“I Want to Thank My Two Closeted GOP Colleagues”

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I listened to some of the series of speeches given by House members today, recalling their personal experiences of last year’s insurrection. I would catch a couple speeches, then make a pastoral visit, then hear a few more on my way to a meeting, then a couple more after the meeting was done. Even so, I was struck by how different these speeches were, compared with what usually is said by members of Congress.

The first difference that hit me was the use of first names. There was almost none of the usual congressional stylings of “the gentleman from . . .” or even “Representative so-and-so” but instead it was “Jason” and “Lisa” and “Pete.”

The second difference was the presence of language referring to the “Capitol Hill family.” It is rare that congressional staffers, food service people, janitors, and Capitol Hill police are recognized on the floor, but yesterday they were not only recognized but called out and praised by name as well. So too were media members who were there that day, who we celebrated for trying to do their jobs — reporting the story out on their laptops or taking photos and video with their cameras — in the midst of the insurrection. I expected to hear about the various police officers who died or were injured, but the thanks given to all these non-elected people was surprising, heartfelt, and stunning.

But the third thing that hit me came when Adam Schiff offered his remarks. He began by saying he had been focused on preparing to engage the arguments put forward by those objecting to the results coming out of six different states, and not on what was happening outside. Then he said this:

It was not until our leadership was swiftly removed from the chamber and police announced that we needed to take out our gas masks that I understood the full extent of the danger. When the order came to evacuate, I stayed behind for a while, until two Republicans came up to me. One of them said “You can’t let them see you. I know these people. I can talk to these people. I can talk my way through these people. You are in a whole different category.”

Notice what’s missing? The names. In this midst of all the thanks that all the speakers were extending to everyone, Schiff did *not* mention who those two Republican colleagues were, who were so concerned about his safety. This wasn’t a snub – far from it. This was Schiff declining not to out them as compassionate to a Democrat, even while he held up their behavior as laudable.

There is a strong — and I mean STRONG — culture in Congress of respecting things said in confidence between members from different parties. They recognize that they need to be able to speak frankly with each other if they want to get anywhere, and that only happens when both people can trust that their conversation will remain between the two of them until they are ready to reveal it. Break that rule, and no one will speak across the aisle with you again.

I have to wonder, though, how long such treatment will last in the current climate.

Beginning in the 1980s, gay activists outed a number of conservative politicians for their hypocrisy – cruising the gay bars at night, and then the next day voting against AIDS funding or LGBT rights or otherwise obstructing anything that might be seen as helping the LGBT community. These outings were by no means universally accepted within the activist community, as “working from within” had a place, as did the respect for being able to come out on your own terms. There was also a fear that outing people would backfire and only add to the public stigma of being LGBT. The reply by those doing the outing was “if this is what working from within gets us, we can do without it.”

Congressional Moderates in today’s GOP are living in deeper political closets than gays in the 70s or even communists in the 50s. “If anyone learns that I speak nicely with the Democrat who led Trump’s first impeachment trial, let alone warned him to flee from the mob, I’m toast.” Those closeted GOP members of Congress who warned Schiff about his personal danger may want to thank him for returning the favor this afternoon, by not putting them in danger by naming them publicly in his remarks today.

You can be sure that Trump and his followers are probably beating the bushes, trying to figure out who those two treasonous Republicans are, to drag them out of the closet and wreak their vengeance upon them. Perhaps these two ought to think about how to come out on their own terms, before angry Republicans do it for them.

January 6 Is Unknowable

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Dunbar’s number is a term that describes a presumed cognitive limit to the number of people with whom an individual can maintain social relationships. It’s a way of thinking about limits to our ability to understand a network. People argue about what the actual number is, though 150 is a good standard.

Using that figure, the number of people arrested in the January 6 attack is, thus far, 4 2/3 Dunbar numbers, with two more Dunbar numbers of assault suspects identified in FBI wanted photos. By my count, one Dunbar number of suspects are charged with assault. There were one Dunbar number of police victims from that day. There have been, Attorney General Garland revealed last night, one Dunbar number of prosecutors working on the investigation. One Dunbar number of Congresspeople backed challenges to the vote certification last year, and a significant subset of those people further enabled the insurrectionists in more substantive ways. The January 6 Select Committee has interviewed two Dunbar number of witnesses about the event, a group that barely overlaps with the suspects already charged.

I think about Dunbar’s number a lot, particularly as I review the DC court calendar each morning to review which court hearings I should call into on a given day. I can rattle off the names of the January 6 defendants in all the major conspiracy cases and some less obvious key defendants about whom I’ve got real questions. But for other hearings with a 2021 docket number (the January 6 defendants make up the majority of defendants in DC last year), I need to refer back to my master list to see whether those are January 6 defendants, and if so, whether the hearing might be of import. There are five January 6 defendants with the last name Brown, five with some version of the last name Kelly (all quite interesting), three Martins, and seven Williamses, so it’s not just recognizing the name, but trying to remember whether a particular Brown is one of the really interesting ones.

Court filings are the way I go about understanding January 6. Sedition Hunters, by contrast, have worked via faces in photos, from which they effectively create dossiers on suspects of interest.

From their home offices, couches, kitchen tables, bedrooms and garages, these independent investigators have played a remarkable role in archiving and preserving digital evidence. Often operating under the “Sedition Hunters” moniker, they’ve archived more than 2,000 Facebook accounts, over 1,125 YouTube channels, 500-plus Instagram accounts, nearly 1,000 Twitter feeds, more than 100 Rumble profiles and over 250 TikTok accounts. They’ve gathered more than 4.1 terabytes ― 4,100 gigabytes ― of data, enough to fill dozens of new iPhones with standard-issue storage.

Both approaches have come to a similar understanding of the attack: that the Proud Boys led a multi-pronged assault on the building, one that is most easily seen on the coordinated assault from the Proud Boys, Oath Keepers, America Firsters, and Alex Jones on the East door. That assault on the East door appears after 22:30 on NYT’s Day of Rage on the riot, which remains the most accessible way for people to try to understand the riot. That assault on the East door, because of Pied Piper Alex Jones’ role in providing bodies, leads directly back to Trump’s request that Jones lead rally attendees from the Ellipse to the Capitol. And there are militia and localized networks that are also critical to understanding how all those bodies worked in concert on January 6. Here’s a summary of the Sedition Hunters’ understanding, which is well worth reviewing in depth.

But even though what we’re seeing is quite similar, there are gaps. Because I’m working from dockets, I’m aware of only the most important people who have yet to be arrested, whereas the Sedition Hunters have a long list, including assault suspects, prominent participants, and militia members, who remain at large. Meanwhile, I’ve identified a handful of defendants whose accomplices on January 6 are obviously of great interest to DOJ, but the Sedition Hunters aren’t always able to reverse engineer who those accomplices are based off their work.

And dockets are only useful for certain kinds of information. I track each arrest affidavit and statement of offense closely. I try to keep a close eye on changes in legal teams and developments (like continuances) that deviate from the norm, which are often the first sign that a case is getting interesting. You learn the most from detention hearings and sentencing memos. But for defendants charged by indictment and released pre-trial, the government can hide most of what it knows. And that’s assuming DOJ makes an arrest or unseals it, which it might not do if someone cooperates from the start.

The government has announced nine cooperation deals (one four months after it happened), and the subject of cooperation for two of them — Jon Schaffer and Klete Keller (whom I often get confused with the five Kellys) — is not known. It wasn’t clear that Jacob Hiles was the defendant who had gotten Capitol Police cop Michael Riley indicted until Hiles’ sentencing memo. And Hiles is not the only one being charged with a misdemeanor who cooperated to end up that way. It’s often not clear whether a delayed misdemeanor charge reflects really good lawyering or cooperation (and in the case of Brandon Straka, it seems to have been really good lawyer that nevertheless resulted in some key disclosures to DOJ).

There is a growing list of Person Ones described in court filings, Stewart Rhodes, Enrique Tarrio, Aaron Whallon-Wolkind, Alex Jones, and Morton Irvine Smith, all of whom were clearly involved in January 6 but haven’t been charged yet. Roger Stone never got referred to as Person One, but he is all over the Oath Keepers’ court filings. DOJ hasn’t named people like Mo Brooks and Rudy Giuliani when they include them in Statements of Offense, but they’re in there. So are other people who spoke on January 5.

It turns out that one means of accessing the January 6 is my forté, documents, and that of citizen researchers, collaborative research. But partly because Merrick Garland referred Michael Sherwin for an Office of Professional Responsibility investigation for publicly commenting on the investigation improperly, the normal way things get reported — by quoting sources — largely isn’t yet accessible for the criminal side of the investigation. That leads to misleading reporting like the famous Reuters article that didn’t understand the role of crimes of terrorism or a WaPo piece yesterday that unbelievably quoted Jonathan Turley claiming, “There’s no grand conspiracy that the FBI found, despite arresting hundreds of people, investigating thousands,” without labeling him as the former President’s impeachment lawyer, which is the only way Turley would be marginally competent to make such a claim. There are defense attorneys talking to the press — but the chattiest defense lawyers are the ones setting new standards for bullshit claims. The ones I’ve heard from are themselves drowning in their attempts to understand the larger investigation, both because of the sheer amount of discovery and because that discovery doesn’t tell them what is going on legally with one of the other Dunbar numbers of defendants. But in general, the ordinary sources for typical reporting aren’t talking, leading to a lot more mystery about the event.

One thing I find most striking from those who were present is their blindness. I’m haunted by something Daniel Hodges said in his testimony to the January 6 Committee: that the men and women who fought insurrectionists for hours in the Tunnel through which Joe Biden would walk to take the Oath of Office two weeks later had no idea, during that fight, that the Capitol had already been breached, and then cleared, as they continued to fight a battle of inches.

It was a battle of inches, with one side pushing the other a few and then the other side regaining their ground. At the time I (and I suspect many others in the hallway) did not know that the terrorists had gained entry to the building by breaking in doors and windows elsewhere, so we believed ours to be the last line of defense before the terrorists had true access to the building, and potentially our elected representatives.

There are similar accounts from other direct witnesses — like this chilling piece from Matt Fuller — who huddled feet away from where Ashli Babbitt was killed without knowing what was happening. Grace Segers, in her second telling of surviving that day, describes how there was no way to tell maintenance workers (there must be ten Dunbar numbers of support staff who were there that day) to take cover from the mobsters.

I have spent the better part of the year working full time, with few days off, trying to understand (and help others understand) January 6. I’ve got a clear (though undoubtedly partial) vision of how it all works — how the tactical developments in the assault on the Capitol connect directly back to actions Donald Trump took. Zoe Tillman, one of a handful of other journalists who is attempting to track all these cases (while parenting a toddler and covering other major judicial developments) has a piece attempting to do so with a summary of the numbers. But both those methods are inadequate to the task.

But thus far, that clear vision remains largely unknowable via the normal ways the general public learns. That’s why, I think, people like Lawrence Tribe are so panicked: because even beginning to understand this thing is, quite literally, a full time job, even for those of us with the luxury of living an ocean away. In Tribe’s case, he has manufactured neglect out of what he hasn’t done the work to know. To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

I know a whole lot about what is knowable about the January 6 investigation. But one thing I keep realizing is that it remains unknowable.

Merrick Garland Points Out that Misdemeanors Are Easy

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Merrick Garland’s address was, best as I can tell, a useful attempt to stave off the whingers. Some subset of those people have stated that Garland (who provided few details!) had reassured them.

A key point of his speech amounted to addressing the complaint that DOJ is only charging misdemeanants. 145 people, Garland noted, pled early, which is what the news is covering in their reports on the investigation.

In charging the perpetrators, we have followed well-worn prosecutorial practices.

Those who assaulted officers or damaged the Capitol face greater charges.

Those who conspired with others to obstruct the vote count also face greater charges.

Those who did not undertake such conduct have been charged with lesser offenses — particularly if they accepted their responsibility early and cooperated with the investigation.

In the first months of the investigation, approximately 145 defendants pled guilty to misdemeanors, mostly defendants who did not cause injury or damage. Such pleas reflect the facts of those cases and the defendants’ acceptance of responsibility. And they help conserve both judicial and prosecutorial resources, so that attention can properly focus on the more serious perpetrators.

In complex cases, initial charges are often less severe than later charged offenses. This is purposeful, as investigators methodically collect and sift through more evidence.

By now, though, we have charged over 325 defendants with felonies, many for assaulting officers and many for corruptly obstructing or attempting to obstruct an official proceeding. Twenty defendants charged with felonies have already pled guilty.

Approximately 40 defendants have been charged with conspiracy to obstruct a congressional proceeding and/or to obstruct law enforcement. In the months ahead, 17 defendants are already scheduled to go to trial for their role in felony conspiracies.

A necessary consequence of the prosecutorial approach of charging less serious offenses first is that courts impose shorter sentences before they impose longer ones.

In recent weeks, however, as judges have sentenced the first defendants convicted of assaults and related violent conduct against officers, we have seen significant sentences that reflect the seriousness of those offenses — both in terms of the injuries they caused and the serious risk they posed to our democratic institutions.

The actions we have taken thus far will not be our last.

The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.

Because January 6th was an unprecedented attack on the seat of our democracy, we understand that there is broad public interest in our investigation. We understand that there are questions about how long the investigation will take, and about what exactly we are doing.

Garland also gave the (appropriate) excuse DOJ has been giving for months: that they can’t provide details of an ongoing investigation.

Our answer is, and will continue to be, the same answer we would give with respect to any ongoing investigation: as long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.

I understand that this may not be the answer some are looking for. But we will and we must speak through our work. Anything else jeopardizes the viability of our investigations and the civil liberties of our citizens.

But the important message was, effectively, to tell people to stop complaining about misdemeanor arrests because those lay a “foundation” for later arrests.

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.

It was about this time when other journalists covering Jan 6 started teasing me about scripting Garland.

As I have noted, repeatedly, the misdemeanor charges are not the end, but instead are an investigative step in the large investigation. Everyone who entered the Capitol that day committed a crime, which makes it easy to use them as steps in a larger investigation. Here’s an explanation of the way misdemeanants are providing evidence in the larger investigation.

MISDEMEANANTS

The most common complaint about the January 6 investigation — from both those following from afar and the judges facing an unprecedented flood of trespassing defendants in their already crowded court rooms — the sheer number of trespassing defendants.

It is true that, in the days after the riot, DOJ arrested the people who most obviously mugged for the cameras.

But in the last six months or so, it seems that DOJ has been more selective about which of the 2,000 – 2,500 people who entered the Capitol they choose to arrest, based off investigative necessities. After all, in addition to being defendants, these “MAGA Tourists” are also witnesses to more serious crimes. Now that DOJ has set up a steady flow of plea deals for misdemeanors, people are pleading guilty more quickly. With just a few exceptions, the vast majority of those charged or who have pled down to trespassing charges have agreed to a cooperation component (entailing an FBI interview and sharing social media content) as part of their plea deal. And DOJ seems to be arresting the trespassers who, for whatever reason, may be useful “cooperating” witnesses for the larger investigation. I started collecting some of what misdemeanant’ cooperation will yield, but it includes:

Video or photographic evidence

Hard as it may be to understand, there were parts of the riot that were not, for a variety of reasons, well captured by government surveillance footage. And a significant number of misdemeanor defendants seem to be arrested because they can be seen filming with their phones on what surveillance footage does exist, and are known to have traveled to places where such surveillance footage appears to be unavailable or less useful. The government has or seems to be using evidence from other defendants to understand what happened:

  • Under the scaffolding set up for the inauguration
  • At the scene of Ashli Babbitt’s killing (though this appears to be as much to get audio capturing certain defendants as video)
  • In the offices of the Parliamentarian, Jeff Merkley, and Nancy Pelosi
  • As Kelly Meggs and other Oath Keepers walked down a hallway hunting for Nancy Pelosi
  • Some of what happened in the Senate, perhaps after Leo Bozell and others rendered the CSPAN cameras ineffective

In other words, these misdemeanor arrests are necessary building blocks for more serious cases, because they are in possession of evidence against others.

Witness testimony

TV lawyers seem certain that Trump could be charged with incitement, without considering that to charge that, DOJ would first have to collect evidence that people responded to his words by invading the Capitol or even engaging in violence.

That’s some of what misdemeanor defendants would be available to testify to given their social media claims and statements of offense. For example, trespasser defendants have described:

  • What went on at events on January 5
  • The multiple signs that they were not permitted to enter whatever entrance they did enter, including police lines, broken windows and doors, loud alarms, and tear gas
  • Directions that people in tactical gear were giving
  • Their response to Rudy Giuliani and Mo Brooks’ calls for violence
  • Their response to Trump’s complaint that Mike Pence had let him down
  • The actions they took (including breaching the Capitol) after Alex Jones promised they’d get to hear Trump again if they moved to the East front of the Capitol

Securing the testimony of those purportedly incited by Trump or Rudy or Mo Brooks or Alex Jones is a necessary step in holding them accountable for incitement.

Network information

Some misdemeanor defendants are being arrested because their buddies already were arrested (and sometimes these pleas are “wired,” requiring everyone to plead guilty together). Other misdemeanor defendants are part of an interesting network (including the militias). By arresting them (and often obtaining and exploiting their devices), the government is able to learn more about those with more criminal exposure on January 6.

Misdemeanor plea deals

In its sentencing memo for Jacob Hiles, the guy who otherwise would probably be fighting an obstruction charged if he hadn’t helped prosecute Capitol Police Officer Michael Riley, the government stated that, “no previously sentenced defendant has provided assistance of the degree provided by the defendant in this case.” The comment strongly suggests there are other misdemeanor defendants who have provided such assistance, but they haven’t been sentenced yet.

This category is harder to track, because, unless and until such cooperation-driven misdemeanor pleas are publicly discussed in future sentencing memos, we may never learn of them. But there are people — Baked Alaska is one, but by no means the only one, of them — who suggested he might be able to avoid obstruction charges by cooperating with prosecutors (there’s no sign, yet, that he has cooperated). We should assume that some of the defendants who’ve been deferring charges for months on end, only to end up with a misdemeanor plea, cooperated along the way to get that charge. That is, some of the misdemeanor pleas that everyone is complaining about likely reflect significant, completed cooperation with prosecutors, the kind of cooperation without which this prosecution will never move beyond the crime scene.

A key thrust of Garland’s speech served, however obliquely, to confirm this.

Every single person who entered the Capitol that day committed a crime. Every single one of them was subject — if there was enough investigative interest — to arrest them.

Those misdemeanor arrests are one step in a process. It’s a process that won’t move quickly enough for anyone’s taste. But it hypothetically could lead to more powerful people being held responsible.

The key takeaway from Garland’s speech is, in my opinion, is that misdemeanor arrests are serving the larger investigation.

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

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You might not understand this from following just traditional news outlets, but over the course of a year, the news-friendly January 6 Select Committee and even the public parts of the locked-down DOJ investigation have met at a common pivot point in their investigation of January 6: on Trump’s efforts to pressure Mike Pence to violate the Constitution.

Trump did so, first, with personal pressure. Then he sent his mob.

The pressure on Pence is how Trump’s plotting in advance of January 6 affirmatively led  directly to — not just through inaction, but through action — specific steps taken by confessed mobsters to assault the Capitol.

Already in February of last year, both the House Impeachment Managers and I recognized the centrality of Trump’s treatment of his Vice President to his liability for the January 6 insurrection.

Trump had nothing to say in defense of his actions with regards to Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

[snip]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

Since that time, Congress has been investigating from the top down, aided by the press and a healthy bunch of Pence staffers horrified by what happened to their boss. DOJ has been investigating (at a minimum) from the crime scene up.

The Select Committee appears to have corroborated stories told by Bobs Woodward and Costa in Peril. After losing all their attempts to challenge the election in the courts and backed by a coup memo from John Eastman, in December 2020, Trump’s people started demanding that Pence refuse the vote totals from a select group of states.

At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

Pence conducted a series of consultations, most notably with his predecessor Dan Quayle, who counseled Pence could only open the ballots. In the hours before the riot, conservative legal stars John Yoo and Michael Luttig backed the Vice President as well.

That led to the remarkable scene on January 5 (as described in Peril, though Keith Kellogg is among the witnesses who cooperated with the Select Committee under a friendly subpoena and Peril’s account relies heavily on him and other Pence aides), as Trump invited Pence to call on unconstitutional power from the mob.

On the evening of January 5, as he waited for Pence to arrive from a coronavirus task force meeting, an aide informed Trump his supporters were gathering near the White House on Freedom Plaza near Pennsylvania Avenue.

Despite the bitter cold, the supporters were cheering loudly and chanting his name. They were waving “Make America Great Again” flags.

When Pence arrived, Trump told him about the thousands of supporters. They love me, he said.

Pence nodded. “Of course, they’re here to support you,” he said. “They love you, Mr. President.

“But,” Pence added, “they also love our Constitution.”

Trump grimaced.

That may be, Trump said, but they agree with him regardless: Pence could and should throw Biden’s electors out. Make it fair. Take it back.

That is all I want you to do, Mike, Trump said. Let the House decide the election. Trump was not ready to give up, especially to a man he maligned as “Sleepy Joe.”

“What do you think, Mike?” Trump asked.

Pence returned to his mantra: He did not have the authority to do anything other than count the electoral votes.

“Well, what if these people say you do?” Trump asked, gesturing beyond the White House to the crowds outside. Raucous cheering and blasting bullhorns could be heard through the Oval Office windows.

“If these people say you had the power, wouldn’t you want to?” Trump asked.

“I wouldn’t want any one person to have that authority,” Pence said.

“But wouldn’t it almost be cool to have that power?” Trump asked.

“No,” Pence said. “Look, I’ve read this, and I don’t see a way to do it.

“We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible. My interpretation is: No.

“I’ve met with all of these people,” Pence said, “they’re all on the same page. I personally believe these are the limits to what I can do. So, if you have a strategy for the 6th, it really shouldn’t involve me because I’m just there to open the envelopes. You should be talking to the House and Senate. Your team should be talking to them about what kind of evidence they’re going to present.”

In spite of Pence’s refusals, Trump released a false statement that the Vice President would, in fact, do Trump’s dirty work.

Late Tuesday evening, January 5, as word dripped out in the press that Pence was holding, Trump directed his campaign to issue a statement claiming that he and Pence were in “total agreement that the Vice President has the power to act.”

This set the expectation with the already enraged mob that their efforts to keep Trump in office might just work.

As the Select Committee revealed last night, the White House Counsel’s Office was objecting to all of this, and threatening to resign if Trump tried it. Sean Hannity learned about those threats as early as December 31 and shared his concerns with Mark Meadows.

We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.

The night of January 5, the same night Trump falsely claimed that Pence would go along with the plan, Hannity again told Mark Meadows he was worried the White House Counsel lawyers would quit.

Pence pressure. WH counsel will leave.

Whether or not Hannity sits for an interview with the Select Committee, the release of texts showing that Trump or Meadows shared privileged advice that the White House Counsel gave to Trump (thereby waiving any privilege claim) may have made the testimony of those lawyers themselves accessible, if not to the Select Committee, then under subpoena from DOJ.

That’s important, because as the DOJ prosecutor guiding DOJ’s use of 18 USC 1512(c)(2) to charge those who participated in the insurrection, James Pearce, has already noted, one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.”

By publicly releasing those Hannity texts, the Select Committee may have made proof that Trump knew his request to Pence was illegal available to DOJ.

Still, any testimony Hannity could offer is important for what came next: because Hannity seems to have known that Trump’s persistence would lead to trouble.

Already knowing that Pence would not reject the vote tallies, already knowing Pence didn’t have that power, Trump riled up his mob in his speech by making it clear everything came down to Pence.

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.'”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

Congress is currently focused on showing what Trump did during the 187 minutes after his mob had breached the Capitol — aside from his tweet focusing again on Pence.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

DOJ is finalizing its understanding of the coordinated effort, using the mobs Alex Jones lured to the Capitol and to a second front, that resulted in multiple breaches of the building and vastly inflated risk to Pence and members of Congress.

But on one point, both investigations have already converged: the motive of a vast many involved, from Trump to his scheming associates to organized militias to unwitting trespassers, was to was pressure Mike Pence to violate his duty.

Update, 3/3/22: In a filing trying to breach John Eastman’s claim of privilege, the January 6 Committee cited three instances of defendants reacting the Pence information.

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James Taylor, King Herod, and January 6th

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James Taylor in Concert (h/t photographer Elizabeth Warren. Yes, that Elizabeth Warren. [CC BY 2.0])

Back in 1988, musical storyteller James Taylor put out an album entitled “Home By Another Way.” “Never Die Young.” The song “Home By Another Way” from that album is one of my favorites, and is built around the story of the Magi, celebrated on the liturgical calendar of the Christian Church on January 6th as the Festival of the Epiphany. As JT properly observes, the story told by Matthew’s gospel is less about the Magi meeting Jesus and more about another meeting they had. Here’s how Matthew put it:

In the time of King Herod, after Jesus was born in Bethlehem of Judea, wise men from the East came to Jerusalem, asking, “Where is the child who has been born king of the Jews? For we observed his star at its rising, and have come to pay him homage.” When King Herod heard this, he was frightened, and all Jerusalem with him; and calling together all the chief priests and scribes of the people, he inquired of them where the Messiah was to be born. They told him, “In Bethlehem of Judea; for so it has been written by the prophet: ‘And you, Bethlehem, in the land of Judah, are by no means least among the rulers of Judah; for from you shall come a ruler who is to shepherd my people Israel.’” Then Herod secretly called for the wise men and learned from them the exact time when the star had appeared. Then he sent them to Bethlehem, saying, “Go and search diligently for the child; and when you have found him, bring me word so that I may also go and pay him homage.”

There is no way that Herod’s words to the Magi were anything but a ruse, and anyone hearing this story back in the day knew it. Herod the Great was a feared figure, having risen to power through his father’s political connections with Julius Caesar. In the time-honored tradition of despots everywhere, he was ruthless to those below him that he viewed as potential threats to his wealth and power (i.e., all the locals), and relentlessly sucked up to those above him (i.e., Rome). This combination led the Senate of Rome to appoint him “King of the Jews” and he held fast to that title for almost four decades by employing domestic spies to sniff our plots against him, a massive bodyguard to protect him, and whatever bloodthirsty tactics he deemed necessary to keep him in power.

Herod the Great was succeeded not by his eldest son, but by his most ruthless son, known as Herod Antipas. Antipas clearly followed in his father’s footsteps, in that he had his two older brothers convicted of treason and executed, thanks to a kangaroo court over which he presided. Antipas went his father one better by ditching his first wife for a second one – his own niece, Herodias. The Herodians were also very big on self-promotion via large, splashy building projects using someone else’s money. There’s much more like this to the Herodian family history, as they all were a real piece of work.

James Taylor understands Herod very well, and offers a warning to the Magi and all who will listen:

Steer clear of royal welcomes
Avoid a big to-do
A king who would slaughter the innocents
Will not cut a deal for you
He really, really wants those presents
He’ll comb your camel’s fur
Until his boys announce
They’ve found trace amounts
Of your frankincense, gold and myrrh.

Not a nice guy, this Herod fellow.

As Matthew tells the story, the Magi understood this as well, and decided not to go back to Herod after visiting Jesus:

When they had heard the king, they set out; and there, ahead of them, went the star that they had seen at its rising, until it stopped over the place where the child was. When they saw that the star had stopped, they were overwhelmed with joy. On entering the house, they saw the child with Mary his mother; and they knelt down and paid him homage. Then, opening their treasure chests, they offered him gifts of gold, frankincense, and myrrh. And having been warned in a dream not to return to Herod, they left for their own country by another road.

In JT’s telling, the Magi “went home by another way.” But Taylor isn’t singing just to retell the story of what happened back then. He’s preaching, in his own way, drawing his listeners into the song and changing us here today:

Well it pleasures me to be here
And to sing this song tonight
They tell me that life is a miracle
And I figure that they’re right
But Herod’s always out there
He’s got our cards on file
It’s a lead pipe cinch
If we give an inch
That Herod likes to take a mile

It’s best to go home by another way
Home by another way
We got this far to a lucky star
But tomorrow is another day
We can make it another way
“Safe home!” as they used to say
Keep a weather eye to the chart up high
And go home another way

Yes, Herod *is* always out there, looking to game the system and rape the system and break the system if that’s what it takes to keep himself in power.

But there is also always another way, a way that leaves Herod and his successors powerless and impotent.

The way of Desmond Tutu and Nelson Mandela, of Hugh Masekela, Miriam Makeba, and Ladysmith Black Mambazo.
The way of Ella Baker and John Lewis, of Robert Graetz and Jeannie Graetz.
The way of Ida B. Wells and Upton Sinclair, of Harvey Milk, Del Martin, and Phyllis Lyon
The way of the Flirtations and Sweet Honey in the Rock, of the Weavers and John McCutcheon.

Tomorrow is January 6th, and I’ll read this story from Matthew again in my study first thing in the morning. Then I’ll pull up this song and listen to the wisdom of James Taylor, urging *us* to go home by another way — a way of justice and peace, a way of hope and love.

Brother James, if you’d take the lead, it’s time to sing . . . and you all are invited to sing along.

Updated to correct the album title. Thanks, @RyanCaseyWA, for pointing it out.

The Johnsons — Daryl and Daniel — Plead Up to Civil Disorder

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There was a plea hearing yesterday that deserves more notice: father and son pair, Daryl and Daniel Johnson, pled guilty to civil disorder.

I believe it was the first straight civil disorder (18 USC 231) plea, though that’s only the beginning of my interest in the case. What’s more interesting is that, contrary to pleading down, from more serious charge to less serious, as normally happens, these men willingly pled up to the felony charge that can carry up to a five year sentence.

They were originally IDed by people they knew in the days after the riot and then, in March, it seems someone provided a more fulsome tip. Before they were arrested in June, the FBI had gotten Facebook warrants first for Daryl (in April) and Daniel (in May), which showed they adopted the Antifa cover story in the days after the riot.

Still, when they were arrested in June, they appeared to be nothing more than MAGA tourists — and that’s how they were charged via Information just days after their arrest. Aside from Daniel’s boasts that he was “one of the first” inside the building, there was nothing in their arrest materials that suggested their voyage through the Capitol was any more notable than hundreds of others.

In September, prosecutor Laura Hill got the standard discovery overload continuance. In October, Daryl’s attorney Thomas Abbenante was the one to ask for one. He cited “newly discovered” evidence that required further review.

The government has produced through discovery newly discovered evidence in this case that needs to be reviewed and evaluated by all parties.

Then shortly before Christmas, a superseding Information, this one a felony, was filed, indicating they would be pleading guilty but providing no explanation for how their case had become a felony. That’s pretty quick work on a plea agreement, though.

The explanation became apparent in yesterday’s plea colloquy, before Judge Dabney Friedrich. Then men were among the mob who pushed open the East Door from inside.

While inside the building, JOHNSON walked near the Memorial Door, climbed a flight of stairs to the second floor, and walked into the Rotunda. At 2:37 p.m., JOHNSON walked out of the Rotunda toward the East Rotunda doors, where he encountered a line of law enforcement officers. The officers were standing in front of the East Rotunda doors to prevent rioters outside of the building from entering. Along with a group of other rioters, JOHNSON and his son, Daniel Johnson, rushed the line of law enforcement officers and helped push through the officers and push open the East Rotunda doors, allowing rioters outside of the building to enter. JOHNSON was at or near the front of the group of rioters on the interior of the Capitol when the doors were opened. JOHNSON and his son, Daniel Johnson, remained inside the Capitol and climbed another flight of stairs to the third floor before exiting on the first floor at approximately 2:46 p.m.

That is, the Johnsons were players in one of the tactically most important events of the riot, the opening of a second front. And given the description of their actions that day, they seemed to be fairly intent on opening that second front. Only after that did they try to go to the Senate chamber. Their path appears not that different from George Tenney and Darrell Youngers, the guys who were the first to breach that second door, or Philip Grillo, one of the first to be charged with it.

It’s likely, though, that something more than newly discovered surveillance footage led to the Johnsons’ added charges. Their pleas have a deviation from the boilerplate. While the agreements include a requirement that the men cooperate before sentencing …

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.

That language doesn’t include the standard requirement that they also share their phone and social media. Obviously, the FBI had already gotten both their Facebook accounts before arrest. The FBI seems to have seen one or both men’s phones, which is standard for guys who took as much video as they did, but they still want to interview these guys before they’re sentenced in April.

(I wonder whether they found Signal texts of interest that changed their path as MAGA tourists.)

Whatever happened, their quick plea seems to have saved them further trouble; given their comments on social media, they might otherwise have been exposed to obstruction charges, which carries a 20 year sentence.

As I’ve said before, the government is very close to rolling out a description of what it took to — and the kinds of premeditation that went into — opening that second door. Daryl and Daniel’s quick plea appears to have helped them avoid being a bigger part of that story.

Trump Breached His Own Privilege by Blabbing to Sean Hannity

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The January 6 Committee is inviting Sean Hannity for a voluntary interview with the committee.

It’s unclear whether he’ll take them up on that investigation. But it seems the damage has already been done. That’s because texts involving Hannity make it clear he knew about the White House Counsel’s concerns about Trump’s actions.

The Select Committee is in possession of dozens of text messages you sent to and received from former White House Chief of Staff, Mark Meadows and others related to the 2020 election and President Trump’s efforts to contest the outcome of the vote. At this time, we are specifically focused on a series of your communications with President Trump, White House staff and President Trump’s legal team between December 31, 2020, and January 20, 2021. For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

Among other things, this text suggests that you had knowledge of concerns by President Trump’s White House Counsel’s Office regarding the legality of the former President’s plans for January 6th. These facts are directly relevant to our inquiry.

Similarly, on January 5th, the night before the violent riot, you sent and received a stream of texts. You wrote: “Im very worried about the next 48 hours.” With the counting of electoral votes scheduled for January 6th at 1 p.m., why were you concerned about the next 48 hours?

Also, on the evening of January 5th, you texted Mr. Meadows: “Pence pressure. WH counsel will leave.” Wha communications or information led you to conclude that White House Counsel would leave? What precisely did you know at that time?

Effectively, Trump breached the privileged advice the White House Counsel gave him by blabbing it to Hannity (or by Meadows doing so). The Committee can’t get that advice directly. But whatever got shared with a journalist has lost its privileged status.

DOJ’s Approximate January 6 Conspiracies

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Amid the clamor for Merrick Garland to say something about the January 6 investigation, DOJ has announced he will give a speech, tomorrow, to mark Thursday’s year anniversary of the assault on the Capitol.

Meanwhile, late last year, DOJ released a one-year summary of the investigation. It’s similar to periodical reports the DC US Attorney’s Office has released before, including that its numbers generally skew high. It includes DC Superior Court arrests, in addition to federal arrests, to come up with “more than 725 defendants;” (GWU’s count, which those of us tracking this closely consider the canonical list, shows 704 arrests). DOJ appears to mix assault and civil disorder arrests to come up with 225 in some way interfering with cops; my own count, while low, counts fewer than 150 people charged with assault. DOJ’s summary boasts that 275 people have been charged with obstruction, a number that includes those who’ve been permitted to plead down to misdemeanors.

One number, however, is low: DOJ claims that,

Approximately 40 defendants have been charged with conspiracy, either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three.

By my count, this number is at least 25% off the known count. There are 39 people currently charged in the top-line militia conspiracies, plus five people cooperating against them.

There are at least another 13 people charged in smaller conspiracies (though the Texas “Patriot” conspiracy has not been indicted yet), with two more people cooperating in those cases.

It’s most likely DOJ got this number so badly wrong because it is overworked and some of these (like the Texas one and the status of Danny Rodriguez co-conspirator “Swedish Scarf”) aren’t fully unsealed.

But it’s also likely that these numbers are not what they seem.

That’s because in (at least) the larger conspiracies, there have been a lot of plea discussions going on behind the scenes, if not hidden cooperators. Certainly in the wake of five decisions upholding the obstruction application (including in the main Oath Keeper conspiracy, in the Ronnie Sandlin conspiracy, and by Tim Kelly, who is presiding over three of the Proud Boy conspiracies), we should expect some movement. I expect there will be some consolidation in the Proud Boy cases. The Texas case and some other Proud Boy defendants have to be indicted.

Importantly, too, these conspiracies all link up to other key players. For example, Roger Stone, Ali Alexander, and Alex Jones coordinated closely with the Proud Boy and Oath Keeper conspirators. The state-level conspiracies are most interesting for local power brokers and the elected officials with whom these conspirators networked — like Ted Cruz in the case of the Texas alleged conspirators or Morton Irvine Smith in the SoCal 3%er.

The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.

And so while DOJ is undoubtedly overwhelmed, it may also be the case that DOJ would like to keep potential co-conspirators guessing about what’s really behind them.

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

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Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

  • Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
  • A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
  • An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
  • Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
  • Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
  • Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
  • A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
  • A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
  • A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
  • A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
  • A law review article on prosecutorial discretion
  • Robert Jackson’s seminal text about the role of a Federal prosecutor
  • The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
  • The quip, “hard cases make bad law”
  • An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Other Posts

Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.

Clue: It Was Sidney Powell with the Grifting, in Advance of the Pardon, on Lin Wood’s Plantation

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In a post on the significance of the news that the DC US Attorney Office is investigating Sidney Powell’s grift, I noted that she started fundraising to perpetuate false claims about a stolen election — on November 23, 2020 — before she received a thing of value from Trump — a pardon for Mike Flynn — and before she had set up the legal vehicle to do that grifting.

I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

This CNBC report adds a new wrinkle to this timeline: during this same period, Powell and Flynn and Patrick Byrne were at Lin Wood’s two plantations in South Carolina. They appear to have worked in Wood’s residence, Tomotley Plantation, and stayed in Cotton Hall, which he had just purchased.

Lin Wood, a conservative trial lawyer who led a failed legal challenge against the election results in Georgia, said in a lengthy interview that shortly after the 2020 contest last November, he hosted at his massive South Carolina properties fellow right-wing attorney Sidney Powell, former Trump national security advisor Mike Flynn, former Overstock CEO Patrick Byrne, and Doug Logan, the CEO of cybersecurity firm Cyber Ninjas.

Jim Penrose, who says on his LinkedIn profile that he used to work for the National Security Agency, and Seth Keshel, who promotes himself on his Twitter page as a former Army captain and who has spread falsities about the election, according to the Associated Press, also made appearances at Wood’s properties, the attorney said.

[snip]

“They set up in my living room and one of the sunrooms. They looked like election central. They had computers, whiteboards. They were working,” Wood said about Powell and her team’s prior work at his residence. Southern Living magazine describes the living room at Tomotley: “Custom built-ins and a working fireplace bring warmth to the spacious living room.”

[snip]

But many of Powell’s fellow election conspiracy theorists took up residence for days at Wood’s nearby property called Cotton Hall, the veteran attorney explained. It too is considered a historic plantation in South Carolina, and it encompasses over 700 acres. The South Carolina plantations history website says its primary crop in the 19th century was rice.

[snip]

Flynn, for instance, arrived at Tomotley with Byrne days after Powell arrived, Wood said. Though Byrne stayed at Cotton Hall for only a day, Flynn took up residence through Thanksgiving.

“Flynn was here on Thanksgiving because he carved the turkey when we ate over at Cotton Hall,” Wood said during the interview.

It’s unclear why Wood shared all these details. While this report cites the Daily Beast reporting that includes the news on the grand jury investigation, it presents that story instead in the context of the “feud” between Wood, Flynn, Byrne, and Powell. If they haven’t been already, those people would all be subpoenaed in the investigation, and so this might instead be an attempt to coordinate stories or convey what questions are being asked.

But what’s interesting about the timeline is that it seems to suggest that Trump or someone close to him would have called into the plotting on the plantation.

When you pardon someone, you call them or their representative to let them know. And while it’s not certain that Flynn had arrived at the plantation yet when he got the pardon on November 25, the day before he cut the turkey at Wood’s plantation on November 26, Powell had already been there some days before Flynn showed up, meaning — at least per this reporting — she was definitely at Lin Wood’s plantation plotting propaganda to help Trump stay in office on the day of the pardon.

This also adds the delicious detail that a guy who advertised that he had been honey-potted by a woman accused of spying for Russia may have been with Flynn when he received notice he was being rewarded for refusing to admit to Mueller’s team that Trump was involved in efforts to undercut sanctions on Russia in December 2016.

This all would read like a cheap spy novel if there weren’t an accused spy and a guy who admitted he had been secretly working for another frenemy state as well.

But even aside from Byrne’s presence, it sure adds interesting details to the circumstances of Flynn’s pardon that may be of interest to criminal investigators.