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NARA Asked for 24 Boxes … Trump Gave Them 15

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The Archives (NARA) has released several sets of documents pertaining to the documents Trump stole, including the email that kicked off the entire hunt for documents on May 6, 2021. In it, NARA General Counsel Gary Stern emailed Pat Philbin, Mike Purpura, and Scott Gast talking about known missing items (including the love letters from Kim Jong Un).

Of those love letters, Stern described that Trump had a binder of them made right before he left office, just like he had a binder of the records pertaining to the Russian investigation.

[I]n January 2021, just prior to the end of the Administration, the originals were put in a binder for the President, but were never returned to the Office of Records Management for transfer to NARA.

More hilariously, Stern told the Trump lawyers that he knew of around 24 boxes of records that had been kept in Trump’s residence that weren’t returned. Stern told Trump’s lawyers that he knew that Pat Cipollone had told Trump to give them back — all 24 boxes of Presidential Records!

It is also our understanding that roughly two dozen boxes of original Presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the Administration that they need to be. I had also raised this concern with Scott during the final weeks.

NARA emailed Trump’s lawyers and told them he knew that there were roughly 24 boxes that Trump’s own White House Counsel had determined belonged to NARA.

And after an extended fight, Trump returned just 15.

Trump apparently thought a building full of archivists would just round up from 15.

Trump’s Shaky Privilege to Hide His Pence Pressure

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CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

Only Eric Herschmann (and Maybe Christina Bobb) Learned the Steve Bannon Lesson

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There’s a lot to unpack in this NYT story about the in-fighting on Trump’s legal team.

It confirms that prosecutors have asked to interview Christina Bobb and notes that she “added language to” the declaration that Evan Corcoran wrote about his search for documents “to make it less ironclad a declaration before signing it.” (If I had to guess, I’d say this pertains to the limits on the search having taken place at Mar-a-Lago.) The story proclaims ignorance about whether Bobb actually has testified. But the shift in how DOJ has discussed Corcoran — describing him claiming he “was advised” about certain topics in the search warrant affidavit, but then stating he “represented” those same topics at the June 3 meeting in their response to Trump’s request for a Special Master — is consistent with Bobb refusing to be made the fall-gal. DOJ’s assertion that Trump’s lawyers might be “witnesses,” plural, in their motion for a stay to the 11th Circuit also suggests some inside knowledge about things that another Trump lawyer may have done (note, the reference in the affidavit to Corcoran as FPOTUS Counsel 1 suggests another Trump lawyer is described in it later in the affidavit).

NYT also describes Eric Herschmann’s famously candid opinions, this time about the value of Boris Epshteyn’s legal advice.

“I certainly am not relying on any legal analysis from either of you [Corcoran and John Rowley] or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

I have been wondering whether Epshteyn, in particular, were just exploiting Trump for his own objectives before he moves onto some other convenient vehicle for extremism after Trump is crushed by legal troubles inadequately defended, and this anecdote would be consistent with that.

But the larger story describes how Herschmann refused to simply just bullshit his way through privilege invocations before a January 6 grand jury. The story is based on an email thread in which Corcoran — who helped Steve Bannon get convicted of contempt — attempted to persuade Herschmann to follow the exact same approach to testifying that Bannon (and John Rowley client Peter Navarro) adopted with the January 6 Committee: To refuse to testify based off a claim of Executive Privilege that Trump had not formally invoked.

Incidentally, that’s the very same approach Trump has used before Aileen Cannon. Thus far it has worked like a charm for her. It has been less successful with every other investigative body.

In fact, Herschmann seems to have made precisely the same point I have in the past, to Corcoran (and Rowley): Executive Privilege doesn’t work the way Corcoran claimed it did when he was busy shepherding Bannon to a contempt conviction.

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

So after repeated insistence that he get a real privilege invocation and after refusing to discuss these things without a documentary trail, the morning before Herschmann would have testified, Trump’s lawyers acceded to Herschmann’s demand for a proper invocation of privilege.

After ignoring Mr. Herschmann or giving him what he seemed to consider perplexing answers to the requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August. Assert sweeping claims of executive privilege, they advised him, after Mr. Corcoran had suggested that an unspecified “chief judge” would ultimately validate their belief that a president’s powers extend far beyond their time in office.

[snip]

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment.

Nearly four weeks after Mr. Herschmann first asked for an instruction letter and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show that he received notification from the lawyers — in the early morning hours of the day he was scheduled to testify — that they had finally done as he asked. [my emphasis]

So let’s talk about the timing of all this — and also about how Glenn Thrush, who is a politics reporter who knows fuckall about DOJ, keeps getting scoops about details that would be known to those being investigated, including this email chain that would be protected by the same principles of attorney-client privilege that Corcoran claimed to be vigorously protecting in it.

The emails were obtained by The New York Times from a person who was not on the thread of correspondence. Mr. Herschmann declined to comment.

According to a slew of reports, Herschmann was first subpoenaed around August 15. Given the timeline laid out in the story, describing that Herschmann asked for four weeks before getting a formal privilege letter, it would suggest he didn’t get a formal privilege invocation until around September 12 — days ago, perhaps even more recently than that.

According to an equally coordinated set of stories, the two Pats — Cipollone and Philbin, who happen to be law partners — were subpoenaed earlier than that. Those reports, which came out on August 3, eleven days before the stories about Herschmann being subpoenaed, described how there was some discussion about how to handle Executive Privilege claims.

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

As ABC pointed out, before he testified to the January 6 Committee, Cipollone made a similarly big fuss about Executive Privilege.

But when he testified to the Committee, Cipollone made specious privilege invocations to avoid testifying about the former President cheering violence, including violence directed at his Vice President.

UNKNOWN: My question is exactly that, that it sounds like you from the very outset of violence at the Capitol, right around 2:00, were pushing for a strong statement that people should leave the Capitol. Is that right?

PAT CIPOLLONE: I was, and others were as well.

UNKNOWN: Pat, you said that you expressed your opinion forcefully. Could you tell us exactly how you did that?

PAT CIPOLLONE: Yeah, I can’t — I don’t have, you know, I have to — on the privilege issue, I can’t talk about conversations with the President, but I can generically say that I said, you know, people need to be told, there needs to be a public announcement fast that they need to leave the Capitol.

[snip]

UNKNOWN: Do you remember any discussion at any point during the day about rioters at the Capitol chanting hang Mike Pence?

PAT CIPOLLONE: Yes, I remember — I remember hearing that about that, yes. I don’t know if I observed that myself on TV.

UNKNOWN: I’m just curious. I understand the — the privilege line you’ve drawn, but do you remember what you can share with us about the discussion about those chants, the hang Mike Pence chants?

PAT CIPOLLONE: I can tell you my view of that.

UNKNOWN: Yeah, please.

PAT CIPOLLONE: My view of that is that is outrageous. And for anyone to suggest such a thing of the vice president of the United States, for people in that crowd to be chanting that I thought was terrible. I thought it was outrageous and wrong, and I expressed that very clearly.

ADAM SCHIFF: With respect to your conversations with Mr. Meadows, though, did you specifically raise your concern over the vice president with him, and — and how did he respond?

PAT CIPOLLONE: I believe I raised the concern about the vice president, and I — and I — again, the nature of his response, without recalling exactly was he — you know, people were doing all that they could.

ADAM SCHIFF: And — and what about the president? Did he indicate whether he thought the president was doing what needed to be done to protect the vice president?

UNKNOWN: Privilege. You have to assert it. That question would —

PAT CIPOLLONE: That would call for — I’m being instructed on privilege.

[snip]

LIZ CHENEY: And who on the staff did not want people to leave the Capitol?

PAT CIPOLLONE: On the staff?

LIZ CHENEY: In the White House, how about?

PAT CIPOLLONE: I don’t — I — I can’t think of anybody, you know, on that day who didn’t want people to get out of the — the Capitol once the — you know, particularly once the violence started, no. I mean —

ADAM SCHIFF: What about the president?

LIZ CHENEY: Yeah.

PAT CIPOLLONE: She said the staff, so I answered.

LIZ CHENEY: No, I said in the White House.

PAT CIPOLLONE: Oh, I’m sorry. I — I apologize. I thought you said who — who else on the staff. I — I — I can’t reveal communications, but obviously I think, you know, — yeah. [my emphasis]

Cipollone invoked Executive Privilege to avoid revealing details about Trump cheering the violence directed at his Vice President and hoping that rioters would stay at the Capitol. Cipollone made those privilege claims on July 8, two months before the rough date when, after much badgering, Herschmann succeeded in getting a letter invoking privilege from Trump’s lawyers.

That’s the only known formal invocation of Executive Privilege Trump has put in writing regarding January 6.

And if Herschmann got that letter on September 12, he would have gotten it after the two Pats testified in one-two fashion on September 2.

Email chains like this — by any measure, clearly privileged — usually get leaked (to politics reporters) when legally exposed individuals are trying to telegraph to each other important details about their testimony.

And whatever else this story conveys, it tells anyone who has already testified and invoked privilege that Chief Judge Beryl Howell has recently gotten, and will be deciding on, the first known formal invocation of privilege. Howell will be asked to weigh not just whether a White House Counsel can invoke Executive Privilege in a criminal investigation implicating the President, a topic about which Bill Clinton would have a lot to offer. She’ll also be asked, generally, about the privilege claims lawyers are making about an event — January 6 — that the Supreme Court has already decided Executive Privilege, at least, must be waived.

If Howell rejects Trump’s invocation of privilege with Herschmann, then any claims of Executive Privilege that the two Pats made in their one-two testimony on September 2 would fail as well.

And Pat Cipollone is a direct and credible witness to Trump’s cheers of violence directed at his Vice President.

The effort to get witnesses to invoke Executive Privilege without any formal invocation that Judge Howell would review is not new. Trump has been pursuing this for a year, first with Justin Clark telling Bannon to bullshit his way through privilege claims with the January 6 Committee, then with unnamed lawyers persuading Cipollone to bullshit his way through testimony to the January 6 Committee, and most recently to Evan Corcoran — who had a front row seat to see that not even former Clarence Thomas clerk Carl Nichols would buy such bullshit — continuing to pursue such an approach even after it led directly to Bannon’s conviction.

Eric Herschmann, at least (and possibly also Christina Bobb) has learned the lesson of Steve Bannon.

A Likely Looming Battle in the Stolen Document Case: Classified White House Counsel Documents

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In this post, I argued that DOJ hopes to use a motion to stay Judge Aileen Cannon’s injunction against using materials seized from Donald Trump in any criminal investigation tactically — basically, to highlight she’s just stalling the investigation.

But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.

In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.

But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

[snip]

The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. [my emphasis]

DOJ is right that any classified documents obviously belong to the government.

But Trump’s lawyers don’t even want to cede that point. They refused the motion for a stay with respect to classified documents (which is not surprising, because in the hearing Jim Trusty said they could just make copies of all the classified records).

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.

The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.

As I have noted, there are three known classified documents that were put in the potentially privileged bucket, at least at the start.

There’s one document marked Confidential and another marked Secret seized from drawer(s) in Trump’s office.

And there’s a Top Secret document stashed along with clippings dating back to 1995 in box 29.

Plus, the packet involving clemency for Roger Stone — while it was not treated as potentially privileged — does include information marked as Secret.

If that involved communications with DOJ or the White House Counsel, I could see Trump trying to claw it back as well.

DOJ says that none of these involve Trump’s personal lawyers. But they’re not ruling out that they involve lawyers you and I paid for, the White House Counsel. And those documents are among the ones I can imagine Trump might care the most about.

One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

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There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.

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

Pat Philbin Knows Why the Bodies Are Buried

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Back on August 11, I predicted that Pat Philbin would have been one of the witnesses whom DOJ interviewed in advance of the search of Trump’s golf resort.

Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

Yesterday, Maggie Haberman confirmed that I was correct (and also reported that Pat Cipollone was also interviewed; Cipollone may have been the lawyer the Archives called after Philbin failed to get Trump to return the documents).

Mr. Philbin was interviewed in the spring, according to two of the people familiar with the matter, as investigators reached out to members of Mr. Trump’s circle to find out how 15 boxes of material — some of it marked as classified — made its way to Mar-a-Lago. It was unclear when Mr. Cipollone was interviewed.

Mr. Cipollone and Mr. Philbin were two of Mr. Trump’s representatives to deal with the National Archives; they were named to the positions shortly before the president’s term ended, in January 2021. Another was Mark Meadows, the former White House chief of staff.

At some point after National Archives officials realized they did not have Trump White House documents, which are required to be preserved under the Presidential Records Act, they contacted Mr. Philbin for help returning them.

A spokesperson for Mr. Philbin did not immediately respond to a request for comment.

Mr. Philbin tried to help the National Archives retrieve the material, two of the people familiar with the discussions said. But the former president repeatedly resisted entreaties from his advisers.

“It’s not theirs, it’s mine,” several advisers say Mr. Trump told them.

For the reasons I laid out above, it’s unsurprising that FBI interviewed Philbin (and Cipollone, if he is the other lawyer NARA appealed to). This was a referral from NARA, and they would have explained to FBI what CNN explained in February: that NARA had worked patiently with Philbin, but that Philbin failed to persuade Trump to comply with the Presidential Records Act.

Philbin’s early role in DOJ’s investigation is complicated, however, because the investigation implicates (at least!) three legal relationships Philbin has had with Trump:

  1. As a member of the White House Counsel Office that, among other things, first altered, and then withheld the full transcript of the Perfect Phone Call between Trump and Volodymyr Zelenskyy, provided legal advice about classification issues, and also advised staff as Trump’s team packed up
  2. As a member of Trump’s first impeachment defense team, which might have turned out differently if that full transcript had been shared with Congress
  3. As a liaison with NARA at a time when Trump was no longer President, probably formally within the context of his designation as a Trump representative to NARA

Philbin’s ethical obligations and legal exposure from all three of those relationships are different, but knowledge gained from all three positions would be of acute interest to the FBI.

Plus, Philbin has a deep background in national security law from the George W. Bush Administration. He played a key role in the review of John Yoo’s shoddy OLC memos and the related hospital confrontation between Jim Comey and Dick Cheney. Particularly after NARA referred the issue to FBI, it wouldn’t take long for Philbin to have appreciated the problem posed by all those unprotected files sitting in a closet in a golf resort targeted by foreign intelligence services. Nor would Philbin miss the legal gravity under the Espionage Act — for Trump, as well as for anyone who conspired with the person refusing to return stolen classified documents — implicated by Trump’s refusal to turn over what he had taken. And as a lawyer with at least another decade of private practice before him, I imagine Philbin would want to keep his clearance.

Those factors are important because Philbin knows why the bodies are buried — the decision-making process Trump used to handle classified information and the rationale Trump gave him during the period when Philbin was trying to negotiate the documents’ return.

Philbin may not have recent knowledge of where the bodies are buried: where Trump stored documents at Mar-a-Lago. But because he tried to chase these documents down in 2021, he would have a general understanding of what Trump’s storage practices were until such time as someone else inherited the problem, including whether they complied with CFR rules about minimum standards for storing classified documents (DOJ told Trump in June that they did not).

He would have a general idea of what bodies are buried. Because he tried to negotiate their return over the course of months, he would know the general scope of the documents Trump took with him in 2020 and may well have specific knowledge of individual documents NARA identified to be missing. He may know, for example, about specific documents that Trump was particularly opposed to returning. Speaking just hypothetically, that could even include the full transcript of that Perfect Phone Call that Philbin’s office had helped to keep out of the hands of Congress, potentially a violation of 18 USC 1519. It might also include documents Philbin saw in the lead-up to January 6, documents that would have been responsive to the known January 6 Committee subpoenas to NARA for Trump’s records. That means Philbin is among the people who may have been able to confirm to the FBI that documents excluded from the 15 boxes returned earlier this year were at Mar-a-Lago during the period he was negotiating their return. Such information is the kind of thing that the FBI would have included in the subpoena to search MAL.

But the most important thing that Philbin would know from his various interactions with Trump has to do with motive: Why the bodies got buried. Maggie quotes several advisers, possibly including one or both of the two Pats, that Trump told them, “It’s not theirs, it’s mine.” And it may be that’s the only motivation Trump ever expressed to Philbin. Trump is such a narcissist he really may just verbalize his theft of these documents by claiming ownership. But Philbin had firsthand knowledge of other efforts to withhold materials, as evidenced by the Perfect Phone Call transcript. He likely knows of Trump’s habit of ripping up burning eating or flushing damning documents. Philbin was still trying to get Trump to return documents after the time the January 6 Committee was convened, so Trump may have stated to Philbin what Paul Sperry claimed yesterday: that the reason Trump is withholding documents is because he knows NARA is legally obligated to share those documents with J6C.

Given the complex ethical issues he’d face, Philbin might not have been able or willing to share some of what he knows with the FBI, at least not at first. But the risks of an Espionage Act and obstruction investigation, including 18 USC 793g, which can be used to charge anyone involved in refusing to return classified documents even if they don’t share the motive of refusing to return them, might change Philbin’s ethical calculus. An experienced NatSec lawyer like Philbin would know that the Espionage Act carries an affirmative obligation to give classified documents back, particularly if their lawful owner, NARA, has asked. Once FBI got involved, Philbin would want to avoid any legal liability for his failure to convince Trump to comply, and Trump’s continued failure to comply would be a crime that might give Philbin the ethical leeway to do that.

When NARA asked Philbin to help them get those documents back, Philbin failed. That puts him in situation where he may have real incentive to explain both what Trump said to explain his refusal to comply with the Presidential Records Act, but also what, in Philbin’s personal knowledge gained two years as Deputy WHCO, several months during an impeachment defense, and much of a year as Trump’s NARA representative, Trump did when he took steps to make documents covered by the PRA unavailable to the NARA.

Update: As you consider the import of Philbin’s testimony, consider the significance of this reference in the government opposition to further unsealing of the Trump warrant.

Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.

Philbin has been subpoenaed in other investigations of Trump. But this passage suggests that if the extent and terms of his cooperation are made public, it may lead him and others to hesitate before cooperating in 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

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

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It’s that time that comes in many high profile investigations where it becomes prudent to remind readers — and journalists! — that the word “cooperate,” even the word “inform,” may not mean what sources want you think it does.

Correction: It’s long past the time to remind journalists that investigative subjects will boast to the press about “cooperating,” when their lawyers really mean, “complying” with the most basic requirements of legal process. When Ali Alexander ran to the press revealing he had received a subpoena (revealing a subpoena is something investigators generally consider uncooperative), most outlets repeated his claim to have “agreed to cooperate” with DOJ. What Alexander described instead was “compliance,” not cooperation.

Nevertheless, some really experienced legal beat reporters used the words often reserved for someone who has entered into a cooperation agreement to describe Alexander’s compliance and they did so in articles probably pitched as a way to share details revealed in a subpoena with other suspects in an investigation.

The latest messaging strategy from Trump demonstrates why the subject of an investigation might do this. This detailed WSJ report is based on Trump sources reading the content of letters sent between Trump lawyer Evan Corcoran and counterintelligence head Jay Bratt in June.

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“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,” according to what was read to the Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

On June 22, the Trump Organization, the name for Mr. Trump’s family business, received a subpoena for surveillance footage from cameras at Mar-a-Lago. That footage was turned over, according to an official. [my emphasis]

Side note: The nice thing about Trump sharing a lawyer, Corcoran, with Steve Bannon is that we can evaluate Corcoran’s credibility based off stunts he pulled in Bannon’s case — which is a good reason to expect his representation of these events is not entirely forthcoming, especially when made without the ethical obligations stemming from making them as an officer of the court.

So this exchange, which doesn’t rule out further contact with Mar-A-Lago and which likely misrepresents Trump’s conviviality at having the head of DOJ’s espionage prosecutors waltzing into his golf resort, is designed to present the illusion of full “cooperation.”

And Trump’s spox uses that portrayal, later in the story, to claim that a search — the spox calls it a “raid” — was unnecessary. Trump had been so cooperative, the WSJ relays Trump camp claims, that his unreliable lawyer was even engaged in “breezy chats” with the head of the department that prosecutes spies.

“Monday’s brazen raid was not just unprecedented, it was completely unnecessary,” Trump spokesman Taylor Budowich said. “President Trump and his representatives have gone to painstaking lengths in communicating and cooperating with all the appropriate agencies.”

WSJ doesn’t hide that this story is the one they’re being pitched.

A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

But it also doesn’t consider why putting a lock on a room full of suspected stolen documents amounts to cooperation.

More importantly, WSJ admits it doesn’t have the one detail that would test whether this fairy tale of cooperation were true or not: the warrant showing which crimes were being investigated, as well as the warrant return showing whether the government had obtained evidence that confirmed the suspicions they used to obtain probable cause.

The warrant, signed by a judge in Palm Beach County, refers to the Presidential Records Act and possible violation of law over handling of classified information, according to Christina Bobb, a lawyer for the former president. The warrant hasn’t been made public by Mr. Trump nor has the inventory of documents retrieved by the government.

The warrant Trump’s lawyers received doesn’t refer to “possible violation of law over handling classified information,” it refers to a law, possibly even the Espionage Act. Simply sharing that warrant and return would tell us far more about whether Trump was as cooperative as his unreliable lawyer — who made virtually identical claims about his contemptuous client Steve Bannon’s “cooperation” — now wants to claim about Trump.

There is a significant legal reason why Trump’s lawyers would like to claim he was cooperative, aside from ginning up threats against judges from Trump’s mob. As I laid out here, “fail[ing] to deliver [National Defense Information] to an officer or employee of the United States entitled to receive it,” is a key element of 18 USC 793e. So in addition to stoking violence, it’s possible that Trump is already attempting to set up a defense for trial, that he simply had not yet complied with DOJ and NARA requests to give back the stolen documents, but surely would have if they just asked nicely one more time. This is, in fact, precisely the argument Corcoran made for Bannon at trial: he would have cooperated if only Bennie Thompson would have accepted a last minute offer to cooperate.

Anyway, given abundant precedent, it’s probably too late. If you’re storing stolen classified information in your basement, with or without a substantial padlock, you’ve committed the crime of unauthorized retention of NDI.

The issue of cooperation extends beyond Evan Corcoran’s dubious (and provably false, in Bannon’s case) claims of cooperation, though.

WSJ seems to match far more inflammatory reporting from William Arkin in Newsweek, that someone told DOJ that Trump still had classified documents at Mar-a-Lago.

In the following weeks, however, someone familiar with the stored papers told investigators there may be still more classified documents at the private club after the National Archives retrieved 15 boxes earlier in the year, people familiar with the matter said. And Justice Department officials had doubts that the Trump team was being truthful regarding what material remained at the property, one person said. Newsweek earlier reported on the source of the FBI’s information.

Arkin is a well-sourced reporter (though not a DOJ reporter), but Newsweek is no longer a credible outlet. And in Arkin’s story — which seems like it was meant to be a comment primarily on the political blowback from the search — a headline Arkin probably didn’t write calls this person “an informer” (notably, language Arkin likely did have some say over also called it a raid, which credible DOJ sources would never do).

Exclusive: An Informer Told the FBI What Docs Trump Was Hiding, and Where

The raid on Mar-a-Lago was based largely on information from an FBI confidential human source, one who was able to identify what classified documents former President Trump was still hiding and even the location of those documents, two senior government officials told Newsweek.

There are other parts of this story that raised real credibility questions for me and for multiple counterintelligence experts I spoke with about. For example, it describes a 30-year veteran of the FBI, now a senior DOJ official, sharing grand jury information. Because Special Agents retire after 25 years, there are a very small number of 30-year FBI veterans running around, and describing the person as a senior DOJ official to boot would pinpoint the source even further. If this person really had knowledge of grand jury proceedings, it would be child’s play to charge them based on this story for violating laws prohibiting such things. Plus, the person doesn’t even describe what happens in a grand jury accurately, suggesting that the grand jury had “concluded” the law was broken (in which case there would be an indictment).

Moreover, the story relies on public reporting, based off Trump’s lawyer’s own claim, for its evidence that DOJ knew precisely where to look.

According to news reports, some 10-15 boxes of documents were removed from the premises. Donald Trump said in a statement that the FBI opened his personal safe as part of their search. Trump attorney Lindsey Halligan, who was present during the multi-hour search, says that the FBI targeted three rooms—a bedroom, an office and a storage room. That suggests that the FBI knew specifically where to look.

That claim is fundamentally incompatible with the earlier report that an “informer” had told FBI precisely where to look.

More importantly, it wouldn’t take an informant — a confidential human source infiltrated into the Trump camp — to obtain this kind of information.

Cassidy Hutchinson, who helped Trump move to Mar-a-Lago, reportedly “cooperated” (that word again!) with DOJ after her blockbuster testimony before the January 6 Committee. She worked at Mar-a-Lago and unlike others who moved with Trump to Florida, had the clearance to handle these documents. Her attorney, former Assistant Attorney General Jody Hunt, knows firsthand about Trump’s attempts to suppress sensitive classified information from his attempts to kill the Russian investigation. So if Hutchinson had information that would be useful to this investigation (including details about where Trump stored what at Mar-a-Lago), DOJ likely has it.

Similarly, of the seven people whom Trump named to represent his interests with the Archives, three — Pat Cipollone, Pat Philbin, and Steve Engel — have been willing to testify with varying degrees of resistance before the January 6 Committee. Engel would have likewise been asked to cooperate on any DOJ investigation of Jeffrey Clark, but he didn’t share details of that with the press. The two Pats both recently received subpoenas in DOJ’s January 6 probe (which they did share with the press). And Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

All of which is to say that DOJ has easily identifiable people who are known to be somewhat willing to testify against Donald Trump and who are known to have specific knowledge about the documents he stole. If either Hutchinson or Philbin (or both!) answered FBI questions about Trump’s document theft, they would not be “informants.” They would be witnesses. Just like they’re both witnesses to some of Trump’s other suspected crimes.

Nor does that make them “cooperators” in the stricter sense — people who’ve entered into plea agreements to work off their own criminal liability.

As remarkable as six years of Trumpism has made it seem, sometimes law-abiding citizens answer FBI questions without the tantrums that Corcoran seems to tolerate from his clients.

Indeed, if the crime that FBI is investigating really is as serious as the Espionage Act, far more witnesses may see the wisdom of sharing their information with the FBI.

Update: Propagandist John Solomon offers a version of the same story as WSJ, though in his telling, DOJ also subpoenaed Trump in June, specifically asking for documents with classified markings, including those involving correspondence with foreign officials.

The subpoena requested any remaining documents Trump possessed with any classification markings, even if they involved photos of foreign leaders, correspondence or mementos from his presidency.

This is the kind of detail that the lawyers who negotiated initial efforts to retrieve stolen documents would know about. If Philbin, for example, knows that Trump had tried to hold onto his love letters with Mohammed bin Salman and Vladimir Putin, but Trump still didn’t provide them in response to a subpoena, then there’d be a clearcut case of withholding classified documents.

Update: CNN has matched Solomon’s report.

Trump and his lawyers have sought to present their interactions with Justice Department prosecutors as cooperative, and that the search came as a shock. The subpoena was first reported by Just the News.

In response to questions about the grand jury subpoena, Trump spokesman Taylor Budowich said in a statement to CNN: “Monday’s unprecedented and absolutely unnecessary raid of President Trump’s home was only the latest and most egregious action of hostility by the Biden Administration, whose Justice Department has been weaponized to harass President Trump, his supporters and his staff.”

But CNN’s version suggests that Trump’s lawyers showed the head of the espionage division of DOJ classified documents, but only agreed to hand over those that were Top Secret or higher.

During the meeting, Trump’s attorneys showed the investigators documents — some of them had markings indicating they were classified. The agents were given custody of the documents that were marked top secret or higher, according to a person familiar with the matter.

That suggests even after turning over 15 boxes of documents, Trump still had highly classified documents lying around the basement of a building riddled with counterintelligence concerns. And when the head of the espionage department came to collect classified documents, Trump withheld less classified ones.

Of course they had probable cause there were classified documents still at Mar-a-Lago. Trump’s lawyers told DOJ there were.

Pat Cipollone Wants Trump to Know He’s Still Protecting Him

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ABC got the scoop yesterday that Pat Cipollone has been subpoenaed in the January 6 investigation. Remember: under grand jury secrecy rules, only the recipient can share details of a subpoena (or, if the FBI delivers it, their neighbors).

Which is why I’m interested that the ABC story makes it clear that Cipollone’s lawyers “are expected to engage in negotiations around any appearance.”

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

This confirms a point I made yesterday: Cipollone is no more a reliable witness than nutjob Sidney Powell or nutjob Rudy Giuliani.

That’s because he is using frivolous Executive Privilege claims — made even after the Supreme Court ruled that Trump doesn’t have privilege here, and made by the White House Counsel, not the President’s own lawyer — to avoid disclosing the content of things he said directly to the President.

And there’s no reason for a buttoned down lawyer like Cipollone to reveal his grand jury testimony, along with claims he’s going to sustain his frivolous privilege claims, unless he wants to reassure Trump.

I keep suggesting that Cipollone may know he has his own exposure. He would have been involved in all the pardons Trump gave save, perhaps, Steve Bannon’s last minute one. And there’s good reason to believe those pardons included quid pro quos that bought cooperation in the insurrection.

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.