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December 27: The January 6 Committee’s Blind Spots

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The January 6 Committee Report is out.

As many people have pointed out, the report focuses on Donald Trump, telling the story about how he riled up a mob with The Big Lie and then did nothing as they launched a terrorist attack on the Capitol and those within in, especially Trump’s Vice President.

But even in telling a story about Donald Trump, the report has glaring blind spots. Some of those blind spots were created by the limits on the Committee’s investigative authorities, some were created by the Committee’s (perhaps resultant) limited understanding of the attack.

To demonstrate those blind spots, I wanted to show what the report includes in the body of the report about December 27 (some of these may be out of order and I need to clean it up, but this will be a useful demonstration). Here are things that happened on December 27, 2020:

  • Bernie Kerik publicly attacks Pat Toomey for opposing fraud (the Report ties this attacks to physical threats against officials opposed to Trump’s fraud)
  • Mark Meadows continues to pressure Georgia
  • Doug Mastriano speaks to Trump and feeds members of Congress bullshit
  • Trump attempts to get Jeffrey Rosen and Richard Donoghue to endorse his fraud message and — failing that — threatens to replace Rosen
  • With Trump’s blessing, Louie Gohmert files suit against Mike Pence
  • Trump pardons Stone and they talk about January 6
  • Trump gets more involved in planning January 6, which leads to a plan to have his supporters march on the Capitol and then a plan for him to march
  • The FBI creates a system to collect threats related to the “election certification” on January 6 by using a tag, “CERTUNREST

Some of these events (such as the Louie Gohmert lawsuit) were obviously in the work before December 27, but this provides a good read of where the parallel strands of the attack were on that particular day.

But given what we know, the far most important event of the day was the increased involvement by the White House in January 6. This was the moment the plans for January 6 started becoming a plan for a coup.

As you look at what gets included in the report, however, you get a sense of how little the Committee learned about how that happened.

In one section, the report notes that that’s the day Trump pardoned Roger Stone and — probably at the same face-to-face meeting at Mar-a-Lago — discussed plans for January 6, including a plan for Trump to speak.

In another section, the report notes that a former staffer named Justin Caporale was asked to get involved in planning the day and also that during a dinner with Jr and Kimberly Guilfoyle, Guilfoyle called Carolyn Wren and learned about the busses and other plans for the day. That’s what led to an increased White House focus on January 6. But because the Committee couldn’t get the comms from key participants, they can’t tell you how much planning happened or with whom.

The report doesn’t provide a timeline for how those three events happened: Stone, Caporale, Wren (indeed, this is one area where the report’s selectivity about when to include metadata for communications and when not to is infuriating, because we can’t even make that timeline now). We learn only that Wren texted Guilfoyle at 7:10PM. That obscurity is especially troubling, because Wren was in touch with people who were in touch with Stone, and the report actually relies on a story about Stone for part of its narrative about the Guilfoyle-Wren conversation. (The report’s discussion of the ties between Alex Jones, Wren, the militias, and Stone, is particularly weak; while that is no doubt a reflection of the limited tools the committee had to obtain materials from those who did not cooperate, the committee also eschewed primary sources that would have provided background that would be critical to that story.) It admits that non-cooperation from Meadows, Dan Scavino, and Caporale thwarted the Committee’s own efforts to build out this timeline. Elsewhere, it calls into question of the key witnesses involved, including both Max Miller and Tony Ornato, on whose its awareness of expanded planning relies.

We simply don’t know how it happened that the plans for January 6 began to focus much more on an attack on the Capitol.

We do know the FBI finally recognized it as a threat. We do know that members of Congress were overtly attacking the election (and Pence), in the form of the lawsuit against Pence.

And we know that the most important detail of the longest passage involving December 27 (as well as significant focus in the executive summary), of the discussions between Trump and top DOJ officials, involved the instruction, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.” He said that, though, on a day when people like Kerik were beginning to ratchet up the pressure, with implicit threats, against GOP members of Congress who would refuse to go along.

The report focuses far more on proving that Trump was pushing fraudulent claims than laying out how Trump’s plans turned to a coup.

All that work on the Big Lie is important (and accessible to a committee without the ability to serve warrants for content). It is largely a measure of the cooperation the committee got — from Jeffrey Rosen but not from Stone, access to Cassidy Hutchinson’s second-hand knowledge of these events because Caporale was limiting his own cooperation and Meadows and Scavino provided none.

But it should come with a focus on the blind spots that remain, which happen to be the blind spots about the people who could have coordinated Trump’s own plans with those of the armed mob.

Update: This, from the deposition of Robert Peede, describe the calls referred to in the report. Peede was with Trump in Mar-a-Lago at the time of these calls.

5:16PM: Robert Peede to Max Miller (10 minutes)

5:51PM Trump tweet

6:19PM: Peede to Miller (3 minutes)

6:22?PM: Miller to Justin Caporale (<10 minutes)

Miller to Peede (2 minutes)

Peede to Ornato (3 minutes)

7:10: Wren to Guilfoyle text

Bernie Kerik attacks a Member of Congress opposed to Trump’s fraud

On December 27th, Kerik suggested that Senator Pat Toomey (R-PA) was “corrupt” and said that “for any Pennsylvania official to certify their vote, it’s malfeasance and criminal.”290 That was entirely consistent with Kerik’spast tweets about the election, one of which apparently called public officials “who betrayed” President Trump “spineless disloyal maggots.”291 It wasn’t just rhetoric, however, because, as described below, people showed-up outside certain officials’ home—sometimes menacingly—and, of course, showed up at the Capitol on January 6th.

[snip]

Mark Meadows pressures Georgia

Four days later, Meadows texted Deputy Secretary of State Fuchs, in which he asked, “[i]s there a way to speed up Fulton county signature verification in order to have results before Jan 6 if the trump campaign assist[s] financially.”242 Fuchs wrote in response that she “Will answer ASAP.”243

[snip]

Doug Mastriano feeds bullshit to Trump and others in Congress

Mastriano also sent emails indicating that he spoke with President Trump on December 27th, 28th, and 30th, along with files that President Trump had requested or that he had promised to him.267

[snip]

Trump attempts to get Jeffrey Rosen and Richard Donoghue to buy his fraud message and — failing that — threatens to replace Rosen

On December 27, 2020, President Trump called Acting Attorney General Rosen once again. At some point during the lengthy call, Rosen asked that Acting Deputy Attorney General Donoghue be conferenced in.116 According to Donoghue’s contemporaneous notes, Trump referenced three Republican politicians, all of whom had supported the President’s election lies and the“Stop the Steal” campaign.117 One was Representative Scott Perry. Another was Doug Mastriano, a State senator from Pennsylvania who would later beon the grounds of the U.S. Capitol during the January 6th attack.118 President Trump also referenced Representative Jim Jordan from Ohio, praising him as a “fighter.”119 Representatives Perry and Jordan had often teamed up to spread lies about the election. The two spoke at a “Stop the Steal” rally in front of the Pennsylvania State capitol in Harrisburg, just days after the November election.120 The pair also pressed their conspiratorial case during interviews with friendly media outlets.121

President Trump made a “stream of allegations” during the December 27th call.122 As reflected in his notes, Donoghue considered the call to be an“escalation of the earlier conversations,” with the President becoming more adamant that “we weren’t doing our job.”123 President Trump trafficked in “conspiracy theories” he had heard from others, and Donoghue sought to “make it clear to the President these allegations were simply not true.”124 Donoghue sought to “correct” President Trump “in a serial fashion as he moved from one theory to another.”125

The President returned to the discredited ASOG report, which former Attorney General Barr had already dismissed as complete nonsense. ASOG had claimed—based on no evidence—that the Dominion voting machines in Antrim County, Michigan had suffered from a 68 percent error rate. As noted above and in Chapter 1, that was not close to being true.

Bipartisan election officials in Antrim County completed a hand recount of all machine-processed ballots on December 17, 2020, which should have ended the lies about Dominion’s voting machines.126 The net difference between the machine count and the hand recount was only 12 out of 15,718total votes.127 The machines counted just one vote more for former Vice President Biden than was tallied during the hand recount.128 Donoghue informed the President that he “cannot and should not be relying on” ASOG’s claim, because it was “simply not true.”129 This did not stop the President from later repeating the debunked allegation multiple times, including during his January 6th speech at the Ellipse.130

Acting Deputy Attorney General Donoghue debunked a “series” of other conspiracy theories offered by President Trump during the December 27th call as well. One story involved a truck driver “who claimed to have moved an entire tractor trailer of ballots from New York to Pennsylvania.”131 There was no truth to the story. The FBI “interviewed witnesses at the front end and the back end of” the truck’s transit route, “looked at loading manifests,” questioned the truck driver, and concluded that there were no ballots in the truck.132

President Trump then returned to the conspiracy theory about voting inDetroit. Former Attorney General Barr had already debunked the claim that a massive number of illegal votes had been dumped during the middle of the night, but the President would not let it go. President Trump alleged that someone “threw the poll watchers out,” and “you don’t even need to look at the illegal aliens voting—don’t need to. It’s so obvious.”133 The President complained that the “FBI will always say there’s nothing there,”because while the Special Agents (“the line guys”) supported him, the Bureau’s leadership supposedly did not.134 This was inconsistent with Donoghue’s view.135 But President Trump complained that he had “made some bad decisions on leadership” at the FBI.136

President Trump also “wanted to talk a great deal about Georgia, [and] the State Farm Arena video,” claiming it was “fraud staring you right in the face.”137 President Trump smeared Ruby Freeman, a Georgia election worker who was merely doing her job, as a “Huckster” and an “Election scammer.”138 President Trump said the “networks,” meaning the television networks, had “magnified the tape and saw them running them [ballots] through repeatedly.”139 The President repeated the lie that Democrats had “[c]losed the facility and then came back with hidden ballots under thet able.”140 He suggested that both Rosen and Donoghue “go to Fulton County and do a signature verification.” They would “see how illegal it is”and “find tens of thousands” of illegal ballots.141

President Trump “kept fixating” on the supposed suitcase in the video.142 But Acting Deputy Attorney General Donoghue debunked the President’s obsession. “There is no suitcase,” Donoghue made clear.143 Donoghue explained that the DOJ had looked at the video and interviewed multiple witnesses. The “suitcase” was an official lock box filled with genuine votes.144 And election workers simply did not scan ballots for former Vice President Biden multiple times.145 All of this was recorded by security cameras.146

In response to what President Trump was saying during the conversation, Rosen and Donoghue tried to make clear that the claims the President made weren’t supported by the evidence. “You guys must not be followingthe internet the way I do,” the President remarked.147 But President Trump was not finished peddling wild conspiracy theories.

The President pushed the claim that Pennsylvania had reported 205,000more votes than there were voters in the state.148 “We’ll look at whether we have more ballots in Pennsylvania than registered voters,” Acting AttorneyGeneral Rosen replied, according to Donoghue. They “[s]hould be able to check that out quickly.”149 But Rosen wanted President Trump to “understand that the DOJ can’t and won’t snap its fingers and change the outcome of the election. It doesn’t work that way.”150 “

I don’t expect you to do that,” President Trump responded. “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”151

Donoghue explained this “is an exact quote from the President.”152

“We have an obligation to tell people that this was an illegal, corrupt election,” President Trump told the DOJ team at another point in the call.153 President Trump insisted this was DOJ’s “obligation,” even though Rosenand Donoghue kept telling him there was no evidence of fraud sufficient tooverturn the outcome of the election. “We are doing our job,” Donoghue informed the President. “Much of the info you’re getting is false.”154

The call on December 27th was contentious for additional reasons. President Trump did not want to accept that the Department of Justice wasn ot an arm of his election campaign. He wanted to know why the Department did not assist in his campaign’s civil suits against States. There was asimple answer: There was no evidence to support the campaign’s claims of fraud.155

Donoghue and Rosen also “tried to explain to the President on this occasion and on several other occasions that the Justice Department has a very important, very specific, but very limited role in these elections.”156 The States “run their elections” and DOJ is not “quality control for the States.”157 DOJ has “a mission that relates to criminal conduct in relation tofederal elections” and also has “related civil rights responsibilities.”158 But DOJ cannot simply intervene to alter the outcome of an election or support a civil suit.159

When President Trump made these demands on December 27th, it wasalready crystal clear that the Department of Justice had found no evidence of systemic fraud.160 The Department simply had no reason to assert that the 2020 Presidential contest was “an illegal corrupt election.”161

“People tell me Jeff Clark is great” and that “I should put him in,” President Trump said on the call. “People want me to replace the DOJ leadership.”162 Donoghue responded “[S]ir, that’s fine, you should have the leadership you want, but understand, changing the leadership in the Department won’t change anything.”163

The President did not really care what facts had been uncovered by theDepartment of Justice. President Trump just wanted the Department to saythe election was corrupt, so he and the Republican Congressmen could exploit the statement in the days to come, including on January 6th. Andwhen Rosen and Donoghue resisted the President’s entreaties, he openly mused about replacing Rosen with someone who would do the President’s bidding. 4.8

CONGRESSMAN SCOTT PERRY CALLS DONOGHUE

Toward the end of the December 27th call, President Trump asked Donoghue for his cell number.164 Later that day, Representative Perry called Donoghue to press the President’s case.165

[snip]

Donoghue took notes during his conversation with Representative Perry and provided those notes to the Select Committee.169 The notes reflect that when Representative Perry called Donoghue on December 27th, Representative Perry explained that President Trump asked him to call and that he, Representative Perry, did not think DOJ had been doing its job on the election.170 Representative Perry brought up other, unrelated matters and argued that the “FBI doesn’t always do the right thing in all instances.”171 Representative Perry also brought up Jeff Clark. He said he liked him andthought that Clark “would do something about this,” meaning the electionfraud allegations.172

On the evening of December 27th, Representative Perry emailed Donoghue a set of documents alleging significant voting fraud had occurred inPennsylvania.173 One document asserted that election authorities had counted 205,000 more votes than had been cast.174 Representative Perry also shared this same claim on Twitter the following day.175 President Trump kept raising the same claim. Sometimes there was an alleged discrepancy of 205,000 votes, other times it was supposedly 250,000 votes.176 Either way, it was not true.

Acting Deputy Attorney General Donoghue forwarded Representative Perry’s email to Scott Brady, who was the U.S. Attorney for the Western District of Pennsylvania at the time.177 As Brady soon discovered, there wasno discrepancy.178 President Trump’s supporters came up with the claim by comparing the Pennsylvania Secretary of State’s website, which reportedthe total number of votes as 5.25 million, to a separate State election registry, which showed only 5 million votes cast.179 The problem was simple: Pennsylvania’s election site had not been updated.180 The totals for four counties had not yet been reported on the election site. Once those votes were counted on the site, the totals matched. This was simply not an example of fraud, as President Trump, Representative Perry and others would have it.

With Trump’s blessing, Louie Gohmert files suit against Mike Pence

One of President Trump’s congressional allies, Representative Louie Gohmert (R–TX), pushed a version of Eastman’s theory in the courts. OnDecember 27, 2020, Representative Gohmert and several of the Trump Campaign’s fake electors for the State of Arizona (including Republican Party Chair Kelli Ward) filed suit against Vice President Pence in the U.S. District Court for the Eastern District of Texas.67 As Ward explained to Marc Short in a phone call the day the suit was filed, President Trump was aware of the lawsuit and had signed off on it: “We wouldn’t have done that without the president telling us it was okay,” she told him.68

In the suit, the Plaintiffs alleged that there were “competing slates” of electors from five States.69 They asked the court to rule that portions of theElectoral Count Act of 1887 were unconstitutional and that “the TwelfthAmendment contains the exclusive dispute resolution mechanisms” for determining an objection raised by a Member of Congress to the electors submitted by any State.70 Essentially, Representative Gohmert was askingthe court to tell Vice President Pence that he was prohibited from followingthe procedures set forth in the Electoral Count Act. Much like Eastman’s theory, the Gohmert plaintiffs asserted that the Vice President has the “exclusive authority and sole discretion” to determine which electoral votes to count.71

Although the Gohmert suit was premised on the same theory Eastman advocated, Eastman did not agree with the decision to file suit. Eastman argued that filing a suit against the Vice President had “close[ ] to zero” chance of succeeding, and there was a “very high” risk that the court would issue an opinion stating that “Pence has no authority to reject the Bidencertified ballots.”72

Trump pardons Stone and they talk about January 6

In July 2020, President Trump granted Stone clemency after he was convicted of lying to Congress and other charges.243 Then, on December 23rd, President Trump pardoned Stone.244 Several days later, at a dinner onthe evening of December 27th, Stone thanked President Trump. In a post on Parler, Stone wrote that he “thanked President Trump in person tonight forpardoning me” and also recommended to the President that he “appoint a special counsel” to stop “those who are attempting to steal the 2020 election through voter fraud.” Stone also wrote that he wanted “to ensurethat Donald Trump continues as our president.”245 Finally, he added: “#StopTheSteal” and “#rogerstonedidnothingwrong.”246 The Select Committee has learned that Stone discussed the January 6th event with the President, likely at this same dinner on December 27th.247 The President told Stone he “was thinking of speaking.”248

Trump gets more involved in planning January 6

On the evening of December 27th, President Trump boosted the upcoming event on Twitter: “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!”415 The Select Committee learned that this tweet came after the White House spoke with a former Trump staffer, Justin Caporale, who was asked to help produce the Ellipse rally.416 That same evening, the President had dinner with Donald Trump, Jr., and his girlfriend Kimberly Guilfoyle,417 who spoke with rally organizer Caroline Wren during the meal.418 Wren also texted Guilfoyle talking points that described her ambitions for the event, saying that “buses of people are coming in from all over the country to support you. It’s going to be huge, we are also adding in programming the night of January 5th.”419

After Guilfoyle’s call with Wren, there was a series of calls among the senior White House staff,420 likely underscoring the seriousness of the White House’s interest in the event.

Within a few days, the White House began to take a more direct role incoordinating the rally at the Ellipse.421 In a December 29th text to Wren, Caporale wrote that after the President’s planned speech there “maybe [sic] a call to action to march to the [C]apitol and make noise.”422

This is the earliest indication uncovered by the Select Committee that the President planned to call on his supporters to march on the U.S. Capitol. But it wasn’t the last. On January 2nd, rally organizer Katrina Pierson informed Wren that President Trump’s Chief of Staff, Mark Meadows, had said the President was going to “call on everyone to march to the [C]apitol.”423

Inside the White House, the President’s intent was well-known. Cassidy Hutchinson, an aide to Meadows, recalled in her testimony that she overheard discussions to this effect toward the end of December or early January. One such discussion included an exchange between Meadows andRudolph Giuliani that occurred on January 2nd.424 Hutchinson understood that President Trump wanted to have a crowd at the Capitol in connection with what was happening inside—the certification of the electoral count.425 Hutchinson also recalled that President Trump’s allies in Congress were aware of the plan. During a call with members of the House FreedomCaucus, the idea of telling people to go to the Capitol was discussed as a way to encourage Congress to delay the electoral college certification and send it back to the States.426

On January 4th, WFAF’s Kylie Kremer informed Mike Lindell, the CEO of MyPillow and an ally of President Trump, that “POTUS is going to have us march there [the Supreme Court]/the Capitol” but emphasized that the plan“stays only between us.”427

The “Stop the Steal” coalition was aware of the President’s intent. OnJanuary 5th, Ali Alexander sent a text to a journalist saying: “Ellipse thenUS capitol [sic]. Trump is supposed to order us to the capitol [sic] at the endof his speech but we will see.”428

290. Bernard B. Kerik (@BernardKerik), Twitter, Dec. 27, 2020 11:53 a.m. ET, available at https:// twitter.com/bernardkerik/status/1343238609768501253. 291. Bernard B. Kerik (@BernardKerik), Twitter, Dec. 13, 2020 1:05 a.m. ET, available at https:// twitter.com/bernardkerik/status/1338001989846888448.

[snip]

242. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM014152 (December 27, 2020 text message at 5:18 p.m. from Mark Meadows to Jordan Fuchs). 243. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM014153 (December 27, 2020 text message at 5:20 p.m. from Jordan Fuchs to Mark Meadows).

[snip]

117. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events07282021-000735. 118. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events07282021-000735; Ryan Deto, “Sen. Mastriano and Former State Rep. Saccone among TrumpSupporters who Occupied U.S. Capitol,” Pittsburgh City Paper, (Jan. 6, 2021), available at https://www.pghcitypaper.com/pittsburgh/sen-mastriano-and-former-state-rep-sacconeamong-trump-supporters-who-occupied-us-capitol/Content?oid=18690728; Erin Bamer, “Mastriano Defends Protest Appearance; Other GOP Lawmakers Say Little,” York Dispatch, (Jan. 7, 2021), available at https://www.yorkdispatch.com/story/news/2021/01/07/ mastriano-at-no-point-did-he-storm-us-capitol/6579049002/. 119. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 47-50; see also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021- 000735.

120. Dan Geiter, “Rally to ‘Stop the Steal’ of the 2020 Election” PennLive, (Nov. 5, 2020) availableat https://www.pennlive.com/galleries/J3FJ24LCKVCT5OW3U2TJ6BV4RE/. 121. See, e.g., Scott Perry for Congress, “#StopTheSteal,” Facebook, November 6, 2020, available at https://www.facebook.com/watch/?v=406418637058079. 122. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 47-48, 53.

123. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 124. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 125. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 126. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 127. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 128. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 129. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwrittennotes from Richard Donoghue about call with President Trump). 130. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th?path=/browsecommittee/chamber/house/committee/january6th. 131. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60. 132. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwrittennotes from Richard Donoghue about call with President Trump). 133. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 134. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 135. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55. 136. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 55-56; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 137. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 138. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 139. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 140. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump).

141. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 64; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000741 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 142. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60. 143. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60. 144. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 145. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 146. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 147. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54-55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 148. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 149. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 150. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 151. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000738, HCORPre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes fromRichard Donoghue about call with President Trump). 152. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 58. Trump also mentioned the possibility of the DOJ saying the “election is corrupt or suspect or not reliable” during a public press conference. “We told him we were not going to do that,” Donoghue explained. Id. at p. 59.

153. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 154. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739, HCORPre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes fromRichard Donoghue about call with President Trump). 155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 61. 156. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 157. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 158. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 159. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 160. Donoghue testified before the Select Committee: “There were isolated instances of fraud. None of them came close to calling into question the outcome of the election in any individual state.” Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 161. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 162. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62. 163. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62. 164. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 65. 165. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-75. 166. Dan Gleiter, “Rally to ‘Stop the Steal’ of the 2020 Election,” Penn Live, (Nov. 5, 2020), available at https://www.pennlive.com/galleries/J3FJ24LCKVCT5OW3U2TJ6BV4RE/. 167. Letter from the Office of Rep. Lance Gooden and Signed by 26 other Members of Congress to the President of the United States, Dec. 9, 2020, available at https://www.politico.com/ f/?id=00000176-4701-d52c-ad7e-d7fdbfe50000.

168. Motion for Leave to File Amicus Brief by U.S. Representative Mike Johnson and 125 other Members, Texas v. Pennsylvania, 592 U.S. ____ (Dec. 10, 2020) (No. 155, Orig.), available at https://www.supremecourt.gov/DocketPDF/22/22O155/163550/ 20201211132250339_Texas%20v.%20Pennsylvania%20Amicus%20Brief%20of%20126%20 Representatives%20–%20corrected.pdf. 169. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). Donoghue’s handwritten notes from the call are dated Dec. 28, 2020, but he confirmed the call took place on Dec. 27. 170. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). 171. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000705, (Dec. 27, 2020, handwritten notes). 172. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCORPre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). 173. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents06032021-000001 – HCOR-Pre-CertificationEvents-06032021-000018. 174. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents06032021-000008. 175. RepScottPerry (@RepScotPerry), Twitter, Dec. 28, 2020 6:01 p.m. ET, available at https:// twitter.com/RepScottPerry/status/1343693703664308225. 176. See Chapter 1. 177. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 74-75. 178. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 75-76. 179. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 75-76.

[snip]

67. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 68. Mike Pence, So Help Me God (New York: Simon & Schuster, 2022), p. 443. 69. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 70. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 71. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1.

[snip]

244. Amita Kelly, Ryan Lucas, and Vanessa Romo, “Trump Pardons Roger Stone, Paul Manafort And Charles Kushner,” NPR, (Dec. 23, 2020), available at https://www.npr.org/2020/12/23/ 949820820/trump-pardons-roger-stone-paul-manafort-and-charles-kushner. 245. PatriotTakes[American flag] (@PatriotTakes), Twitter, Dec. 28, 2020 3:50 a.m. ET, available at https://twitter.com/patriottakes/status/1343479434376974336. 246. PatriotTakes[American flag] (@PatriotTakes), Twitter, Dec. 28, 2020 3:50 a.m. ET, available at https://twitter.com/patriottakes/status/1343479434376974336; See also Ali Dukakis, “Roger Stone Thanks President Trump for Pardon in Person,” ABC News, (Dec. 28, 2020), available at https://abcnews.go.com/Politics/roger-stone-president-trump-pardon-person/story?id= 74940512. 247. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Kristin Davis, (August 2, 2022), p. 41; Documents on file with Select Committee to Investigate the January 6th Attack on the United States Capitol, (Kristin Davis Production), CTRL0000928609, p. 7 (December 30, 2020, text message from Kristin Davis toChris Lippe at 6:05 p.m.). 248. Documents on file with Select Committee to Investigate the January 6th Attack on the United States Capitol (Kristin Davis Production), CTRL0000928609, p. 7 (December 30, 2020, text message from Kristin Davis to Chris Lippe at 6:05 p.m.).

[snip]

415. Donald J. Trump (@realDonaldTrump), Twitter, Dec. 27, 2020 5:51 p.m. ET, available at https://www.thetrumparchive.com (archived). 416. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2022), pp. 20-21. 417. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Donald Trump, Jr., (May 3, 2022), p.30; Anthony Man, “At Trump Golf Club in West Palm Beach, Roger Stone Thanks President for Pardon,” Orlando Sun Sentinel, (Dec. 28, 2020), available at https://www.sun-sentinel.com/news/politics/ elections/fl-ne-roger-stone-thanks-trump-pardon-20201228-2ejqzv6e7vhyvf26cxz6e6jysastory.html. 418. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (AT&T Production, Dec. 17, 2021). 419. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_000444, pp. 1-3 (December 27, 2020, text message from Caroline Wren to Kimberly Guilfoyle at 7:10 p.m.). 420. As revealed in the phone records for the personal cell phones of Max Miller and Anthony Ornato. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Verizon Production, Dec. 17, 2021); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Verizon Production, Sep. 23, 2022). The Select Committee also subpoenaed the phone records for the personal cell phones of Robert Peede, Mark Meadows, Dan Scavino, and Justin Caporale. They each filed lawsuits to block the respective phone companies’ production of the phone records, which were still pending at the time of writing. Thus, there may have been additional relevant phone calls among or involving these four of which theSelect Committee is not aware. 421. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 36-37. 422. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2020), p. 44; Documents on file with the Select Committeeto Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0644 (December 29, 2020, text messages with Justin Caporale). 423. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 79-82; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0181 (January 2nd email from Katrina Pierson to CarolineWren and Taylor Budowich). 424. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 32-33, 41; Select Committee toInvestigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 107-08, 135. 425. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), p. 42.

426. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 44-45, 47, 52-54; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 87. 427. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Kylie Kremer Production), KKremer5447, p. 3 (January 4, 2021, text message from Kylie Kremer to Mike Lindell at 9:32 a.m.). 428. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Ali Alexander Production), CTRL0000017718, p. 41 (January 5, 2021 text message with Liz Willis at 7:19 a.m.).

[snip]

41. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Briefing by Steve Jensen, (Nov. 18, 2021). In an email sent by the FBI to the Select Committee on November 8, 2021, the FBI stated that on December 27, the FBI created a system to collect threats related to the “election certification” on January 6 by using a tag, “CERTUNREST.” Despite making multiple requests for the number of guardians that were tagged prior to January 6, the FBI did not provide a precise number. The FBI identified several dozen guardians opened in advance of January 6th that included a reference to January 6, Washington D.C., and either the U.S. Capitol or a specific threat of violence.

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The President Was … Working in a Filing Room”

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The unredacted part of the affidavit for Trump’s search shows that it incorporated a “statement” Trump put out on February 18, in an attempt to rebut the report that the Archives provided Carolyn Maloney about what was discovered in the 15 boxes Trump finally returned. In a redacted part of the affidavit, there’s something that looks like a second post of some kind, which appears at the end of a nine-paragraph section describing the Archives’ fight to get the boxes back. One possibility is that it’s a second statement Trump issued before the other one.

I’d like to look at the two statements he put out in February, the one that might be that second post, and the one that is included in the affidavit but was illegible in the rendering of it on PACER. Here’s the first one:

The first attacks Maggie Haberman’s story about flushing documents (but is limited just to White House toilets; she has since reported he flushed stuff while traveling as well).

It also falsely claims that “the papers were given easily and without conflict and on a very friendly basis.” Whatever the seven redacted paragraphs in the affidavit about the fight to get the documents back includes, it would show that that claim was utterly false.

But the statement does claim that “I have been told I was under no obligation to give this material back based on various legal rulings.” We know Trump was told this after the documents were returned. As CNN reported, Judicial Watch’s Tom Fitton was telling Trump just that, citing a ruling pertaining to Bill Clinton.

Not long after the National Archives acknowledged in February that it had retrieved 15 boxes of presidential records from former President Donald Trump’s Mar-a-Lago residence in Florida, Trump began fielding calls from Tom Fitton, a prominent conservative activist.

Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.

Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.

The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
While Trump continued to publicly tout his cooperation with the Archives, privately the former President began obsessing over Fitton’s arguments, complaining to aides about the 15 boxes that were handed over and becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago, according to people with knowledge of his behavior at the time.

Trump even asked Fitton at one point to brief his attorneys, said a person familiar with the matter.

“The moment Tom got in the boss’ ear, it was downhill from there,” said a person close to the former President, who spoke on the condition of anonymity to discuss internal matters.

If Trump’s statement was a reference to Fitton’s advice, it may suggest that advice started even before the Archives publicly confirmed returning the documents (or that Fitton immediately got inside Trump’s head).

What I was most interested in, however, was Trump’s description that the “boxes [] contained letters, records, newspapers, magazines, and various articles,” suggesting that all this excitement was just a fight over 15 boxes of shit.

In fact, the affidavit reveals the initial Archives referral explained, those boxes did contain a lot of shit. But intermixed with all that shit were “a lot of classified records.”

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.’ Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”

As I understand it, the description that this was “unfoldered” means it had been separated from a classified cover sheet that the government uses to highlight that the document enclosed is classified (they’re color-coded so a person can readily see how secret something is). When people try to hide that they’ve got classified information, one of the first things they do is rip off that cover sheet because it’s such a dead giveaway (which is, after all, the point). As I’ve said elsewhere, the FBI found such cover sheets in Joshua Schulte’s shredder when they did the search of his apartment, which they used to suggest, fairly or not, that Schulte was trying to hide things in the wake of the Vault 7 release.

As Elizabeth de la Vega noted when reading the affidavit, newspaper articles and magazines are the kinds of things that white collar criminals use as filler to try to obscure their crimes.

Trump claimed that the boxes were full of things that might appear worthless, and when the Archives opened them up and looked more closely, that’s precisely what they were full of, aside from the classified documents stripped of their cover sheets. But in a public statement the day after the investigation was announced, Trump tried to insist it was just filler, as if that were going to confuse the FBI or even a building full of committed archivists.

And that’s one reason the second post — the one that we know appears in the affidavit — is so interesting.

Unsurprisingly, Trump pitched the discovery of classified documents in a continuity with his past investigations — Russia, Ukraine Impeachment, January 6 Impeachment.

Trump’s statement said the same thing when the search broke on August 8.

Since then, however, Kash Patel, in a column cited in the affidavit, has given us reason to believe that the real continuity is that (at least some of) the documents Trump had stolen were about the Russian investigation or the Ukraine impeachment.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

And Paul Sperry revealed that one reason Trump was withholding these records was because of the ongoing investigation(s) into January 6.

I guess, if you refused to turn over records regarding past investigations, wailing that this is just a continuation of those past investigations is a good way to inoculate your mob for scandalous new disclosures about those past investigations.

But I’m most interested that Trump’s response deflects by complaining,

The Fake News is making it seem like me, as the President of the United States, was working in a filing room.

In fact, there was a public report that had emphasized Trump’s role in packing up the boxes before they got sent to the Archives, one of the WaPo stories that really led the way on this story in February.

At one point, Archives officials threatened that if Trump’s team did not voluntarily produce the materials, they would send a letter to Congress or the Justice Department revealing the lack of cooperation, according to a third person familiar with the situation.

“At first it was unclear what he was going to give back and when,” said one of these people, who, like the others, spoke on the condition of anonymity to share candid details of a sensitive situation.

Trump was noticeably secretive about the packing process, and top aides and longtime administrative staffers did not see the contents, the people said.

That entire article — which includes details about Trump trying to get the Archives to issue false claims about his cooperation with the investigation — seems to be closely aligned with the kinds of sources that the FBI seems to have subsequently developed.

But the allegation Trump was attempting to rebut — that he personally was involved in packing boxes — has since been matched. The NYT cited multiple sources describing Trump going through the boxes to be returned to the Archives personally.

Mr. Trump went through the boxes himself in late 2021, according to multiple people briefed on his efforts, before turning them over.

More recently (and possibly part of an attempt to blame Mark Meadows for all this) the NYT described how stuff that had accumulated on the dining room table of the White House where he worked was not only getting dumped into two dozen boxes that would not get sent to the Archives, but staffers were bringing additional documents into him there, including the Kim Jong Un letters that — because the Archives knew to go looking for them — have served as a beacon for the stolen documents throughout this story.

Papers he had accumulated in his last several months in office had been dropped into boxes, roughly two dozen of them, and not sent to the National Archives. Aides had even retrieved letters from Kim Jong-un, the North Korean leader, and given them to Mr. Trump in the final weeks, according to notes described to The New York Times.

[snip]

Although the White House Counsel’s Office had told Mark Meadows, Mr. Trump’s last chief of staff, that the roughly two dozen boxes worth of material in the residence needed to be turned over to the archives, at least some of those boxes, including those with the Kim letters and some documents marked highly classified, were shipped to Florida. There they were stored at various points over the past 19 months in different locations inside Mar-a-Lago, Mr. Trump’s members-only club, home and office, according to several people briefed on the events.

Whether the first of these two posts is the redacted one or not, both times the Archives issued a public statement, Trump issued public, false, denials (and, according to the contemporaneous WaPo story, attempted to get the Archives to do the same).

At that level, then, the statements feel familiar from the Russian investigation, Trump’s well-studied ability to flood the zone with bullshit.

But buried in the two, together, seems to tie closer to actions — Trump’s personal involvement in stuffing the boxes full of shit under which to hide damning documents — that would go some distance to prove deliberate obstruction.

The Known and Likely Content of Trump’s Search Warrant

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Yesterday, Magistrate Judge Bruce Reinhart found that, “the Government has not met its burden of showing that the entire [Trump search warrant] affidavit should remain sealed.” He ordered DOJ to provide a sealed version of proposed redactions for the warrant affidavit for Trump’s search by August 25 at noon.

Two days after the search of Mar-a-Lago I did a post laying out the likely content of what’s in that search warrant (which pretty accurately predicted what we’ve seen since). Because a warrant affidavit is one of the best ways to show how DOJ and the FBI think of the events of the last 18 months, I wanted to do a second version including all the things we have learned since.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Stone’s showed probable cause for a different part of the obstruction statute. Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Sheet to Warrant Application

[link]

This cover sheet shows that DOJ swore out the affidavit to Magistrate Judge Bruce Reinhart over WhatsApp, who signed it on August 5.

It describes applying for a warrant to search for evidence of crimes and for contraband (a reference to the illegally possessed Presidential records). It doesn’t permit the seizure of property used in the commission of a crime so, unsurprisingly, the FBI didn’t have authority to seize Mar-a-Lago.

The cover sheet describes the three crimes under investigation this way.

The Search Warrant

[link]

The search warrant notes the docket number 22-mj-8332 that the entire country has been watching for 10 days now.

The search warrant authorizes the FBI to conduct a search of 1100 S. Ocean Blvd., Palm Beach, FL.

It was signed by Reinhart, who was the Duty Magistrate, at 12:12PM on August 5.

The warrant gave the FBI two weeks, until August 19, to conduct the search and limited the search to daytime hours (defined as 6AM to 10PM, which Trumpsters often complain amounts to a pre-dawn raid).

Attachment A

[link]

Attachment A describes Mar-a-Lago as a “resort, club, and residence” with approximately 58 bedrooms and 33 bathrooms. The warrant permitted the FBI to search all parts of Mar-a-Lago accessible to Trump (whom they refer to as FPOTUS) and his staff, except those currently occupied (at the time of the search) by Members or guests. It mentioned the “45 Office” explicitly and storage rooms, but did not describe the storage room at the center of much reporting on the search.

Attachment B

[link]

Attachment B authorized the FBI to seize “documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of 18 USC 793, 18 USC 2071, or 18 USC 1519.

This post describes the search protocol authorized in Attachment B, with nifty graphic.

Return

Search warrant forms have a return form (describing what was seized) included in them. But here, the FBI provided that list to Trump in the form of two receipts, one signed by a Supervisory Special Agent, and one signed by a Special Agent; I’ve dubbed the latter the “CLASS receipt,” because all the classified documents described are included on that one.

The receipt lists:

  • 27 boxes, one of which is described as leatherbound; 11 are described to contain documents marked classified
  • Executive grant of clemency for Roger Stone
  • Potential Presidential record
  • 2 binders of photos
  • Handwritten note
  • Other documents catalogued on the SSA receipt

See these two posts for more on the significance of the two different receipts.

Christina Bobb signed for both receipts at 6:19PM on August 8.

Affidavit

This would start with:

  • Several paragraphs describing the affiant’s background and training
  • An assertion that the affiant believed there was probable cause that the FBI would find evidence of violations of 18 USC 793, 18 USC 2071, and 18 USC 1519 at Mar-a-Lago.

Particularly given the novel legal issues implicating a search of the former President, I think there’s likely a section describing the statutes involved. It’s likely to include:

Note: If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing, particularly if it implied that Trump was under investigation for stealing nuclear documents. But they might be unwilling to do that if they’re not yet sure they’ve gotten all known nuclear documents back. 

Then there’d be a section describing who was involved (the Roger Stone warrant has such paragraphs). There will be a paragraph about Trump that looks like:

Donald J. Trump (Former President of the United States, FPOTUS) is a businessman who owns and resides at 1100 S. Ocean Blvd., Palm Beach, FL. From January 20, 2017 at 12:00PM until January 20, 2021 at 12:00PM, he was the President of the United States. He ceased exercising the constitutional authorities of the President at 12:00PM on January 20, 2021. On February 5, 2021, the current President of the United States, Joe Biden, discontinued classified briefings for FPOTUS.

In addition, there are likely descriptions of the National Archives and its statutory duties.

There may be descriptions of Patrick Philbin, Pat Cipollone, Mark Meadows (all of whom were involved in negotiations with NARA over retrieving the documents), anyone caught on surveillance video entering or exiting the storage closet, of Kash Patel and John Solomon (including past security concerns raised about both), and the Trump lawyers involved in the June meeting.

There may be a paragraph describing MAL in more depth. It might describe the SCIF used during Trump’s presidency and its apparent removal. It might describe the arrest and prosecution of Yujing Zhang, who breached MAL and might include other known foreign intelligence targeting of MAL. It might describe Trump’s refusal to use secure facilities at MAL, including a 2017 meeting with Shinzo Abe, though it would likely rely on public reports for this, not classified intelligence. It might describe the tunnels underneath and — and the public availability of historic diagrams of them. It might describe the known employees at MAL, including any foreign citizens. Finally, it might describe both the terms of membership and the ease with which others could access the golf club.

Timeline

The rest is probably a timeline of the investigation. The following known details are likely to appear.

On December 30, 2020, DOJ provided Trump a binder of material from the Russian investigation.

On January 8, 2021, Mike Ellis attempted to retain a compartmented NSA report for White House archives, initially refusing efforts to return it.

On January 14, 2021, the White House returned the compartmented NSA report to NSA.

On January 17, 2021, the FBI provided a list of continuing objections to Trump’s declassification of Crossfire Hurricane materials.

On January 19, 2021, via letter to Archivist of the United States David Ferriero, FPOTUS designated (among others) Pasquale (Pat) Cipollone and Patrick Philbin as his representatives with the NARA.

On January 19, 2021, FPOTUS wrote a letter authorizing the declassification of records pertaining to FBI’s investigation into Russian ties with FPOTUS’ campaign that had not yet been declassified. Patel later described the materials to include:

transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

Patel’s description appears to conflict with Trump’s order, which explicitly, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court.”

On January 20, 2021, Meadows sent “The Attorney General” a memo, citing the January 19 order from FPOTUS, ordering “the Department must expeditiously conduct a Privacy Act review under the standards that the Department of Justice would normally apply, redact material appropriately, and release the remaining material with redactions applied.”

On January 20, 2021, FPOTUS ceased exercising the authorities of the President of the United States.

On January XX, records deemed to be the final production of Presidential Records arrived at NARA.

The affidavit would describe the inventorying process and then describe known documents that were not included.

  • Love letters from Kim Jong Un
  • Altered map of Hurricane Dorian

It would also include a description of evidence of document destruction, including any evidence those records pertained to a Congressional investigation, impeachment, or a criminal investigation.

Starting on May 6, 2021, NARA General Counsel Gary Stern communicated with Philbin regarding the missing records. [This will cite the date of each communication and quote anything that captures Trump’s refusal to return the documents.]

Having not secured identified records, starting in Fall 2021, Stern communicated with Trump attorney (probably Cipollone) to arrange turning over the records.

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

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

On December XX, 2021, XX informed NARA certain missing records had been located.

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

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

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

On January 31, 2022, NARA completed an initial inventory of the retrieved documents. It discovered over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) material.

On February xx (possibly February 8), 2022, NARA reported FPOTUS’ failures to comply with the Presidential Records Act to the Department of Justice and requested an investigation.

DOJ and FBI likely conducted interviews between February and May, which would be listed.

On April 11, 2022, Biden’s White House Counsel instructed NARA provide FBI access to the 15 boxes of materials returned from Mar-a-Lago.

On April 12, 2022, NARA instructed the Trump team of that decision, and informing him that the FBI would start to access the documents on April 18.

On April XX, Trump’s attorneys ask the White House counsel for more time before the review of the documents; Biden extends the date to April 29.

On May 5, 2022, Corcoran proposed reviewing the records at NARA.

On May 5, 2022, Kash Patel made public claims that the contents of materials returned to NARA had been declassified, describing that FPOTUS wanted to release,

information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.

FBI conducted early interviews during this period, likely including Philbin, Scott Gast, Derek Lyons, and Cipollone, and possibly Mark Meadows. Philbin and Cipollone would have described their own inspections of records, including their knowledge that identified missing records had been at MAL when they had conducted records searches.

FBI would include multiple interviews of people describing Trump saying the Presidential Records belonged to him.

On May 10, 2022, Acting Archivist informed Evan Corcoran the FBI would get access to the records on May 12.

On May 11, 2022, FBI subpoenaed Trump for documents remaining at Mar-a-Lago bearing classification marks.

On May 12, pursuant to a subpoena, FBI accessed the 15 boxes turned over in January.

From May 16-18, FBI conducted a preliminary review of. the documents and discovered:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Documents marked HCS, FISA, ORCON, NOFORN, and SI
  • Handwritten notes

On May XX, 2022, DOJ subpoenaed FPOTUS for any remaining documents bearing classification marks.

Surveillance video from this period, later obtained with a subpoena, showed people moving documents in and out of the storage room. The people and dates would be included.

On June 3, 2022, Jay Bratt and three investigators met with Evan Corcoran and Christina Bobb to collect the subpoenaed materials.

  • FPOTUS joined the meeting and acknowledged the effort to retrieve classified materials.
  • Bobb and Corcoran provided XX documents marked with classification marks.
  • One of the lawyers signed an attestation that all classified documents had been turned over.
  • Bratt informed Bobb and Corcoran all records covered by the Presidential and Federal Records Act were US government property.
  • Bratt informed Bobb and Corcoran about the regulations guiding storage of classified records.
  • Bratt and investigators inspect storage facility, find storage facility fails to meet required standards for storage.

On June 8, Bratt emailed Corcoran. He said, in part, that,

We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice

It’s likely either at the meeting on June 3 or in the email, Bratt also informed Corcoran that the storage closet did not comply with CFR guidelines.

On June 9, Corcoran wrote saying only, “I write to acknowledge receipt of this letter.”

On June 19, FPOTUS sent a letter to NARA designating Patel and Solomon as representatives to access “Presidential records of my administration.”

NARA, possibly Gary Stern, likely informed DOJ of the designation of Patel and Solomon and (probably) Trump’s reference to “Presidential records,” generally, not records at NARA.

On June 22, DOJ subpoenaed surveillance video of the storage closet for a 60-day period. Analysis of the video showed uncleared people entering in and out of the storage closet.

DOJ likely had follow-up interviews after the Bratt meeting and the surveillance video return, in part to identify who had access to the storage closet and to identify documents believed to remain outstanding.

The affidavit would include a description of known documents that remain extant, including documents that were altered or mutilated (perhaps transcripts of Trump’s meetings with Russia) and known classified documents, including those pertaining to nuclear weapons. 

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified and some other subset of which had either been hidden or damaged in an effort to obstruct either this or other investigations.

emptywheel Trump Espionage coverage

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

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

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

Trump’s Stolen Documents

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

[from Peterr] Merrick Garland Preaches to an Overseas Audience

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

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

Merrick Garland Calls Trump’s Bluff

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

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

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

The Likely Content of a Trump Search Affidavit

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

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

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

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

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

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

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

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And no one knew about it.

emptywheel Trump Espionage coverage

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

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

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

Trump’s Stolen Documents

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

[from Peterr] Merrick Garland Preaches to an Overseas Audience

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

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

Merrick Garland Calls Trump’s Bluff

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

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

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

The Likely Content of a Trump Search Affidavit

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

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

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

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

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

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

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

DOJ Is Suing Peter Navarro (But Not Ivanka or Mark Meadows)

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Yesterday, DOJ filed suit against Peter Navarro for violating the Presidential Records Act by failing to provide the National Archives with the contents of his personal ProtonMail account on which he did official business.

It’s a nifty lawsuit. After laying out that he’s a Covered Person under the Presidential Records Act for the entirety of the Trump Administration, then laying out the requirement that copies of any presidential business conducted on non-official accounts be shared with the Archives, it then describes how Navarro didn’t comply with the PRA specifically as regards (at least) a ProtonMail account he used.

6. While serving in the White House, Mr. Navarro used at least one non-official email account—an account hosted by the non-official service ProtonMail—to send and receive messages constituting Presidential records.

7. Mr. Navarro did not copy each email or message constituting Presidential records that was sent or received on his non-official account or accounts to his official government email account.

8. Following the end of the Trump Administration, the Archivist, through the General Counsel of the NARA, attempted to contact Mr. Navarro to secure the Presidential records that Mr. Navarro had not copied to his government email account. Mr. Navarro did not respond to NARA’s communications.

9. Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.

DOJ is very coy about the timing of all this. Possibly, when they asked Navarro to comply, they didn’t know about the ProtonMail account. But since then — and since the time Navarro very loudly lawyered up after being charged in contempt — DOJ asked Navarro for the material he hadn’t shared.

And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.

The PRA is notoriously toothless for forcing your Navarro or Ivanka or Jared or Meadows types who refuse to use official accounts for Federal business. (Though Andrew McCabe made sure to apply some teeth to the PRA with Jared and Dan Scavino within days after the Biden inauguration; records were not archived properly for others, including Kellyanne Conway and Kayleigh McEnany.) It is toothless, that is, until such time as the affirmative refusal to comply with it could be deemed obstruction of a criminal investigation, the kind of criminal investigation that Navarro may have specifically in mind when he demanded immunity for giving what DOJ maintains is Federal property to the people who own it.

Maybe Navarro, now represented by counsel, thinks that whatever criming he did on his ProtonMail account carries a greater criminal penalty than obstruction would.

This lawsuit is similar to a lawsuit against Steve Wynn to get him to register under FARA, but one on which the legal issues are likely to be much clearer. If and when DOJ wins the lawsuit, they can then charge the person with violating the underlying law, which in the Wynn case might have real teeth.

But they may not have to wait that long with Navarro. They’ve laid a case that Navarro is withholding materials in an effort to withhold evidence of criming from NARA. Who knows? Perhaps his new lawyer will rethink the wisdom of demanding immunity.

As interesting as the fact that DOJ sued Navarro is, it is just as interesting that they have not, yet, sued Ivanka and Mark Meadows, both of whom had similarly failed to turn over the contents of their personal accounts to NARA by the time the January 6 Committee came looking for them. Unlike Navarro, though, both showed signs of trying to comply last year.

The fact that DOJ hasn’t sued Ivanka and Meadows may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.

The Evidentiary Hole in the Middle of Ari Melber’s “Not anything but evidence”

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Fresh off giving Andrew Weissmann a platform to complain that DOJ’s multi-spoked investigation into January 6 should be multi-spoked, fresh off giving Adam Schiff an opportunity to make the (still-uncorrected) false claim that Congress never gets ahead of DOJ on parts of investigations they’re conducting in parallel, Ari Melber rolled out a schema (one, two) about his understanding of Trump’s corrupt acts that others have found really helpful.

It came with a nifty, mostly-accurate graphic that shows how multiple attempts to stay in power worked in parallel.

That graphic is helpful for those trying to keep track of all the efforts Trump pursued.

But Ari’s “special report,” which he claims is “built on evidence, not anything but evidence,” is most useful for demonstrating the evidentiary hole in the middle of his understanding of events leading up to January 6. And not just his understanding: also my own, and (at least based off their hearings) even the January 6 Committee’s. Neither Ari, the Committee, nor I, nor anyone I know to be investigating — save possibly DOJ and one or two really well sourced journalists — knows for certain what happened between the end of the December 18, 2020 meeting where Sidney Powell pitched Trump on a plan to seize voting machines and Trump’s December 19 tweet that led Stop the Steal plotters to start taking steps that led to a violent attack on the Capitol.

Before I lay out how well Ari illustrates that evidentiary hole, there are multiple things that Ari gets wrong (I’ve put my transcription of the most important parts of his presentation below). Most have to do with Ari’s apparent misunderstanding of how the blue collar violent attack on the Capitol related to the white collar parts of the coup attempt he has familiarity with.

For example, he claims, without evidence, that Rudy Giuliani, Mark Meadows, and John Eastman wanted pardons, “totally separate from the January 6 violence.” But according to Cassidy Hutchinson, both Rudy and Meadows knew by January 2 that Trump planned to go to the Capitol and it might get “real, real bad.”

CASSIDY HUTCHINSON: As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy, could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol.

It’s going to be great. The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators. Talk to the chief about it, talk to the chief about it. He knows about it.

LIZ CHENEY: And did you go back then up to the West Wing and tell Mr. Meadows about your conversation with Mr. Giuliani?

CASSIDY HUTCHINSON: I did. After Mr. Giuliani had left the campus that evening, I went back up to our office and I found Mr. Meadows in his office on the couch. He was scrolling through his phone. I remember leaning against the doorway and saying, I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.

He didn’t look up from his phone and said something to the effect of, there’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.

Hutchinson also tied White House awareness of the militias now charged with seditious conspiracy with Rudy’s presence.

CASSIDY HUTCHINSON: I recall hearing the word Oath Keeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

As for Eastman, Mike Pence’s Counsel, Greg Jacob, accused Eastman in real time, as his family was worried whether Jacob would get out alive, of causing the “siege” on the Capitol by “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law.”

[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.

Judge David Carter’s opinion finding it likely Eastman and Trump conspired to obstruct the vote count included Trump’s effort to send the mob, which we now know he knew to be armed, to the Capitol.

President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

So all of these three men, per key witnesses and one judge, have legal exposure that is directly tied to the violence at the Capitol. Maybe they only wanted pardons for their white collar crimes, but — according to the evidence — all are implicated in the blue collar crimes.

Ari also treats the consideration of a plan to have DOD seize the voting machines as “the military plot,” one that ended on December 18. There are two problems with this. First, Ari ignores that this plan was revised to put DHS in charge of seizing the machines, which is how the plan resurfaced on December 31, when Trump serially tried to get DOJ and DHS to seize the machines.

ADAM KINZINGER: Mr. Rosen, the President asked you to seize voting machines from state governments. What was your response to that request?

JEFFREY A. ROSEN: That we had — we had seen nothing improper with regard to the voting machines. And I told him that the — the real experts that had been at DHS and they had briefed us, that they had looked at it and that there was nothing wrong with the — the voting machines. And so that was not something that was appropriate to do.

ADAM KINZINGER: There would be no factual basis to seize machines. Mr. Donoghue —

JEFFREY A. ROSEN: — I — I don’t think there was legal authority either.

ADAM KINZINGER: Yeah. Mr. Donohue can you explain what the President did after he was told that the Justice Department would not seize voting machines?

RICHARD DONOGHUE: The President was very agitated by the Acting Attorney General’s response. And to the extent that machines and — and the technology was being discussed, the Acting Attorney General said that the DHS, Department of Homeland Security, has expertise in machines and certifying them and making sure that the states are operating them properly.

And since DHS had been mentioned, the President yelled out to his Secretary get Ken Cuccinelli on the phone. And she did in very short order. Mr. Cuccinelli was on the phone. He was the number two at DHS at the time. It was on the speakerphone, and the President essentially said, Ken, I’m sitting here with the Acting Attorney General.

He just told me it’s your job to seize machines and you’re not doing your job. And Mr. Cuccinelli responded.

More importantly, Ari ignores that both militias charged with sedition and a goodly number of other armed rioters believed that larger scale violence would break out (possibly via clashes with counter-protestors, possibly in response to the GOP attempt to steal votes at the Capitol) on January 6, which would create the excuse for Trump to invoke the Insurrection Act to accord legal authority to the mob to act on his behalf. That will literally be Stewart Rhodes’ defense against a sedition charge, that he expected his attack on the US to come with Trump’s legal sanction.

And the plan may have gone further than that. To the extent that Trump asked the National Guard to be prepared for January 6, it was to protect his supporters, not to protect the Capitol.

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

When reports that the Guard would deploy first started to come out on January 6, Proud Boy Charles Donohoe [now a cooperating witness] reacted with surprise that the Guard would attack, rather than protect, Trump supporters.

That is, the actual plans for a military coup, rather than a Sidney Powell plan that Trump rejected then revisited, envisioned having armed Trump supporters and the National Guard holding the Capitol together. It was a plan that multiple militia members — most notably Rhodes, which forms a key part of the sedition evidence against him — but even joined by some members of Congress continued to pursue after January 6. There was a military plot that was far worse than the one that Ari labels as “that very bad red illegal plan,” but to understand it, you need to understand what happened at the Capitol, and what plans continued for weeks — still continue!! — after, per Ari, the violence “ended within one day.”

On top of a lack of understanding of what actually happened at the Capitol, Ari’s scheme includes conflicting claims. Ari claims that after Trump chose not to pursue Sidney Powell’s plan on December 18, he turned to “muscle.” “So that’s when I bring muscle to January 6.” His nifty graphic shows the plans to “sabotage Jan. 6” (adopting an utterly bizarre word, “sabotage,” which whitewashes both the violence planned and the legal crime, obstruction, committed) started right then, on December 19. But then, after claiming that Trump turned to “muscle” starting on December 19, Ari suggests that Trump’s only agency in the violence that ensued was the speech he gave on January 6. “The law makes it hard to pin an insurrection on one speech.”

In his presentation, at least, Ari ignores that “muscle” had been a part of the plan from the start, with operatives forming mobs at counting locations in the swing states that in turn created the cover for the fake electors plot and elicited threats against election officials, and it continued through to January 6 and beyond.

This may stem from an unfortunate unevenness on the part of the January 6 Committee.

The seventh hearing — the one purportedly focused on the rioters — depicted the actions of Ali Alexander and Alex Jones as an organic response to Trump’s December 19 tweet.

Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

ALEX JONES: It’s Saturday, December 19th. The year is 2020, and one of the most historic events in American history has just taken place. President Trump, in the early morning hours today, tweeted that he wants the American people to march on Washington DC on January 6th, 2021.

That hearing similarly implied that Oath Keeper Kelly Meggs’ efforts to set up an alliance between the militias, which undoubtedly started at least days earlier, was a response to Trump’s tweet.

On December 19th at 10:22 a.m., just hours after President Trump’s tweet, Kelly Meggs, the head of the Florida Oath Keepers, declared an alliance among the Oath Keepers, the Proud Boys and the Florida Three Percenters, another militia group.

He wrote, we have decided to work together and shut this shit down. Phone records obtained by the Select Committee show that later that afternoon, Mr. Meggs called Proud Boys leader Enrique Tarrio, and they spoke for several minutes. The very next day, the Proud Boys got to work. The Proud Boys launched an encrypted chat called the Ministry of Self-defense.

That is, in places, the Committee encouraged this notion that everything pivoted on December 19 after that tweet.

But elsewhere, the Committee made it clear that the “muscle” and the militia were part of the plan from the start. Its fourth hearing on the Big Lie, for example, made clear that the earlier mobs were led by the very same people who seemingly sprung to action in response to Trump’s December 19 tweet.

[Ali Alexander]:

Let us in. Let us in. Let us in. Special session. Special session. Special session. We’ll light the whole shit on fire.

NICK FUENTES:

What are we going to do? What can you and I do to a state legislator besides kill him? Although, we should not do that. I’m not advising that, but I mean what else can you do? Right?

UNKNOWN:

The punishment for treason is death.

[End Videotape]

ADAM SCHIFF:

The state pressure campaign and the danger it posed to state officials and to State Capitols around the nation was a dangerous precursor to the violence we saw on January 6th at the US Capitol.

[snip]

The Select Committee has uncovered evidence in the course of our investigation that at stop the steal protests at state capitols across the country, there were individuals with ties to the groups or parties involved in the January 6th attack on the US Capitol. One of those incursions took place in the Arizona House of Representatives building, as you can see in this footage.

This is previously undisclosed video of protesters illegally entering and refusing to leave the building. One of the individuals prominently shown in this video is Jacob Chansley, perhaps better known as the QAnon Shaman. This rioter entered the Capitol on January 6th, was photographed leaving a threatening note on the dais in the US Senate chamber, and was ultimately sentenced to 41 months in prison after pleading guilty to obstruction of an official proceeding. Other protesters who occupied the Arizona House of Representatives building included — included Proud Boys, while men armed with rifles stood just outside the entrance.

And different parts of the seventh hearing showed that these ties are much better established, including through Roger Stone’s Friends of Stone listserv that started plotting immediately after the election.

Raskin: In the same time frame, Stone communicated with both the Proud Boys and the Oath Keepers regularly. The committee obtained encrypted content from a group – – from a group chat called Friends of Stone, FOS, which included Stone, Rhodes, Tarrio and Ali Alexander.

The chat focused on various pro-Trump events in November and December of 2020, as well as January 6th. As you can see here, Stewart Rhodes himself urged the Friends of Stone to have people go to their state capitols if they could not make it to Washington for the first million MAGA March on November 14th. These friends of Roger Stone had a significant presence at multiple pro-Trump events after the election, including in Washington on December the 12th. On that day, Stewart Rhodes called for Donald Trump to invoke martial law, promising bloodshed if he did not.

[snip]

JAMIE RASKIN: Encrypted chats obtained by the Select Committee show that Kelly Meggs, the indicted leader of the Florida Oath Keepers, spoke directly with Roger Stone about security on January 5th and 6th. In fact, on January 6th, Stone was guarded by two Oath Keepers who have since been criminally indicted for seditious conspiracy.

One of them later pleaded guilty and, according to the Department of Justice, admitted that the Oath Keepers were ready to use, quote, lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard. As we’ve seen, the Proud Boys were also part of the Friends of Stone Network.

Stone’s ties to the Proud Boys go back many years. He’s even taken their so-called fraternity creed required for the first level of initiation to the group.

[snip]

Katrina Pierson, one of the organizers of January 6th rally and a former campaign spokeswoman for President Trump, grew increasingly apprehensive after learning that multiple activists had been proposed as speakers for the January 6th rally. These included some of the people we discussed earlier in this hearing.

Roger Stone, a longtime outside advisor to President Trump; Alex Jones, the founder of the conspiracy theory website Infowars; and Ali Alexander, an activist known for his violent political rhetoric. On December 30th, Miss Pierson exchanged text messages with another key rally organizer about why people like Mr. Alexander and Mr. Jones were being suggested as speakers at the President’s rally on January 6th. Ms. Pierson’s explanation was POTUS, and she remarks that the President likes the crazies.

Remember that the Committee cut a good deal of their presentation focused on the militia in that seventh hearing to integrate more of Pat Cipollone’s testimony, which I think was one of the more unsuccessful planning decisions the Committee made.

Even still, taken as a whole, the Committee shows that the network around Roger Stone, which linked Ali Alexander, Alex Jones, and other movement activists to the militias (Jones had his own long-standing ties to the militias, including his former employee Joe Biggs), was riling up crowds starting immediately after the election, took concrete steps seemingly in response to Trump’s December 19 tweet, and continued to do so on January 6.

I mean, Roger Stone has been doing this since 2000.

In his most recent schema at least, Ari ignores all of that. Stone, Alexander, the militias, go unmentioned, and Trump’s role in the violence is limited to a single speech.

Which brings me back to the evidentiary gap that Ari and I share, seemingly in conjunction with the Committee.

In Ari’s telling, Donald Trump and Peter Navarro (with whom Ari has had a series of interviews) are the agents of this timeline. In his telling, Trump made an effort to “find a coup plotter” who would go further than his personal lawyer Rudy, who at least according to Hutchinson, had ties to the militias (though Powell is currently funding the legal defense of several Oath Keepers). Ari claimed that Powell was still on the campaign team, even though Rudy had explicitly and publicly stated she had no role on the campaign as early as November 22.

And Ari suggested that Trump adopted Powell’s plan, then either “back[ed] down” or “quit” it.

But as the January 6 Committee described it, it’s not really clear what happened; Pat Cipollone couldn’t even say whether Powell was appointed Special Counsel.

PAT CIPOLLONE: I don’t know what her understanding of whether she had been appointed, what she had been appointed to, Ok? In my view, she hadn’t been appointed to anything and ultimately wasn’t appointed to anything, because there had to be other steps taken. And that was my view when I left the meeting. But she may have a different view, and others may have a different view, and — and the president may have a different view.

To make matters worse, there are few if any credible witnesses here. Sidney Powell and her entourage (including Patrick Byrne, Mike Flynn, and an unnamed attorney) are batshit insane. So is Rudy. Cipollone, who gets treated as a grown-up, seems to be protecting Trump with his privilege claims. Meadows showed up later, but he’s a liar. Cassidy Hutchinson was texting details about the screaming and took a picture of Meadows escorting Rudy from the premises, but she is not known to have been in the meeting.

What seems common to all descriptions is that the Powell entourage showed up without an appointment and were let in by (as Ari notes) Peter Navarro aide Garrett Ziegler, though Patrick Byrne’s account describes two others being involved in their unplanned entry as well. That’s not a plan, it’s a pitch.

During the course of the meeting, Trump entertained the Powell plan because, he complained, Rudy and others were offering him nothing better.

UNKNOWN: So one of the other things that’s been reported that was said during this meeting was that President Trump told White House lawyers Mr. Herschmann and Mr. Cipollone that they weren’t offering him any solutions, but Ms. Powell and others were. So why not try what Ms. Powell and others were proposing? Do you remember anything along those lines being said by President Trump?

DEREK LYONS: I do. That sounds right.

ERIC HERSCHMANN: I think that it got to the point where the screaming was completely, completely out there. I mean, you got people walk in, it was late at night, had been a long day. And what they were proposing I thought was nuts.

RUDY GIULIANI: I’m gonna — I’m gonna categorically describe it as you guys are not tough enough. Or maybe I put it another way. You’re a bunch of pussies. Excuse the expression, but that — that’s I — I’m almost certain the word was used.

But the impression given by virtually all versions of this story (key versions linked below) is that by the end of the night, the White House lawyers and Rudy had mostly convinced Trump not to adopt this plan.

If that’s the case (and several people have backed that story under oath), this will be exculpatory if and when Trump ever goes to trial, not inculpatory. Entertaining a suspect idea — even the arguably legal one of appointing Jeffrey Clark to more aggressively pursue voter fraud claims, and especially a plan to seize the poll machines — but rejecting it on the advice of lawyers, even if Trump was persuaded to do so largely out of self-interest, is evidence someone is trying to stay inside the law, not break it. To be sure, there’s plenty of other evidence that Trump knowingly broke the law, but some of the most contentious meetings will actually be used in his defense. That just means prosecutors will find their proof of motive in places more directly tied to the crimes.

But the meeting accounts showing lawyers at least stalling on any decision about seizing the machines is where the trail goes dark.

No one has yet explained what happened between the time everyone left and the moment Trump’s tweet went out, and the understanding with which key planners adjusted their own timelines. Instead, we get narratives like Ari’s, or Jamie Raskin’s, that present the timing as proof that Trump took a third alternative — a pretty strong inference, undoubtedly — without an explanation of how the tweet got sent out or whether those involved knew where things would lead or who pitched Trump.

Not long after Sidney Powell, General Flynn, and Rudy Giuliani — Giuliani left the White House in the early hours of the morning, President Trump turned away from both his outside advisers’ most outlandish and unworkable schemes and his White House counsel’s advice to swallow hard and accept the reality of his loss.

Instead, Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

It appears that both Powell’s contingent and Rudy left after midnight, with Meadows and Rudy together alone as Rudy left. Less than two hours later, that tweet went out, a tweet that was demonstrably central to both the organized and disorganized mobilization of the mob, one that has long been a focus of DOJ’s prosecutions (proof, among other proof, that Ari’s claim that DOJ has only focused on January 6 and the days immediately before it is false).

It’s certainly possible that after everyone left Peter Navarro came in, or maybe just Ziegler, and presented an alternative plan, a mob, but Ari presents no evidence that happened and it’s unlikely either Ziegler or Navarro would have been silent about their role in it. It’s more likely that Rudy and Meadows agreed they had to offer Trump another alternative, and they settled on January 6 (certainly, Meadows had advanced knowledge of Rudy’s plans for January 6). It’s possible that Trump had a late night call with someone else — Roger Stone or Bannon, maybe — who operationalized what came next. Maybe the dim-witted Meadows came up with the plan by himself.

Meadows, who refused to cooperate with the Committee, surely knows. Dan Scavino, who refused to cooperate, spent four years knowing what led up to most every tweet that Trump sent out. He also must know.

And while Ari doesn’t appear to know and I don’t either and the Committee doesn’t explain it if they know the answer, the one other place one might learn the answer is from those who turned existing infrastructure — the Stop the Steal effort, the permits — towards planning for January 6 (both of which DOJ has issued grand jury subpoenas to learn).

DOJ has been a bit coy about whether they know. That’s why I pointed to the remarkable use of the passive voice in Donohoe’s statement of offense in April, which virtually alone among January 6 filings obscures Trump’s role in announcing the riot on December 19, then turns immediately to Enrique Tarrio’s very hierarchical plan to instill discipline in the Proud Boys that didn’t exist at the December 12 MAGA March (the same trip to DC where Tarrio visited the White House as part of a Latinos for Trump visit).

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

That happened “on or before” December 20, allowing for the possibility that the Proud Boys started to plan before Trump publicly announced the rally. Among other communications that DOJ likely has that the Committee has more limited access to are at least three versions of the Friends of Stone listserv (from Tarrio, Rhodes, and Owen Shroyer’s phones).

My instinct — based on all the evidence that these same people had been the muscle going back to the election — is that that’s where one could find the answer: Meadows, Scavino, Trump, Rudy, but also those who directed existing infrastructure towards January 6. But that’s just instinct. We still really don’t know for sure.

Presidents often adopt the plans of the last person in the room, and that’s probably more true with Trump than many of his predecessors. We know — or believe — that Sidney Powell and Rudy both left. Which means we don’t know who pitched Trump on the plan he ultimately adopted, the one that led directly to an attack on the Capitol.

There absolutely is a slew of evidence that that tweet made the difference, not just with the militias, but with disorganized conspirators and individuals who took Trump’s tweet as an order to make travel plans. It is absolutely the case that after that meeting, Trump took a fateful step (though that has been clear for at least a year). We just don’t know what led him to post that tweet.

Many of those people [Rudy, Meadows, Eastman] wanted pardons totally separate from the January 6 violence and that is important as we look at a different plot Trump’s effort to find a coup plotter would who go farther than Giuliani, his lawyer, Sidney Powell. She would go even farther. So the plan was to take her off the campaign team and try to install her inside the government to get the military to seize voting machines.

[snip]

Trump did back down on that very bad red illegal plan. And by the way, quitting an illegal coup would be a good thing, but this was the military plot: another conspiracy’s prong that hits a dead end. And this is key, because facing that dead end, late that same night of December 18th, Trump turned to the other plot pushed by Eastman and Navarro, posting what is by now an infamous tweet that announces the January 6 rally, beginning, quote, Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. That was the lie Trump needed to build on when he summons the people to DC for the first time. Quote, big protest in DC on January 6th. Will be wild. Now that’s the first time Trump ever told supporters there was a place to come join this fight. And none of this happened in isolation. The evidence of Trump’s criminal intent is worse when all the facts are shown about the plot. Trump began the public operation to sabotage January 6 as a certified vote which was criminal, only after hitting this dead end in the failed plot to have the military help a coup. Now his lawyers warned him of the criminal issues here. Of the criminal intent and actions of that military plot. And he still moved, continuously, from that conspiracy to this one. Now, that’s damning evidence if prosecutors are indicting a broader conspiracy. And the White House aide connecting both plots is Navarro whose aide helped sneak in the military plotters there, then, he’s part of Trump’s January 6th announcement.

[A quote about seizing machines, ignores DHS]

This is something that Rudy Giuliani said would land them all in prison. Rudy Giuliani. He’s already lost his law license. We’ll see what else happens to him. But that is the context as we showed tonight: That when that fails, is the same time, the same night, that Donald Trump comes in and says, alright, I can’t abuse military power. I’m even being told by my most aggressive, lawless lawyers — the kind that he apparently prefers — that that’s not gonna work. So that’s when I bring muscle to January 6. But we have had, in this country, in our minds and apparently at the Justice Department as we reported tonight, a fixation on only looking here [post December 19]. On basically the 6th, or the lead-up to the 6th, or a few days out. And that’s understandable, given what we lived through. We’re human beings and the 6th was one of the worst attacks and one of the worst national security crises America has ever faced, from a domestic threat, let alone an incumbent outgoing President. The point tonight, which we’ve built on evidence, not anything but evidence, is that when you actually go all the way back, when you actually understand how this started, and how many different plots were pursued, thwarted, warned about, and then desperately doubled down upon, that goes to the criminal intent. Let me put it simply. Taken separately, some of these plots can be viewed like a gray area, clumsy plans that didn’t occur or the insurrection that exploded but also ended within one day. I’ll tell you something. The law makes it hard to pin an insurrection on one speech. As it should. But taken together, you have the evidence of this wider criminal conspiracy with criminal intent running across weeks if not more. Remember, in court, prosecutors have to prove criminal intent in a moment, just that you meant to do it. This is weeks of that with lawyers warning these were crimes, especially after the legal door was closed in mid-December when the Electoral College voted — everything after that, when it comes to overturning votes and installing fraudulent electors, that’s that illegal red zone. That’s where you see the evidence of several crimes. And taken together? Well, this evidence suggests the question is no longer whether there are any indictable election offenses here, but how prosecutors would explain a failure to indict and enforce the law and how that does risk letting the close call of this documented and attempted multi-prong coup conspiracy turn into a training exercise that American democracy may not survive.

 

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

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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).

Cassidy Hutchinson Is a Superb Witness — to Get Other Witnesses against Trump

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According to a CNN report of Pat Cipollone’s testimony, the January 6 Committee did not ask him whether he told Cassidy Hutchinson that (as she testified), if “we” didn’t prevent Trump from going to the Capitol on January 6, “we” would get charged with every charge imaginable.

Two people familiar with former Trump White House counsel Pat Cipollone’s testimony Friday told CNN that the House select committee investigating January 6, 2021, did not ask him if he told then-White House aide Cassidy Hutchinson the day of the attack that they would “get charged with every crime imaginable” if they went to the US Capitol.

If asked, he would not have confirmed that particular statement, the sources said.

A separate source familiar with the committee told CNN, “The select committee sought information about Cipollone’s views on Trump going to the Capitol on January 6,” implying that the committee’s questions were focused on Cipollone’s perspective as opposed to his take on other witness’ testimony.

[snip]

Cipollone told the committee on Friday that he wasn’t giving legal advice to staff regarding movements on January 6. This came up during his testimony as part of a question not relating to the specific anecdote from Hutchinson.

It doesn’t mean that he didn’t say such a thing. Indeed, other outlets have said that he didn’t contradict anything she said. It means that, thus far at least, one of the six to ten witnesses who would be important witnesses to charge Trump for crimes beyond the obstruction and conspiracy charges framework DOJ has been explicitly pursuing since August is thus far unwilling to recall some of the more damning details of Hutchinson’s testimony. He may have reason to avoid it! After all, the pardons he was a party to before the insurrection — most importantly of Mike Flynn and Roger Stone — may implicate him in the later events, no matter how hard he tried on January 6 to prevent more bloodshed.

That’s an important detail to keep in mind as you read this NYT story, which has led the usual suspects to claim that DOJ has done nothing to pursue a Trump investigation.

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.

Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.

Department officials have said Ms. Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power. “The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing,” Mr. Garland said this spring.

But some of her explosive assertions — that Mr. Trump knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Mr. Trump’s conduct could lead to criminal charges — were largely new to them and grabbed their attention.

Even while many took from this that DOJ is not investigating, the article — written by Katie Benner, probably the journalist with the best sources at the top of DOJ across administrations, and Glenn Thrush, whose background is as a political reporter and who exhibits little understanding of DOJ matters (but who is bylined on most of the stories about AUSA Thomas Windom) — also reported that Windom was asked to lead the fake electors investigation last fall, at least a month before Lisa Monaco confirmed it and possibly much earlier than that. It also describes that Merrick Garland was briefed on an “influencer” strand of the investigation in March 2021, which is consistent with when we know DOJ obtained Brandon Straka’s phone providing information on the Stop the Steal listserv, the VIP treatment, and possibly even events at the Willard.

Mr. Sherwin presented Mr. Garland with a strategy that included four teams of prosecutors, labeled A through D: “Team B,” already staffed by 15 lawyers, had begun looking into “public influencers and officials” linked to the attack, according to a copy of a memo shared with The New York Times.

There are strands of the investigation not mentioned in this — such as the Sidney Powell investigation, which started no later than September 2021, the way DOJ got a privilege review for Rudy Giuliani’s phones that would go through the insurrection, or the way Roger Stone has been a key focus of the Oath Keeper investigation since March 2021. And the piece doesn’t describe Monaco’s own public statement the day after Hutchinson’s testimony, which claimed, at least, that DOJ is “deep” into its January 6 probe.

All that said, I don’t doubt that Hutchinson did make DOJ consider previously unconsidered investigative next steps and I have even less doubt that former Assistant Attorney General Jody Hunt, the lawyer who shepherded Hutchinson through her more expansive testimony to the Committee in late June, has been in touch with DOJ.

But back to the Cipollone point with which I started: As I noted in my review of Hutchinson’s testimony, she gave absolutely crucial firsthand testimony about Cipollone, Mark Meadows, and Tony Ornato, as well as damning comments about Rudy Giuliani and Scott Perry, but with a few exceptions, those men were and are still the ones who would have the firsthand testimony about what Trump said and did. I noted, too, that on the topic about which Hutchinson had the most important firsthand knowledge of Trump’s mindset — his demand that the Secret Service take down metal detectors so his armed supporters could enter the official venue for his speech — she acknowledged his motivation stemmed in significant part from his narcissism.

Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect[s] knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.

Read that post! It holds up! Including my point that her testimony will be most valuable for getting the testimony of others like Cipollone and Ornato, and it’ll make whatever charges DOJ uses to coerce Meadows’ cooperation more onerous and therefore more likely to be effective.

I also noted that Hutchinson’s testimony would not have been available in its current form without the process she has been through since February, which has since been laid out in detail in this piece. That process not only involved replacing the lawyer Trump provided her with, Stefan Passantino, with Hunt, but also depended on growing trust with Liz Cheney.

Now unemployed and sequestered with family and a security detail, Ms. Hutchinson, 26, has developed an unlikely bond with Ms. Cheney, a Wyoming Republican and onetime aide to former Secretary of State Colin L. Powell during the George W. Bush administration — a crisis environment of another era when she learned to work among competing male egos. More recently, as someone ostracized by her party and stripped of her leadership post for her denunciations of Mr. Trump, Ms. Cheney admires the younger woman’s willingness to risk her alliances and professional standing by recounting what she saw in the final days of the Trump White House, friends say.

[snip]

Over the next months, Ms. Hutchinson warmed to the idea of helping the committee’s investigation, according to a friend, but she did not detect the same willingness in Mr. Passantino.

“She realized she couldn’t call her attorney to say, ‘Hey, I’ve got more information,’” said the friend, who requested anonymity. “He was there to insulate the big guy.”

Mr. Passantino declined to comment.

At that point Ms. Hutchinson got in touch with Ms. Griffin, who had been cooperating with the committee herself. Ms. Griffin passed on Ms. Hutchinson’s concerns to Barbara Comstock, a former Republican congresswoman and outspoken critic of Mr. Trump. In an interview, Ms. Comstock said that she could have predicted Ms. Hutchinson’s predicament, recalling how she had once talked a young man out of joining the Trump administration. “I said, ‘You’re going to end up paying legal bills,’” Ms. Comstock recalled.

Ms. Comstock offered to start a legal-defense fund so that Ms. Hutchinson would not have to rely on a lawyer paid for by Trump affiliates. But this proved unnecessary. Jody Hunt, the former head of the Justice Department’s civil division under Jeff Sessions — Mr. Trump’s former attorney general and another pariah in Mr. Trump’s world — offered to represent her pro bono. Mr. Hunt accompanied Ms. Hutchinson to her fourth deposition in late June, when she felt more comfortable talking about Mr. Trump’s actions on Jan. 6. Everyone agreed it was time to speed up her public testimony.

Two realities have now taken hold for Ms. Hutchinson. One is that she will continue to offer information to the Jan. 6 committee, with Mr. Hunt as her counsel and Ms. Cheney as the committee’s designated interlocutor to her.

For better and worse, we’re all better off that Hunt will be sitting in on her DOJ interviews than Passantino, but we might not have gotten to this place without the involvement of Liz Cheney and other people, like Barbara Comstock, with whom this site has a very long contentious relationship.

So Hutchinson represents real progress — which is what the NYT story says! But the NYT story also makes clear that DOJ will continue to investigate known crimes, not people.

Days after Hutchinson’s testimony, I started but never finished a post attempting to revisit this framework for how DOJ seems to be approaching the investigation, included below in italicized type. They key point is that for each “nice to have” there’s the cooperation — coerced or voluntary — of a key witness who worked directly with Trump. Cassidy Hutchinson is not that witness. But she offers a way to get to those witnesses with a greater likelihood of success.

The other day, I noted that, while Cassidy Hutchinson’s testimony was courageous and powerful, many of the details she provided would need additional corroboration (from people like Pat Cipollone, who has since been subpoenaed) before being used to prosecute Donald Trump. Nevertheless, her testimony has led people who haven’t followed the investigation to again engage in speculation that Merrick Garland is sitting in an office somewhere pondering whether to push the “indict Trump” button or not. That misunderstands how such a decision would work.

That’s true, first of all, because it would not be Garland’s button to push. It would be a team of AUSAs working for DC US Attorney Matthew Graves, who would first get Graves’, then Lisa Monaco’s, and only then Garland’s approval. If and when Trump is charged, DOJ will be able to point to some career AUSAs (including Thomas Windom, whom NYT described the other day as someone who clerked for a conservative judge) who made the initial prosecutorial decision.

At this point, too, I think the question is not whether Garland (or, rather, the AUSAs) are sure they can convict Trump et al.

Every single thing in the public record shows they’re still taking steps to pursue that investigation, in part by seizing more records and in part by obtaining the witness testimony they would need. A prosecution becomes far easier if Pat Cipollone cooperates, not least because — Hutchinson’s testimony revealed — he warned ahead of time that Trump was exposed with the very same crimes that DOJ has been pursuing against everyone since last summer. Cipollone could be compelled by DOJ to testify, but there’s no sign yet that he has been. I presume Cassidy Hutchinson’s lawyer, Jody Hunt (who was Assistant Attorney General under Trump and who saw how badly Trump treated his boss, Jeff Sessions) is already in discussions about arranging her cooperation with DOJ, and the kind of detail she provided about what Cipollone will get DOJ a step closer to where they would be ready to get Cipollone’s testimony.

Everything that’s public (and I’m sure there’s a lot that’s not) suggests DOJ is working towards five kinds of conduct that Trump would exposed on: 1) coordination — through Stone and, Tuesday’s testimony confirms something I’ve been virtually the only one reporting since early 2021, Rudy — with the militias 2) plans with Stop the Steal that significantly involve Alex Jones’ role in bringing bodies that the militias used to occupy the Capitol 3) the fake electors plot, which is the illegal manifestation of the larger Big Lie 4) pressure on Mike Pence, which includes both an illegal order and real threats of violence 5) the separate illegal request of Brad Raffensperger (which could be charged in GA as early as this week [note: This did not happen, and/but also she appears to have expanded her scope significantly]).

DOJ is making visible signs of progress with many of these prongs, but some of those visible signs suggest any charging decision would be six months away at least. The reason Garland has not pushed a button marked “indict” yet, or why AUSAs haven’t presented a package for approval up a bureaucratic chain of command, is because before DOJ indicts they need to have both the comms in hand, as well as the cooperating direct witnesses to Trump’s actions and intent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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