Jeffrey Clark Archives

Posts

Donald Trump Says He Can Only Work Over Christmas If He’s Planning a Coup

December 13, 2023/80 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

There’s a passage of Trump’s opposition to fast-tracking the DC Circuit review of Judge Tanya Chutkan’s opinion holding he is not immune from criminal prosecution that has gotten a lot of attention: Where he accuses Jack Smith of being a mean old Grinch.

Even if the Court grants expedited consideration—which it should not do—it should not adopt the prosecution’s proposed schedule, which is facially unreasonable. The prosecution “requests that the Court require the defendant’s opening brief be due no later than ten days from the entry of a briefing order,” Mot. 5-6—which, assuming the Court rules promptly on the motion to expedite after the close of briefing, would make President Trump’s opening brief due the day after Christmas. This proposed schedule would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans. It is as if the Special Counsel “growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming. … But how?’” DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).

Trump shouldn’t have to reschedule his holidays to make his argument that he is above the law, he says.

The argument is obnoxious on its face. All the more so because Trump has been known to work over Christmas.

Indeed, Donald Trump worked his ass off — as did many of his closest aides and his lawyers — over Christmas 2020.

On December 18, Trump had the famous meeting to discuss seizing the voting machines. On December 19, he tweeted out the “Will be wild” announcement, kicking off efforts around the country to travel to DC for the rally. On December 21, he had a planning call with members of the Freedom Caucus. On December 22, Trump approved an ad buy to pressure governors. On December 22, Trump met with Scott Perry and Jeffrey Clark. On December 22, Mark Meadows attempted to enter the counting area in Cobb County, GA. On December 22, Trump gave a speech in which he defamed Ruby Freeman and Shaye Moss. On December 23, Trump called Georgia investigator Frances Watson and suggested that he she showed him winning by hundreds of thousands, “you’ll be praised.” On December 23, Trump accused Georgian election officials of being “Terrible people.” On December 23, Trump had an Oval Office meeting with Doug Mastriano and other Pennsylvania State Senators. On December 23, John Eastman fine-tuned his scheme to have Vice President Pence pick and choose which votes to count. On December 23, Trump tweeted out about Operation PENCE Card. On Christmas Day, Trump called Rusty Bowers and asked him to support the fake elector scheme. Also on Christmas, Trump tried to persuade Pence to reject Biden votes. On December 26 and 27, Scott Perry developed his plan to have Jeffrey Clark intefere at DOJ. On December 27, Trump harangued Jeffrey Rosen and Richard Donoghue for two hours in an attempt to get them to support his false claims of fraud, before he suggested he might install Clark. On December 27, he spoke with Roger Stone about plans for January 6, including his own plan to speak. On December 27, Trump started getting more involved in planning the event, beginning to discuss a march to the Capitol. On December 27, Trump boosted January 6 again. On December 28, Rudy’s team finalized their Strategic Communications Plan they’d been working on for weeks.

This is a non-exclusive list. Trump worked his ass off over the Christmas holiday in 2020.

So it’s not that Trump (or his lawyers) are averse to working through the holidays.

They’re only willing to do so, though, when planning a coup.

When John Eastman Acknowledged that Candidate Trump Spoke in His Personal Capacity

December 4, 2023/20 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In Sri Srinivasan’s opinion in Blassingame holding that presidents, when speaking as candidates, are not immune from civil suit, he pointed to a key moment in the 2020 transition period to illustrate the distinction he was making between when a president running for re-election speaks as an office-seeker, rather than an office-holder: When Trump intervened in the Texas v. Pennsylvania lawsuit.

As an example, consider a situation directly germane to the cases before us in which President Trump publicly volunteered that he was acting—and speaking—in an unofficial, private capacity. In the period after the 2020 election and before January 6, the Supreme Court considered an effort by Texas to challenge the administration of the election in several battleground states in which then-President-elect Biden had been declared the winner. Texas v. Pennsylvania, No. 22O155 (U.S. 2020). President Trump moved to intervene in the case. In doing so, he specifically explained to the Supreme Court (and captioned his filing accordingly) that he sought to “intervene in this matter in his personal capacity as a candidate for re-election to the office of President of the United States.” Motion of Donald J. Trump, President of the United States, to Intervene in his Personal Capacity as Candidate for ReElection, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion to Intervene 14, Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene). He relatedly elaborated that he wished “to intervene to protect his unique and substantial personal interests as a candidate for re-election to the Office of President.” Id. at 24.

President Trump, then, affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his “personal capacity” as a candidate for reelection—indeed, he explained that his reason for wanting to participate in the case was a “substantial personal” one rather than an official one. That stands in sharp contrast with other cases in which he—like all Presidents—had filed briefs in the Supreme Court in his “official capacity as President of the United States.” See, e.g., Brief for the Petitioners at II, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President Trump’s effort to participate in Texas v. Pennsylvania was made in an expressly and self-consciously personal, unofficial capacity, the content of his speech in his submission undoubtedly involved a matter of significant public concern: his challenge to the election results in various pivotal states, whose “electors [would] determine the outcome of the election.” Trump Mot. to Intervene 27.

As that example illustrates, an immunity for all presidential speech on matters of public concern—without regard to the context in which the President speaks—would be grounded purely in “the identity of the actor who performed it” rather than “the nature of the function performed.” Clinton, 520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a result is “unsupported by precedent.” Id. And it is unsupported by the basic object of granting a President official-act immunity: assuring that the President is not “unduly cautious in the discharge of his official duties.” Id. at 694 (emphasis added) (quoting Nixon, 457 U.S. at 752 n.32). That concern necessarily has no salience when the President acts—by his own admission—in an unofficial, private capacity.

b.

As President Trump’s intervention motion in Texas v. Pennsylvania highlights, whether the President speaks (or engages in conduct) on a matter of public concern bears no necessary correlation with whether he speaks (or engages in conduct) in his official or personal capacity. And because it is the latter question that governs the availability of presidential immunity—as a matter both of precedent and of the essential nature of an immunity for (and only for) official acts—we must reject President Trump’s proposed public-concern test as illsuited to the inquiry. [my emphasis; links added]

Remember that time, weeks before the actions alleged in these lawsuits, Srinivasan might have been nudging the six Republican appointees to the Supreme Court, where even Donald Trump admitted that sometimes when the president speaks, he speaks only in his personal capacity?

It was more than that, though, and in ways that might be significant to both the civil cases and Jack Smith’s case.

This was not just Donald Trump acknowledging that, at that moment in December 2020 when he asked the Supreme Court to make him the winner of the 2020 election, he was speaking in his personal capacity. It was John Eastman, Counsel of Record on that motion, who described Trump as such. Eastman filed that motion to intervene, representing Trump in his personal capacity, in a period when he was discussing with Clarence Thomas’ spouse about lawsuits to challenge the results of the election (though she told the January 6 Committee she had no involvement “at all” in Texas v. Pennsylvania). Even Republican members of Congress got into the act, starting with now-Speaker Mike Johnson and including Jim Jordan and Scott Perry.

When Ken Paxton asked the Supreme Court to throw out the votes of four swing states, a bunch of people who would go on to play key roles in the attack on Congress were party to an action in which Co-Conspirator 2 described that Defendant Trump spoke in his personal capacity.

In days ahead, we’ll learn more about how the DC Circuit civil decision being sent back to Amit Mehta will intersect with Tanya Chutkan’s criminal decision that former president Donald Trump is entitled to no immunity as former president. These two decisions may literally and figuratively pass each other in the halls of Prettyman Courthouse, as one decision heads back to the older District chambers and another heads up to the fancier Circuit chambers.

Srinivasan’s opinion is limited, inviting very specific fact-finding.

As I described, in a passage citing the Blassingame decision released just hours earlier, Chutkan very pointedly stopped short of that specificity. She declined to weigh in on whether a former president’s immunity from criminal prosecution would be different if he was acting “within the outer perimeter of the President’s official” duties than if he was engaged in official acts, effectively inviting Srinivasan and his colleagues to do that.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Chutkan’s decision might well be sufficient. There are plenty of things a president might do, claiming to do so in his official capacity, which would also break the law; DOJ raised five pretty familiar looking examples in their response to Trump’s bid for absolute immunity.

DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

[snip]

A President ordering the National Guard to murder his critics

A President ordering an FBI agent to plant evidence on his political enemy

A bribe paid in exchange for a family member getting a lucrative contract

A President selling nuclear secrets to America’s adversaries

It would be nice if first DC Circuit and then SCOTUS could put this matter to bed, so it stops holding up Trump cases.

But judges like to move cautiously, testing the easy cases before they test the harder ones. With the Srinivasan decision in hand, the DC Circuit might treat the criminal appeal differently than they otherwise might.

For example, they might note, as DOJ did in its response, that five of six Trump described co-conspirators are also private citizens: Trump’s personal attorney Rudy Giuliani, Eastman representing Trump in his personal role, Sidney Powell, whom Trump recent said would be conflicted from representing him personally), Ken Chesebro who also claimed to be representing Trump personally, and Boris Epshteyn, who nominally remained an employee of the campaign.

If invited to do further briefing in light of Srinivasan’s opinion, DOJ might note that after SCOTUS denied Texas v. Pennsylvania cert, Trump’s campaign lawyers gave up the fight, as the January 6 Committee Report describes, ceding the fight to Rudy and the other co-conspirators.

Not everyone on the campaign was eager to pursue the fake elector plan. OnDecember 11th, the U.S. Supreme Court rejected a high-profile lawsuit filedby the State of Texas challenging the election results in Pennsylvania, Georgia, Michigan, and Wisconsin.42 After that decision, the Trump Campaign’s senior legal staffers said that they reduced their involvement in thefake elector effort, apparently because there was no longer a feasible scenario in which a court would determine that President Trump actually won any of the States he contested.43 Justin Clark, who oversaw the Trump Campaign’s general counsel’s office, said that he basically conveyed, “I’mout,” and encouraged his colleagues on the legal team to do the same.44 Findlay told the Select Committee that “we backed out of this thing,” and Morgan, his boss, said he had Findlay pass off responsibility for the electorsas “my way of taking that responsibility to zero.”45

Clark told the Select Committee that “it never sat right with me that there was no . . . contingency whereby these votes would count.”46 “I hadreal problems with the process,” Clark said, because “it morphed into something I didn’t agree with.”47 In his view, the fake electors were “not necessarily duly nominated electors” despite being presented as such.48 Hesaid he believed he warned his colleagues that “unless we have litigationpending like in these States, like I don’t think this is appropriate or, you know, this isn’t the right thing to do.”49

DOJ might also note that, as charged in the indictment, the suit played a specific role in the Georgia allegations, when Chris Carr refused Trump’s request that he join in Texas’ lawsuit, because none of Trump’s claims had merit.

And it’s not just Trump’s personal lawyer co-conspirators. The invocation of Texas v. Pennsylvania even weighs heavily on the role Jeffrey Clark, then serving as Acting Assistant Attorney General at DOJ and so in a far better position to claim to be acting in an official role, played in the alleged conspiracy.

That’s because Trump’s bid to replace Jeffrey Rosen with Clark was directly tied to an effort to get DOJ to file a similar lawsuit. Here’s how Jeffrey Rosen described it to the January 6 Committee.

Q Okay. And want to talk to you also about the December 27th call where | believe you conferenced in Mr. Donoghue. ~ And that involved the President as well. In Mr. Donoghue’s notes, he references John Eastman and Mark Martin and has a note that says: P trusts him.

What do you remember about that aspect of the conversation?

A So I think that day someone had sent over to us a draft Supreme Court brief modeled on the Texas v. Pennsylvania case that the Supreme Court had rejected. And I was I think Rich Donoghue and Steve Engel and I had a meeting that we were there for t0 address an oversight set of issues that had produced some controversy that Members of Congress who – I won’t get nto all that, other than that Mr. Meadows had asserted to me that the thing had – that he and AG Barr had resolved it. But now AG Barr was gone, and it wasn’t resolved, and he wanted to talk to me about getting it resolved.

But at that discussion Mr. Meadows raised with us: ~ Did you guys see the Supreme Courtbrief that was sent over?

And I think we said: Haven’t read it carefully, but it doesn’t look viable.

And he responded in some sense — and, again, I’m paraphrasing, because I don’t I’m repeating the substance rather than the words was: Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s great idea.

And we said: Well, you know, we’ll get back to you. But preliminary take is it has problems, that it doesn’t look like a good idea to us. But we’ve only had it 2 hours or something like that, you know, whatever the timeframe was, which it was relatively brief.

Trump followed up twice, pushing DOJ to sue as the government.

What I remember better was that, on Wednesday, after the Kurt Olsen incident, I spoke to the President. I think that was just me, or Rich may have been in my office, but I don’t think it was on the speakerphone. Some of these were on speakerphone with me and Rich, and some, it was just me, but Rich could’ve been in my office.

And the way I remember it is, on Wednesday, I wound up telling the President, “This doesn’t work. ~ There’s multiple problems with it. And the Department of Justice is not going to be able todo it” And–

In the same exchange, there was discussion of whether a DOJ attorney, like Jeffrey Clark, could represent the president in his personal capacity.

Q Okay. So is it fair then to say that this was not partof the Department’s official businessatthe time?

A Yes

Q And, to your knowledge, can Jeff Clark as the assistant — Acting Assistant Attorney General for the Civil Division, can he represent the President in a personal capacity while also maintaining his role at the Department of Justice?

A Let me just make sure I understand the question. You’re saying, can he outside of his DOJ role represent the President in a personal capacity? And I’m trying what I’m trying to distinguish is sometimes the President or others get sued in their individual capacity. But they have some form of governmental immunity or the like. And so the government can represent them as individuals. That’s not what you’re getting at. You’re talking about, can a – can someone who’s a government employee, You know, have like a side gig representing a private person?

But then, after Jeffrey Rosen refused to make DOJ Trump’s own personal law firm, Trump took steps to make Jeffrey Clark, who was willing to do that, Acting Attorney General.

This application may even have critical import to the application of 18 USC 1512(c)(2) and (k) to Trump’s actions. Weeks before Trump and Eastman allegedly conspired to obstruct the vote certification on January 6, Eastman described that Trump had “unique and substantial personal interests” in throwing out the votes of four states that voted for Joe Biden. That’s the kind of admission from co-conspirator 2 that would make any analysis of Trump’s corrupt purpose in obstructing the vote certification quite easy.

Srinivasan’s use of Trump’s motion to intervene was, at one level, a very convenient use of Trump’s own legal claims — made before a conservative Supreme Court that will eventually answer both of these questions — against him.

But it maps onto the criminal case, too, in ways that DC Circuit might choose to apply as a way to tiptoe their way into sanctioning the first prosecution of an ex-president for actions he took as an office-seeker, rather than an office-holder.

Update: Ben Wittes and Quinta Jurecic similarly discuss how these two rulings work in tandem.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

August 9, 2023/86 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others

December 20, 2022/69 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last Friday, Beryl Howell unsealed two opinions regarding privilege team reviews in the grand jury investigation into attempts to overturn the 2020 election. The first order, dated June 27, 2022, pertains to 37 emails involving Scott Perry seized from two Gmail, one Microsoft, and John Eastman’s Chapman U email accounts involving:

A non-lawyer whose name remains redacted (probably 8 documents total)
Jeffrey Clark (19 documents total)
Ken Klukowski (7 documents total)
John Eastman 3 documents total)

The second order, dated September 27, 2022, pertains to a filter review of an outline for an auto-biography Clark was writing on October 11 and 14, 2021, which was auto-saved 331 times in Google Notes. Because Clark attempts to invoke both work product and attorney-client privilege over a document he initially labeled as not privileged, Howell calls Clark’s claims in that dispute “throwing spaghetti at the wall to see what sticks.”

The orders reveal bare outlines of the investigation.

It shows, first of all, what I laid out here: That the FBI obtains warrants for materials stored in the cloud that are accessible covertly before it gets warrants for things — like phones and homes — that it must seize overtly. In Clark’s case, the FBI first obtained his Outlook account and only later his Gmail account.

By May 26, the FBI had warrants for the cloud accounts of four people. But it took just a month to get a warrant for Jeffrey Clark and John Eastman’s phone. Amazingly, it seems that the FBI used Scott Perry’s involvement in the investigation as a way to initially isolate information that should not be privileged. Most of the emails in the first order sound investigatively uninteresting, including things like nine copies of Clark sending Perry two versions of his resume or requests from Perry to give him a call; that provides a glimpse of the difficulties of an investigation, like this one, in which most of the suspected co-conspirators are lawyers.

The material covered by the second order sounds more interesting, as it gives Clark’s version of the January 3 confrontation where most of DOJ’s top officials and Trump’s top White House Counsel threatened to quit.

The second order explains that after an overt search takes place on a subject, then their own attorneys are brought into the filter process (as Clark’s attorney was in the second order).

The filter protocol was later amended with respect to Clark and others to provide for detailed procedures for disclosing certain material to any potential privilege holder after separate search warrant on Clark and others, and Clark’s residence were executed, alerting these persons to the government’s investigation.

This detail suggests there likely was an overt warrant served on Klukowski (otherwise the existence of the cloud warrant targeting him would not be unsealed). It suggests the fourth person, a non-lawyer, has not yet been formally alerted into the investigation into him or her.

It also likely provides background to what happened with Scott Perry. DOJ was already accessing his [email protected] email, at least those seized from the lawyers. He likely learned the full extent of prior warrants served on him in August, after DOJ seized his phone. And a more recent dispute over text messages reported by CNN may operate under a similar protocol, with his lawyer contesting access directly.

Timeline

May 26, 2022: Three separate hearings on filter protocol; Howell approves filter protocol for four email accounts

June 17, 2022: Filter team begins reviewing 130,000 documents

June 23, 2022: Jeffrey Clark home searched and phone seized; John Eastman phone seized

June 24, 2022: Warrant approved for Clark Gmail account

June 27, 2022: Howell authorizes sharing of Scott Perry emails; Warrant executed for Clark Gmail

July 12, 2022: Filter protocol covering devices seized from Clark’s residence

July 21, 2022: Howell approves filter protocol for Clark Gmail account

August 9, 2022: Scott Perry phone seized

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 25, 2022: Clark attorney Charles Burnham objects to sharing of auto-biography, claiming attorney work product

August 29, 2022: Filter team provides more substantive reply; Burnham responds, “We object”

September 8, 2022: Filter team moves to share a copy of motion with Clark’s lawyer and a memoir with investigative team

September 21, 2022: Supplemental response to Beryl Howell query

September 27, 2022: Howell approves sharing of memoir

September 28, 2022: Clark provided September 27 order

November 16: Howell issues minute order about unsealing opinions

December 15: Howell unseals two redacted orders

What DOJ Was Doing While You Were Wasting Time Whinging on Twitter

July 16, 2022/162 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Because people are so desperate for information on investigations into Trump, they’re over-reading articles to see only the most panic-inducing details.

So I wanted to collect all the known details of investigative steps against Trump and his associates. This will be a running thread.

Note that while I’ve focused on named subjects, these investigations absolutely intersect. That’s readily apparent with the fake electors investigation, but less so with the “Stop the Steal” nexus (best seen in the Ali Alexander entry below; which is where I’m putting some movement activists who played key roles). Those who were speakers on January 5, VIPs who were removed from the speaker’s list on January 6, or who were on Stone’s Friends of Stone or Alexander’s Stop the Steal lists often had roles both in ginning up mobs in states or advance planning for events at the Capitol on January 6 and played some role as things rolled out that day. These people would likely be the “influencers” identified in the investigative plan put together before Michael Sherwin left.

Rudy Giuliani

April 13, 2021: SDNY obtains historic and prospective cell site warrant for Rudy.

April 21, 2021: Warrants for Ukraine-related investigation approved. This was Lisa Monaco’s first day as Deputy Attorney General. The temporal scope on the Ukraine warrants extends from August 1, 2018 through May 31, 2019.

April 28, 2021: Warrants executed. Around 18 devices seized, of which 16 can be cracked.

September 3, 2021: SDNY argues that the privilege review for Rudy’s devices must be conducted pre-scope (meaning, before just the information on Ukraine is identified) and generously offers to limit temporal range of review to items post-dating January 1, 2018, significantly expanding the temporal scope of the privilege review vis a vis the known warrants.

September 16, 2021: Judge Paul Oetken approves SDNY’s desired treatment of Rudy’s phones, meaning anything that post-dates January 1, 2018, regardless of topic, will be reviewed for privilege.

November 2, 2021: Special Master releases contents of 7 devices, for which privilege review extended through seizure. 2,223 items were provided to the government.

January 15, 2022: WaPo quotes Rob Jenkins, who represents a number of Proud Boy defendants, explaining that DOJ is asking about Roger Stone and Rudy Giuliani’s ties to militia members.

January 19, 2022: Special Master releases contents through April 2021 of one phone amounting to over 25,000 items, as well as eight other devices for which the privilege review extended from December 1, 2018 through May 31, 2019.

April 12, 2022: In guise of coming to a final decision on the Ukraine influence-peddling that hasn’t happened yet, DOJ asks Rudy to unlock last several devices.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

Rudy Giuliani,
Boris Epshteyn
Justin Clark
John Eastman
Bernard Kerik
Joe diGenova
Victoria Toensing
Jenna Ellis
Kenneth Chesebro

July 22, 2022: In grand jury testimony, Marc Short and (earlier) Greg Jacob are asked about Rudy and Eastman.

Roger Stone

March 17, 2021: In response to motion for bail for Connie Meggs, DOJ includes picture showing both she and Graydon Young worked a Roger Stone event on December 14, 2020.

June 23, 2021: Oath Keeper Graydon Young, who interacted with Stone in Florida in December 2020, enters into a cooperation agreement.

June 30, 2021: Oath Keeper Mark Grods, who worked the Willard the morning of the insurrection, enters into a cooperation agreement.

September 15, 2021: Oath Keeper Jason Dolan, who guarded Stone in both Florida and DC and would have witnessed discussions between Kelly Meggs and Roger Stone in December, enters into a cooperation agreement.

January 15, 2022: WaPo quotes Rob Jenkins, who represents a number of Proud Boy defendants, explaining that DOJ is asking about Roger Stone and Rudy Giuliani’s ties to militia members.

March 2, 2022: Oath Keeper Joshua James, who oversaw security of Stone on the morning of January 6 and reported back frequently, enters into a cooperation agreement. James also provides statement to NYPD inquiry of Stone associate Sal Greco.

March 4, 2022: WaPo describes hours of documentary video tracking Stone’s events leading up to the attack, including details from a Friends of Stone list on which Stone started planning Stop the Steal immediately after the election. Both DOJ and January 6 sought the outtakes, with Oath Keeper prosecutor Jeffrey Nestler offering to fly to Denmark to make the request. [Note this entry has been corrected to reflect ongoing efforts to get the footage.]

May 2022: NYT describes more about the FOS list, confirming that Owen Shroyer, Enrique Tarrio, Stewart Rhodes, and Ivan Raiklin took part. By June 23, 2022, DOJ had extracted the contents of Shroyer, Tarrio, and Rhodes’ phones.

Sidney Powell

June 2021: Nikki Fried announces Sidney Powell’s Defending the Republic had been raising funds in Florida without registering as a charity.

August 24, 2021: Powell’s fund settles with Florida.

September 2021: AUSA Molly Gaston issues subpoena for records relating to Sidney Powell’s grift going back to November 2, 2020.

November 30, 2021: Several outlets report on subpoenas relating to Powell. (WaPo, Daily Beast)

January 22, 2022: Powell’s attorney claims to be “cooperating” with DOJ investigation.

June 22, 2022: Months after BuzzFeed and Mother Jones report on the scheme, DOJ asks Judge Amit Mehta to conduct conflict inquiry regarding Powell’s funding of Oath Keeper defendants’ defense.

Alex Jones

April 13, 2021: Jones videographer Sam Montoya arrested on trespassing charges related to January 6.

August 19, 2021: Jones sidekick and January 5 speaker Owen Shroyer arrested for violating a non-prosecution agreement by trespassing; Shroyer did not enter the Capitol.

January 20, 2022: Judge Tim Kelly denies Shroyer’s motion to dismiss, effectively agreeing with DOJ that Shroyer (and so Alexander and Jones) weren’t invited by cops to the East steps and didn’t de-escalate the crowd. According to his pre-released testimony, Alexander had claimed they were de-escalating in his sworn testimony to the January 6 Committee.

May 5, 2022: Montoya asks for 60 day extension to discuss plea deal.

May 9, 2022: At status hearing, Shroyer attorney Norm Pattis describes talks of a plea deal.

June 14, 2022: Long-time Jones attorney Norm Pattis, who is representing Owen Shroyer, joins Joe Biggs’ defense team.

June 23, 2022: DOJ provides Shroyer unscoped contents of his phone, to provide scoped contents later.

Ali Alexander

January 25, 2021: Brandon Straka arrested for trespassing and civil disorder. Straka was a key player in the Stop the Steal movement, playing a key role at the riot at the TCF vote counting center in Michigan after the election, spoke at the January 5 rally, sat next to Mike Flynn at Trump’s speech, and stopped at the Willard before heading to the riot. Straka was also on Alexander’s Stop the Steal LISTSERV.

February 17, 2021: First FBI interview with Straka.

March 25, 2021: Second interview with Straka.

December 8, 2021: In released testimony for an appearance before J6C, Alexander told a story that DOJ had already debunked in the Owen Shroyer case. For this and other appearances, Alexander was represented by Paul Kamenar, the same attorney that guided Andrew Miller through stalling the Mueller investigation for a year.

January 5, 2022: Third interview with Straka.

January 13, 2022: DOJ includes sealed cooperation memo in Straka’s sentencing memo.

April 19, 2022: After 15 months of continuations, Anthime “Baked Alaska” Gionet charged with a single trespassing charge, a charge understood to have required some cooperation in advance.

May 11, 2022: Anthime “Baked Alaska” Gionet balks at a plea hearing for a cooperative misdemeanor plea. It is understood that Gionet shared certain materials to avoid a felony indictment. Gionet was given two months (until July 22) to plead to the misdemeanor or face the prospect of felony charges relying on his cooperation.

June 24, 2022: Ali Alexander testifies before grand jury.

June 28, 2022: Alexander returns to DC.

Jeffrey Clark

Note there are two Trump lawyers named Clark: Jeffrey is the DOJ official who would have replaced Jeffrey Rosen . Justin worked on campaign issues. [Really bad error corrected.]

January 25, 2021: DOJ IG Michael Horowitz opens probe into whether current or former DOJ officials attempted to overturn the election.

July 26, 2021: Associate Deputy Attorney General Bradley Weinsheimer writes former top Trump DOJ officials permitting them to testify on efforts, led by but not limited to Clark, to involve DOJ in an attempt to overturn the election. This was the first of a series of Executive Privilege review waivers DOJ asked Biden to make and roughly coincided with the delayed institution of a Contact Policy preventing Biden from learning about investigations.

June 22, 2022: Agents search Clark’s home and seize his devices. Per CNN, DOJ IG coordinated with the wider investigation into January 6.

John Eastman

March 28, 2022: Judge David Carter rules it is more likely than not that Eastman and Trump conspired to obstruct the vote certification. DOJ would be able to obtain any emails Judge Carter released directly from Chapman University covertly.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

Rudy Giuliani,
Boris Epshteyn
Justin Clark
John Eastman
Bernard Kerik
Joe diGenova
Victoria Toensing
Jenna Ellis
Kenneth Chesebro

June 28, 2022: FBI seizes Eastman’s phone, gets him to unlock it.

July 22, 2022: In grand jury testimony, Marc Short and (earlier) Greg Jacob are asked about Rudy and Eastman.

Fake Electors

Fall 2021: According to NYT, Thomas Windom assigned, “to pull together some of the disparate strands of the elector scheme.”

January 25, 2022: Lisa Monaco confirms on the record that DOJ is investigating the fake elector scheme.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

Rudy Giuliani,
Boris Epshteyn
Justin Clark
John Eastman
Bernard Kerik
Joe diGenova
Victoria Toensing
Jenna Ellis
Kenneth Chesebro

June 21, 2022: On July 25, 2022, WaPo published subpoenas to AZ fake electors Karen Fann and Kelly Townsend. In addition to AZ-specific list and the already published list of names of interest, those add:

James Troupis
Joshua Findlay
Mike Roman

June 22, 2022: DOJ takes a slew of overt steps in their investigation into the fake electors:

WaPo: Law enforcement activity targeting GA lawyer Brad Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
CNN: Subpoena for Shafer, a warrant for David Carver’s phone, information on a GA Signal chat

July 8, 2022: Due date for June 21 subpoenas.

July 13, 2022: Talks between J6C and DOJ about sharing transcripts prioritizes fake electors scheme.

The Mark Meadows Gap

As I was writing this timeline, I realized that, aside from efforts on behalf of the Archives to force Meadows to reconstruct the insurrection he carried out on his personal phone and email, we really do have little information about an active investigation into Meadows’ role in the plot. That may explain why DOJ had not considered interviewing Cassidy Hutchinson before they saw her testimony.

Meadows should be included in the fake electors investigation, but thus far, he’s not. He would be included in any DOJ investigation of pressure in Georgia, but thus far, it seems DOJ has let Fani Willis take the lead on that investigation.

With the exception of Scott Perry, Meadows would be an absolutely necessary pivot to members of Congress who conspired in an attack on their own institution.

Additionally, there are credible allegations of obstruction against Meadows — for replacing his phone, likely deleting Signal and other encrypted app texts, after the FBI investigation started; for burning documents; for pressuring Hutchinson not to testify.

All that said, while Meadows is undeniably the most important gap in this timeline, Trumpsters are predicting that Meadows will go to jail, citing not just his own schemes, but his finances.

Steve Bannon

September 23, 2021: January 6 Committee subpoenas Bannon.

November 3 and 8, 2021: At interviews Bannon attorney Robert Costello did with DC US Attorney’s Office, at which FBI Agents were present, he gives materially inconsistent answers.

November 11, 2021: DOJ obtains Internet and telephony toll records for Robert Costello spanning from March 5 through November 12, which cannot pertain exclusively to the subpoena from a Committee the founding of which came months after the start date of toll request.

November 2021: DOJ subpoenas the toll records for two people — one is a financial advisor — under whose accounts he was believed to communicate in the past; DOJ provided these in discovery on July 8, 2022. The scope for at least one of the subpoenas is for September 22, 2021 through October 21, 2021.

November 12, 2021: DOJ indicts Bannon for contempt.

December 2, 2021: After DOJ raises concerns about Costello serving as a witness, he joins Bannon’s legal team until just before trial.

June 29, 2022: Pursuant to a trial subpoena, DOJ interviews Trump attorney Justin Clark about circumstances of Bannon’s non-compliance.

July 22, 2022: Jury finds Bannon guilty of both counts of contempt.

Peter Navarro

June 2, 2022: DOJ indicts Navarro on two counts of contempt.

Stolen classified documents

February 18, 2022: NARA informs Oversight Chair Carolyn Maloney that there were classified documents among the 15 boxes taken to Mar-a-Lago.

February 22, 2022: Merrick Garland implies DOJ will investigate the mishandled documents.

April 7, 2022: Because DOJ opened investigation into documents, NARA refuses request for more information from Maloney.

May 12, 2022: DOJ issues subpoena to NARA regarding documents and requests interviews with those involved in packing boxes before leaving the White House.

Other key dates

January 4, 2021: DC authorities seize Enrique Tarrio’s phone.

January 8, 2021: Grand jury that carries out bulk of investigation on Capitol and ultimately charges Oath Keepers with sedition convened.

May 25, 2021: Grand jury that indicted Bannon, handful of Jan6ers convened.

August 11, 2021: Grand jury that indicted Michael Riley (Capitol Policeman), several serious defendants (including a superseding) convened.

Summer 2021: FBI interviewed Doug Mastriano about January 6.

October 21, 2021: In Congressional hearing, Merrick Garland makes clear that the OLC memo prohibiting the prosecution of a sitting President is not pertinent to whether Trump can be charged.

November 10, 2021: Still-active grand jury indicting more serious ongoing assault cases, among others, convened.

November 22, 2021: In hearing in Garret Miller case, Judge Carl Nichols asks AUSA James Pearce whether DOJ’s application of 18 USC 1512(c)(2) to the vote certification could apply to someone like Trump. Nichols would go on to be the lone DC judge to reject this application.

December 2021: FBI first gets access to Tarrio’s phone.

December 10, 2021: Judge Dabney Friedrich is the first DC Judge to uphold DOJ’s application of 18 USC 1512(c)(2) to the certification of the vote, the same crime discussed for use with Trump.

January 5, 2022: Garland promises DOJ, “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” and describes, “follow[ing] the money.”

January 12, 2022: DOJ charges Oath Keepers with sedition (and adds Stewart Rhodes to conspiracy).

Mid-January 2022: After filter review, DOJ first obtains materials from Tarrio’s phone that was seized over a year earlier.

January 19, 2022: SCOTUS rejects Trump’s bid to shield January 6 records under Executive Privilege. Not only will J6C get subpoenaed materials directly, but DOJ will be able to obtain the same materials directly, using privilege waiver Biden made for the Committee without violating contact rules.

February 14, 2022: Grand jury that charges Proud Boys with sedition convened.

February 15, 2022: Grand jury that charges Peter Navarro convened.

February 18, 2022: Judge Mehta denies Trump’s motion to dismiss various lawsuits, finding it plausible that Trump conspired with rioters at the Capitol, that he conspired with the militias who attacked the Capitol, and that he has aid and abet liability for assaults at the Capitol, including on cops.

March 3, 2022: Judge Carl Nichols holds that 18 USC 1512(c)(2) must have a documentary component and applies the rule of lenity to dismiss obstruction charge against Garret Miller. In briefing in this case, Nichols had hypothetically asked whether the law could apply to the then-President.

March 7, 2022: DOJ adds Enrique Tarrio to Proud Boy Leaders conspiracy.

March 28, 2022: Judge David Carter rules it is more likely than not that Eastman and Trump conspired to obstruct the vote certification.

May 25, 2022: Garland issues memo affirming that the same rules that always apply to DOJ investigations still apply to DOJ investigations.

June 6, 2022: DOJ charges Proud Boy leaders with sedition.

June 28, 2022: Testimony of Cassidy Hutchinson said to “jolt” DOJ to discuss Trump crimes other than those tied to inspiring rioters, though that report also says that, “change that was underway even before Ms. Hutchinson’s testimony.”

June 29, 2022: In a public appearance, Lisa Monaco says, Congress “is doing their job and we’re doing ours” and describes that DOJ is “deep” into its January 6 probe.

July 15, 2022: After declining to prosecute Mark Meadows for contempt in June, DOJ weighs in on Meadows lawsuit against J6C to opine that Hutchinson’s testimony demonstrated that the Committee is unable to obtain necessary information from other sources.

July 20, 2022: In response to a question about whether DOJ guidance on opening sensitive investigations would be affected if Trump announced he was running, Lisa Monaco reiterates that DOJ would follow the facts, “no matter where they lead, no matter to what level.”

July 21, 2022: Merrick Garland suggests that those who claim DOJ should, but is not, doing a hub-and-spoke investigation are speculating, and calls the investigation “the most wide-ranging” investigation that the Justice Department has ever entered into.

July 22, 2022: Marc Short appears before a grand jury (Greg Jacob did by July 22 as well).

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

June 28, 2022/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously here — noting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber work — a 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.

Jeffrey Clark: Physics Takes Over the Investigation Now

June 27, 2022/155 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.

The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”

June 10, 2022/204 Comments/in 2016 Presidential Election, January 6 Insurrection /by emptywheel

I’ve caught up to all of you in the States watching the first January 6 Committee hearing (my Twitter commentary while watching the video is here).

I think the hearing was an effective scene-setter, laying out information in a coherent narrative.

Perhaps the most striking part of the hearing was the degree to which, aside from the two live witnesses, Capitol Police Officer Carolyn Edwards and Nick Quested, the hearing relied exclusively on Republicans to make their case, with clips from:

Jason Miller
Alex Cannon
Matt Morgan
Bill Barr
Ivanka
Mike Pence (from a video appearance at the Federalist Society)
Greg Jacob
Steve Bannon
General Mark Milley
Sean Hannity and Kayleigh McEnany
Jared
Jeremy Bertino
Enrique Tarrio
Stewart Rhodes
A number of Jan 6 defendants, including Eric Barber

If I’m not mistaken, Thomas Jefferson was the only Democratic President named, but a slew of Republican Presidents were named (George W Bush was not, but Gerald Ford was).

There was plenty of shaming, including calling out Jeffrey Clark and Scott Perry for refusing to cooperate and noting that Kevin McCarthy was scared.

The clip of Jared accusing Pat Cipollone of “whining” when he threatened to quit may make it more likely to get the former White House Counsel’s testimony.

In short, this was directed at Republicans and relied on Republicans to make the case for democracy.

In that frame, I found the closing words of Liz Cheney’s opening statement to be the most effective messaging.

I ask you to think of the scene in our Capitol Rotunda on the night of January 6. There in a sacred space in our Constitutional Republic. The place where our Presidents lie in state. Watched over by statues of Washington and Jefferson, Lincoln and Grant, Eisenhower, Ford, and Reagan. Against every wall that night encircling the room, there were SWAT teams. Men and women in tactical gear, with long guns, deployed inside our Capitol building. There in the Rotunda these brave men and women rested beneath paintings depicting the earliest scenes of our Republic, including one painted in 1824, depicting George Washington resigning his commission, voluntarily relinquishing power, handing control of the Continental Army back to Congress. With this noble act Washington set the indispensable example of the peaceful transfer of power, what President Reagan called, nothing less than a miracle. The sacred obligation to defend the peaceful transfer of power has been honored by every American President, except one. As Americans, we all have a duty to ensure that what happened on January 6 never happens again. To set aside partisan battles. To stand together, to perpetuate and preserve our great Republic.

With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.

At the very least, she provided some mythology on which she will rebuild her party.

The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

March 4, 2022/46 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

There’s a telling error in the January 6 Committee’s filing aiming to overcome John Eastman’s claims his emails are covered by Attorney-Client privilege. In the section asserting that Trump had probably violated 118 USC 1512(c)(2) — the same obstruction statute used to charge over 200 of the other January 6 defendants — the filing asserts that six judges “to date” have “refused to dismiss charges against defendants under the section.”

That number is incorrect. As of March 2, at least ten judges had upheld DOJ’s application of 18 USC 1512(c)(2), and a few more have as much as said they would.

When I first made this observation, I thought I was being a bit churlish in making it. But on reflection (and after reading the quotes from lawyers in this Charlie Savage article), I think it’s an important point. All the more so given how TV lawyers have claimed that, because the January 6 Committee has claimed Trump could be charged with obstruction, then damnit DOJ should already have done so.

The fact that the Jan 6 Committee isn’t even aware of all the obstruction rulings suggests they’ve been insufficiently attentive to what the rulings actually say, aside from the baseline holding of all of them that the vote certification was an official proceeding.

While ten judges have upheld the application, there are some differences between these opinions, particularly with regards to their formulation of the corrupt mens rea required by the statute. The most important differences from my review (but I’m not a constitutional lawyer and so I should not be the one doing this analysis!!!!!), are:

Whether “corrupt” intent requires otherwise illegal action
Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself)

Dabney Friedrich argued (and I laid out briefly here) — and has repeatedly warned in pretrial hearings for Guy Reffitt — that as she understand this application it must involve otherwise illegal actions. Amit Mehta ruled (as I wrote up here) that, at least for the Oath Keepers, this corruption may be just intransitive.

On both these issues, the Jan 6 Committee’s argument is a bit muddled. Here’s how they argue that Trump’s actions (and, less aggressively, Eastman’s) demonstrate that corrupt intent.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes — for any reason. Any such effort by the presiding officer would violate hte law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6. Plaintiff acknowledge that the Supreme Court would reject such an effort 9-0. And the Vice President made this crystal clear in writing on January 6: [1] any attempt by the Vice President to take the course of action the President insisted he take would have been illegal.

Nevertheless, pursuant to the Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he universally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various states.

[snip]

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but [2] the President nevertheless sought to use the Vice President to manipulate the results in his favor.

[snip]

[T]he President and the Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. [3] Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result. [numbering and bold mine]

As I said, I think this is a bit of a muddle. For starters, the Jan 6 Committee is not arguing that the delay actually caused by Trump’s mob amounted to obstruction. Rather, they’re arguing (at [3]) that had Eastman’s efforts to get Pence to himself impose a delay would be obstruction.

They make that argument even though they have evidence to more closely align their argument to the fact pattern ten judges have already approved. The emails included with this filing show Pence Counsel Greg Jacob twice accusing Eastman of convincing Trump of a theory that Trump then shared with his followers, which in turn caused the riot.

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

That is, Jacob argued, in real time, that Eastman’s knowingly impossible theory, amplified by the President, caused the riot that ended up putting Pence’s life at risk and delaying the vote certification. But the Jan 6 Committee argues instead that the attempted persuasion of Pence the was the obstructive act.

Perhaps as a result, the agency (transitive versus intransitive) involved in this obstructive act is likewise muddled. In one place (at [1]), the Jan 6 Committee argues that the obstructive act was a failed attempt to persuade Pence to take an illegal action. I’m not sure any of the failed attempts to persuade people to do something illegal (to persuade Pence to do something he couldn’t do, to persuade members of Congress to challenge the vote with either good faith or cynical challenges, to persuade Jeffrey Clark to serve as Acting Attorney General) would sustain legal challenges.

If the Commander in Chief ordered his Vice President to take an illegal act, that would be a bit different, but that’s not what the Jan 6 Committee argues happened here.

Elsewhere, this filing (and other attempts to apply obstruction to Trump) point to Trump’s awareness (at [2]) that he lost the election, and so his attempts to win anyway exhibit an intransitive corrupt intent.

As Charlie Savage noted in his story and a thread on same, to some degree the Jan 6 Committee doesn’t need to do any better. They’re not indicting Trump, they’re just trying to get emails they will likely get via other means anyway (and as such, the inclusion of this argument is significantly PR).

But to the extent that this filing — and not, say, the opinion issued by Judge Mehta after he had approved obstruction, in which he both ruled it was plausible that Trump had conspired with two militias and, more importantly (and to me, at least, shockingly), said it was also plausible that Trump may be liable under an aid and abet standard — is being used as the model for applying obstruction to Trump, it is encouraging a lot of unicorn thinking and, more importantly, a lot of really sloppy thinking. There are so many ways to charge Trump with obstruction that don’t require an inquiry into his beliefs about losing the election, and those are the ones DOJ has laid a groundwork for.

Plus, there are a few more realities that TV lawyers who want to talk about obstruction should consider.

First, it is virtually guaranteed that Friedrich’s opinion — the one that holds that “corrupt” must involve otherwise illegal actions — will be the first one appealed. That’s because whatever happens with the Guy Reffitt trial this week and next, it’s likely it will be appealed. And Reffitt has been building in an appeal of Friedrich’s obstruction decision from the start. First trial, first appeal. So TV lawyers need to study up what she has said about otherwise illegal action and lay out some rebuttals if their theory of Trump’s liability involves mere persuasion.

Second, while ultimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

I’m convinced not just that Trump could be prosecuted for obstruction, but that DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

January 23, 2022/74 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I continue to get people asserting as fact that the investigation into Trump’s role in January 6 would be going better if Merrick Garland had appointed a Special Counsel.

I have yet to see calls for a Special Counsel that are not, themselves, just an extended admission that the people calling for one don’t understand the investigation. For example, in a widely shared Asha Rangappa thread in October, she claimed to present Pros and Cons like this:

Pro:

“It’s warranted” (she didn’t say what “it” was)
“It would signal that getting to the bottom of this is a priority for the Justice Department” (she didn’t say what “this” was)
“It could provide for a more efficient investigation … An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter”
It would insulate Garland from political blowback; “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch”
“The Special Counsel regulations have important formal mechanisms for reporting prosecutorial decisions (including declinations to prosecute)”

Cons:

“It gives people who may be subjects of an investigation a ‘heads up'”
“It creates a new space for politicization, as we saw with Mueller:”

More recently, a non-public non-expert suggested that because Merrick Garland hadn’t appointed a Special Counsel when he came in, Congress was doing the investigation that a Special Counsel was not.

I want to start from that claim — that Congress is investigating stuff that DOJ is not. It reflects a belief that even DOJ reporters have, such as in this shitty WaPo piece revealing in ¶30 that DOJ is investigating Roger Stone and Rudy Giuliani for their militia ties but then reporting as fact that DOJ “has yet to turn its attention directly to Trump and his close allies.” The things WaPo turns to before examining how — and ignoring that — DOJ is investigating Trump’s one-degree ties to the militias who managed the attack on the Capitol are:

Whether DOJ is investigating the war room at the Willard Hotel (never mind that WaPo missed one overt way DOJ is investigating the war room)
Whether DOJ is investigating Trump’s call to Brad Raffensperger
Whether DOJ is investigating Trump’s threats to install Jeffrey Clark to get an Acting Attorney General more amenable to claiming voter fraud occurred

Of those, only the call to Raffensperger (which is being investigated by Fulton County’s DA) is clearly illegal.

Special Counsels can only investigate crimes, not potential crimes not pursued

It is not clearly illegal, for example, for John Eastman to write a letter calling on Trump to pressure Mike Pence to reject the vote totals or for Peter Navarro to set up a propaganda campaign that members of Congress will point to to justify corrupt action (indeed, the latter is how lobbyists made DC run). It may not be illegal for a President to install someone who has been Senate confirmed as Acting Attorney General who will pursue his policy goals, no matter how corrupt they are; it’s not even illegal for a President to ask a Cabinet Member to lie to the public (and Cabinet Members lie a lot, sometimes for good reasons). It’s even less illegal to consider doing so but deciding not to because of the political cost of doing so, as happened with Clark. It is not even illegal to receive a plan to have the military seize voting machines, especially if you don’t pursue that plan (which Trump did not).

These things only become illegal when they are shown to be part of plan to commit a crime.

There’s the first problem with calls to appoint a Special Counsel. Much of what people want to investigate (again, Raffensperger and the fraudulent certificates are an exception) is not clearly a crime.

I have talked about how the Select Committee is investigating from the top down and DOJ is investigating from the crime scene up (in addition to investigating Sidney Powell’s potential Big Lie fraud). I’ve talked about how, as a separate co-equal branch of government, the Select Committee can more easily do things like get Executive Privilege waivers or waive Speech and Debate protections, the former of which was a challenge for Mueller’s investigation. I’ve laid out how the two investigations have already converged, first with the focus on the targeting of Mike Pence and more recently on the role of Trump’s directions serving as the motivating instruction for three different armed conspiracies, including the sedition one.

But it’s equally important to recognize that the Select Committee is also conducting the important work of investigating things that weren’t crimes, like considering but not acting on a suggestion to seize the voting machines and considering but not acting on a plan to make Jeffrey Clark Acting Attorney General (both issues Bennie Thompson addressed on the Sunday shows this morning).

A Special Counsel can’t be appointed to investigate something that is not a crime.

I realize that people have argued, starting on January 6, that Trump incited the insurrection and that’s the crime that could have predicated the Special Counsel. Bracket that idea. I’ll come back to it.

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

As it happens, Rangappa wrote her thread on October 25, three days before US Attorney for DC Matthew Graves was confirmed on a voice vote. While Ron Johnson held up the vote for other reasons, no Republican Senator thought it important enough to register opposition to Graves to call for a recorded vote.

That means, going forward, the US Attorney overseeing the January 6 investigation can claim the support of the entire Senate. No Republican recorded their opposition to Matthew Graves overseeing the investigation into January 6.

Those asking for a Special Counsel are, in effect, saying that there would be less political blowback if Merrick Garland chose, on his own, to appoint someone to lead an investigation than if a US Attorney against whom not a single Republican recorded opposition led the investigation.

The January 6 investigation is far too large for a Special Counsel

Now consider the claim that a Special Counsel investigation would be more efficient because the Special Counsel would have a dedicated team of prosecutors and FBI agents and a dedicated grand jury. Such claims are astounding for how little awareness of the actual investigation they show.

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. Given COVID, keeping these grand juries up and running has been a real bottleneck on the investigation (something else Garland alluded to). For one conspiracy indictment I followed, it took five months — from April until September — from the time DOJ stated it would charge it as a conspiracy and the time the FBI Agent could sit with the grand jury safely to get that indictment. So you’re better off having several to juggle than relying on one. “When will Garland get a grand jury for this investigation,” people keep asking, and the answer is that was done already, in January 2021 before Garland was confirmed, in May, in August, and in November. Over a hundred Americans have already been serving, in secret, during a pandemic, on these grand juries that people are wailing must be appointed some time in the future.

Then there are other things about the investigation that have required massive and immediate resource allocations. Most notably, DOJ had to appoint a team (led by a prosecutor named Emily Miller) to create an entirely new discovery system, which has involved throwing large amounts of money at both Deloitte and the Federal Public Defenders office. Special Counsels need to budget ahead, and because this investigation is so large, it would not be possible given the budgetary requirements of the Special Counsel regulation.

We know similar resource allocations are going on at a whole-DOJ level with respect to the FBI (including a reliance on Joint Task Forces for more localized investigations); those decisions are just less visible.

The point being that this investigation is so large it requires the DOJ, as a whole, to manage the resources for it. It’s far too large for a Special Counsel. And nothing about putting someone without those resources who has to budget in advance would make this investigation more nimble.

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

So let’s go back. The crime invoked by those calling now or in the past for a Special Counsel as the predicating crime for the investigation is incitement. There are problems with that. Trump’s defense attorneys rightly pointed out during his second impeachment trial that the riot had already started — by the militia that Trump had called out on September 29 — before he incited the mob at his rally. Trump’s relationship with the mob is far more complex — and frankly, damning, than that.

But the other problem with that is if you want to prove that Trump incited the crowd, you need to get proof that those who went on to riot were responding to Trump’s speech.

That’s actually one thing DOJ has been doing for the last year; I would guesstimate that about a third of the 200 or so people who’ve pled guilty have said things in their statements of offense to support an incitement charge against the former President. But they’ve also provided DOJ more specific details about their expectations for what would happen at the Capitol (most notably that Trump would speak again) and how those expectations were manipulated to get them to do things like climb to the top of the East steps just before it was breached. The way in which Trump (and close associates like Alex Jones) manipulated attendees was actually more malicious than simple incitement.

So even (perhaps especially) for the crime that everyone is sure Trump committed, incitement, you need to do some of the work everyone points to in claiming that DOJ is investigating the wrong people, just the pawns and not the generals. One thing DOJ has done in the last year is collect evidence that large numbers of those who, without planning to do so in advance, nevertheless played a key role in occupying the Capitol, did so not just because of Trump’s violent imagery, but also because of the expectations he set among rally goers.

More importantly, what DOJ has spent the last year doing is understanding what those who kicked off the riot while Trump was speaking did, and how those who brought mobs to the Capitol manipulated them to make them more effective. And what they’ve discovered — what WaPo thought worth burying in ¶30 — is they were working with Trump’s closest associates, if not responding to orders from Trump himself.

DOJ already is investigating what happened at the Willard Hotel (and has been since last summer). But they’re investigating it not because a bunch of the people there considered ideas — like seizing the voting machines — that weren’t adopted. They’re investigating it because there are tangible ties between what happened at the Willard and what happened on Capitol Hill.

Consider the centrality of efforts to pressure Mike Pence to reject the legal results of the election. After efforts to overturn the election with legal challenges based on the Big Lie (for which Sidney Powell is already being investigated by prosecutors also investigating other aspects of January 6) failed, Mike Pence became a necessary player in the plots to steal the election. And the effort to pressure Pence is continuous from Donald Trump to his allies to people at the mob.

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.

There are things that Trump did that are independently illegal, including giving Mike Pence an illegal order. But their illegality becomes much more salient in the context of the organized effort to pressure Mike Pence, threaten his life, and prevent the vote certification from taking place.

And DOJ has already acquired evidence that the people at the Capitol who were most deliberately implementing that plan have direct ties to Trump’s closest associates.

Bizarrely, the foundational assumption of those demanding a Special Counsel is that Trump didn’t have any tie to the riot — it has to be!! The foundational assumption of those demanding a Special Counsel is that the investigation of the insurrection won’t get to the former President unless it convenes a separate investigation into him, even though the investigation working up from the mob has already found at least three one-degree links between those mobilizing the bodies at the Capitol and Trump’s close associates (and the grand jury investigation that already charged sedition has at least three cooperating witnesses with ties to Roger Stone).

No one has to ask Merrick Garland to open an investigation that might prosecute Trump. It has been open since long before Garland was confirmed. No one has to ask Merrick Garland to get a prosecutor to convene a grand jury that will investigate Trump’s actions; grand juries have already indicted at least four violent conspiracies that were mobilized by Trump’s calls to violence, including one that has been working since two days after the attack.

If you believe that Trump’s actions played a central role in the insurrection — if you believe that the violent mob mobilized on January 6 was an important part of plans hatched at the Willard Hotel — then creating a separate investigation to investigate Trump does nothing but remove him from his liability in crimes already charged as sedition. That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

People have been wailing for a year that DOJ needs to open an investigation into Donald Trump and all the while an investigation has been open and has been working towards Trump.

Posts

Donald Trump Says He Can Only Work Over Christmas If He’s Planning a Coup

When John Eastman Acknowledged that Candidate Trump Spoke in His Personal Capacity

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

The Jeffrey Clark investigation started at DOJ IG

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others

Timeline

What DOJ Was Doing While You Were Wasting Time Whinging on Twitter

Rudy Giuliani

Roger Stone

Sidney Powell

Alex Jones

Ali Alexander

Jeffrey Clark

John Eastman

Fake Electors

The Mark Meadows Gap

Steve Bannon

Peter Navarro

Stolen classified documents

Other key dates

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

Jeffrey Clark: Physics Takes Over the Investigation Now

Background material

The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”

The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

Special Counsels can only investigate crimes, not potential crimes not pursued

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

The January 6 investigation is far too large for a Special Counsel

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

Interesting links

Pages