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Gagged!

December 8, 2023/118 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The DC Circuit has reimposed most of the gag that Judge Chutkan imposed on Trump.

Like any other criminal defendant, Mr. Trump has a constitutional right to speak. And his millions of supporters, as well as his millions of detractors, have a right to hear what he has to say. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756–757 (1976). Also like any other criminal defendant, Mr. Trump does not have an unlimited right to speak. “Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in [the trial] setting.” Seattle Times, 467 U.S. at 32 n.18 (formatting modified). In particular, the public has a compelling interest in ensuring that the criminal proceeding against Mr. Trump is not obstructed, hindered, or tainted, but is fairly conducted and resolved according to the judgment of an impartial jury based on only the evidence introduced in the courtroom. See Gentile, 501 U.S. at 1075; Wade, 336 U.S. at 689.

While Trump is free to malign Jack Smith, he’s not free to malign Smith’s spouse, other prosecutors, Judge Chutkan’s staff or — most importantly — witnesses.

It’s about dinner here — I’ll come back and pull some of the opinion in a bit.

Update: Millett describes Trump’s attacks on social media, “laundering communications.”

There is no question that Mr. Trump could not have said directly to Mark Meadows, former Vice President Pence, or former Georgia Lieutenant Governor Duncan any of the statements he posted on social media about their potential discussions with the Special Counsel or grand-jury testimony, and the consequences that would follow. Yet the district court’s prohibition on Mr. Trump’s direct communications with known witnesses would mean little if he can evade it by making the same statements to a crowd, knowing or expecting that a witness will get the message. Cf. Sheppard, 384 U.S. at 359 (restrictions on witnesses observing other witnesses’ testimony mean nothing if “the full verbatim testimony [is] available to them in the press”); Estes, 381 U.S. at 547.

Mr. Trump’s counsel conceded at oral argument that the former President speaking about the case “with a megaphone, knowing that [a] witness is in the audience” would likely present the “same scenario” as Mr. Trump’s calling that witness directly, in violation of his conditions of release. Oral Arg. Tr. 33:12–17. So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.

Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.

The opinion distinguishes a heckler’s veto from Trump’s incitement.

Second, Mr. Trump objects that holding him responsible for his listeners’ responses to his speech unconstitutionally imposes a “classic heckler’s veto,” “regardless of how predictable * * * [Mr. Trump’s supporters’] unruly reactions might be.” Trump Br. 37–38; see Trump Br. 36–39. Not so.

To start, that argument ignores the significant risk of harm caused by Mr. Trump’s own messaging to known or potential witnesses about their participation in the criminal justice process and his menacing comments about trial participants and staff.

The claim also misunderstands the heckler’s veto doctrine. That doctrine prohibits restraining speech on the grounds that it “might offend a hostile mob” hearing the message, Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–135 (1992) (emphasis added), or because its audience might express “hostility to” the message, Cox, 379 U.S. at 551. The harm the district court identified here was not that some members of the public who oppose Mr. Trump’s message might react violently and try to shut down his speech. Cf. National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 43–44 (1977). The concern was instead “how predictable” it has become, Trump Br. 38, that some (but certainly not all, or even many) of Mr. Trump’s followers will act minaciously in response to his words.

Of course, the First Amendment generally does not allow speech to be restricted because of some enthusiastic audience members’ reactions. Outside of a judicial proceeding, ordinarily only speech that rises to the level of incitement of the audience can be banned. See Brandenburg v. Ohio, 395 U.S. 444, 448–449 (1969) (striking down law that failed to distinguish “mere advocacy” from “incitement to imminent lawless action”).

But within a judicial proceeding, a trial court’s duty to protect the functioning of the criminal trial process is not cabined by the incitement doctrine. Sheppard holds that courts may, and sometimes must, limit the speech of trial participants to prevent the prejudice to the trial process caused by third parties. Sheppard involved a criminal trial beset by suffocating press coverage and publicity. 384 U.S. at 358. The press regularly reported on evidence leaked to them by both sides, even though such evidence was never offered into evidence in court. Id. at 360–361.

The Supreme Court held that, as a means of addressing and averting harm to the criminal justice process, the trial court should have “proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters[.]” Id. at 361. Had the trial court done so, “the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom— not pieced together from extrajudicial statements.” Id. at 362. In other words, the Supreme Court explained that a protective order restricting trial participants’ speech should have been entered in Sheppard not only because the parties’ expression was itself obstructive, but even more so because outsiders’ reactions and responses to that speech also threatened the integrity of the trial process. At no point in Sheppard did the Supreme Court even hint that evidence demonstrating that the parties were already inciting interfering press coverage would have been needed before the court could act.

So too here. Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings. That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses. The district court appropriately found that those threats and harassment undermine the integrity of this criminal proceeding by communicating directly or indirectly with witnesses and potential witnesses about their testimony, evidence, and cooperation in the justice process. They also impede the administration of justice by exposing counsel and members of the court’s and counsel’s staffs to fear and intimidating pressure. The First Amendment does not afford trial participants, including defendants, free rein to use their knowledge or position within the trial as a tool for encumbering the judicial process.

I had to look up, “minaciously,” which is not at all “quixotic.”

DC Circuit Likely To Narrow Judge Chutkan Gag

November 20, 2023/103 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

Ruby Freeman was not a public figure until Donald Trump and Rudy Giuliani made her one, until they turned her into the villain of their feverish conspiracy theories about black women and voting. But early on in the appellate hearing on Judge Tanya Chutkan’s gag in the January 6 trial, Trump’s attorney John Sauer claimed there were no people covered by the gag who were not public persons.

That will become important if, as I suspect, the DC Circuit panel of Patricia Millett, Cornelia Pillard, and Bradley Garcia, upholds Judge Chutkan’s gag, but narrows it with regards to public persons. I suspect the court will throw out the gag on Trump comments about prosecutors (but not their family), limit the gag about public people like Mark Milley and Mike Pence to specifics about this trial, but adopt the gag as is for non-public people like Freeman.

Then we’ll have a fight about who counts as a public figure or not.

The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client. The judges, especially Millett, asked him a series of hypotheticals to try to get him to lay out a standard that wouldn’t fall astray of the First Amendment. And Sauer kept getting cornered saying, basically, only the clear harm standard could apply to a gag on his client’s speech. Effectively, he was saying that Trump has to be criminally charged with witness tampering rather than gagged. At one point, Sauer suggested that Trump must be permitted to wage this case in the public sphere, that there can be no consideration for the public interest in a fair trial. In another, he got awfully close to arguing that Trump should be treated as a stranger to this case, meaning no restrictions could be imposed, rather than the accused defendant. In a third, Sauer suggested that Trump must be permitted to run for election on a campaign of threats against his adversaries. Over and over, Sauer argued that Trump should be permitted to say things publicly — at campaign rallies or on his failing Social Media site — that Sauer he agreed would be prohibited under the gag order if he did it on the phone with a witness.

I doubt this will be a winning argument before the DC Circuit. But Sauer is really making a play for Clarence Thomas and Sam Alito, not Patricia Millett.

Update: Fixed reference to Sauer as Lauro.

On January 19, 2022, SCOTUS Upheld Judge Tanya Chutkan’s Decision Rejecting Trump’s Executive Privilege Claims

August 6, 2023/116 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

On November 9, 2021, Judge Tanya Chutkan — the judge who randomly got assigned to Trump’s January 6 prosecution — rejected Trump’s request to enjoin the Archives from turning over documents to the January 6 Committee.

Chutkan held that because the incumbent President had waived Executive Privilege and the January 6 Committee had a legislative interest in preventing another attack on the peaceful transfer of power, she had no reason to second guess the political branches of government about the import of the investigation.

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining— the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

On December 9, 2021, the DC Circuit upheld Chutkan’s ruling. Patricia Millett repeated Chutkan’s argument that the agreement of Congress and the Executive provided no basis for the courts to intervene. But she also described that even by a heightened standard — even if Trump were withholding these documents while still President — the need for the documents would overcome his privilege claim.

While former President Trump can press an executive privilege claim, the privilege is a qualified one, as he agrees. See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even a claim of executive privilege by a sitting President can be overcome by a sufficient showing of need. See United States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a former President certainly enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S. at 454; see United States v. Nixon, 418 U.S. at 706, 713. 12

In this case, President Biden, as the head of the Executive Branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees. So the tests that courts have historically used to police document disputes between the Political Branches seem a poor fit when the Executive and Congress together have already determined that the “demonstrated and specific” need for disclosure that former President Trump would require, Appellant Opening Br. 35, has been met. A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.

But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege. Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.

[snip]

Keep in mind that the “presumptive privilege” for presidential communications “must be considered in light of our historic commitment to the rule of law.” United States v. Nixon, 418 U.S. at 708. In United States v. Nixon, the particular component of the rule of law that overcame a sitting President’s assertion of executive privilege was the “right to every [person]’s evidence” in a criminal proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). Allowing executive privilege to prevail over that principle would have “gravely impair[ed] the basic function of the courts.” Id. at 712.

An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would “gravely impair the basic function of the” legislature. United States v. Nixon, 418 U.S. at 712.

On January 19, 2022, the Supreme Court upheld Chutkan’s ruling. With only Clarence Thomas dissenting, Justice Kavanaugh noted that the DC Circuit’s ruling that Trump’s appeal would have failed even under more stringent standards made any review of this decision unnecessary.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

I have written repeatedly about how Merrick Garland set up a framework in July 2021 by which Congress’ investigative requests would provide an opportunity for President Biden to waive Executive Privilege without violating DOJ’s contacts policy. That is, in July 2021, Garland solved a tricky problem with investigating the former President: how to obtain privilege waivers while keeping the existing President entirely walled off from the criminal investigation.

But this legal background, in which, with just one dissent, SCOTUS upheld a Tanya Chutkan opinion pertaining to an investigation into Donald Trump, will prove critically important in the days ahead, for two reasons that go to the screeds the former President is engaging in on his failed social media platform.

Along with making a venue complaint that has failed the dozens of times other January 6 defendants have made it (here’s a Roger Parloff post from before the Riley Williams and Oath Keepers trials showed that juries will rule against the government on precisely the same charges), Trump is preparing to claim that Judge Chutkan is biased and must be recused.

And Trump has been claiming that DOJ could have brought this case years ago, before the election season.

As to the first point, on a topic directly pertinent to this investigation, eight Justices have already upheld Judge Chutkan. Three Trump appointees, with Justice Kavanaugh writing the decision, have already ruled with Judge Chutkan.

That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

More importantly, that Judge Chutkan decision in November 2021 led to a SCOTUS decision, on January 19, 2022, upholding the DC Circuit’s opinion that the peaceful transfer of power is a sufficiently important basis to overcome an Executive Privilege claim, even if only for a congressional investigation, which litigation in the stolen documents case noted was a significantly lower standard than a criminal investigation.

Yet, even in spite of that decision on January 19, 2022, Donald Trump continued to make Executive Privilege claims that delayed DOJ’s investigation. He did so to stall DOJ’s interviews with Mike Pence’s advisors in summer 2022. He did so to stall DOJ’s interviews of Trump’s White House Counsel later that summer. He did so to stall DOJ’s interviews with other top aides in January 2023. And he did so to stall Mike Pence’s testimony.

Donald Trump continued to stall DOJ’s investigation using Executive Privilege claims for 463 days after a Justice that he himself had appointed had already rejected such claims. At the very least, these frivolous Executive Privilege invocations were critically responsible for any delay from July 2022, when Greg Jacob and Marc Short first refused to answer some questions because of Trump’s privilege claims, until April 2023, when Mike Pence testified — nine months.

Nine months, Trump kept making Executive Privilege claims that it was clear SCOTUS wouldn’t uphold.

Indeed, Trump’s frivolous Executive Privilege claims are responsible for even more of any delay than his own Special Master demand in the stolen documents investigation caused — in that case, three months.

Donald Trump is complaining that he wasn’t charged for his attempt to overthrow the peaceful transfer of power in 2020 until during his campaign to regain the presidency.

But he is personally responsible for much of that delay.

“Forthwithier:” Peter Navarro Attempts to Pull a Fast One on His Incriminating Use of ProtonMail

April 9, 2023/44 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Peter Navarro appears to be attempting to stall out a month-long order to avoid turning over ProtonMail content he has been trying to withhold from DOJ since last July.

In the guise of doing a more thorough search for materials he should have turned over under the Presidential Records Act, he has not turned over 200 to 250 already identified ProtonMail records that, last year, his attorney said would incriminate him if he turned them over.

I wrote about the lawsuit DOJ filed to force Navarro to turn over the records last August. In effect, after Navarro lawyered up last year and DOJ told them they were going to sue, Navarro’s lawyer went through his emails, identified 200 to 250 ProtonMail records that should have been turned over, but said he would not on the grounds that it would amount to self-incrimination. So DOJ sued to get them.

In March, Judge Colleen Kollar-Kotelly ruled for the government and ordered Navarro to turn over the documents he had already identified to be covered by the Presidential Record Act, “forthwith.”

ORDERED, that Defendant shall produce to Plaintiff the 200 to 250 documents that his counsel has identified as Presidential records forthwith.

In a status report submitted yesterday describing all the new files Navarro is looking for, DOJ included a footnote making it clear Navarro still has not complied with the March 9 order.

1 As of the filing of this status report, Plaintiff advises that it has not received any of the 200 to 250 documents that Defendant’s counsel has identified as Presidential records, nor has Defendant obtained a stay of this Court’s order from the D.C. Circuit.

Navarro has appealed and is asking for a stay of Judge KK’s order; his reply brief for that stay is due Monday. He has clearly ignored a pending order for over a month in hopes that the DC Circuit — a panel consisting of Patricia Millett, Robert Wilkins, and Neomi Rao — will give allow him to delay turning over the 200 to 250 documents his lawyer has said include evidence of a crime.

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

August 18, 2022/71 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And no one knew about it.