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Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

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I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

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The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.

Where to Look (or Not) for Signs of Life in Rule of Law

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According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

Lev Parnas’ Failed Attempt to Flip

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With a non-cooperation guilty plea earlier this month from co-conspirator Igor Fruman, a trial scheduled next month for Lev Parnas’ laundering of money from a Russian national into the politics of marijuana, another trial scheduled next year for Parnas’ Fraud Guarantee with Rudy Giuliani, and an investigation into Rudy’s foreign influence peddling in a very active phase, it’s a complex time to be prosecuting Parnas. That’s reflected in the government’s motion in limine filing submitted on Tuesday, which argues what and how evidence should be admissible at the October trial.

Since we talk a lot about the hearsay exception under charged conspiracies (as the October trial is), the filing is interesting for the complex ways the government proposes the statements of the participants can be admitted at trial:

  • Out of court statements — including narrative descriptions of past events — from Parnas, Fruman, David Kukushkin (the other defendant who will face trial), David Correia (who pled guilty in a non-cooperation plea last year), and Andrey Muraviev, the Russian who funded all this, can be entered against each other
  • The out of court statements made by Parnas employee Deanna Van Rensburg can be admitted for their truth against Parnas, but not against Kukushkin
  • The government wants to limit questioning of three FBI witnesses to matters affecting their credibility and not other matters (such as why Agent Jacob Balog, who will testify about some charts showing the government’s version of the timeline of events, would be added to the team just recently)
  • Both defendants have already advised they won’t mount an advice of counsel defense and so the involvement of a lawyer doesn’t help them (though none of the lawyers in question are named Rudy Giuliani)
  • The defendants’ attempts to clean things up in 2019, including after they got charged, should not be treated as evidence about their intent in 2018
  • Parnas shouldn’t be allowed to attempt to nullify the jury (and has apparently already committed not to argue to the jury that this matter arose out of vindictive prosecution based on his cooperation in Trump’s 2019 impeachment)
  • Parnas should not be allowed to argue that Adam Laxalt must be batshit crazy given his more recent public statements in support of Trump’s attempt to steal the 2020 election (or about a matter that the government redacts in their filing)
  • The government should be allowed to introduce evidence of how Parnas spent Muraviev’s money on lavish spending benefitting himself, but Kukushkin should not be able to argue that Parnas’ skimming is proof the two of them did not conspire
  • The court should decide ahead of time what damning details it will let Parnas and Kukushkin introduce to incriminate each other
  • Parnas should be held to the claims he made in a March 5, 2020 proffer to the government

It’s the last of these that I find particularly interesting.

Lev Parnas spent much of January 2020 claiming to want to cooperate with the impeachment inquiry — though those claims were often suspect. At the same time, SDNY seemed to want to stall those efforts. The Senate acquitted Trump in February.

Only after that, on March 5, 2020 (and apparently just March 5), did Parnas proffer testimony in what he had been publicly claiming for some time was an interest in cooperating. But apparently after making statements that support the government case against him at trial next month, nothing came of the proffer.

On March 5, 2020, Parnas and his counsel met with members of this Office and the FBI, to proffer Parnas’s potential testimony about the charges at issue here and other matters. In advance of the proffer, the Government provided a written proffer agreement to Parnas’s counsel, setting forth the terms under which statements Parnas made during the proffer could and could not be used against him.

[snip]

During a lengthy proffer, Parnas made several statements that tend to prove the charges at issue here, or facts underlying those charges. An FBI agent took detailed notes of the proffer, and later produced a formal report memorializing it (the “302”). Those notes, and the 302, have been provided to Kukushkin and Parnas.

[snip]

Under the terms of the Proffer Agreement, therefore, defense counsel is free to present a defense and to argue, for example, that the Government has failed to prove its case beyond a reasonable doubt (or failed to present “credible” evidence).

[snip]

Counsel cannot do so, however, in a matter that directly or indirectly contradicts facts elicited during the proffer without triggering the waiver provision of the agreement.

As the Proffer Agreement and the above law make clear, Parnas may not present evidence or make arguments that are contrary to his own statements in the proffer session without permitting the jury to assess those assertions in light of his contradictory proffer statements. Among the statements that appear most likely to be relevant with respect to the Foreign Donor Scheme, Parnas admitted that the purpose of the money Parnas, Fruman, and Correia obtained from Muraviev was to make campaign contributions to U.S. political candidates. With respect to the Straw Donor Scheme, Parnas admitted that Fruman, rather than Parnas, paid for the donations made to the campaign of Congressman Pete Sessions in Parnas’s name, and that Parnas did not reimburse Fruman for those payments. Allowing Parnas to suggest otherwise, when he had in fact admitted those facts as true, would deceive the jury and subvert the truth-seeking purpose of trial. See Gomez, 210 F. Supp. 2d at 472.

Basically, this means that Parnas can now be held to what he told the government during his proffer. If he tries to deviate from that, they can then used his proffered testimony to disprove his claims. The government explains that they can avoid using this against Kukushkin by having the agent who would testify about the proffered testimony simply not mention Parnas’ inculpatory statements against Kukushkin.

Offering Parnas’s proffer statements to rebut specific claims he may make at trial will not infringe Kukushkin’s rights. Parnas discussed Kukushkin during his proffer, and if read in its entirety the report of Parnas’s proffer plainly inculpates Kukushkin. But the individual admissions that might be relevant to rebutting improper argument by Parnas—such as that Muraviev’s money was sought and used for donations—did not mention Kukushkin. Moreover, because the Government would offer Parnas’s statements through a testifying agent (rather than, for example, a recording), the relevant admission can easily be elicited without mentioning Parnas’s statements about Kukushkin.

All that’s the technicalities and hazards of what happens when someone contemplates a cooperation agreement but then — for whatever reason — doesn’t go through with it.

What I find interesting is the timing and circumstances of this proffer. Parnas had been claiming to want to cooperate far earlier than March 2020. In the interim, however, the government learned certain things (such as what files he had deleted from his iCloud and when) that would have made it easier to identify any lies Parnas told in his bid to convince prosecutors he wanted to cooperate. Plus, as we saw with Michael Cohen, SDNY requires cooperators to cooperate on everything they know, not just the crimes they’ve already been charged with.

Also in the interim, of course, Jeffrey Rosen sharply limited SDNY’s ability to investigate any new leads that Parnas may have given, without first getting approval from EDNY.

And then after Parnas went on the record describing (in part) the crimes for which he’ll go on trial next month, something happened to — quickly, given the single proffer session — make it clear a plea deal was not going to happen. In the 18 months since then, and especially in the five months since Lisa Monaco seems to have authorized SDNY to resume this investigation, DOJ would have been permitted to use Parnas’ proffer to develop new leads in SDNY’s investigation: This investigation, but also the investigation into Parnas’ influence peddling with Rudy.

SDNY Showed Probable Cause Rudy Giuliani Was Criming While He Represented Trump in the Russian Investigation

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In August, the Special Master reviewing Rudy Giuliani and Victoria Toensing’s seized phone contents for privilege determinations, Barbara Jones, publicly filed notice of a conflict between the Trumpsters and the government: how to apply the date range in the warrants.

There is a dispute between Mr. Giuliani and the Government over whether the Special Master’s review process should be limited to materials with electronic metadata within the date range set forth in the search warrants. Mr. Giuliani argues for such a date range limitation; the Government argues against it. I have informed the parties that the issue should be briefed to, and decided by, the Court, and that I would set a briefing schedule for Mr. Giuliani’s motion.

On Thursday, Judge Paul Oetken released his decision deciding the matter. Effectively, he adopted the government’s compromise that it exclude everything that pre-dates 2018.

On June 9, 2021, this Court appointed the Honorable Barbara S. Jones (Ret.) as Special Master to “render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants” that are the subject of this matter. (Dkt. No. 25.) Giuliani and Toensing ask the Court to restrict the Special Master’s review to the time periods set forth in the search warrants: August 1, 2018 to December 31, 2019 for Giuliani; and January 1, 2019 to December 31, 2019 for Toensing.

The Government has proposed a compromise that significantly limits the scope of the parties’ dispute: it consents to the Special Master’s excluding from her review any documents that clearly and entirely predate 2018. The Court approves this compromise and directs the Special Master to proceed accordingly.

But Oetken notes that the warrants permit the government to determine what materials are responsive to the warrant, meaning Jones should not determine anything further than what is privileged. And he laid out that the warrants permit the government to access materials that were deleted (or accessed, sent, or modified) between — for Rudy — August 1, 2018 and December 31, 2019.

Third, the warrants cover materials “sent, received, posted, created, or otherwise accessed, established, modified, or deleted during [the time range].” It is entirely possible that a document “dated” outside the time range may have been “accessed,” “sent,” “modified,” or “deleted” during the time range. Moreover, the warrants permit review of any of the seized material “if necessary to evaluate its contents and to locate all data responsive to the warrant.” See, e.g., United States v. Gatto, 313 F. Supp. 3d 551, 561 (S.D.N.Y. 2018).

The timeline here is consistent with what I intuited in this post — and, based on what Lev Parnas and others previously revealed, it clarifies the exact date range of the files obtained in November 2019. The Rudy range covers eight months of the period when he was representing Donald Trump in the Russian investigation, goes through the period when (Parnas has earlier alleged) people started deleting files during Trump’s first impeachment, and continues through the meeting Rudy had with Andrii Derkach in December 2019.

And unsurprisingly, the government obtained warrants covering the same period of the earlier search on the parties’ iCloud accounts by providing probable cause to show that they were deleting and modifying earlier files, even files from earlier in 2018, to include the period when both lawyers were pitching a means to represent Trump.

But it’s clear that Rudy and Toensing worry the government may find evidence of crimes that exceeds this timeline, which would give them the opportunity to obtain new warrants with a broader timeframe. That’s because they asked Oetken to force the government to delete everything else.

Finally, the Court denies Giuliani’s and Toensing’s request to order the Government to return or destroy any material at this time.

Oetken denied this request. This means materials that predate these warrants, but also materials from more recently, when Rudy was laundering Russian disinformation and making wildly false claims about the election results, would remain available for further search, if the government can or has demonstrated probable cause.

We’ll learn more about this next week. Oetken also ruled that the letters disputing all this, including those from Dmitro Firtash, will be docketed after the parties fight over redactions.

Networks of Insurrection: “Trump is literally calling people to DC in a show of force”

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This will be another of those posts where I catalog a few of the developments in the January 6 investigation that show how — Jocelyn Ballantine’s involvement notwithstanding — the many parts of the investigation are crystalizing around associations between rioters.

Michael Rusyn witnesses the initial East door break

First, in my continuing focus on the statements that DOJ obtains from those pleading guilty to trespassing charges, I’d like to look at the statement of offense from Michael Rusyn, who pled guilty Monday.

Rusyn was first IDed to FBI the day after the riot, interviewed by the FBI on February 17, and then arrested back in April, probably because he showed up in two key locations, obviously recording what happened on his phone. But after they arrested him and started pulling surveillance footage and exploiting his cell phone, they realized he was always accompanied by the same woman, about whom they had gotten a separate tip on January 7.

At least per Deborah Lee’s arrest affidavit, that’s how the FBI determined that Rusyn was the “Michael Joseph” she had tagged in her own Facebook posts from the riot, and that — as described in his statement of offense — he had lied when he told the FBI he didn’t know anyone on the bus he took to the riot.

On February 17, 2021, the defendant was interviewed by a Task Force Officer and an FBI Special Agent. During that interview, the defendant said the he traveled to Washington, D.C. by boarding a bus in Jessup, Pennsylvania at approximately 5:00 a.m., and that he did not personally know anyone on the bus. This was untrue: the defendant and Deborah Lynn Lee rode to Washington, D.C. together on the same bus. And, indeed, the defendant’s phone contained numerous photographs and video fo Lee outside the Capitol building, which it appeared had been recorded by the defendant, as well as numerous text messages between the defendant and Lee.

The rest of his statement of offense liberally implicates Lee in his actions, including by noting that she entered via the East doors first, and then reached out her hand and pulled him into the building (which also contradicts his initial claims).

At approximately 2:27 p.m., Deborah Lynn Lee entered the Capitol building through the breached door. She turned back across the threshold and extended her hand to the defendant, who took her hand and pulled himself through the crowd, across the threshold and into the Capitol. The two were among the first thirty to forty people to enter the Capitol after the breach of this door.

DOJ could have wired Rusyn’s plea, requiring that he wait until Lee pled guilty before they’d let him plea. Instead, though, they’ve acquired evidence against someone who made false claims about Antifa in the days after the riot.

Lee is also one of the John Pierce clients who has decided to stick with him — and so, presumably, with her false claims — after his bout with COVID.

In addition to making it much harder for his friend to sustain her lies about Antifa, though, Rusyn also provided witness testimony describing how the East doors got broken.

By approximately 2:10 p.m., the defendant stood on the East Side of the Capitol building, near the eastern, double doors at the top of the Capitol steps, leading to the rotunda. He was in a crowd of people, close enough to the crowd to see the front of the doors. A video that the defendant uploaded to Facebook at 2:10 p.m, and a photo that the defendant uploaded to Facebook at 2:16 p.m.,, capture these doors, including the windowpanes that would–shortly thereafter–be smashed in by members of the crowd.

Beginning at approximately 2:20 p.m., and continuing through at least approximately 2:24 p.m., members of the crowd began smashing several of the windowpanes of these doors. At approximately 2:25 p.m., another rioter opened one of the double doors from the inside; thereafter, that person and several other rioters opened this door widely enough to allow members of the crowd to breach the door and enter the Capitol.

This is straight witness testimony and validation of Rusyn’s own video, but it also debunks claims that a bunch of other rioters have tried to make in their own defense.

Rusyn’s statement of offense includes similar language describing the mob that tried to push their way into the House shortly thereafter.

Rusyn was allowed to plead to the less serious of the two trespassing charges. But his testimony and validated video will be quite useful for prosecutors to go after more serious defendants, including the details of how rioters opened a second front at the East doors.

Gary Wilson makes Brady Knowlton’s obstruction more obvious

In a similar case where DOJ arrested someone’s co-rioter months later, the government arrested a guy from Salt Lake City named Gary Wilson. Wilson is the guy who showed up in the photos used to arrest Brady Knowlton on April 7, who himself was arrested long after his buddy Patrick Montgomery was arrested on January 17.

The FBI used Wilson’s arrest warrant as an opportunity to fill in the details behind the earlier indictment of Montgomery and Knowlton, which added an assault charge against Montgomery and obstruction charges against both.

For example, it shows an exchange captured in Daniel Hodges’ Body Worn Camera just before Montgomery allegedly assaulted Hodges, as described in Wilson’s arrest affidavit.

At around 2:00 p.m. co-defendant Brady Knowlton confronted MPD officers who were making their way through the crowd and yelled at them saying, “You took an oath! You took an oath!” and “Are you our brothers?” Co-defendant Patrick Montgomery came up from behind Knowlton and said something to the officers, but it was hard to tell what he said. Officer Hodges then moved forward a few steps through the crowd. Wilson can be seen on Hodges’ video standing in the crowd (see screenshot above)—not far from where Montgomery and Knowlton were standing. In fact, Officer Hodges and Wilson collided as Officer Hodges tried to make his way through the crowd.

At approximately 2:02 p.m., Montgomery assaulted MPD Officer Hodges. An FBI special agent interviewed Officer Hodges on February 24, 2021. Officer Hodges told the FBI agent that at about 2:00 p.m. on January 6, 2021, he was making his way toward the west side of the Capitol to assist other officers. He was part of a platoon of about 35-40 officers. Officer Hodges said that right before 2:02 p.m., a very agitated crowd cut-off the platoon’s progress and split the group of 35-40 officers into smaller groups. Officer Hodges and a small group of officers ended up encircled by the crowd and the crowd was yelling at them “remember your oaths.”

Officer Hodges said that he was at the front of the group and attempted to make a hole through the crowd for himself and the other officers to continue their movement toward the Capitol. He yelled “make way” to the crowd. While trying to get through the crowd, he looked back to see other officers being assaulted by members of the crowd, which was yelling “push” while making contact with the officers. Hodges immediately turned back and started pulling assaulting members of the crowd off the other officers by grabbing their jackets or backpacks. After pulling a few people away from the officers, a man—later identified as Patrick Montgomery—came at Officer Hodges from his side and grabbed Officers Hodges’ baton and tried to pull it away from him. Officer Hodges immediately started to fight back and the two of them went to the ground, at which time Montgomery kicked Officer Hodges in the chest.

As Officer Hodges went down to the ground, his medical mask covered his eyes, which temporarily blinded him. He was laying on the ground, could not see, and was fighting to retain his weapon while surrounded by a violent and angry crowd. In that moment, he was afraid because he was in a defenseless position because of the assault. He was able to break Montgomery’s grip on the baton and get free.

The Wilson affidavit then shows how the three of them then entered the Capitol through the Upper West Terrace door, went to the Rotunda, witnessed Nate DeGrave and Ronnie Sandlin allegedly assaulting officers outside the Senate, then entered the Senate Gallery, all movements described in earlier filings but now documented with pictures.

From there, the threesome entered another hallway and had another confrontation with some MPD officers. Here again, the Wilson affidavit provides more detail (and a picture) of a confrontation explained in sketchy form in earlier filings.

Knowlton: “All you gotta do is step aside. You’re not getting in trouble. Stand down. For the love of your country.”

Unidentified rioter: “What happens if we push? Do you back up? We’re not gonna push hard.”

Knowlton: “This is happening. Our vote doesn’t matter, so we came here for change.”

Unidentified rioter: “We want our country back. You guys should be out arresting the Vice President right now.”

Wilson: “We came all the way from our jobs to do your job and the freaking senators’ job.”

The three men had one more confrontation with officers before they left the building around 2:54.

All this is important because, even aside from the possibility that these additional conflicts expose Montgomery and Knowlton to additional civil disorder or resisting charges, it all makes Knowlton’s obstruction much easier to show.

And that’s important because, as of right now, Knowlton is mounting the most mature (and best funded) challenge to the way DOJ has used obstruction charges against January 6 defendants. In a hearing overseeing that challenge, Judge Randolph Moss expressed concern (as Judge Amit Mehta similarly did in an Oath Keeper challenge of the application) of limiting principles, what distinguishes the actions of those charged with obstruction for January 6 from protestors complaining about the nomination of Brett Kavanaugh to the Supreme Court. This arrest affidavit doesn’t change the legal issues, but it does make it a lot easier to see that Brady Knowlton was no mere protestor.

There’s probably more that will come with this arrest — at the very least an opportunity to supersede Montgomery and Knowlton to add Wilson.

But we also may learn whether there’s a tie between these three guys (there’s a fourth who posed with Montgomery and Knowlton outside the Capitol, but he’s not known to have entered the Capitol) and two other Utahns who entered the Senate Gallery at almost the exact same time as these three, Janet Buhler (pictured just behind Knowlton and Wilson) and her step-son Michael Hardin.

After all, we’re still waiting to learn the identities of the Utahns that John Sullivan’s brother, James, discussed with Rudy Giuliani shortly after the riot. These four people (just four are Utahns — Montgomery lives in Colorado) are among just eight Utahns charged to date, and they all made it to the Senate Gallery at roughly the same time.

“It’s the only time hes ever specifically asked for people to show up”

The last recent arrest involving networks of people who rioted together charged Marshall Neefe and Brad Smith with conspiracy to obstruct the vote, assault, civil disorder, and the trespassing while armed that can carry a stiff sentence. Their charges under 18 USC 1512(k) marks at least the third time January 6 defendants were charged with conspiracy under that clause (as opposed to 18 USC 371, like most militias), with the two others being Eric “Zip Tie Guy” Munchel and his mom, and the SoCal 3%er conspiracy.

If DOJ’s application of obstruction to the vote count survives judicial review, charging a conspiracy under 1512(k) offers several things that 371 doesn’t offer: notably, very steep sentencing enhancements for threats of violence.

And these men did threaten violence. As early as December 22, Neefe talked of “wanna crack some commie skulls.” That day, too, Smith described getting axe handles to which he’d nail an American flag “so we can wave the flag but also have a giant beating stick just in case.” Like most of the 3%ers, Smith didn’t enter the Capitol, and for the same reason: because he believed entering the Capitol while armed would risk arrest. “I was the people crawling up the side of the building. I wasn’t going to jail with my KA BAR,” which he had described as his “Military killin knife” when he got it in December.

It’s tempting to think this conspiracy, like that of Munchel and his mom, is mostly tactical, a way to implicate both in the acts of one.

But there are references to efforts to “encourage[] others to join him and NEED to travel to Washington,” so it’s possible we’ll see later arrests similar to those of people networked with the 3%ers (for example, the Telegram Chat that Russell Taylor started is mentioned in the arrest affidavits for Ben Martin and Jeffrey Brown).

More interesting still is that this conspiracy might work like the (still-uncharged) one promised against Nate DeGrave and Ronnie Sandlin, two random guys who took action in direct response to Trump’s directions.

Charging this as a conspiracy focuses on the lead-up to the riot. It shows how these men started planning for war on November 4, “Why shouldnt [sic] we be the ones to kick it off?” It describes how they responded to Trump’s calls for attendance.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for a while.

It emphasizes the import these men ascribed to Trump’s calls for attendance.

SMITH wrote another Facebook user on December 22, 2020, “Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesnt [sic] burn right away. It’s the only time hes [sic] ever specifically asked for people to show up. He didn’t say that’s why but it’s obviously why.”

It shows how, in advance of the riot, both men came to understand that they might join militias in storming the Capitol.

On December 31, 2020, SMITH continued to message other Facebook users, encouraging them to go to Washington, D.C., on January 6, 2021. For example, he told one user, “Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.”

That same day — the same day Smith got his military knife — Smith talked with Neefe about how easy storming the Capitol would be.

“I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.”

By January 5, that turned into Smith’s call to “Sacrifice the Senate!!!!”

All that’s important background to Smith narrating their arrival by describing their actions as, “literally storming the Capitol.” Shortly thereafter, Neefe was involved in using a Trump sign as a battering ram against MPD officers. This may be the assault currently charged against Jose Padilla and others.

Even in retrospect, these conspirators spoke in terms that tie Trump’s actions to their own violence and threats of violence, bragging about responding to Pence’s refusal to fulfill Trump’s illegal demands by literally chasing members of Congress out of their chambers.

From January 6-7, SMITH posted, “Got Gassed so many times, shit is spicy but the Adrenaline high and wanting to ‘Get’ Pelosi and those fucks, it was bearable.” He also admitted, “Oh yeah. The time will come for some of them. But today’s mission was successful! Remember how they said today was the final day & that Biden would be certified? Well we literally chased them out into hiding. No certification lol [. . .]. Pence cucked like we knew he would but it was an Unbelievable show of force and it did its job.”

As far as we can tell, Marshall Neefe and Brad Smith are just bit players in this story, two guys who went to the Capitol and joined in the violence.

But that’s what makes them so useful, for showing how two bit players, believing they were taking orders directly from the President, armed themselves and helped implement a deliberate attempt to “literally chase[]” Congress away from the task of certifying the vote.

Rudy’s Other Grifter Prepares to Plead Guilty

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Earlier this month, I described how the government was sharing a bunch of evidence with Lev Parnas and his co-defendants. Most of it, the government explained, didn’t pertain to the trial due to start in October.

That suggested the government was showing Parnas and Igor Fruman what further legal jeopardy they faced in an effort to get them to flip.

[A] substantial amount of what the government is sharing is discovery on the additional charges Fruman and especially Parnas face, after they’re done with October’s trial and even after Parnas is done with a second, Fraud Guarantee trial. The government is effectively showing Rudy’s grifters what they have to look forward to in a Foreign Agent case involving Rudy Giuliani.

This is, almost certainly, an effort to convince them to plead guilty and flip on Rudy, which explains why the government is so intent on keeping the trial scheduled for October, to increase the pressure on the grifters.

Today, Fruman filed a change of plea notice. He’ll plead guilty on Wednesday.

While that doesn’t guarantee he’ll flip and cooperate against whatever defendants remain, he’ll get the most benefit at sentencing if he does.

That cooperation would presumably include, at a minimum, Rudy Giuliani for his efforts to get Marie Yovanovitch fired, an effort that led to impeachment in 2019.

How a Trump Prosecution for January 6 Would Work

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Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.

Assumptions

The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

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

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.

Questions

There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

Lev Parnas Finally Gets His Rudy Documents — But Not the Way He Wanted

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A filing in the Lev Parnas case reveals that Parnas is finally going to get the Rudy Giuliani files he asked for in May.

Yesterday, the lawyer for Andrey Kukushkin wrote asking for another delay in the trial currently scheduled to start on October 4. His request was largely COVID-driven, but he also revealed that the government had just informed him that they were providing more discovery which, he claimed, he wouldn’t have time to review.

Finally, we have just come to learn that the government has not yet completed Rule 16 discovery. Monday night the government, among other things, advised the defense that it required a new storage device capable of holding 64GB of data to make another production of unidentified discovery materials, the 11th so far. We anticipate it being a week before these materials will be in the defense’s possession, if not longer. The defense will require additional time to process, review and analyze these materials, which are in addition to the terabytes of data already received by the defense.

In opposing the request, the government explained that the new discovery was, in part, files from David Correia, the former co-defendant who entered into a cooperation agreement last year, and in part, materials that Judge Oetken had granted the government a Rule 16(d) extension for.

The defendants’ second argument is that an adjournment is necessary because the Government is producing additional materials to the defendants. These materials are being produced to the defendants nearly two months before trial. They will fit on a flash drive capable of holding up to 64 GBs, and the volume of the material is a small fraction of what has been produced to the defendants over the last two years (which represents multiple terabytes of data). The majority of the materials are: (i) records from devices belonging to David Correia, which were not previously reviewed and produced because they were the subject of an appeal that was only resolved after he pled guilty; (ii) materials seized from non-parties that were subject to the Rule 16(d) extension order previously issued by this Court;1 and (iii) images and other multimedia files that were seized from devices that were previously produced in whole or in part. The Government does not believe that all of these materials are discoverable under Rule 16, and in fact the vast majority of the materials have no relevance to the case proceeding to trial in October. To the extent defense counsel has any questions about the material, the Government would be happy to discuss the materials with counsel. The defendants will not be prejudiced by the production of this material now given the amount of time before trial and the relatively small amount of material on the flash drive. Additionally, the defendants will not be prejudiced because any materials the Government intends to use in its case-in-chief from this latest production will be identified in its exhibit list that will be shared with defense counsel later this month.

1 The Government took the position that many of the materials subject to the Rule 16(d) order did not need to be produced in discovery. On May 20, 2021, the defendants requested a conference to address whether the materials were discoverable under Rule 16. The Government opposed disclosure, but represented it would produce a limited subset of material. On July 14, 2021, based in part on the Government’s representations, the Court denied the defendants’ request for the materials. The Government is now producing limited materials from these third parties’ accounts consistent with its prior representations. [my emphasis]

We know the materials withheld under a Rule 16(d) extension are the files seized from Rudy Giuliani and Victoria Toensing’s iCloud accounts (as well as those of some Ukrainians) three ways. First, that’s what Parnas’ lawyer Joseph Bondy demanded in the May 20 request referenced in the footnote. And the government’s response to Bondy’s request explained that Oetken had authorized them under Rule 16(d) to delay sharing the material with the defendants on November 8, 2019. Finally, this is the July 14 order Judge Oetken issued denying Parnas and others the materials.

More interesting than that DOJ has shared these files, though, is what DOJ said about sharing this information more generally. It claims it didn’t have to turn over all these materials and, “the vast majority of the materials have no relevance to the case proceeding to trial in October.”

As a reminder, there are four different alleged crimes at issue. There are these three, the last of which has been severed from the trial due to start in October (these descriptions are from Oetken’s July opinion).

The “Straw Donor Scheme” (Parnas and Fruman): First, the Government alleges that Parnas and Fruman conspired in 2018 to disguise and falsely report the source of donations to political action committees and campaigns, thereby evading federal contribution limits, in order to promote their nascent energy business venture and boost Parnas’s profile.

The “Foreign Donor Scheme” (Parnas, Fruman, and Kukushkin): During the same time period, Parnas and Fruman were working with Kukushkin on a separate business venture: a nascent cannabis business. Among their activities was making political contributions to candidates in states where they intended to seek licenses to operate a cannabis business. The Government alleges that Parnas, Fruman, and Kukushkin conspired to disguise a one-million-dollar contribution from a Russian national to evade the prohibition on political contributions from foreign nationals.

The “Fraud Guarantee Scheme” (Parnas): Parnas was also working with David Correia on pitching another business venture to be called “Fraud Guarantee.” The Government alleges that Parnas and Correia defrauded several investors in Fraud Guarantee by making material misrepresentations to them, including about the business’s funding and how its funds were being used.

In addition, there’s an allegation relating to Yuri Lutsenko’s efforts to get Marie Yovanovitch fired, which was included in the first indictment but taken out in the superseding one.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

The government says the vast majority of these materials don’t relate to the case being tried in October. That means these materials might pertain to Parnas’ Fraud Guarantee case — and indeed, the David Correia files almost certainly pertain to that. It makes sense that files seized from Rudy might pertain to Fraud Guarantee, too.

More interesting still, they’re highly likely to pertain to the Lutsenko charge given that that was the subject of the warrant obtained to seize them (and both the government and Oetken made clear that the government adhered closely to the scope of the warrant in searching through the materials).

That means a substantial amount of what the government is sharing is discovery on the additional charges Fruman and especially Parnas face, after they’re done with October’s trial and even after Parnas is done with a second, Fraud Guarantee trial. The government is effectively showing Rudy’s grifters what they have to look forward to in a Foreign Agent case involving Rudy Giuliani.

This is, almost certainly, an effort to convince them to plead guilty and flip on Rudy, which explains why the government is so intent on keeping the trial scheduled for October, to increase the pressure on the grifters.

Did Paul Gosar Take Actions on Behalf of Donald Trump that Contributed to Ashli Babbitt’s Death?

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In this post, I noted that just nine minutes before accused January 6 defendant Brady Knowlton entered the Capitol at 2:35, Donald Trump called Tommy Tuberville. Later in the day, Rudy Giuliani would ask Tuberville to delay the vote certification by challenging more states. If that’s what Trump asked Tuberville to do on that first call and if Tuberville complied with Trump’s request, he and the rest of his colleagues might still have been in the Senate when Knowlton and others started to swarm in.

Instead, Tuberville told the President he had to go because the Senators were being evacuated, following shortly on the evacuation of Mike Pence just minutes before Trump called.

We only know of Trump’s call to Tuberville because Trump — and later Rudy Giuliani — dialed the wrong number, calling Mike Lee’s phone instead of Tuberville’s.

We don’t know who else Trump was calling at the time, though in recent days Jim Jordan has admitted he spoke to Trump that day, while dodging wildly about when that happened and what Trump said.

What we do know is that someone on the other side of the Capitol was doing exactly what Trump later asked Tuberville to do: Paul Gosar, who coordinated closely on all aspects of the insurrection with Trump, was raising more challenges to the vote.

That’s of particular interest because the NYT, in their superb documentary on the chronology of the day (starting at 25:40), suggests that the chain of events that led to Ashli Babbitt’s death started with Jim McGovern’s decision to get through one more person’s challenge of the vote, Gosar’s.

By 2:30 PM the Senate evacuation is well underway. But, even though a lockdown was called over 15 minutes ago, the House is still in session.

Gosar: I do not accept Arizona’s electors as certified.

Representative Jim McGovern is chairing. He told us he wanted to finish hearing objections to the election results by Paul Gosar. House staff and security gave McGovern the all-clear to continue. It’s a delay that likely cost someone their life.

Suddenly, staff are now pointing at the Chamber’s doors.

Please be advised there are masks under your seats. Please grab a mask and place it in your lap and be prepared to don your mask in the event we have a breach.

Just outside, a mob of a hundred or more is baying to get into them.

Well, we came this far, what do you say?

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

These rioters pay little heed to the thin line of police.

They’re going. I would just stop.

And in moments, are pushing against doors into the House.

Stop the Steal! Stop the Steal!

On the other side, Capitol police erect a barricade and draw their guns. On the floor, lawmakers are evacuating to the rear of the chamber, where in a few minutes a rioter will be shot and killed. Part of the mob inside now peels off in that direction to find a different way in. Ashli Babbitt, an Air Force veteran and a QAnon supporter is among the first to arrive at the rear of the House.

There they are! What the fuck!

They see the lawmakers escaping. That lobby might have been clear had the House been evacuated sooner. But the rioters now become incensed. Zachary Alam, a Trump supporter punches in the glass panels with his bare fists.

Stop the Steal! Open the door. Break it down! Break it down!

Police are stretched extremely thin. Just three officers and a security officer stand guard. None are wearing riot gear and they keep their weapons holstered. When a team of heavily armed police now arrives, the three officers step aside.

Go! Let’s go! Get this thing!

This creates a crucial gap that allows rioters to smash in the glass. [A warning: what happens next is graphic.] It’s 2:44PM and behind the door a police officer draws his handgun.

There’s a gun. There’s a gun! He’s got a gun! He’s got a gun!

Babbitt vaults into the window. And the officer shoots her once. It’s a fatal wound, through the upper chest.

Gosar’s challenge delayed the evacuation of the House, meaning that rioters spied the lawmakers evacuating through the Speaker’s lobby as they arrived. NYT suggests that viewing the lawmakers in such close proximity inflamed the rioters, leading Zach Alam to punch through the door and Babbitt to leap through it in an attempt to chase after them, in turn leading to an officer’s decision to use lethal force to protect fleeing Members of Congress.

One minute after Babbitt was shot, surveillance footage caught Knowlton entering the Senate Chamber at 2:45. Had Trump convinced Tuberville to stay, the same kind of confrontation might have happened in the Senate Chamber, too (and video shows that Mitt Romney, already a target for Trump’s supporters, narrowly avoided running into the mob as well).

If a Tuberville delay might have orchestrated a similar clash on the Senate side, it raises questions whether Trump was involved in the Gosar delay.

As it happens, Gosar is among the most active purveyors of the martyr myth surrounding Ashli Babbitt, including tweeting out this image that seemes almost necrophiliac in composition, with its focus on his crotch and her name.

But the fact that Trump was actively calling Members of Congress well after rioters stormed the building, and the fact that Gosar caused what the NYT deemed the fatal delay on the House side, it’s possible that he and Trump had a bigger role in ensuring that Babbitt jumped through that window to chase Gosar and his colleagues. It’s possible Gosar created that delay because Trump asked him to.

CNN reports that the January 6 commission is weighing whether to obtain White House call logs (Trump made the call to Tuberville from the main White House line).

The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.

The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.

Liz Cheney may well be thinking of tracking Trump’s calls to Kevin McCarthy. But the import of Gosar’s delay to the shooting of Ashli Babbitt by itself presents a good reason to subpoena those records.