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Bill Barr’s Entire DOJ Chased Trump Conspiracy Theories and Plotted Inappropriately

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When Bill Barr resigned rather than do the President’s bidding to challenge elections that were perfectly fair, he could have revealed that fact publicly, okayed the indictment of one of the chief purveyors of election conspiracies, Rudy Giuliani, and admitted that the entire basis for undermining the prosecution of Mike Flynn — who had already called for martial law and an election do-over — was based on conspiracy theories spun by the same woman spinning the worst election hoaxes, Sidney Powell.

He didn’t do that.

Instead, he announced his resignation with a page of abject sycophancy that repeated the conspiracy theory that got Barr hired: that the Russian investigation was, “an effort to cripple, if not oust, your Administration with frenzied and baseless accusations of collusion with Russia.”

Even before that, though, Barr launched his letter with an ambiguous statement about the election, one that might be read either as endorsing Trump’s conspiracy theories or debunking them:

I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued. At a time when the country is so deeply divided, it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to assure the integrity of elections and promote public confidence in their outcome.

At a moment where he had maximal power to halt Trump’s efforts to overturn an election, then, Barr instead just cowered, resting on the one public statement that there was not sufficient fraud to overturn the election that had gotten him ousted.

Which is to say that to the end, Barr never foreswore the conspiracy theories he adopted in service to Donald Trump.

Now, however, others who also facilitated Donald Trump’s conspiracy theories for years until they, in the final days, didn’t, are seeding stories to suggest that Jeffrey Bossert Clark was in any way unique for doing so.

The story starts with a tale that suggests the top leaders in a DOJ that had broken all norms in service of Donald Trump weren’t, themselves, in the “Trumpist faction” of the Republican Party.

It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they admonished Jeffrey Clark, the acting head of the civil division, for repeatedly pushing them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers.

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen thought the matter had been settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

The department’s senior leaders were shocked when Mr. Clark’s machinations came to light. They have spent recent weeks debating how he came to betray Mr. Rosen, his biggest champion at the department, and what blend of ambition and conviction led him to reject the results of the election and embrace Mr. Trump’s claims, despite all evidence to the contrary, including inside the department itself. [my emphasis]

You’ll note that the NYT didn’t explain why it granted six surely very powerful people, mostly lawyers, anonymity to spin this tale?

Buried much deeper in the story, however, after retelling all the ways Clark broke normal procedure while running the Environmental Division, the NYT then explains how he came to be Acting head of the Civil Department and in that role took a number of inexcusable steps that neither Bill Barr nor Jeffrey Rosen objected to (indeed, those may have been the steps that drove Jody Hunt away and won Clark the job).

While Mr. Clark oversaw environmental cases, sometimes working late into the night and personally reviewing briefs, the department’s civil division was in turmoil. Its leader, Jody Hunt, sometimes clashed with the White House Counsel’s Office and, later on, with Attorney General William P. Barr, over how best to defend the administration.

Mr. Hunt resigned with no warning in July, leaving his deputy to run the division while Mr. Barr and Mr. Rosen searched for an acting leader among the department’s thinned-out ranks. Mr. Clark wanted the job, which was a considerable step up in stature, and Mr. Rosen supported the idea even though he was already a division head, according to three people with knowledge of the situation.

After he took the helm of the civil division in September, colleagues began seeing flashes of unusual behavior. Mr. Clark’s name appeared on eyebrow-raising briefs, including what would turn out to be an unsuccessful effort to inject the government into a defamation lawsuit against Mr. Trump by a woman who has said he raped her more than two decades ago. He also signed onto an attempt to use the Justice Department to sue a former friend of the first lady at the time, Melania Trump, for writing a tell-all memoir.

Remember: the currently operative story is that Clark didn’t know Trump until Congressman Scott Perry introduced them, presumably after the election.

It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.

Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.

He didn’t get the Civil job because Trump picked him or because he promised to turn DOJ into Trump’s own personal law firm. Someone else must have picked him. That means Clark’s other decisions — one of which he took the day after he was installed and which were “Trumpist” by any definition of the term — had the full approval of the people now suggesting he went rogue later in the year. Indeed, those interventions may have been the entire reason he got picked to run the Civil Division.

Sure, Jeffrey Bossert Clark should be shunned in the respectable legal profession for helping Trump attempt a coup. But so should the men who willfully let DOJ champion Trump’s conspiracy theories for the two years before that.

Now We Know Why Jeffrey Rosen Has Been Silent, How About Chris Wray?

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Since the attempted coup, both Jeffrey Rosen and Chris Wray (and Wray’s then-Deputy David Bowdich) were almost silent about the attack. A week after the attack, Rosen  a video in the middle of the night, explaining what he had done during the coup.

The day after, Wray released a short statement. More than a week later, he spoke at a closed-press meeting on inauguration security. Neither provided the kind of daily updates one would expect after such an attack.

Last night (as Rayne laid out here), NYT reported on why Rosen was so silent: because he’s a witness in what should be a criminal investigation into how the attack relates to the effort to overturn the election.

As the NYT lays out, in the days leading up to the coup attempt, Trump already tried to replace Rosen with someone, Jeffrey Bossert Clark, who would be willing to take steps to overturn the vote.

The effort to force Rosen to use DOJ resources to undermine a democratic election started on December 15, the day after Bill Barr resigned.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

Then, over the weekend in advance of the certification, Assistant Attorney General Jeffrey Bossert Clark told Rosen Trump was going to make him Attorney General so he could chase Rudy Giuliani’s conspiracy theories.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy to the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

In a replay of the 2004 Hospital Hero moment, the others involved (including White House Counsel Pat Cipollone) agreed they’d resign en masse if Trump replaced Rosen, which led him to back off the plan.

NYT had four sources for this story, all of whom fear — even after Trump has been relegated to Florida — retaliation.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Clark claimed there were errors in this story, but ultimately he claimed Executive Privilege (his statement to WaPo on the topic, which I’ve used here, is more expansive).

In a statement that seemed to draw on language in the New York Times account, Clark said, “I categorically deny that I ‘devised a plan . . . to oust’ Jeff Rosen. . . . Nor did I formulate recommendations for action based on factual inaccuracies gleaned from the Internet.”

“My practice is to rely on sworn testimony to assess disputed factual claims,” Clark said. “There were no ‘maneuver[s].’ There was a candid discussion of options and pros and cons with the President. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions. . . . Observing legal privileges, which I will adhere to even if others will not, prevent me from divulging specifics regarding the conversation.”

The WaPo version of this story names all who were involved in the confrontation with Trump (though the sources for the story are likely, in part, their aides).

At the meeting were Trump, Clark and Rosen, along with Richard Donoghue, the acting deputy attorney general; Steven A. Engel, the head of the department’s Office of Legal Counsel; and Pat Cipollone, the White House counsel, the people familiar with the matter said. The people said Rosen, Donoghue, Engel and Cipollone pushed against the idea of replacing Rosen, and warned of a mass resignation.

Clark says he will only respond to a sworn statement. By all means, the impeachment managers should demand sworn testimony, from all involved.

Of course, that would mean Pat Cipollone, who led the former President’s defense in his first impeachment trial, would be asked about the second time Trump tried to use government resources to cheat. Steve Engel, who authorized the withholding of a whistleblower complaint describing Trump’s earlier attempt, would also testify. Rosen, who participated in having DOJ chase Sidney Powell’s conspiracy theories about Mike Flynn, would be asked to testify about why the conspiracy theories about Dominion machines were any less credible than the Flynn ones. And Donoghue, who served as a filter for some of the conspiracy theories Rudy Giuliani had been fed by men who have since been named Russian agents, would be asked to testify about why Rudy wasn’t a credible source.

Rosen was silent in his final two weeks, presumably, for fear he might get fired and replaced by someone who would be more pliant to a coup attempt. But he — and the three others — are also witnesses to a larger plot that ended up in violence and death.

I wonder if Chris Wray has similar evidence he’ll be asked to share.

Crowdsourced Timeline: Tick-Tock to Insurrection and Beyond [UPDATE-3]

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[NB: Check the byline. Updates or changes to this timeline will be emphasized (note dark blue font). /~Rayne]

You’ll recall Marcy’s January 8 post, “Investigate Tommy Tuberville’s Pre-Speech and Debate Actions” in which she wrote about Rudy Giuliani’s January 6 phone calls intended for Sen. Tommy Tuberville (R-AL).

EDIT: One The first call was received by Sen. Mike Lee (R-UT), which he handed over to Tuberville even as they were preparing to evacuate the Senate chambers. The caller was Trump.

Giuliani’s The second call, from Rudy Giuliani, was left instead on another unnamed senator’s phone.

Giuliani’s voicemail message asked Tuberville to slow down the election certification process on January 6, buying Team Trump time to get more information from states to contest multiple states’ elections with the aim for states to pull their certifications of their elections altogether.

How this would all come together and result in an overturned election wasn’t clear. What was the mechanism by which the states, which had already certified their elections, would reverse those certifications?

Last evening a missing piece dropped, deep in the Friday night news dump zone. The New York Times reported Trump and a little-known Department of Justice attorney, Jeffrey Clark, attempted a takeover of the DOJ, with the intent to use the department’s powers to persuade the state of Georgia to overturn its election results.

Overturning Georgia’s results and fraudulently awarding the state’s electoral votes to Trump wouldn’t have been enough to give Trump the election. But the same powers might have been used to pressure other states or to provide cover for states with GOP elected officials or legislature which favored Trump. We really need to know if Trump made calls to other states like the one he made to Georgia’s secretary of state to lean on him for 11,780 votes.

~ ~ ~

The following timeline has been pulled together from community members harpie’s and Eureka’s comments over the last several weeks as reports were published about the events leading up to and during the January 6 Capitol Building insurrection.

11/12/2020 — Cybersecurity and Infrastructure Security Agency (CISA) Director Chris Krebs said he expected he would be fired for CISA’s website dedicated to debunking election-related disinformation, much of which was spread by Trump and campaign associates.

11/17/2020 — Krebs was fired by Trump tweet after Krebs tweeted, “59 election security experts all agree, ‘in every case of which we are aware, these claims (of fraud) either have been unsubstantiated or are technically incoherent.’”

11/17/2020 — Michigan election officials certified the state’s election.

11/18/2020 — 8:04 AM – Trump tweets that Michigan can’t certify its election because of voter fraud.

11/18/2020 — GOP Michigan election officials attempt unsuccessfully to rescind their certification of the state’s election.

11/25/20 — Sham “hearing” in Gettysburg, PA (Rudy, Jenna, Trump via phone).

11/25/2020 — Michael Flynn pardoned by Trump.

11/30/2020 — Trump nominated Charles Flynn to be the Army’s “deputy chief of staff for operations, plans and training.”  submitted a nomination for elevation of Lt. Gen. Charles Flynn to full general. Flynn began his current and ongoing role as Deputy Chief of Staff G3/5/7 in June 2019; he is retired Lt. Gen. Michael T. Flynn’s sibling.

12/01/2020 — Attorney General Bill Barr told Associated Press there was no widespread voter fraud during the November 2020 election, disputing Trump’s claims to the contrary.

12/01/2020 — Michigan’s state senate oversight committee held a 7-hour long hearing listening to testimony about the conduct of the November general election.

12/02/2020 — Rudy Giuliani appeared before Michigan’s state house oversight committee in a hearing about the conduct of the November general election; Giuliani maintained Trump won the election. Neither state senate or house oversight committees “have the power or authority to mandate a recount, audit or review of vote processes anywhere in the state.”

12/08/2020 — Texas Attorney General Ken Paxton files suit with U.S. Supreme Court against Georgia, Michigan, Pennsylvania, and Wisconsin in an effort to force elections in these states back to their respective states’ legislatures where they could be invalidated.

12/11/2020 — Texas v. Georgia, Michigan, Pennsylvania, and Wisconsin dismissed by SCOTUS for lack of standing; Trump escalates pressure on DOJ leadership officials (*including Barr* and Rosen) to file suit in Supreme Court to overturn relevant states.

12/12/2020 — General Michael Flynn and Family speak at Jericho March in DC.

12/12/2020 — 8:47 AM Trump tweets, WE HAVE JUST BEGUN TO FIGHT!!! [time stamp subject to confirmation]

12/12/2020 — approx. 9:00 AM Proud Boy leader Enrique Tarrio posts a photo (which appears to be taken by someone else) on Parler social media platform. 

12/14/2020 — Jacob Chansley (now recognized as the buffalo-headed shirtless insurrectionist) was reported to Capitol Police for 12/14 for carrying a weapon on Capitol Grounds; “higher ups” okay’d him being there.
[see https://twitter.com/mcbyrne/status/1350137671084089345]

12/14/2020 — Trump announced by tweet AG Bill Barr’s resignation effective 12/23/2020. Barr confirmed his resignation by letter to Trump.

12/15/2020 — Trump summons Acting Attorney General Jeffrey Rosen to the Oval Office and makes requests detailed in NYT article; Rosen refuses; he “reiterated what Mr. Barr had privately told Mr. Trump: The department had investigated voting irregularities and found no evidence of widespread fraud.”

After 12/15/20 — [Date(s) TBD] Trump continues to press Rosen in phone calls and in person.

Mid December  — [Date(s) TBD] Clark had been introduced to Mr. Trump by  Rep. Scott Perry (R-PA); he told the president that he agreed that fraud had affected the election results. Mr. Trump quickly embraced Mr. Clark, who had been appointed with Rosen’s assistance the acting head of DOJ’s civil division in September; Clark was also the head of the department’s environmental and natural resources division, confirmed October 2018.

Mid to Late December — [Date(s) TBD] Trump complains about U.S. Attorney-Northern District of Georgia Byung J. “BJay” Pak. Deputy Attorney General Richard Donoghue warns Pak.

Mid to Late December — [Date(s) TBD] Clark drafts a letter that he wants Rosen to send to Georgia state legislators. Rosen and Donoghue again reject Mr. Clark’s proposal

12/19/2020 — Trump, Sydney Powell and Mike Flynn meet at WH [NYT].

“During an appearance on the conservative Newsmax channel this week, Mr. Flynn pushed for Mr. Trump to impose martial law and deploy the military to ‘rerun’ the election. At one point in the meeting on Friday, Mr. Trump asked about that idea. […]”

12/19/2020 — Trump tweets about the Solar Winds hack.
[see https://twitter.com/emptywheel/status/1340666651658899457 ]

12/20/2020 — Charles Flynn‘s elevation to full general from lt. general confirmed by the Senate by voice vote to be Army’s “deputy chief of staff for operations, plans and training.”.

12/21/2020 — Sidney Powell was back at the White House again, for third time in four days [NYT]

12/23/2020 — Bill Barr’s last day as AG.

12/23/2020 — Paul Manafort, Roger Stone, Charles Kushner, and 23 other individuals were pardoned by Trump.

12/23/2020 — Trump arrived late evening at Mar-a-Lago for vacation through New Year’s Day.

12/30/2020 — Trump to quit FL vacation early, return to DC on 31st:

“The White House announced the abrupt change in the president’s schedule late Wednesday, hours after Sen. Josh Hawley, R-Mo., said he would raise objections next week when Congress meets to affirm President-elect Joe Biden’s victory in the November election.”
[see https://apnews.com/article/donald-trump-politics-florida-coronavirus-pandemic-mar-a-lago-87a839746b4d1a6dca7441791bbc20bc]

12/31/2020 — Rep. Louie Gohmert (R-TX) and 10 other plaintiffs from across the GOP filed suit in Texas federal court against Vice President Mike Pence, asking the court to find Pence has the authority to certify the election, possibly throwing out the results in states previously contested by TX AG Paxton.
[see https://www.nytimes.com/2020/12/31/us/politics/justice-department-mike-pence-louie-gohmert.html]

12/31/2020 — DOJ’s Rosen, Donoghue, and Clark meet to discuss Clark’s refusal to hew to the department’s conclusion that the election results were valid. Donoghue is blunt and tells Mr. Clark that what he was doing was wrong.

01/01/2021 — Trump appointee U.S. District Court Judge Jeremy Kernodle dismissed Rep. Louie Gohmert’s lawsuit against VP Pence for lack of standing.

01/01/2021 — Clark tells Rosen that he was going to discuss his strategy with the president early the next week. [How and when was this decision made?] [But this meeting ended up happening “over the weekend”: Saturday 1/2/21, Sunday 1/3/21]

01/01/2021 and/or 2 — Capitol Police Chief Steven Sund confers with D.C. Police Chief Robert J. Contee III, who offered to lend a hand if trouble arose.

01/02/2021 — “Roughly a dozen Republican senators are in talks to join Missouri Senator Josh Hawley in objecting to the electoral college results when congress meets Wednesday, according to multiple Republican sources familiar with the ongoing talks.”
[see https://twitter.com/johnkruzel/status/1349198860573421568]

01/02/2021 — Trump along with on the call were WH Chief of Staff Mark Meadows, attorney Cleta Mitchell calls Georgia’s secretary of state Brad Raffensperger and the GA legal counsel Ryan Germany, pressuring him to “find 11,780 votes” in order to change the outcome of Georgia’s election. Raffensperger and Germany refute Trump’s claims he won GA’s election.

01/02/2021 and/or 01/03/2021 — [Date(s) TBD] Clark meets with Trump.

01/03/2021 — 8:57 AM – Trump tweets about the call to GA-SoS Raffensperger. Raffensperger tweets a reply, saying, “Respectfully, President Trump: What you’re saying is not true.”

01/03/2021 — Midday [time TBD] Clark informs Rosen that he had met with Trump and that the president intended to replace him with Clark, who could then try to stop Congress from certifying the Electoral College results. He says that Rosen could stay on as his deputy attorney general. Rosen insisted on talking with Trump.

01/03/2021 — Early afternoon – The Washington Post releases a story along with a roughly one-hour-long audio recording of Trump’s conversation with Raffensperger the previous evening.

01/03/2021 — Afternoon – Rosen works with Cipollone, to convene a meeting with Trump for early that evening.

01/03/2021 — Later afternoon – Donoghue convenes a call with the department’s remaining senior leaders, laying out Clark’s efforts to replace Rosen. Should  Rosen be fired, they all agreed to resign en masse.

01/03/2021 — 6PM – 9PM White House meeting convened with Trump, Rosen, Donoghue, Clark, White House Counsel Pat Cipollone, Deputy Counsel Pat Philbin, Assistant Attorney General for the Office of Legal Counsel Steve Engel, “and other lawyers.”

01/04/2021 — Sund called House Sergeant at Arms Paul Irving and Senate Sergeant at Arms Michael Stenger to ask for permission to request that the National Guard be put on emergency standby. Irving didn’t like the idea, Sund said; he said it would look bad because it would communicate that they presumed an emergency. He said he’d have to ask House leaders. [DID HE ASK PELOSI?] [Questionable if that was necessary. See 1:15 PM, 1/6/21]

01/04/2021 — Following Stenger’s advice, Sund calls Maj. Gen. William J. Walker, the head of the 1,000-member D.C. National Guard, to tell him that he might call on him for help. Walker says he thought he could send 125 personnel fairly quickly.

01/05/2021 — Sund [said he] briefed Irving and Stenger, who said that backup seemed sufficient.

01/05/2021 — More than 100 representatives from Wisconsin, Michigan, Pennsylvania, Arizona and Georgia asked for at least 10 more days, so they could investigate and then vote on the election in their state legislatures. The two-page letter with more than 60 pages of attachments was sent to Pence to purportedly show “the illegalities present in the 2020 election” and provide “evidence of a coordinated and structured multi-state effort to undermine state law protecting election integrity.”
[see https://wisconsinexaminer.com/2021/01/14/these-15-state-legislators-asked-pence-not-to-certify-election-results/]

01/05/2021 — Capitol Building CCTV feeds showed Reps. Louie Gohmert R-TX, Jim Jordan R-OH, Matt Gaetz R-FL, Lauren Boebert R-CO, Marjorie Taylor Greene R-GA, Paul Gosar R-AZ, Andy Biggs R-AZ were involved in giving ‘reconnaissance’ tours to groups 1/5.
[Disclosed on 01/13/2021 via https://twitter.com/FrankSowa1/status/1349574338060685312]  Claim regarding CCTV not verified. Rep. Mikie Sherrill (D-NJ) later shared via Facebook live broadcast that she had seen “members of Congress who had groups coming through the Capitol that I saw on January 5th as a reconnaissance for the next day”; she and 33 other House Dems later requested an investigation into these tour(s). 

01/05/2021 — Georgia’s U.S. Attorney Bjay Pak resigned unexpectedly. A “Never-Trumper” U.S. Attorney was mentioned but not named in Trump’s phone call to Georgia’s SoS Raffensperger on January 2; it’s believed Pak was the subject.

01/05/2021 — VP Pence tells Trump he doesn’t have the authority to overturn election results. Trump rejects this. (This needs to be validated as perspectives in multiple outlets are sourced to NYT’s Haberman.)

—————

01/06/2021 — Day of Capitol Building insurrection

TBD — Rep. Lauren Boebert (R-CO) was photographed at the Women for America First event during the rally in front of the White House. [Exact time TBD; unclear how and when she gets to the Capitol Building ahead of the rioters.]

Just before 12 PM — Sund was monitoring Trump’s speech to the crowd on the Ellipse when he was called away by reports of two pipe bombs — near the Capitol grounds.

12:40 PM — The first wave of rioters arrived at the Capitol Building roughly 40 minutes after Trump had begun speaking at the Ellipse.

1:00 PM — Sund called Contee, who sent 100 District of Columbia (DCPD) police officers to the scene

1:09 PM — Sund [said he] called Irving and Stenger, telling them it was time to call in the Guard.

He wanted an emergency declaration. Both men said they would “run it up the chain” and get back to him, he said. [Questionable if that was necessary. See 1:15 PM, 1/6/21] // Sund said he called Irving twice more and Stenger once to check on their progress.

1:10 PM — Some officers arrive from DCPD.

[1:15 PM?] — [Minutes later] aides to the top congressional leaders were called to Stenger’s office for an update on the situation — and were infuriated to learn that the sergeants at arms had not yet called in the National Guard or any other reinforcements, as was their responsibility to do without seeking approval from leaders.

1:50 PM — Sund called Maj. Gen. William J. Walker, the head of the 1,000-member D.C. National Guard to tell him to get ready to bring the Guard.

1:59 PM — The Capitol Building was breached. D.C. police had hundreds of officers on the scene.

2:10 PM — Irving called back with formal approval. By then, plainclothes Capitol Police agents were barricading the door to the Speaker’s Lobby just off the House chamber to keep the marauders from charging in.

2:10 PM (est.) — Rudy Giuliani Trump called Sen. Tommy Tuberville (R-AL) around this time, before senators were evacuated, but reached Sen. Mike Lee’s (R-UT) phone. Lee handed his cell phone to Tuberville who spoke with Giuliani Trump briefly.

2:13 PM — Vice President Pence was escorted off the Senate floor. Sen. Charles E. Grassley begins presiding, but almost immediately calls a recess.

2:15 PM — Senate sealed. [WaPo]

2:17 PM — [Boebert tweets] We were locked in the House Chambers

2:18 PM — [Boebert tweets] The Speaker has been removed from the chambers.

2:XX PM — Exact time TBD – Rep. Ayanna Pressley and staff notice the panic button for her office had been removed without any notice. The button had been functional and used previously.

2:20 PM — Capitol was on lockdown. [NOTE: I have to find a cite for this]

2:21 PM — Jim Acosta from CNN tweets (link to tweet needed):

“A source close to the White House who is in touch with some of the rioters at the Capitol said it’s the goal of those involved to stay inside the Capitol through the night.”

2:22 PM — Capitol Police chief Sund requests National Guard support.

2:23 PM — A dense group of protestors rioters* has shattered the windows of the Capitol. We can hear roaring chants of “USA” outside. [VIDEO]

2:24 PM — [TRUMP TWEETS about PENCE / ECHOES CROWD: “USA”]

CROWD: ‘Where is Pence? Find Pence!’ ” and also “Fight for Trump!” [NYT]

2:26 PM — CONFERENCE CALL organized by D.C’s homeland security director, Chris Rodriguez. Among those on the screen were the District’s police chief, [D.C. Police Chief Robert J. Contee III] mayor [Bowser] and Walker. [head of the 1,000-member D.C. National Guard]

3:04 PM — [DOD said] Acting Secretary of Defense Christopher Miller verbally authorized the activation of the entire D.C. Guard

3:45 PM — Stenger told Sund that he would ask his boss, Senate Majority Leader Mitch McConnell (R-Ky.), for help getting the National Guard authorized more quickly. Sund never learned the result.

More of Contee’s officers had arrived and were helping remove rioters from the grounds. Capitol Police worked with other federal authorities, including the Secret Service, the Park Police and the FBI, to secure lawmakers, eject rioters and sweep the building so lawmakers could return to finish counting the electoral college votes that would allow them to formally recognize Biden’s victory later that night.

5:40PM — First National Guard personnel arrive at the Capitol.

About 7:00 PM — Rudy Giuliani leaves a voicemail message for Sen. Tuberville but on a senator’s phone.

[RUDY:] “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you.”
“If you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote.”

After 8:00 PM — Congress reconvenes and completes certification of the election.

—————

01/13/2021 — Trump tells staff not to pay any more of Giuliani’s legal fees (unclear if this is campaign, Trump org, or White House staff, or all of the above).

01/15/2021 — MyPillow CEO Michael Lindell has a meeting in the afternoon at White House; his notes are caught on camera.

7 NOW as Acting National Security
8 him with getting the evidence of ALL the
9 as the election and all information regarding
10 people he knows who already have security
11 done massive research on these issues
12 Fort Mead. He is an attorney with Cyber-
13 and is up to speed on election issues.
14
15 [insurrection?] Act now as a result of the assault on the
16 marial law if necessary upon the first hint of any
17
18
19 Sidney Powell, Bill Olsen, Kurt Olsen.
20 Move Kash Patel to CIA Acting.
21
22 up Foreign Interference in the election. Trigger
23 powers. Make clear this is China/Iran
24 used domestic actors. Instruct Frank
25 evidence on [—–] the [—-]broad
26 account [————–]-ary
27 the line [—————] evidence
28 caus [——————-] attorney

01/16/2021 — WaPo: Acting Defense Secretary Orders NSA director to immediately install former GOP operative as agency’s top lawyer

01/17/2021 — The NSA is ‘moving forward’ to install Michael Ellis, a former GOP operative, as its top lawyer
[see https://twitter.com/nakashimae/status/1350855207270445059]

01/20/2021 — Ellis placed on leave pending an investigation.

“He will remain on administrative leave while his hiring is investigated by the Pentagon’s inspector general.”

~ ~ ~

What seemed random a week or more ago looks much less so today. If you have any item you believe is relevant to this developing timeline, please feel free to share in comments.

NOTE: Please restrict comments in this thread to content germane to this timeline. Thanks.

~ ~ ~

UPDATE-1 — 11:45 AM 23-JAN-2021 —

  • Corrections made re: first known phone call to Tuberville – call was from Trump, not Giuliani, who made the second call left on a senator’s voicemail.
  • Strike claim about CCTV of Capitol Building tours on January 5, add Rep. Mikie Sherrill’s observation of tours that day along with House Dems’ request for investigation into the tours.
  • Added Trump’s 12/12/2020 tweet and Proud Boy Enrique Tarrio’s visit to White House same day.
  • Added link to Philadelphia Inquirer story about 11/25/2020 hearing.

~ ~ ~

UPDATE-2 — 2:15 PM 23-JAN-2021 —

  • 01/06/2021 2:21 PM tweet by CNN’s Acosta added
  • 01/20/2021 Michael Ellis’s change in status added

~ ~ ~

UPDATE-3 — 5:40 PM 25-JAN-2021 —

* Once they are engaged in destruction they are no longer protesters but rioters.

Added these items, tweaked others:

  • 11/17/2020 Michigan election officials certified the state’s election.
  • 11/18/2020 Trump tweets that Michigan can’t certify its election because of voter fraud.
  • 11/17/2020-11/18/2020Details about Michigan’s election certification and GOP officials attempt unsuccessfully to rescind their certification of the state’s election.
  • 12/08/2020-12/11/2020  Filing and dismissal of Texas lawsuit before SCOTUS.
  • 12/31/2020-01/01/2021 Rep. Gohmert’s Hail Mary lawsuit filed and tossed.
  • 01/06/2021 Rep. Pressley’s panic button discovered missing.
  • 01/02/2021-01/03/2021 More details about Trump’s call to Georgia secretary of state Raffensperger added.
  • 01/13/2021  Trump wants to stiff Rudy.

The Press Continues to Help Billy Barr Whitewash His Complicity in January 6

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Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

In spite of that record, Barr continues to find journalists willing to spin a fairytale completely inconsistent with this record, one of Barr standing up to Trump as he pursued this path.

Consider this account of Bill Barr’s decision to quit from Jonathan Swan.

It provides a dramatic account of how Barr denounced Trump’s conspiracy theories — all rooted in claims about the delayed counting of mail-in ballots that Barr had stoked for months.

The president’s theories about a stolen election, Barr told Trump, were “bullshit.”

White House counsel Pat Cipollone and a few other aides in the room were shocked Barr had come out and said it — although they knew it was true.

It describes Barr’s frustration with Trump’s demands about the Durham investigation without mentioning that Barr repeatedly fed those expectations.

He was sick of Trump making public statements and having others do so to whip up pressure against U.S. Attorney John Durham to bring more prosecutions or to put out a report on the Russia investigation before the election.

It also allows Barr to call Rudy and Sidney “clownish,” without mentioning that those very same clowns had gotten Barr to squander the credibility of DOJ on similarly outlandish conspiracy theories, including but not limited to the Mike Flynn prosecution.

For good measure, the attorney general threw in a warning that the new legal team Trump was betting his future on was “clownish.”

[snip]

The president had become too manic for even his most loyal allies, listening increasingly to the conspiracy theorists who echoed his own views and offered an illusion, an alternate reality.

[snip]

But Barr’s respite ended after Election Day, as Trump teamed up with an array of conspiracy theorists to amplify preposterous theories of election interference, arguing that Biden and the Chinese Communist Party, among others, had stolen the election from him.

It presents the conflict over using the military to quell summer protests, without mentioning Barr’s own role in militarizing the response (to say nothing of treating BLM more harshly than right wing terrorists).

By the late summer of 2020, Trump and Barr were regularly skirmishing over how to handle the rising Black Lives Matter protests sparked by the death of George Floyd while in police custody. As the national movement unfurled, some protests had given way to violence and looting. Trump wanted the U.S. government to crack down hard on the unrest.

The president wanted to invoke the Insurrection Act and send the military into U.S. cities. He wanted troops in the street.

[snip]

Besides, Barr asked, what was the endgame for adding the military to the mix? Federal forces could end up stranded in a city like Portland indefinitely.

Trump grew more and more frustrated, but Barr pushed back harder, standing his ground in front of everyone in the room. He was ready, willing and able to be strong, he said. But, he added, we also have to be thoughtful.

In short, this dramatic profile presents a fictional character, wise old Attorney General Bill Barr, who stood up against the President’s worst instincts, wisely resisting the urge to politicize investigations, trump up claims of voter fraud, chase the theories of Sidney Powell and Rudy Giuliani, and back a violent crackdown against Trump’s opponents.

Except that profile is entirely fictional. That Bill Barr is a myth carefully crafted with the help of obliging reporters.

The reality is that over two years of not just tolerating these efforts, but usually taking affirmative steps to foster them, Billy Barr helped to create this monster, even though he was one of the people with the obligation to stop it.

With his corruption as Attorney General Bill Barr fostered this monster. He should get no credit for skipping out before the predictable outcomes of his own actions blew up on January 6.

Rudy Giuliani and Jack Posobiec Claim a False Flag

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Yesterday, the FBI arrested John Sullivan, one of the guys who took video showing Ashli Babbitt’s shooting in the January 6 insurrection. As the arrest affidavit describes, in an interview the day after the riot, Sullivan claimed he had been acting as a journalist at the riot.

SULLIVAN claimed to be an activist and journalist that filmed protests and riots, but admitted that he did not have any press credentials.

[snip]

23. At various times in his statements to law enforcement, to others inside the U.S. Capitol that were recorded in his video, and to news outlets, SULLIVAN has claimed he was at the U.S. Capitol only to document and report. In addition, your affiant is aware that, at various times, SULLIVAN has claimed to be a journalist. He has admitted, however, that he has no press credentials and the investigation has not revealed any connection between SULLIVAN and any journalistic organizations.

The affidavit describes that, at some protest in DC, Sullivan made anti-Trump comments.

The United States obtained a video of SULLIVAN, posted on YouTube, in which, while attending a protest in Washington, D.C., SULLIVAN can be seen telling a crowd, over a microphone, “we about to burn this shit down,” “we got to rip Trump out of office . . . fucking pull him out of that shit . . . we ain’t waiting until the next election . . . we about to go get that motherfucker.” SULLIVAN then can be seen leading the crowd in a chant of, “it’s time for a revolution.”1

But it quotes from a video he shared with the FBI repeatedly speaking of “we,” including himself in the mob. On several occasions, Sullivan convinced police to stand down (including in front of the Speaker’s Lobby, just before Babbitt was shot). And it provides evidence that Sullivan broke a window in one of the offices.

h. At one point in the video, SULLIVAN enters an office within the U.S. Capitol, as seen in the screenshot below. Once inside the office, SULLIVAN approaches a window, also seen in the screenshot below, and states, “We did this shit. We took this shit.”

i. While at the window, a knocking noise is heard off-screen. The camera then pans to show more of the window and a broken pane can be seen that was not broken on SULLIVAN’s approach to the window:

SULLIVAN can then be heard saying, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.” SULLIVAN then exits the office.

Sullivan is charged with violent entry of Congress and impeding police officers during a civil disorder. He is not charged with breaking the window.

Even before his arrest, left wing activists had described concerns in that community, going back some time, that Sullivan was a provocateur working with others, including his brother James, who has ties to the Proud Boys and runs a pro-Trump organization.

But shortly after Sullivan’s arrest was reported, right wing propagandist Jack Posobiec pounced on his arrest, claiming it showed that BLM was behind the attacks and and that Sullivan’s actions led to Babbitt’s death (remember these screen caps have GMT, so subtract 5 for ET).

Then, in the middle of the night Rudy’s time, he posted a text from what appears to be John’s brother James.

Rudy presents this as proof that the riot was conducted by Antifa. But it instead seems to show that John’s brother (the phone number is in Utah, where they’re from) claimed to be, “working with the FBI,” had gotten his “agent” and three others out of trouble (Rudy did not show when he received this text, so it may have predated John’s arrest). It also showed that Sullivan seemed to have ties with someone named Kash, who might be Patel, the Devin Nunes flunky who got installed as DOD’s Chief of Staff. Patel would likely have had a key role in ensuring the National Guard delayed any response to the riot last week.

A Nazi sympathizer and the President’s lawyer seemed prepared to speak from the script that Donald Trump seems to have written the day before the riot, when he moved towards naming Antifa a terrorist organization. The OANN propagandist and chief purveyor of fraudulent claims about the election are attempting to use the arrest of John Sullivan to claim that their own people did not plan out this coup attempt.

In the process, however, Rudy Giuliani may have tied the President and the Proud Boys, and the Pentagon together in the plot. And Rudy’s calls to Tommy Tuberville after people had already died, that ties people n Congress to the attempts to assassinate members of Congress.

Update: I’ve been persuaded that “Kash” is someone else who was detained after the raid, so deleted references to Kash Patel. That person, Kash Kelly, is probably a convicted gang member awaiting his sentencing.

Update: Corrected that the anti-Trump comments may not have been at this protest.

Where’s Rudy?

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There’s an interesting passage in this Daily Beast article, one of several articles in the last day describing the snowballing madness in the Oval Office. For the last day or so, Rudy Giuliani has gone missing.

Meanwhile, Trump, whose rhetoric helped incite the Jan. 6 rioting, is increasingly cut off from once-loyal senior officials, some of whom have resigned in recent days. Instead, the president is focused on managing the fallout, both legally and reputationally, from the attack and the deaths that resulted from it. Even the president’s personal attorney and close confidant, Rudy Giuliani, has been somewhat absent in the last 24 hours, caught up with his own personal problems, including the New York Bar Association’s move to open an inquiry into his removal from its membership, according to one individual with direct knowledge of the situation. [my emphasis]

It doesn’t actually make sense that the Bar Association challenge is that pressing a problem. It’ll go forward regardless of what he does, and it’s not actually the legally meaningful challenge to his bar membership (though a NY State Senator’s request to the state courts could be). Aside from some ill-fated appearances in voter fraud cases, though, Rudy’s not actually practicing courts anymore so much as influence-peddling.

Which may explain two graver threats to Rudy. Last Friday, Dominion Voting Systems sued Sidney Powell for $1.3 billion. Dominion has said they plan to follow up that lawsuit with others, potentially targeting Wood, the media that magnified Powell’s claims (including Fox, OANN, and Epoch Times), and Rudy himself.

Meanwhile, yesterday Treasury sanctioned Rudy’s buddies from Ukraine. The statement on the designation includes a shout-out to meetings involving Rudy (and implicating Devin Nunes and other Republican lawmakers).

Since at least 2019, Derkach and his associates have leveraged U.S. media, U.S.-based social media platforms, and influential U.S. persons to spread misleading and unsubstantiated allegations that current and former U.S. officials engaged in corruption, money laundering, and unlawful political influence in Ukraine.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine. These efforts are consistent with and in support of Derkach’s efforts, acting as an agent of the Russian intelligence services, to influence the 2020 U.S. Presidential election.

Kulyk, a former prosecutor for the Prosecutor General’s Office of Ukraine, formed an alliance with Derkach to spread false accusations of international corruption. Onyshchenko, a fugitive from Ukrainian justice due to charges of corruption, provided edited audio tape copies of purported audio recordings of conversations between former Ukrainian and U.S. officials, which Derkach released between May and July 2020 to discredit U.S. officials and influence the U.S. elections. Telizhenko, a former low-level Ukrainian diplomat, orchestrated meetings between Derkach and U.S. persons to help propagate false claims concerning corruption in Ukraine. Dubinsky, who serves alongside Derkach in Ukraine’s parliament, joined Derkach in press conferences designed to perpetuate these and other false narratives and denigrate U.S. presidential candidates and their families.

Kulyk, Onyshchenko, Telizhenko, and Dubinsky are being designated pursuant to E.O. 13848 for having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in a United States election.

Effectively, the sanctions make it clear — Rudy’s denials notwithstanding — that the people whose dirt he has been peddling for years was disinformation seeded by Russia.

And that couldn’t come at a worse time.

For years, Rudy as been operating as if he had impunity. And he probably did, as it has become clear for some time that Trump would pardon him.

Except now that Trump’s incitement of sedition has complicated pardoning his troubles away, Trump has started wailing that if he’s not allowed to self-pardon, then no one else can have a pardon either.

The President had been warned, David, by some of his lawyers that if he goes ahead and pardons himself, he could be more vulnerable to civil lawsuits, including from some of those injured in the Capitol riot because a self-pardon would be seen as an admission that he did something wrong that he would need to be pardoned for. The President is angry. He has not taken that well. And I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be, if I can’t get a pardon, then nobody else should get one either.

This actually isn’t a bad legal decision. It has always been true that if Trump pardoned his co-conspirators of stuff they’ve protected him on so far, then they could be forced to testify against him. This was, at least, he and his co-conspirators all go down together.

But that would be a very bad thing for Mr. Giuliani, because he has been wracking up crimes with abandon, with the apparent belief that they would all be wiped away before January 20.

It’s unclear whether that has driven Rudy away … or whether he’s making a belated attempt to clean up his exposure.

The Unaddressed Counterintelligence Threat of Rudy Giuliani

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The name “Giuliani” shows up, unredacted, just five times in the SSCI Russia Report:

  • A reference to a meeting that Rudy had with Paul Manafort and Trump at 5:30 PM on August 2, 2016, the last thing on Manafort’s calendar before he met with Konstantin Kilimnik to discuss how to win the Midwest, share campaign polling data, and carve up Ukraine.
  • A citation to a Rick Gates 302 that describes that Manafort was relying on Rudy, along with Jared Kushner, in his efforts to try to place people in the new Administration.
  • A footnote citing this story describing Rudy’s meetings with Andrii Telizhenko as part of his search for dirt in support of Trump’s 2020 re-election. The footnote is one of the few unredacted passages in an 8-page section that is part of a larger section describing Manafort’s follow-up on that August 2, 2016 meeting on Ukraine.
  • A footnote describing an email — involving Rudy, Hope Hicks, Dan Scavino, and Stephen Miller — used as an example of Trump’s team incorporating stolen information released by WikiLeaks into Trump’s tweets.
  • A footnote sourcing a rather incredible claim from Psy Group’s Joel Zamel that he first met Jared Kushner via an introduction, months after inauguration, from Rudy.

I raise this not because I think there’s any direct tie between Russia and the coup this week (though I find it interesting that of those scripting WikiLeaks information into Trump tweets, all but Hicks may be seeking a pardon). This coup was an all-American affair, with roots in racist extremism that goes back before the Civil War. Someday, six months from today, we can talk about how this attack was consistent with events started over four years ago, with all the same players in starring roles. But these are American fascists running the show, not Russians.

I raise it, instead, to point out that the single most sustained review of the danger that some of Trump’s closest advisors pose to his presidency almost entirely excluded  one who played the key role in the post-election period, the purported lawyer who — at every step of the way — encouraged the President to take more and more extreme measures to hold on his power.

This coup attempt happened, in significant part, because Rudy had almost unfettered access to the President, Rudy was one of few people who never lost his trust, and Rudy always encouraged the worst decisions from Trump.

Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

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There have been numerous accounts of Trump’s desperate days since he incited a coup attempt. Most, including this CNN version, describe how — on the advice of (among others) White House Counsel Pat Cipollone — Trump recorded and released a very heavily edited video from a script written for him in an attempt to stave off removal proceedings.

His daughter Ivanka Trump, White House counsel Pat Cipollone, chief of staff Mark Meadows and others told Trump there was a real chance he would be removed from office — whether by his own Cabinet or lawmakers — if he did not more forcefully denounce the actions of his supporters who attacked the US Capitol the day before.

Trump did not initially want to issue a video decrying the loyalists whose actions he largely supported — and whom he said he “loved” a day earlier — but he told aides to prepare a speech and then he would decide.

Once he read over the brief script they had prepared, Trump agreed to record it Thursday evening — a relief to the senior staff, though concerns lingered he could backtrack during his final days in office given his actual position has remained unchanged: that he lost the election unfairly.

This WaPo version describes him holing up with really unsavory characters, including white supremacist Stephen Miller and John McEntee, who previously had been forcibly removed from his position at the White House because of gambling problems.

Trump spent Wednesday afternoon and evening cocooned at the White House and listening only to a small coterie of loyal aides — including Meadows, Deputy Chief of Staff Dan Scavino, personnel director Johnny McEntee and policy adviser Stephen Miller. McEnany also spent time with the president. Jared Kushner, the president’s son-in-law and senior adviser, was described as disengaged.

CNN also reports that’s he’s still planning on pardonpalooza covering at least his kids

And a raft of pardons, including potentially for himself and his family, are expected in the coming days.

According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.

A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.

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

The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.

Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.

The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.

It notes that White House Counsel Pat Cipollone is “vetting” the pardons, with some concern that they create more exposure for obstruction of justice.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone.

Except, CNN also reports that Pat Cipollone is considering resigning.

Trump’s role in (at a minimum) inciting an insurrection the other day may make his effort to pardon himself and his associates out of legal trouble more difficult.

Start with a self-pardon. Before the insurrection, Cipollone might have advised Trump he might as well try it. He literally has nothing to lose, since he’s unlikely to trust Pence with a pardon at this point, so even if the self-pardon doesn’t work, he would be no worse off. Except, as a number of people have suggested, a self-pardon makes it far more likely DOJ will test the concept and prosecute him (though I think he’s done enough to be charged anyway). And because Trump’s exposure now includes insurrection, the conservative majority on SCOTUS might find the self-pardon particularly offensive. In addition, because Clarence Thomas’ wife Ginni was cheering on the terrorists, DOJ might — fairly — ask Thomas to recuse.

Then there’s Rudy. He was always going to be pardoned, because he knows where the bodies are buried and Trump believes (mistakenly) that Rudy has served his interests loyally. Except, to a far greater extent than before November, a Rudy pardon frees him to testify about crimes that Trump committed for which Rudy does not have attorney-client privilege, such as coordinating with coup plotters. This is exacerbated by the byzantine legal structure behind the fraudulent Trump lawsuits, where there was never any clarity about who was representing Trump and who was not. Once upon a time, Trump might have been able to pardon Rudy without increasing his own legal exposure. That’s probably not true anymore.

Then there’s Cipollone himself, a formidable lawyer who wants to get the fuck out of dodge. Cipollone, briefly, got Trump to see reason in making that video. Then as soon as Trump got his Twitter account he sent more messages riling up his terrorists. That suggests Cipollone recognized that Trump had real exposure in the insurgency, and took measures to limit them. Then Trump ignored his advice. All while asking Cipollone to help him pardon his co-conspirators.

While Cipollone has limited Executive Privilege with Trump (one breached in case of crime), under Clinton precedent he doesn’t have attorney-client privilege with Trump. That makes it likely that no matter what happens, he’ll be sitting for lengthy sessions with prosecutors in months ahead, just as Don McGahn also did.

When this whole Transition process started, Trump had Cipollone and Bill Barr — the latter the best cover-up artist in recent US history — around to help him out of his legal troubles. Now, his post-election antics have drove both of them away.

Once upon a time, Trump might well have been able to pardon himself out of a good deal of the criminal exposure he already faced. That’s far less likely now.

Update: Just in the last hour, Ginni Thomas made her Facebook account unavailable.

Investigate Tommy Tuberville’s Pre-Speech and Debate Actions

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There has been a lot of press focus in the last two days on the role that Josh Hawley and Ted Cruz played in Wednesday’s insurgency. Hawley even lost his book deal for playing a part in inciting the mob.

There should be more focus, in my opinion, on Tommy Tuberville.

I say that for two reasons.

First, by all appearances, Hawley and Cruz were just being disgusting opportunists. They saw the populist mantle, which until Wednesday was assumed to be critical to winning a 2024 presidential primary, and ran to claim it. It’s unknown how closely they coordinated with Trump in their cynical attempts to exploit the moment.

Tuberville, however, appears to have been actively coordinating with Trump during the uprising.

And his involvement in this conspiracy dates to mid-December, weeks before he was sworn in, and so a time when his activities would have somewhat less investigative protection under the speech and debate clause. After he first floated serving as the then sole Senator who would challenge the certification of the vote, Trump reached out to Tuberville directly.

On Sunday, Trump said in a radio interview that he had spoken with Sen.-elect Tommy Tuberville (R-Ala.) about challenging the electoral vote count when the House and Senate convene on Jan. 6 to formally affirm President-elect Joe Biden’s victory.

“He’s so excited,” Trump said of Tuberville. “He said, ‘You made me the most popular politician in the United States.’ He said, ‘I can’t believe it.’ He’s great. Great senator.”

Tuberville’s campaign did not respond to a request for comment on Trump’s statement, which the president made in an interview with Rudolph W. Giuliani, his personal lawyer, on New York’s WABC radio station.

Trump’s conversation with Tuberville is part of a much broader effort by the defeated president to invalidate the election. He is increasingly reaching out to allies like Giuliani and White House trade adviser Peter Navarro for ideas and searching his Twitter feed for information to promote, according to Trump advisers, who spoke on the condition of anonymity to discuss private conversations.

And we know that Tuberville remained in direct contact with the conspirators because on Wednesday, the geniuses trying to pull of this coup tried to call him twice. First, literally at the moment Senators were being evacuated because rioters had breached the building, Trump attempted to call Tuberville directly but instead dialed Mike Lee’s cell phone.

With a mob of election protesters laying siege to the U.S. Capitol, Sen. Mike Lee had just ended a prayer with some of his colleagues in the Senate chamber when his cellphone rang.

Caller ID showed the call originated from the White House. Lee thought it might be national security adviser Robert O’Brien, with whom he’d been playing phone tag on an unrelated issue. It wasn’t O’Brien. It was President Donald Trump.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

Then, hours after Rudy Giuliani called for “trial by combat,” after the mob had already breached the building, after one of the insurgents had been killed, hours after Trump had released a video pretending to oppose the violence, possibly even after Capitol Police officer Brian Sicknick suffered injuries that would ultimately kill him, Rudy attempted to call Tuberville. He also dialed the number of a different [unidentified] Senator. Rudy left a message suggesting that he expected Tuberville would heed his requests, a message that seemed to suggest the entire process was an attempt to buy President Trump’s disinformation teams a day to put together new false allegations.

Senator Tuberville? Or I should say Coach Tuberville. This is Rudy Giuliani, the president’s lawyer. I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at 8 tonight, but it … the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. It angered them, because they have written letters asking that you guys adjourn and send them back the questionable ones and they’ll fix them up.

So, this phone number, I’m available on all night, and it would be an honor to talk to you. Thank you.

This message is the most direct piece of evidence, thus far, that Trump and his co-conspirators planned to use the insurgency as a delay tactic to buy time to try to concoct new claims about the results. It shows that Rudy remained engaged with the attempt to obstruct the lawful counting of the vote after the violence that had delayed it.

Admittedly, both of these calls, like all communications involving either Hawley or Cruz, would be otherwise (if Trump and Rudy hadn’t fucked up) difficult to access given Tuberville’s speech and debate protections. But his communications with the President prior to being sworn in just days earlier would not have the same presumptive protections. And since Rudy was calling him directly, that wouldn’t be privileged either.

The place to start the investigation into Trump’s role in the coup attempt is not with Hawley and Cruz. It’s with Tuberville.

The Three Types (Thus Far) of Trump Mueller Pardons

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To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.