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Mark Meadows Promised the Kind of National Guard Protection that Proud Boy Charles Donohoe Seemed to Expect

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I argued last week that any contempt report for Mark Meadows will serve as much as a draft warrant affidavit for the FBI as it would the basis for a criminal contempt indictment.

The committee released their report last night and, as I expected, it describes some of the more damning evidence already obtained regarding Meadows. It includes 12 bullet points (included below), many derived from documents already turned over, describing Meadows’ role in sowing disinformation about the election and his early knowledge of the violence that might result.

As Politico reported, one of those bullets described Meadows emailing someone and saying that the National Guard would “protect pro Trump people.”

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.

Former Acting Secretary of Defense Christopher Miller told Congress that’s what Trump ordered him to do on January 3. But if Meadows passed on that privileged order the President gave to Miller, either directly or indirectly, to people involved in the riot, it might have helped them to plan.

And that’s interesting, because when Proud Boy Charles Donohoe saw a public report about the Guard being called in at 3:45 PM of on the day of the riot (these texts reflect the Washington State time zone in which Ethan Nordean’s phone was seized), he responded with surprise that the Guard would “attack … Trump supporters.”

If Meadows had a hand in alerting the Proud Boys that they would not face any response from the Guard, it would go a long way to explaining how they planned their operation in the way they did.

It also might explain why, minutes after Donohoe had just reported, minutes earlier, that “we are regrouping with a second force,” that second assault was abandoned.

As some of the bullets make clear, Mark Meadows had advance warning from organizers that things would get violent on January 6. And as the riot developed, he was in constant communication with Kash Patel, the Chief of Staff at the Defense Department that proved unwilling to deploy to protect the Capitol.

And it’s just possible he shared information that was central to the expectations of and plans by the militia that organized the assault.

Mr. Meadows was one of a relatively small group of people who witnessed the events of January 6 in the White House and with then-President Trump. Mr. Meadows was with or in the vicinity of then-President Trump on January 6 as he learned about the attack on the U.S. Capitol and decided whether to issue a statement that could stop the rioters.28 In fact, as the violence at the Capitol unfolded, Mr. Meadows received many messages encouraging him to have Mr. Trump issue a statement that could end the violence, and one former White House employee reportedly contacted Mr. Meadows several times and told him, ‘‘[y]ou guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die.’’29

Moreover, Mr. Meadows reportedly spoke with Kashyap Patel, who was then the chief of staff to former Acting Secretary of Defense Christopher Miller, ‘‘nonstop’’ throughout the day of January 6.30 And, among other things, Mr. Meadows apparently knows if and when Mr. Trump was engaged in discussions regarding the National Guard’s response to the Capitol riot, a point that is contested but about which Mr. Meadows provided documents to the Select Committee and spoke publicly on national television after President Trump left office.31

Beyond those matters, the Select Committee seeks information from Mr. Meadows about issues including the following:

  • Mr. Meadows exchanged text messages with, and provided guidance to, an organizer of the January 6th rally on the Ellipse after the organizer told him that ‘‘[t]hings have gotten crazy and I desperately need some direction. Please.’’32
  • 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.33
  • Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34
  • Mr. Meadows forwarded claims of election fraud to the Acting leadership of DOJ for further investigation, some of which he may have received using a private email account and at least one of which he had received directly from people associated with Mr. Trump’s re-election campaign.35
  • He also reportedly introduced Mr. Trump to then-DOJ official Jeffrey Clark.36 Mr. Clark went on to recommend to Mr. Trump that he be installed as Acting Attorney General and that DOJ should send a letter to State officials urging them to take certain actions that could affect the outcome of the November 2020 election by, among other things, appointing alternate slates of electors to cast electoral votes for Mr. Trump rather than now-President Biden.37
  • Mr. Meadows participated in meetings and calls during which the participants reportedly discussed the need to ‘‘fight’’ back against ‘‘mounting evidence’’ of purported voter fraud after courts had considered and overwhelmingly rejected Trump campaign claims of voter fraud and other election irregularities. He participated in one such meeting in the Oval Office with Mr. Trump and Members of Congress, which he publicly tweeted about from his personal Twitter account shortly after.38 He participated in another such call just days before the January 6 attack with Mr. Trump, Members of Congress, attorneys for the Trump re-election campaign, and ‘‘some 300’’ State and local officials to discuss the goal of overturning certain States’ electoral college results on January 6, 2021.39
  • Mr. Meadows traveled to Georgia to observe an audit of the votes days after then-President Trump complained that the audit had been moving too slowly and claimed that the signature-match system was rife with fraud.40 That trip precipitated Mr. Trump’s calls to Georgia’s Deputy secretary of state and, later, secretary of state.41 In the call with Georgia’s secretary of state, which Mr. Meadows and an attorney working with the campaign also joined, Mr. Trump pressed his unsupported claims of widespread election fraud, including claims related to deceased people voting, forged signatures, out-of-State voters, shredded ballots, triple-counted ballots, Dominion voting machines, and suitcase ballots, before telling the secretary of state that he wanted to find enough votes to ensure his victory.42 At one point during the call, Mr. Meadows asked ‘‘in the spirit of cooperation and compromise, is there something that we can at least have a discussion to look at some of these allegations to find a path forward that’s less litigious?’’43 At that point, Mr. Trump had filed two lawsuits in his personal capacity and on behalf of the campaign in Georgia, but the United States had not filed—and never did file—any. Mr. Meadows used a personal account in his attempts to reach the secretary of state before.44
  • Mr. Meadows was chief of staff during the post-election period when other White House staff, including the press secretary, advanced claims of election fraud. In one press conference, the press secretary claimed that there were ‘‘very real claims’’ of fraud that the Trump re-election campaign was pursuing and said that mail-in voting was one that ‘‘we have identified as being particularly prone to fraud.’’45

29Documents on file with the Select Committee (Meadows production); Carol Leonnig and Philip Rucker, I Alone Can Fix It, (New York: Penguin, 2021), p. 476.

30 Adam Ciralsky, ‘‘‘The President Threw Us Under the Bus’: Embedding with Pentagon Leadership in Trump’s Chaotic Last Week,’’ Vanity Fair, (Jan. 22, 2021), available at https:// www.vanityfair.com/news/2021/01/embedding-with-pentagon-leadership-in-trumps-chaotic-lastweek.

31Documents on file with the Select Committee (Meadows production); Transcript, ‘‘The Ingraham Angle,’’ Fox News, (Feb. 11, 2021), available at https://www.foxnews.com/transcript/ biden-warns-china-could-eat-our-lunch-after-phone-call-with-xi; Transcript, ‘‘Hannity,’’ Fox News, (Feb. 12, 2021), available at https://www.foxnews.com/transcript/new-yorker-who-lostmother-in-law-in-nursing-home-blasts-disgrace-cuomo; Testimony of Hon. Christopher C. Miller, U.S. House of Representatives Committee on Oversight and Reform, (May 12, 2021), available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Miller%20Testimony.pdf.

32Documents on file with the Select Committee (Meadows production).

33Documents on file with the Select Committee (Meadows production).

34Documents on file with the Select Committee (Meadows production).

35Documents on file with the Select Committee.

36Michael Bender, Frankly, We Did Win This Election: The Inside Story of How Trump Lost, (New York: Grand Central Publishing, 2021), p. 369.

37Documents on file with the Select Committee.

38Marissa Schultz, ‘‘Trump meets with members of Congress plotting Electoral College objections on Jan. 6,’’ Fox News, (Dec. 21, 2021), available at https://www.foxnews.com/politics/members-of-congress-trump-electoral-college-objections-on-jan-6; Tweet, @MarkMeadows, (Dec. 21, 2020 at 6:03 p.m.) (‘‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned.’’).

39 Caitlin McFall, ‘‘Trump, House Republicans held call to discuss Electoral College rejection: Brooks,’’ Fox News, (Jan. 2, 2021), available at https://www.foxnews.com/politics/gop-splits-electoral-college-certification; Tweet, @RepMoBrooks, (Jan. 2, 2021 at 7:17 p.m.) (‘‘Our fight for honest & accurate elections gains momentum! @JimlJordan & I co-lead conference call w 50+ Congressmen who join & fight for America’s Republic! . . . President Trump & CoS Mark Meadows speaking. Morale is HIGH! FIGHT!’’); Paul Bedard, ‘‘Exclusive: Trump urges state legislators to reject electoral votes, ‘You are the real power’,’’ Washington Examiner, (Jan. 3, 2021), available at https://www.washingtonexaminer.com/washington-secrets/exclusive-trump-urges-statelegislators-to-reject-electoral-votes-you-are-the-real-power.

40Linda So, ‘‘Trump’s chief of staff could face scrutiny in Georgia criminal probe,’’ Reuters, (March 19, 2021), available at https://www.reuters.com/article/us-usa-trump-georgia-meadows-insight-idUSKBN2BB0XX.

41 Id.

42 ‘‘AP FACT CHECK: Trump’s made-up claims of fake Georgia votes,’’ Associated Press, (Jan. 3, 2021), https://apnews.com/article/ap-fact-check-donald-trump-georgia-elections-atlantac23d10e5299e14daee6109885f7dafa9; ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3- 322644d82356—story.html.

43 ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-calltranscript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356—story.html.

44Documents on file with the Select Committee.

45Transcript of November 20, 2020, White House Press Conference, available at https:// www.rev.com/blog/transcripts/press-secretary-kayleigh-mcenany-white-house-press-conferencetranscript-november-20.

Bennie Thompson Will Need to Bill FBI for the Affidavits He’s Writing for Them

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Before Mark Meadows decided to renege on his partial cooperation with the January 6 Committee, according to a letter Chairman Bennie Thompson wrote his lawyer, George Terwilliger, Meadows had already turned over the following:

  • A number of emails sent from Meadows’ personal email account, as well as a privilege log withholding “several hundred” documents from his email account citing Executive, Attorney-Client, or other privileges. Those emails include:
    • A November 7, 2020 email discussing the appointment of alternate slates of electors as part of a “direct and collateral attack” after the election
    • A January 5, 2021 email about a 38-page PowerPoint briefing entitled, “Election Fraud, Foreign Interference, & Options for 6 JAN” that was to be shared “on the hill”
    • A January 5, 2021 email about having the National Guard on standby
  • Some text messages Meadows retained before he got rid of his personal phone while a criminal investigation was pending, as well as a privilege log invoking Executive, Attorney-Client, and other privileges withholding over 1,000 texts. The texts turned over include:
    • A November 6, 2020 text with a Member of Congress about appointing alternate electors as part of a plan that the Member acknowledged would be “highly controversial” about which, Meadows said, “I love it”
    • A January 2021 text message with an organizer of the January 6 rally at the Ellipse
    • Text messages about the need for the former President to issue a public statement that could have stopped the January 6th attack on the Capitol

According to Thompson, having turned over some fairly damning stuff, Meadows reneged on cooperating for two reasons: First, because the Committee intended to force him to invoke individualized privilege claims in response to questions. And perhaps even moreso, because the Committee filed a subpoena with Meadows’ cell phone carrier for “call data records.”

Indeed, a lawsuit Meadows filed after negotiations broke down yesterday is particularly concerned about the subpoena to Verizon, which he describes this way:

The Verizon subpoena, issued by the Select Committee on November 22, 2021, instructs Verizon to produce subscriber information and cell phone data associated with Mr. Meadows’s personal cell phone number. The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon subpoena requested all Mr. Meadows’ personal cell phone data for four months: from October 1, 2020 and January 31, 2021.

Meadows says that, given his provision of texts and a privilege log, the only thing that Verizon subpoena would show is his IP logins.

The Verizon subpoena seeks Mr. Meadows’ cell phone metadata, despite the fact that he has already provided the Select Committee with his responsive text messages, emails, and the metadata attached thereto.

The only additional information that could be gleaned by the Verizon subpoena is either privileged or concerns Mr. Meadows’ internet protocol and data-connection detail records.

It’s only true that the Verizon subpoena would show nothing other than what Meadows provided if Meadows included all his communications, either handed over or in the privilege log. But if he deliberately left stuff out, the subpoena would make that clear.

Meadows goes on at length in his lawsuit about how subpoenas from the January 6 Committee are invalid and how their refusal to accept a former President’s invocation of Executive Privilege for things his Chief of Staff wrote about in a book and on his personal cell phone.

So, as a result of that, Chairman Thompson and Vice Chair Liz Cheney have announced, they’re still going to go ahead and refer Meadows to DOJ for criminal contempt.

I’m going to hazard a guess and say that DOJ will not charge Meadows for contempt. But it’s not for the reason you think.

It’s because, first of all, DOJ has just gotten a record of enough suspicious behavior that they will use it (if they haven’t already) to get the very same call records Meadows is desperate to withhold from Congress. DOJ only needs to show relevance to their investigation to obtain those records, and Verizon will and has been, for other subjects of the January 6 investigation, gag the request to protect the ongoing investigation.

And by the time the Committee and Congress approve of a full report supporting contempt — Steve Bannon’s report was 26 pages — DOJ would have analyzed those call records to see which other January 6 suspects Meadows was in contact with, undoubtedly one of the things he was attempting to hide with his partial compliance and the replacement of his phone during a criminal investigation. And that would provide some evidence to support probable cause warrants for the content Thompson has just explained is available at Verizon and Google. The materials Meadows did turn over — particularly any gaps not covered by Meadows’ privilege logs — would provide further basis to support probable cause warrants. The apparent fact that Meadows was conducting official business on his phone and his Gmail account — but his emails!!! — would be further basis for probable cause. The likelihood, raised by Thompson, that Meadows failed to turn over records to the National Archives that he is now claiming to be covered by Executive Privilege, in violation of the Presidential Records Act, would be further basis for probable cause. And the circumstances of Meadows’ book publication — including any failures to undergo a full prepublication review, something that Trump attempted to prosecute John Bolton for — would be more.

Meadows’ actions thus far have provided a good deal of evidence that DOJ could use to obtain probable cause warrants for his phone and Gmail content, as well as (if they were prepared to do an overt search) the backed up material they know he retained from his old phone. They would have a privilege log for a filter team (though DOJ would be better served by asking a Special Master to check those privilege claims, because they’re probably bogus). And since Biden has already waived privilege over anything covered by the Committee request, DOJ would not have to worry about getting a separate Executive Privilege waiver for any content they obtained.

Thompson and Cheney may well refer Meadows for contempt. But by the time that happens, what Thompson has already made public will give DOJ plenty to kickstart an investigation into why Meadows is so obviously covering up some of his actions relating to January 6.

Rinse, repeat. The obstruction of John Eastman and Jeffrey Clark will likewise go some way to giving DOJ what they need to advance their investigation (though with Clark, DOJ may already have that from the DOJ IG Report). Similarly, once Ali Alexander finishes telling lies that DOJ has already debunked, it will provide DOJ ample cause (on top of what might be probable cause of wire fraud) to advance the investigation into him.

The collective wail from Meadows and Eastman that Congress might get their call records only makes it more likely that DOJ will get those very same call records, for which they need show only relevance. And Bennie Thompson’s transparency about that certainly makes FBI’s job easier.

Because it’s interesting, I’m going to include the list of things (per the lawsuit) that the January 6 Committee asserts could in no way be privileged.

  1. Messaging to or from the White House, Trump reelection campaign, party officials, and others about purported fraud, irregularities, or malfeasance in the November 2020 election. This includes, but is not limited to, Mr. Trump’s and others frequent use of the “Stop the Steal” slogan, even after lawsuits, investigations, public reporting, discussions with agency heads, and internally created documents revealed that there had not been widespread election fraud
  2. White House officials’ understanding of purported election-related fraud, irregularities, or malfeasance in the November 2020 election.
  3. Efforts to pressure federal agencies, including the Department of Justice, to take actions to challenge the results of the presidential election, advance allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, Mr. Trump’s and others’ efforts to use the Department of Justice to investigate alleged election-related conduct, file lawsuits, propose that state legislatures take election-related actions, or replace senior leadership. It also includes similar efforts at other agencies such as the Department of Homeland Security, the Department of Defense, and, among others, the Cybersecurity and Infrastructure Security Agency.
  4. Efforts to pressure state and local officials and entities, including state attorneys general, state legislators, and state legislatures, to take actions to challenge the results of the presidential election, advance unsubstantiated allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, de-certify state election results, appoint alternate slates of electors, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, an Oval Office meeting with legislators from Michigan, as well as a January 2, 2021 call with, among others, state officials, members of Congress, Mr. Trump, and Mr. Meadows.
  5. Theories and strategies regarding Congress and the Vice President’s (as President of the Senate) roles and responsibilities when counting the Electoral College vote. This includes, but is not limited to, the theories and/or understandings of John Eastman, Mark Martin, former Vice President Pence, and others.
  6. Efforts to pressure former Vice President Pence, members of his staff, and members of Congress to delay or prevent certification of the Electoral College vote. This includes, but is not limited to, meetings between, or including, the former Vice President, Mr. Trump, aides, John Eastman, members of Congress, and others.
  7. Campaign-related activities, including efforts to count, not count, or audit votes, as well as discussions about election-related matters with state and local officials. This includes, but is not limited to, Mr. Meadows’ travel to Georgia to observe vote counting, as well as his or Mr. Trump’s communications with officials and employees in the Georgia Secretary of State’s Office. This also includes similar activities related to state and local officials in Michigan, Wisconsin, Nevada, Arizona, and Pennsylvania.
  8. Meetings or other communications involving people who did not work for the United States government. This includes, but is not limited to, an Oval Office meeting on December 18, at which Mr. Trump, Michael Flynn, Patrick Byrne, and others discussed campaign-related steps that Mr. Trump purportedly could take to change the outcome of the November 2020 election and remain in office for a second term, such as seizing voting machines, litigating, and appointing a special counsel. It also includes communications with organizers of the January 6 rally like Amy Kremer of Women for America First.
  9. Communications and meetings with members of Congress about the November 2020 election, purported election fraud, actual or proposed election-related litigation, and election-related rallies and/or protests. This includes, but is not limited to, a December 21, 2021 meeting involving Mr. Trump, members of his legal team, and members of the House and Senate, during which attendees discussed objecting to the November 2020 election’s certified electoral college votes as part of an apparent fight “against mounting evidence of voter fraud.”
  10. Efforts by federal officials, including White House staff, Mr. Trump, the Trump reelection campaign, and members of Congress to plan or organize rallies and/or protests in Washington, D.C. related to the election, including, but not limited to, the January 6 rally on the Ellipse.
  11. Advance knowledge of, and any preparations for, the possibility of violence during election-related rallies and/or protests in Washington, D.C.
  12. Events in the days leading up to, and including, January 6. This includes, but is not limited to, campaign-related planning and activities at the Willard Hotel, planning and preparation for Mr. Trump’s speech at the Ellipse, Mr. Trump and other White House officials’ actions during and after the attack on the U.S. Capitol, and contact with members of Congress, law enforcement, the Department of Defense, and other federal agencies to address or respond to the attack.
  13. The possibility of invoking martial law, the Insurrection Act, or the 25th Amendment based on election-related issues or the events in the days leading up to, and including, January 6.
  14. The preservation or destruction of any information relating to the facts, circumstances, and causes relating to the attack of January 6th, including any such information that may have been stored, generated, or destroyed on personal electronic devices.
  15. Documents and information, including the location of such documents and information, that are responsive to the Select Committee’s subpoena. This includes, but is not limited to, information stored on electronic devices that Mr. Meadows uses and has used.
  16. Topics about which Mr. Meadows has already spoken publicly. This includes, but is not limited to, Mr. Meadows’ February 11, 2021, appearance on the Ingraham Angle show to discuss the January 6 attack on the U.S. Capitol, Mr. Trump’s reactions to the attack, and the National Guard.

Three Things: A Three-Ring Circus

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[NB: Check the byline, thanks. /~Rayne]

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.”

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.

Photo: Pavan Trikutam via Unsplash

Burners, Burning: The Heat’s Turned up on Mark Meadows [UPDATE-1]

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

Well, well, well. According to Hunter Walker in a fresh report at Rolling Stone, Kremer the Younger bought burner phones to use when communicating with key persons attached to the White House.

In the thread attached to my last post, a community member commented about the Kremers saying,

… Only if they knew Trump’s plans, the Kremers might be guilty of conspiracy. …

They didn’t need to know Trump’s plans, though. They only needed to understand part of one or more of the conspiracies and then take some action to further that conspiracy.

Like this:

… Kylie Kremer, a top official in the “March for Trump” group that helped plan the Ellipse rally, directed an aide to pick up three burner phones days before Jan. 6, according to three sources who were involved in the event. One of the sources, a member of the “March for Trump” team, says Kremer insisted the phones be purchased using cash and described this as being “of the utmost importance.”

The three sources said Kylie Kremer took one of the phones and used it to communicate with top White House and Trump campaign officials, including Eric Trump, the president’s second-oldest son, who leads the family’s real-estate business; Lara Trump, Eric’s wife and a former senior Trump campaign consultant; Mark Meadows, the former White House chief of staff; and Katrina Pierson, a Trump surrogate and campaign consultant. …

Sending someone who isn’t a Kremer to buy a burner phone with cash to evade tracing suggests Kylie Kremer knew exactly what the role of her organization, Women to Save America First, was within the framework of the insurrection.

If this was a legitimate effort to work with the Trump campaign using dedicated communications for easier access, why the skulkery of a third person using cash buying a burner? Why not use a dedicated VoIP number to contact a communications person in the Trump campaign?

Or a no-contract phone purchased with a credit card? Or an additional number added to an existing cell phone contract?

Why was Meadows involved in any way given his role as the Chief of Staff, which should have been wholly separate from any campaign-related effort?

Whether Meadows interacted with Kremers or other members of the conspiracy as COS (a Hatch Act violation) or as a campaign member (not shielded as executive acts), he’s thoroughly shot through any claim to immunity or privilege.

The existence of burner phones used to contact persons in the White House certainly expands the import of this graf from the House January 6 Committee’s letter to Meadow’s attorney after Meadows’ refused to comply with the committee’s subpoena:

… In addition, Mr. Meadows has not produced even a single document in response to the Select Committee’s subpoena. Although you previously indicated that your firm was searching records that Mr. Meadows provided to you, more than enough time has passed for you to complete your review. Please immediately inform the Select Committee whether Mr. Meadows has any records responsive to the subpoena. Your search for responsive records should include (but not be limited to) any text messages, emails, or application-based messages associated with the cellular phone numbers and private email address the Select Committee has identified. If Mr. Meadows has records that you believe are protected by some form of privilege, you must provide the Select Committee a log describing each such record and the basis for the privilege asserted. …

Emphasis mine. Were any burner phones among those cellular phone numbers requested? Has geo-fencing been used to narrow down where those phones were during the lead up to and on January 6?

We don’t know yet. I suspect we’ll find out more in the not too distant future.

The purchase of the burner phones, though, look like an overt act to advance a conspiracy (18 USC 371).

Sure hope both of the Kremers as well as the aide who was asked to buy the burners, the third team member who received a burner phone, and Meadows all realize this is only getting worse for them.

Same for the Trump family members Eric and Lara who must be getting a little itchy after Trump’s former attorney Michael Cohen resurfaced.

Especially for Meadows if he continues to blow off Congress with his refusal to comply with the January 6 Committee’s subpoena; it won’t be just contempt of Congress (two counts under 2 USC 192) with which he may be charged and prosecuted.

Hello, 18 USC 1505 otherwise known as Obstruction of proceedings before departments, agencies, and committees.

Perhaps with a domestic terror enhancement?

~ ~ ~

UPDATE-1 — 11:45 A.M. 25-NOV-2021 —

LOL Really? Eric’s going to try to SLAPP suit people in small outlets who don’t report the burner phones Kylie Kremer asked an aide to purchase may have been used to call him and Lara?

I love the smell of discovery in the morning!!

Mark, Mark, Mark!: No Wonder Meadows Balked at House Subpoena

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[NB: Check the byline, thanks. /~Rayne]

This isn’t going to be everybody’s cup of tea, but I couldn’t help think of this dubstep mix by Massachusetts artist ZMcD titled Mark Mark Mark.

It popped into my head while reading Hunter Walker’s latest piece in Rolling Stone, Leaked Texts: Jan. 6 Organizers Say They Were ‘Following POTUS’ Lead’.

Apparently there are text messages from the rally organizers Amy Kremer, Women For America First’s chair, and Kylie Jane Kremer, WAF’s executive director, which are incriminating:

… Two sources who were involved in planning the Ellipse rally previously told Rolling Stone they had extensive interactions with members of Trump’s team, including former White House Chief of Staff Mark Meadows. The text messages provide a deeper understanding of what that cooperation entailed, including an in-person meeting at the White House. Rally organizers also described working with Trump’s team to announce the event, promote it, and grant access to VIP guests. A spokesperson for the former president did not respond to a request for comment on the record. …

Oh Mark, Mark, Mark!

No wonder he’s dragging his butt submitting to the House January 6 Committee’s subpoena.

… Two days later, Kremer texted some of the organizers to let them know she was temporarily getting off the bus to travel to Washington for a White House meeting.

“For those of you that weren’t aware, I have jumped off the tour for the night and am headed to DC. I have a mtg at the WH tomorrow afternoon and then will be back tomorrow night,” wrote Kremer. “Rest well. I’ll make sure the President knows about the tour tomorrow!”

The message describing Kremer’s White House meeting is one of several where she and Kylie, indicated they were in communication with Trump’s team. …

Kremer sent that text on November 30, 2020 about a December 1 meeting at the White House.

Six weeks later Kremer would be ordering appetizers and dinner at the Willard Intercontinental Hotel while insurrectionists continued to riot inside the Capitol Building. Mark Meadows will likely know this if he was copied in a group message sent by March to Save America/Women for America First rally organizers.

No wonder the committee and the House hasn’t yet voted to hold Meadows in contempt, sending him a tautly worded letter when he refused to comply.

This is Meadow’s chance to save his behind by looking into immunity because these text messages can’t shed a good light on him.

Perhaps he should call former Nixon White House counsel John Dean about this (what a pity he can’t call Jeb Stuart Magruder who like Dean was granted limited immunity for his cooperation during the Watergate investigation).

No matter whether he calls Dean or not, I sure hope Meadows has lawyered up.

And I sure hope he’s thought good and hard whether that slack-bottomed chronic golf cheat is worth his time and effort.

I certainly wouldn’t put faith in the support of the Kremers, as text messages indicate one of them got sloshed the evening of January 6, locked herself in a bathroom and then begged to be rescued in the early morning January 7.

Three Things: Ugly Goes Clean to the Bone [UPDATE-1]

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[NB: As always, check the byline. Updates will appear at the bottom. Thanks. /~Rayne]

Friday we got badly wanted news; we wanted it badly enough we didn’t blink at its arrival in the late Friday afternoon news dump zone.

But it wasn’t enough. It was only the start, a mere teaser.

~ 3 ~

At 3:53 p.m. last Friday, the Department of Justice tweeted the indictment news:

The internet was paying attention:

…even if Steve Bannon hadn’t been.

Rather hubristic to carry on as if he didn’t expect to be indicted, but then many of us were beginning to think it would never happen.

Bannon is supposed to surrender himself today, which may be a bit of a circus since Bannon now has a new attorney, David Schoen. Schoen was one of Trump’s impeachment attorneys in 2020.

~ 2 ~

The well-meaning sages who insisted things were under control — it was a good sign it was taking nearly a month to indict Bannon, don’t be like deplorables, blah-blah-blah — all had their say.

But which is it?

These things just need more time because DOJ must be cautious?

Or these things just needed this one person who wasn’t approved as DC-US Attorney until October 28 and sworn in more than a week later on November 5 to do the thing — which, by the way, took one week from oath to indictment?

Because it sure looks like the entirety of the House January 6 committee’s ability to wield its inherent powers on intransigent witnesses was completely dependent on the absence/presence of a single Biden appointee which some jerk like Sen. Ted Cruz could have held up the way he is currently holding our foreign policy hostage with holds on State Department nominees.

Are we supposed to accept with a pat on our heads that our democracy yet again depended on one person’s role?

If the DC-US Attorney were to become incapacitated at any time when the January 6 committee refers a contempt charge to DOJ, are we supposed to accept the platitudes “this takes time” or “don’t be a deplorable” when nothing happens?

What kind of government continuity is this?

~ 1 ~

Which brings us to the problem of former White House Chief of Staff Mark Meadows who received communications both Thursday and Friday from the chair of the January 6 committee about his lack of response to a subpoena issued by the committee on September 23.

Using false or misleading claims, Meadows had attempted to spur the DOJ to investigate election fraud claims including a bizarre theory that unknown persons located in Italy used military technology and satellites to remotely switch votes from Trump to Biden. These claims were sent to then-Acting Attorney General Jeffrey Rosen between December and January — after the 2020 election but before the January 6 insurrection.

Meadows was supposed to appear before the committee on October 15 to answer questions about these claims and his role in pushing them toward the DOJ, a week after he was supposed to have furnished documents requested by the committee in relation to these false election fraud claims.

The committee’s chair sent a letter last Thursday to Meadow’s attorney:

And on Friday the committee emphasized it’s going to use the tools available to it to obtain compliance with the subpoena — or else.


Meadow’s attorney sent a massively ballsy op-ed to the Washington Post as a rebuttal to the committee’s subpoena:

Opinion: In abandoning executive privilege, Biden rejects 200 years of history

George J. Terwilliger III is a partner at McGuireWoods LLP in Washington and previously served as deputy attorney general.

As counsel for former White House chief of staff Mark Meadows, I was surprised and disappointed to receive a letter Thursday informing me that the Biden administration will be the first in history not to resist a congressional subpoena for testimony from a senior White House aide. …

WaPo treated this like any other conservative’s op-ed; no caveat this op-ed may be tampering with an investigation.

Rather interesting how Terwilliger was able to get a 789-word op-ed published at 3:30 p.m. on the same day the January 6 committee issued its letter. This isn’t the first time Terwilliger has opined in WaPo about someone involved in the January 6 insurrection though Terwilliger’s last op-ed was a defense of former AG Bill Barr’s interference in Roger Stone’s sentencing. Can’t have the GOP’s senior ratfucker excessively punished during an election season after all.

Former Nixon White House counsel John Dean didn’t think much of Terwilliger’s op-ed:


I think I’d put my money behind Dean as to which of these two attorneys has a better grasp on the limits of executive privilege.

But it gets worse for Meadows since the soon-to-be-released book about the January 6 insurrection by reporter Jonathan Karl revealed yet another memo outlining steps to effect the autogolpe overthrowing the election.

Meadows had forwarded by email to then-VP Mike Pence’s chief of staff Marc Short a memo prepared by attorney Jennifer Ellis outlining the steps Pence needed to take to avoid certifying the election for Biden until a new alternate slate of electors for Trump could be introduced from just enough states to flip the election to Trump.

A rather pathetic carrot offered to Pence with the stick to follow on the day of the insurrection — a threat of violence and possible assassination by mob because Pence didn’t take the memo as a White House-approved order.

Looks like the number of questions Meadows must now answer has grown even longer.

~ 0 ~

The title of this post comes from an aphorism attributed to a favorite writer, Dorothy Parker: “Beauty is only skin deep, but ugly goes clean to the bone.” Meadows may be more physically attractive and better dressed than Bannon but they’re both deeply ugly people who represent an existential threat to American democracy.

~ ~ ~

UPDATE-1 — 10:00 P.M. ET —

Yeesh.

For a guy who was simply asked to appear before a House committee to answer some questions about what happened leading up to and on the day of January 6, this guy sure wants his audience to believe he’s being uniquely singled out for harassment by a president who both believes in the equal but separate powers inherent to each branch of government, and who believes the DOJ should be independent of the White House. Perhaps Bannon’s projecting since he was just fine with Trump’s DOJ acting like his personal police force.

Bannon could have just shown up, told the committee on a question by question basis, “I can’t answer that because my lawyer said it’s under executive privilege as Trump has claimed,” and simply gone about his day, coming off cool and collected like someone with nothing to hide.

But no, Bannon has to make a big scene because it’s a grift for more money; you know when he said “Stand by,” he will likely elaborate soon saying, “Stand by, because I’m going to ask you for help soon,” and then he’ll point to a link for donations for his legal fund.

Wow, he doesn’t even need to claim he’s building a border wall this time.

The Office of Special Counsel Report on Trumpsters’ Crimes: Toothless, But Useful?

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The Office of Special Counsel (the organization meant to protect whistleblowers, not Robert Mueller or John Durham) just released a report finding that 13 senior Trump officials — including Hatch Act recidivist Kellyanne Conway — violated prohibitions on engaging in electoral politics while acting in an official capacity during the 2020 election.

The most important parts of the report describe the many reasons why the Official of Special Counsel is utterly powerless to prevent the kind of gleeful flouting of norms that Trump practiced. Several of these amount to admitting that if the President encourages Hatch Act violations, there’s nothing you can do about it.

1. OSC’s enforcement tools are limited with respect to Senate-confirmed presidential appointees (PAS) and White House commissioned officers. Potential fix: A statutory amendment that (1) allows OSC to pursue substantial monetary penalties against PAS and commissioned officers before the MSPB, and (2) grants the MSPB jurisdiction over former employees for Hatch Act violations committed during their period of federal employment.

2. OSC did not receive from the Trump administration the good faith cooperation necessary to ensure full compliance with the Hatch Act. Potential fix: A statutory amendment granting the MSPB greater authority to enforce OSC’s subpoenas and other investigative requests.

That said, this report and some of the people it names as having broken the law, including Kayleigh McEnany, Mark Meadows, and Chad Wolf, may be of some use going forward.

That’s because DOJ has laid the ground work not to treat politicians’ actions leading up to and during January 6 with the protections accorded their political office based on the precedents holding that the scope of federal office excludes campaign activity.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ did that even as it declined to invoke Executive Privilege for Trump’s own communications with some of these people (explicitly so with McEnany and Meadows).

Whatever else this report lays out, it amounts to the neutral independent body entrusted with such investigations finding that Trump exploited the timing of the election to encourage such politicization of the White House.

OSC received complaints alleging that the 13 senior Trump administration officials listed in Part III violated the Hatch Act in one of two ways: by making statements supporting or opposing a candidate for partisan political office while speaking in an official capacity, or by using their official authority in connection with, and in furtherance of, the RNC. Section 7323(a)(1) of Title 5 of the U.S. Code prohibits federal executive branch employees from using their official authority or influence to interfere with or affect the results of an election. Under that prohibition, it is illegal for an employee to support or oppose a candidate for partisan political office while acting in an official capacity. Yet Trump administration officials did precisely that. And while the specific facts of each case are different, they share this fundamental commonality—senior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.

The administration’s willful disregard for the law was especially pernicious considering the timing of when many of these violations took place. OSC cannot, in most cases, stop violations from happening in real time. Even apparently straightforward violations of the Hatch Act may not turn out to actually be violations upon further investigation. Therefore, investigating alleged violations is the only way to ensure a fair result. Accordingly, OSC affords appropriate due process to the subject of a complaint and gathers the relevant facts before reaching a conclusion. As a result, OSC’s investigations can often stretch out for weeks or even months. This reality creates a window for an administration that is so inclined to ignore the Hatch Act in the final months of an election cycle, knowing full well that any public report or disciplinary action would not likely occur until well after the election. However, the benefit to the administration and resultant harm—the use of official authority or influence to interfere with or affect an election—would accrue on or before election day. As described in Part III, OSC has concluded that the Trump administration tacitly or expressly approved myriad Hatch Act violations committed within that critical period immediately prior to the 2020 election during which OSC was unable to both investigate and resolve the violations before election day. [my emphasis]

This is what Trump spent the two months after he lost: turning the White House into a full-time election-stealing headquarters.

So while the OSC may be totally useless in policing the politicization of someone who refuses to be bound by any norms, this report may be useful in the days ahead for the way that it documents how thoroughly Trump did that.

Donald Trump Would Withhold Evidence about Whether Enrique Tarrio Really Did Visit the White House Last December

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One of the most dramatic events of 9/11 came when Dick Cheney authorized the shootdown of United flight 93, and only afterwards contacted President Bush to confirm the order.

At some time between 10:10 and 10:15, a military aide told the Vice President and others that the aircraft was 80 miles out.Vice President Cheney was asked for authority to engage the aircraft.218 His reaction was described by Scooter Libby as quick and decisive, “in about the time it takes a batter to decide to swing.” The Vice President authorized fighter aircraft to engage the inbound plane. He told us he based this authorization on his earlier conversation with the President.The military aide returned a few minutes later, probably between 10:12 and 10:18, and said the aircraft was 60 miles out. He again asked for authorization to engage.TheVice President again said yes.219

At the conference room table was White House Deputy Chief of Staff Joshua Bolten. Bolten watched the exchanges and, after what he called “a quiet moment,”suggested that theVice President get in touch with the President and confirm the engage order. Bolten told us he wanted to make sure the President was told that the Vice President had executed the order. He said he had not heard any prior discussion on the subject with the President.220

The Vice President was logged calling the President at 10:18 for a two-minute conversation that obtained the confirmation. On Air Force One, the President’s press secretary was taking notes; Ari Fleischer recorded that at 10:20, the President told him that he had authorized a shootdown of aircraft if necessary.221

The revelation was an early warning about Cheney’s willingness to assume the power of the President. But identifying it also allowed the government to consider tweaking presidential authorities and improving communications for such moments of crisis.

We know this happened, as laid out in the 9/11 Report, based on Switchboard Logs that recorded Cheney’s call to Bush, the Presidential Daily Diary recounting the President’s and Vice President’s actions, and Press Secretary Ari Fleischer’s notes.

218.White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

219. For Libby’s characterization, see White House transcript, Scooter Libby interview with Newsweek, Nov. 2001. For the Vice President’s statement, see President Bush and Vice President Cheney meeting (Apr. 29, 2004). For the second authorization, see White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

220. Joshua Bolten meeting (Mar. 18, 2004); see also White House notes, Lewis Libby notes, Sept. 11, 2001 (“10:15–18:Aircraft 60 miles out,confirmed as hijack—engage?VP:Yes.JB [Joshua Bolten]:Get President and confirm engage order”).

221. For the Vice President’s call, see White House record, Secure Switchboard Log,Sept.11,2001; White House record, President’s Daily Diary, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001. Fleischer’s 10:20 note is the first mention of shootdown authority. See White House notes, Ari Fleischer notes, Sept.11,2001; see also Ari Fleischer interview (Apr. 22, 2004).

These are precisely the kinds of records that, according to a declaration from the White House Liaison with the National Archive, Donald Trump wants to withhold from the January 6 Select Committee, including from Committee Co-Chair Liz Cheney. The declaration was submitted in support of a filing opposing Trump’s effort to invoke privilege over such files. Politico first reported on the filing.

According to NARA’s Liaison John Laster, Trump is attempting to invoke privilege over precisely the analogous records from during the January 6 terrorist attack: presidential diaries, switchboard records, and Press Secretary Kayleigh McEnany’s records.

32. First Notification: The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows, (ii) the files of Senior Advisor to the President Stephen Miller, (iii) the files of Deputy Counsel to the President Patrick Philbin, (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities, (v) the White House Office of Records Management, and (vi) the files of Brian de Guzman, Director of White House Information Services.

31. President Trump made particularized assertions of executive privilege over 46 of these 136 pages of records (including seven pages of records that, as noted above, had been removed as non-responsive). He asserted privilege over: (i) daily presidential diaries, schedules, appointment information showing visitors to the White House, activity logs, call logs, and switchboard shift-change checklists showing calls to the President and Vice President, all specifically for or encompassing January 6, 2021 (30 pages); (ii) drafts of speeches, remarks, and correspondence concerning the events of January 6, 2021 (13 pages); and (iii) three handwritten notes concerning the events of January 6 from Mr. Meadows’ files (3 pages).

32. Second Notification: The Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

33. President Trump made particularized assertions of executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

34. Third Notification: The Third Notification includes 146 pages of records transferred to NARA from (i) the White House Office of the Executive Clerk and (ii) the files of Deputy White House Counsel Patrick Philbin.

35. President Trump made particularized assertions of executive privilege over 68 of these 146 pages of records. He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages), an email chain originating from a state official regarding election-related issues (3 pages), talking points on alleged election irregularities in one Michigan county (3 pages), a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and notes apparently indicating from whom some of the foregoing were sent (2 pages). [my emphasis]

While the (very good) DOJ filing describes that Trump is withholding documents that prior Presidents had shared, it doesn’t provide examples of the how useful this information had been in understanding past terrorist attacks.

And these documents aren’t even the potentially most damning documents, either.

Because the committee request asks for communications referring to the Proud Boys’ and election results and includes Enrique Tarrio on a list of enumerated individuals covered by the request, the response from NARA might reveal whether the Proud Boys’ leader was telling the truth when he claimed to visit the White House on December 12, or whether the White House truthfully reported that he had simply joined a tour of the building.

All documents and communications referring or relating to QAnon, the Proud Boys, Stop the Steal, Oath Keepers, or Three Percenters concerning the 2020 election results, or the counting of the electoral college vote on January 6, 2021.

From April 1, 2020, through January 20, 2021, all documents and communications concerning the 2020 election and relating to the following individuals:

[snip]

Enrique Tarrio,

[h/t miladysmama for this observation]

The attempt to withhold basic White House documents about who showed up when is not, just, an obvious attempt by Donald Trump to cover up his own crimes. It’s not just an attempt to hide how, in contrast to Dick Cheney, he did nothing as the nation’s capital was attacked.

It’s also an attempt to hide whether Trump invited the terrorists inside the White House to plot the event.

 

Chain of Command: The AWOL Descriptions of the Commander in Chief’s Role in the National Guard Non-Response on January 6

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The only formal explanation Trump has offered to describe his role in deploying the National Guard in response to the attack on the Capitol on January 6 came in his impeachment defense. As part of that defense, Bruce Castor pointed to things he claimed happened before Trump’s speech ended. In Castor’s inaccurate portrayal of the timeline, he suggested that the first action Acting Secretary of Defense Christopher Miller took was when, at 1:05 (which Castor said was 11:05), Miller “received open source reports of demonstrator movements to the U.S. Capitol.” He continued to claim that,

At 1:09 PM, US Capitol Police Chief’s Steven Sund called the House and Senate Sergeants at Arms, telling them he wanted an emergency declared and he wanted the National Guard called. The point: given the timeline of events, the criminals at the Capitol were not there to even hear the President’s words. They were more than a mile away engaged in a preplanned assault on this very building.

Admittedly, this was probably no more than an incompetent parroting of the existing timeline released by DOD. It’s possible that Trump’s lawyers didn’t ask him what happened inside the White House that day, because if they did, it would not help their case.

Still: Trump’s own defense claimed that the first that Acting Secretary Miller did in the matter was at 1[1]:05 on January 6.

That’s mighty interesting because there have been two claims that Trump proactively offered up National Guard troops for January 6 in the days beforehand. The first came in a Vanity Fair piece written by a journalist that Trump’s DOD flunkies permitted to embed with them (he requested to do so before the insurrection, but didn’t start his embed until January 12, meaning the claims reported in this article were retrospective). That piece claimed that, the night before the attack, Trump told DOD they would need 10,000 people.

The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

“We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

What did Miller think of the criticism that the Pentagon had dragged its feet in sending in the cavalry? He bristled. “Oh, that is complete horseshit. I gotta tell you, I cannot wait to go to the Hill and have those conversations with senators and representatives.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.

So according to Acting Secretary of Defense Christopher Miller, Trump had given him “clear instructions” to “do what you need to do,” and had warned him to have thousands of Guardsmen available. Miller said he was speaking non-stop to Mark Meadows, though an anonymous source stated that they tried but failed to get the President on the line.

Long after impeachment and even after his CPAC speech, Trump went to Fox to make the same claim that appeared in Vanity Fair.

Former President Trump told Fox News late Sunday that he expressed concern over the crowd size near the Capitol days before last month’s deadly riots and personally requested 10,000 National Guard troops be deployed in response.

Trump told “The Next Revolution With Steve Hilton” that his team alerted the Department of Defense days before the rally that crowds might be larger than anticipated and 10,000 national guardsmen should be ready to deploy. He said that — from what he understands — the warning was passed along to leaders at the Capitol, including House Speaker Nancy Pelosi — and he heard that the request was rejected because these leaders did not like the optics of 10,000 troops at the Capitol.

“So, you know, that was a big mistake,” he said.

Fox and other Trump mouthpieces have suggested that Nancy Pelosi rejected the Guard. That’s false. According to then Capitol Police Chief Steve Sund, House Sergeant at Arms Paul Irving did.

On Monday, January 4, I approached the two Sergeants at Arms to request the assistance of the National Guard, as I had no authority to do so without an Emergency Declaration by the Capitol Police Board (CPB). My regular interactions with the CPB, outside of our monthly meetings regarding law enforcement matters, were conducted with the House and Senate Sergeant at Arms, the two members of the CPB who have law enforcement experience. I first spoke with the House Sergeant at Arms to request the National Guard. Mr. Irving stated that he was concerned about the “optics” of having National Guard present and didn’t feel that the intelligence supported it. He referred me to the Senate Sergeant at Arms (who is currently the Chair of the CPB) to get his thoughts on the request. I then spoke to Mr. Stenger and again requested the National Guard. Instead of approving the use of the National Guard, however, Mr. Stenger suggested I ask them how quickly we could get support if needed and to “lean forward” in case we had to request assistance on January 6.

Notably, Sund’s request and Irving’s response occurred before the conversation between Miller and Trump purportedly took place the night before the attack (which was far too late to deploy 10,000 people in any case). Moreover, Pelosi, Zoe Lofgren, and Mark Warner, among others, raised concerns about staffing for the day, so it’s not like Democrats weren’t raising the alarm.

Still, over a month after making no such claim as part of his Impeachment defense, Trump and his flunkies want to claim that Trump was proactive about deploying 10,000 people to defend the Capitol against his most ardent supporters.

That’s interesting background to the testimony offered by Robert Salesses, the “Senior Official Performing the Duties of the Assistant Secretary for Homeland Defense and Global Security,” in a joint Rules/Homeland Committee hearing on January 6 yesterday. As several people noted during the hearing, for some reason DOD sent Salesses, who wasn’t involved in the key events on January 6, rather than people like General Walter Piatt or General [Mike’s brother] Charles Flynn — who were on a call with MPD Chief Robert Contee and Sund on January 6 and who have made disputed claims about what occurred, including that Piatt recommended against sending the Guard because of optics. Effectively, Salesses was repeating what others told him, offering no better (indeed, more dated) information than Vanity Fair was able to offer. Salesses apparently called General Piatt the day before and dutifully repeated Piatt’s claim that he did not use the word, “optics,” which DC National Guard Commander General William Walker had just testified did occur.

General Piatt told me yesterday, Senator, that he did not use the word, “optics.”

Salesses then gave more excuses, explaining,

Senator, in fairness to the committee, General Piatt is not a decision-maker. The only decision-makers on the Sixth of January were the Secretary of Defense and the Secretary of the Army Ryan McCarthy. It was a chain of command from the Secretary of Defense to Secretary McCarthy to General Walker. That was the chain of command.

General Walker, the Commander of the DC National Guard, responded by reiterating the response he had gotten from Piatt (and the brother of the guy who had incited many of the insurrectionists) implicitly correcting Salesses about chain of command. The Commander in Chief, of course, is in that chain of command.

Yes, Senator. So the chain of command is the President, the Secretary of Defense, the Secretary of the Army, [points to self] William Walker Commanding General District of Columbia National Guard.

After General Walker described more of the restrictions placed on him ahead of time, including the preapproval before moving a traffic control point from one block to another (which restriction, Walker said, he had never experienced in 19 years) and the issuance of riot gear, Salesses made more excuses (repeating his silence about the role of the President’s role in the chain of command). Remarkably, he described how Ryan McCarthy dithered from 3:04 until 4:10 because shots had been fired at the Capitol.

Salesses: Sir, Secretary Miller wanted to make the decisions on how the National Guard was going to be employed on that day. As you recall, Senator, the spring events, there was a number of things that happened during those events, that Secretary Miller as the Acting Secretary –

Rob Portman: Clearly he wanted to. The question is why? And how unusual. Don’t you think that’s unusual based on your experience at DOD?

Salesses: Senator, there was a lot of things that happened in the spring that the Department was criticized for — Sir, if I could. Civil Disturbance Operations? That authority rests with the Secretary of Defense. So if somebody’s gonna make a decision about employing military members against US citizens in a Civil Disturbance Operation —

Salesses: At 3:04, Secretary Miller made the decision to mobilize the entire National Guard. That meant that he was calling in all the National Guard members that were assigned to the DC National Guard. At 3:40–at 3:04 that decision was made. Between that period of time — between 3:04 and 4:10, basically, Secretary McCarthy had asked for — he wanted to understand, because of the dynamics on the Capitol lawn, with the explosives, obviously shots had been fired, he wanted to understand the employment of how the National Guard was going to be sent to the Capitol: what their missions were going to be, were they going to be clearing buildings, be doing perimeter security, how would they be equipped, he wanted to understand how they were going to be armed because, obviously, shots had been fired. He was asking a lot of questions to understand exactly how they were going to be employed here at the Capitol, and how many National Guard members needed to be deployed to the Capitol.

When asked whether restrictions placed on Walker hampered his defense, yes or no, Salesses again invoked the chain of command, again leaving out the Command-in-Chief.

Senator, General Walker, in fairness to him, can’t respond to a civil defense — a Civil Disturbance Operation without the authority of the Secretary of Defense.

Finally, Salesses explained a further 36-minute delay, from 4:32 until 5:08, when Walker was given approval to move, this way:

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

It’s not just that the people who were actually involved didn’t show up to explain all this to Congress. It’s not just that there were big gaps in the timeline, or gaps explained by dithering even after DOD learned about explosives and shots fired.

It’s that the guy sent to provide improbable answers seems to have removed the Commander-in-Chief, who was watching all this unfold on TV and now wants credit for proactively telling DOD they would need at least 10,000 people, from the chain of command he used to justify the delay.

That’s all the more striking given that — as Dana Milbank noted — the delay until Miller’s authorization (to say nothing of the 36-minute delay in informing Walker) also meant that DOD did not respond until after Trump had instructed his insurrection to go home.

Curiously, the Pentagon claims Miller’s authorization came at 4:32 — 15 minutes after Trump told his “very special” insurrectionists to “go home in peace.” Was Miller waiting for Trump’s blessing before defending the Capitol?

DOD’s selected witness yesterday said that General Walker couldn’t send the Guard to help protect the Capitol because of the chain of command. But the Commander-in-Chief seems to be AWOL from that chain of command.

Update: On Twitter AP observed that there is a discrepancy between Miller’s 10,000 person claim and Trump’s: Trump says it happened days before January 6, which would place it before Miller’s letter imposing new restrictions on the Guard.

Four Data Points on the January 6 Insurrection

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The NYT and WaPo both have stories beginning to explain the failures to protect the Capitol (ProPublica had a really good one days ago). The core issue, thus far, concerns DOD’s delays before sending in the National Guard — something that they happened to incorporate into a timeline not long after the attack, before the Capitol Police or City of DC had put their own together (the timeline has some gaps).

I can think of two charitable explanations for the lapses. First, in the wake of criticism over the deployment of military resources and tear gas against peaceful protestors to protect Donald Trump in June, those who had been criticized were reluctant to repeat such a display of force to protect Congress (and Mike Pence). In addition, in both DOJ and FBI under the Trump Administration, job security and career advancement depended on reinforcing the President’s false claims that his political supporters had been unfairly spied on, which undoubtedly created a predictable reluctance to treat those political supporters as the urgent national security threat they are and have always been.

Those are just the most charitable explanations I can think of, though. Both are barely distinguishable from a deliberate attempt to punish the President’s opponents — including Muriel Bowser and Nancy Pelosi — for their past criticism of Trump’s militarization of the police and an overt politicization of law enforcement. Or, even worse, a plan to exploit these past events to create the opportunity for a coup to succeed.

We won’t know which of these possible explanations it is (likely, there are a range of explanations), and won’t know for many months.

That said, I want to look at a few data points that may provide useful background.

Trump plans to pardon those in the bunker

First, as I noted here, according to Bloomberg, Trump has talked about pardoning the four men who’ve been in the bunker with Trump plotting recent events, along with Rudy Giuliani, who is also likely to be pardoned.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

I like to think I’ve got a pretty good sense of potential legal exposure Trump’s flunkies have, yet I know of nothing (aside, perhaps, from McEntee’s gambling problems) that these men have clear criminal liability in. And yet Trump seems to believe these men — including the guy with close ties to far right Congressmen, the white nationalist, the guy who remade several agencies to ensure that only loyalists remained in key positions, and the guy who tweets out Trump’s barely-coded dogwhistles — need a pardon.

That may suggest that they engaged in sufficient affirmative plotting even before Wednesday’s events.

Mind you, if these men had a role in coordinating all this, a pardon might backfire, as it would free them up to testify about any role Trump had in planning what happened on Wednesday.

Trump rewards Devin Nunes for helping him to avoid accountability

Several key questions going forward will focus on whether incompetence or worse led top officials at DOD to limit the mandate for the National Guard on January 6 and, as both DC and the Capitol Police desperately called for reinforcements, stalled before sending them.

A key player in that question is Kash Patel, who served as a gatekeeper at HPSCI to ensure that Republicans got a distorted view of the Russian intelligence implicating Trump, then moved to the White House to ensure that Trump got his Ukraine intelligence via Patel rather than people who knew anything about the topic, and then got moved to DOD to oversee a takeover of the Pentagon by people fiercely loyal to Trump.

And a key player in coordinating Kash’s activities was his original boss, Devin Nunes. On Monday, Trump gave Nunes the Medal of Freedom, basically the equivalent of a pardon to someone who likely believes his actions have all been protected by speech and debate. The entire citation for the award is an expression of the steps by which Trump, with Nunes’ help, undermined legitimate investigations into himself. In particular, Trump cited how Nunes’ efforts had hollowed out the FBI of people who might investigate anyone loyal to Trump.

Devin Nunes’ courageous actions helped thwart a plot to take down a sitting United States president. Devin’s efforts led to the firing, demotion, or resignation of over a dozen FBI and DOJ employees. He also forced the disclosure of documents that proved that a corrupt senior FBI official pursued a vindictive persecution of General Michael Flynn — even after rank and file FBI agents found no evidence of wrongdoing.

Congressman Nunes pursued the Russia Hoax at great personal risk and never stopped standing up for the truth. He had the fortitude to take on the media, the FBI, the Intelligence Community, the Democrat Party, foreign spies, and the full power of the Deep State. Devin paid a price for his courage. The media smeared him and liberal activists opened a frivolous and unjustified ethics investigation, dragging his name through the mud for eight long months. Two dozen members of his family received threatening phone calls – including his 98 year old grandmother.

Whatever else this debasement of the nation’s highest award for civilians might have done, it signaled to Nunes’ team — including but not limited to Patel — Trump’s appreciation for their work, and rewarded the guy he credits with politicizing the FBI.

That politicization is, as I noted above, one of the more charitable explanations for the FBI’s lack of preparation on Wednesday.

Interestingly, Nunes is not one of the members of Congress who challenged Biden’s votes after law enforcement restored order.

Corrected: Nunes did object to both AZ and PA.

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The day before the insurrection, Trump signed an Executive Order excluding immigrants if they have any tie to Antifa. Effectively, it put Antifa on the same kind of exclusionary footing as Communists or ISIS terrorists. Had Trump signed the EO before he was on his way out the door, it would have initiated a process likely to end with Antifa listed as a Foreign Terrorist Organization, giving the Intelligence Community additional intelligence tools to track members of the organization, even in the United States (the kind of tools, not coincidentally, that some experts say the FBI needs against white supremacist terrorists).

The EO will have next to no effect. Joe Biden will rescind it among the other trash he needs to clean up in the early days of his Administration.

But I find it curious that Trump effectively named a domestic movement a terrorist organization just days before multiple Trump associates attempted to blame Antifa for the riot at the Capitol.

That effort actually started before the order was signed. Back in December, Enrique Tarrio suggested that the Proud Boys (a group Trump had called to “Stand by” in September) might wear all black — a costume for Antifa — as they protested.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…,” Henry “Enrique” Tarrio, the group’s president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.”

The day after the riot, Matt Gaetz relied on a since-deleted Washington Times post to claim that the riot was a false flag launched by Antifa.

In a speech during the process of certifying President-elect Joe Biden, Gaetz claimed there was “some pretty compelling evidence from a facial recognition company” that some Capitol rioters were actually “members of the violent terrorist group antifa.” (Antifa is not a single defined group, does not have an official membership, and has not been designated a terrorist organization, although President Donald Trump has described it as one.)

Gaetz attributed this claim to a short Washington Times article published yesterday. That article, in turn, cited a “retired military officer.” The officer asserted that a company called XRVision “used its software to do facial recognition of protesters and matched two Philadelphia antifa members to two men inside the Senate.” The Times said it had been given a copy of the photo match, but it didn’t publish the picture.

There is no evidence to support the Times’ article, however. An XRVision spokesperson linked The Verge to a blog post by CTO Yaacov Apelbaum, denying its claims and calling the story “outright false, misleading, and defamatory.” (Speech delivered during congressional debate, such as Gaetz’s, is protected from defamation claims.) The Times article was apparently deleted a few hours after Apelbaum’s post.

Rudy Giuliani also attempted to blame Antifa.

And Captain Emily Rainey, who resigned today as DOD investigates the PsyOp officer for her role in the insurgency, also blamed Antifa for the violence.

Her group — as well as most at Wednesday’s rally — were “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights,” she said.

She even shared a video on Facebook insisting that the rioters were all Antifa, saying, “I don’t know any violent Patriots. I don’t know any Patriots who would smash the windows of a National jewel like the [Capitol].”

It is entirely predictable that Trump loyalists would blame Antifa for anything bad they do — Bill Barr did so as the formal policy of DOJ going back at least a year. But Trump seems to have prepared the ground for such predictable scapegoating by taking steps to declare Antifa a terrorist “organization” hours before a riot led by his supporters would storm the Capitol.

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

I’m most intrigued by a flip-flop that had the effect of making DHS Acting Secretary’s appointment even more illegal than it has already been at times in the last two years.

On January 3, the White House submitted Chad Wolf’s nomination, along with those of 29 other people, to be DHS Secretary. Then, on January 6, it withdrew the nomination.

Wolf himself was out of the country in Bahrain when the riot happened. But he did tweet out — before DOD mobilized the Guard — that DHS officials were supporting the counter-insurgency. And he issued both a tweet and then — the next day — a more formal statement condemning the violence.

It’s not entirely clear what happened between his renomination and the withdrawal, but Steve Vladeck (who tracks this stuff more closely than anyone), had a lot to say about the juggling, not least that the withdrawal of his resubmitted nomination made it very clear that Wolf is not now legally serving.

This could have had — and could have, going forward — a chilling effect on any orders Wolf issues to deploy law enforcement.

Thus far, we haven’t seen much about what DHS did and did not do in advance of the riot — though its maligned intelligence unit did not issue a bulletin warning of the danger.

The Federal Bureau of Investigation and an intelligence unit inside the Department of Homeland Security didn’t issue a threat assessment of the Jan. 6 pro-Trump protests that devolved into violence inside the Capitol, people briefed on the matter said.

In the weeks leading up to the protests, extremists posted about their plans to “storm” the Capitol on social media.

The joint department bulletin is a routine report before notable events that the agencies usually send to federal, state and local law-enforcement and homeland security advisers. The reports help plan for events that could pose significant risks.

At the DHS unit, called Intelligence and Analysis, management didn’t view the demonstrations as posing a significant threat, some of the people said.

Last year, Ken Cuccinelli forced whistleblower Brian Murphy to change language in a threat analysis to downplay white supremacist violence and instead blame Antifa and related groups.

In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically modify the section on White Supremacy in a manner that made the threat appear less severe, as well as include information on the prominence of violent “left-wing” groups. Mr. Murphy declined to make the requested modifications, and informed Mr. Cuccinelli that it would constitute censorship of analysis and the improper administration of an intelligence program.

Wolf had been complicit in that past politicization. But something happened this week to lead the Trump White House to ensure that his orders can be legally challenged.

Update: Jake Gibson just reported that Wolf is stepping down.

These are just data points. We’ll learn far more about Trump’s involvement as the FBI obtains warrants for the communications who have ties to both groups like the Proud Boys and Trump associates like Roger Stone and Steve Bannon. But these are a few data points worth keeping an eye on.