cross police barricades.

MR. TARRIO: Yeah, I mean every situation calls for something different, you know. Like we’re – I think on the verbalsense and the media sense, me and Biggs has got in on lock, where we know exactly what we’re going to say that will piss off the media. And you can translate that to on the grounds. Now I’m not saying, now I’m not saying to go ahead and fuckin’ talk shit. Go ahead and talk shit, as long as it, you know, keep it fuckin’ professional. But we’re never going to be the ones to cross the police barrier or cross something in order to get to somebody. We’re always going to be the ones standing back, right, and we’re always going to be the ones to fuckin’ defend. [Hernandez’ emphasis]

The Proud Boys weren’t the ones who crossed the barricade first on January 6. Instead, Joe Biggs made some comments to Ryan Samsel, and Samsel pushed over the barricades, giving Officer Caroline Edwards a lasting brain injury in the process and setting off hundreds of people behind him.

And Hernandez points to Bertino’s warnings (whom she names in a piece that also describes that Person-1 is the guy who, like Bertino, got stabbed at an earlier Proud Boy fight) about being stabbed to excuse the body armor the Proud Boys wore on a day when they targeted the Capitol at a time when few if any Antifa were present.

There’s a long redacted passage that, she explains, “refute the allegation that … MOSD planned a violent attack on the Capitol.”

Matters considered by the Court under seal also refute the allegation that the Proud Boys and the MOSD planned a violent attack on the Capitol.

This seems to be a reference to one of, if not the primary extended sealed dispute in this docket before Judge Kelly. Given Hernandez’ description of it, it may be the testimony of an FBI informant who repeatedly denied any such plans. Except that informant went to insurrection with the Kansas City cell of Proud Boys, and two of them — Louis Colon and Ryan Ashcroft — have since pled guilty to statements of offense that seem to directly counter the claims of their co-traveler.

Finally, Hernandez presents what is solid evidence that Rehl was not part of the planning discussions that did go on between Tarrio, Biggs, and Nordean, but which is not evidence that there was no plan.

That was the only plan communicated to the MOSD, to Boots-on-the-Ground and to Mr. Rehl. See also TSI at ¶¶ 63-65; Donohoe Plea (ECF 336 at ¶¶ 22-24). Note also that Mr. Rehl’s understanding of the plan was, as discussed in the 12/30 MOSD meeting, to break off into smaller teams. Mr. Rehl was not with Biggs and Nordean on the evening of January 5 and Tarrio was not in DC. Mr. Rehl did not speak with Tarrio by phone on January 5 or January 6. Compare TSI at 22 ¶¶ 63, 105. Thus, any communications between Mr. Rehl and Biggs, Nordean, or Tarrio on January 5, would have been on telegram. No message exists where they discuss a plan to attack the Capitol.

There was a meeting on January 5 involving Biggs and Nordean, after which Biggs explained that he had a plan that had been discussed with Tarrio. Rehl was not in that loop (and indeed had only just made it to DC). But there are repeated references to this plan.

I lay all this out for two reasons. First, probably because of some difficulties with the prosecution (including the number of Proud Boy informants, including Joe Biggs, that the FBI took to be credible and so got lied to), DOJ’s prosecutorial decisions don’t make transparent sense in the way they do with the Oath Keeper conspiracy, which has been a relentless march towards more senior plotters. But also because, at least according to the government’s theory of how this worked (which does appear in both Matthew Greene and Charles Donohoe’s statements of offense), this attack was implemented using a top-down structure led by a guy, Tarrio, giving oral instructions from offsite. And those oral instructions may have been influenced by the plans of others that Tarrio was known to be in contact with in December, only one of which is this “We the People” plan.

Tarrio’s motive and plan

And that’s why, I would argue, the “We the People” document is in the existing conspiracy indictments. It led Tarrio to express his own motive twice. The sedition indictment has two references to it. First, in regards to discussions Tarrio had with the woman who shared it with him in December, well before the Proud Boy plan was finalized.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to oceupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

To her (using a phone Tarrio believed would not be exploited, and which did take a year to be exploited), he agreed that “the revolution is [sic] important than anything,” Tarrio seemingly agreed that “every waking moment” he spent was dedicated to that revolution.

Then, after an attack led by the Proud Boys (who had succeeded in recruiting others to break through the barricades) Tarrio made a reference that suggests Bertino — referred to here as Person-1 — does know about this plan.

107. At 7:39 pm, PERSON-I sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-I texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

In response to Bertino’s boast of 1776, Tarrio responded with the code for occupying buildings, Winter Palace. That is, this seems to be his tacit reference to the plan to occupy buildings.

But this exchange goes well beyond that of the We the People plan, which imagined issuing a set of demands but didn’t know what would happen next. This occupation, as reflected by Bertino’s awareness that “They HAVE to certify today! Or it’s invalid,” reflects some knowledge of the entire legal theory espoused by people like John Eastman: that to succeed in winning their demands, occupiers needed to ensure that the certification did not happen as scheduled.

Rehl has a point (though prosecutors, being prosecutors, would note that it’s the same point that Donohoe, who only came to DC on January 6 to fill in for Tarrio after the Proud Boy leader predictably got arrested and so retreated to Baltimore for the actual violence) came to: that Tarrio set up this conspiracy to insulate himself, leaving people like Donohoe and Rehl to take the fall for his plan.

January 6 Committee Details The Big Fraud Monetizing The Big Lie

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The second hearing from the January 6 Committee was just as well choreographed as the first one, with an even greater reliance on Republican voices to make the case against Trump, including:

  • Bill Barr
  • Bill Stepien
  • Al Schmidt
  • Alex Cannon
  • Ivanka
  • Rudy Giuliani
  • Sidney Powell
  • Chris Stirewalt
  • Jason Miller
  • Ben Ginsberg

Here’s my live tweet of the hearing.

The presentation started by describing how Trump was told on election night that the news looked bad. The presentation ended by showing how those attacking the Capitol cited Trump’s lies to justify their actions.

Perhaps the most effective part of the hearing, however, was a video shown near the end that talked about how Trump monetized the Big Lie. He raised $250M telling lies about voter fraud.

Some of that money went to Mark Meadows’ “charity,” the Conservative Partnership Institute and even more went to Paul Manafort’s company, Event Strategies.

This is the kind of activity, fundraising making false claim, that got Steve Bannon charged with wire fraud and it’s the kind of scheme behind the investigation into Sidney Powell.

House January 6 Committee: Public Hearings – Day 2 [UPDATE-1]

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This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to continue today June 13, 2022 at 10:30 a.m. ET.

Please take all comments unrelated to the hearings to a different thread. Updates will appear at the bottom of this post.

This week’s hearings are expected to tackle these topics:

Monday, June 13 – Trump’s Big Lie
Wednesday, June 15 – The Department of Justice’s role
Thursday, June 16 – Campaign to pressure Mike Pence into breaking election law

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1536343313325821952

MSNBC will carry coverage on their cable network; special coverage has already begun with their Morning Joe program on https://www.msnbc.com/live.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Twitter accounts live tweeting today’s hearing (subject to change):

Marcy’s thread: https://twitter.com/emptywheel/status/1536361021564243971

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1536285741088751616

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1536348494931406850

Jennifer Taub: https://twitter.com/jentaub/status/1536343525398224897

Laura Rozen: https://twitter.com/lrozen/status/1536361217450725376

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1536338931104550913 (check their feed, they don’t live tweet as frequently or thoroughly as others)

Check also these Twitter accounts for coverage (no live tweet thread established yet):

Jordan Fischer: https://twitter.com/JordanOnRecord
Aaron Rupar: https://twitter.com/atrupar

If you know of any other credible source tweeting the coverage, please share a link in comments.

The original agenda for this hearing:


Shortly after 9:00 a.m. this morning the agenda and hearing timing was changed to reflect Stepien’s omission from the witness lineup due to a family emergency. The hearing’s start time was pushed back a half-hour to 10:30 a.m.; Stepien’s attorney is expected to make a statement.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the hearing progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

ADDER — 10:02 A.M. ET —

Not really an update since the hearing hasn’t started. The Senate Jucidiary Committee Dems have posted a Twitter thread about former US Attorney BJay Pak’s testimony before their committee regarding the demands made to investigate “irregularities” in Atlanta’s 2020 handling of ballots and vote counting.


Excellent prep work to read before Pak’s testimony today.

~ ~ ~

UPDATE — 12:30 P.M. ET —

Ben Ginsberg, a Republican election law lawyer, has been added as a witness appearing in person before the committee along with the rest of the second panel (i.e., Pak and Schmidt after a 10-minute break).