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Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

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Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/HSGAC_Finance_Report_FINAL.pdf, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023), https://oversight.house.gov/wpcontent/uploads/2023/05/Bank-Memorandum-5.10.23.pdf, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023), https://oversight.house.gov/wpcontent/uploads/2023/08/Third-Bank-Records-Memorandum_Redacted.pdf, at 2. [my emphasis]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.

FBI Saw Itself “Managing What the Elephant Sees and Hears” in Advance of January 6

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According to a report released yesterday by the Senate Homeland Security and Governmental Affairs Committee (HSGAC), on January 2, 2021, then FBI Washington Field Office Assistant Director Steve D’Antuono came away from some kind of exchange with then Deputy Director David Bowdich and described to two top WFO officials, Matthew Alcoke (in charge of counterterrorism) and Jennifer Moore (in charge of intelligence) how he tried to “tamp down” concerns about or plans for January 6.

Alcoke thanked D’Antuono for “ramp[ing] down” expectations, since really all the FBI’s WFO was doing was passing on information from partners like the DC Cops and Capitol Police.

Alcoke then made a shocking suggestion about intelligence sharing:

[M]anaging what the elephant sees and hears is sometimes the best way to control the elephant’s movements.

He seems to have suggested that the FBI might manage how the Federal government would respond to January 6 by managing what kind of intelligence the FBI passed on — and his assumption was that the FBI was only passing on intelligence from partners, not collecting any of its own.

It turns out that the Federal government — that elephant Alcoke imagined he might control — didn’t respond, not adequately. In the aftermath of that shoddy response, D’Antuono claimed that the FBI had seen nothing other than First Amendment protected activity.

During a briefing with reporters on Friday, Steven D’Antuono, FBI Washington Field Office assistant director in charge, told reporters that the bureau’s threat assessments leading up to Wednesday’s mobbing of the Capitol showed “there was no indication that there was anything other than First Amendment protected activity.”

Virtually every Federal official blamed local cops and the Capitol Police, insisting the Feds weren’t supposed to be the ones moving at all, the Capitol Police were.

D’Antuono, we’ve since learned, repeatedly tried to limit the investigation in the aftermath, playing a key role in thwarting any investigation into Trump’s actions for ten months.

Manage the elephant by controlling what it sees and hears.

A day after D’Antuono and Alcoke discussed tamping or ramping down, WFO personnel sent D’Antuono, Alcoke, and Moore a summary describing the following open source intelligence:

On January 3rd, an internal WFO email marked “for FBI internal use only” cited “unsubstantiated” open-source reporting that “ranges from threats to the DC water supply to armed insurrection to various groups threatening to kill those with opposing viewpoints.”156 Among the reports cited, the email noted an open-source post regarding January 6th that said “[i]t needs to be more than a protest. We need to kick doors down and fuck shit up” and another user commented, “will kill if necessary.”157

Another social media post stated, “I’m just waiting for the 6th so I can 1776 them… January 6th we burn the place to the ground, leave nothing behind.”158

The internal FBI-WFO email noted that a tipster reported that individuals on fringe websites were discussing an overthrow of the government if President Trump did not remain in office, and stated “[d]ate of attack 01/06.”159 A Parler user stated, “[b]ring food and guns. If they don’t listen to our words, they can feel our lead. Come armed.” 160

The email also reported social media posts that noted plans to bring firearms into the District and “set up ‘armed encampment’ on the [National] Mall,” and that the Proud Boys planned to “dress ‘incognito’ in order to more effectively target ‘antifa’ in the city.”161

A tipster from Georgia told FBI that the Proud Boys were planning to come to D.C. on January 6th and warned “[t]hese men are coming for violence.” 162 Another tipster told FBI that a Proud Boy told her they were planning an attack on January 6th to shut down the government. 163

Another tip stated “there is a TikTok video with someone holding a gun saying ‘storm the Capitol on January 6th.’”164

As the HSGAC report notes, even in spite of the two warnings about the Proud Boys and threats of violence, WFO concluded that this described just First Amendment protected activities.

Despite all of that reporting, the FBI summary concluded, “FBI WFO does not have any information to suggest these events will involve anything other than [First Amendment] protected activity” and that FBI had “identified no credible or verified threat to the activities associated with 6 January 2021.”165 This was also despite the fact that the Proud Boys were known to engage in violence, including at protests in Washington, D.C. in late 2020.166

As Alcoke described, the FBI marked the summary of these warnings “Internal” because sources were sensitive about sharing it outside the FBI.

A day after discussing “tamp[ing] down” concerns with Bowdich, D’Antuono just sent this entire email to the Deputy Director.

I just sent the whole thing, I don’t want him getting a sanitized version of events.

This is a report that attempts to do what January 6 Committee largely abdicated doing, looking at intelligence failures in advance of January 6.

The House Select Committee’s final report found that President Trump engaged in a multipronged effort to overturn the 2020 election by knowingly disseminating false and fraudulent allegations, pressuring state officials to submit false elector slates, pressuring DOJ officials to make false statements alleging election fraud, and calling on supporters to join him in Washington, D.C. on January 6 th and subsequently encouraging them to march on the Capitol.23 The House Select Committee’s report largely focused on President Trump’s role in attempting to overturn the 2020 election, and only briefly discussed federal intelligence efforts in the lead-up to the events of January 6th . 24 The House Select Committee report found that intelligence agencies, including FBI and I&A, had received intelligence on the potential for violence at the Capitol.25 This intelligence included discussions of the Capitol complex’s underground tunnels alongside violent rhetoric, information on the movements of violent militia groups like the Proud Boys and Oath Keepers, and numerous social media posts discussing storming the Capitol.26 The report also found that security agencies did not adequately prepare for and respond to the threat.27

At the direction of U.S. Senator Gary Peters, Chairman of the Homeland Security and Governmental Affairs Committee (HSGAC), and following the Committee’s initial review of the security, planning, and response failures in advance of and during the January 6th attack, Majority Committee staff conducted a subsequent review focused on the intelligence failures leading up to the attack on the U.S. Capitol on January 6th.

What it describes is utterly damning.

Yet, in spite of a laudable effort to do what J6C didn’t do, there are obvious gaps.

First, as described, HSGAC met the same kind of stonewalling others received.

The Committee received responses to many of its questions and numerous document productions from the agencies in its investigation, including DOJ-FBI and DHS-I&A. However, at various points throughout its investigation, the Committee encountered significant delays, incomplete responses, denied document requests (including documents required to be provided to the Committee under federal law), and refusals to make certain witnesses available to the Committee for interviews. The Committee sought to obtain the necessary information through voluntary compliance by the agencies in its investigation, but this lack of full cooperation hinders the ability of the Committee, and Congress more broadly, to effectively and efficiently conduct legitimate oversight of the Executive Branch.

The Chair of HSGAC, Gary Peters, has broad subpoena power. Yet this report remains wildly inadequate to the task of cataloging FBI’s failures to prevent January 6.

Worse, there are several known intelligence problems that it doesn’t address.

For example, it doesn’t chase down warnings floated in both militia leader trials in the last eight months.

It doesn’t pursue what happened after Oath Keeper “Abdullah Rasheed” called into an FBI tip line reporting on the November 9, 2020 GoToMeeting call in which Stewart Rhodes started talking about a revolution.

Listening to the meeting was Abdullah Rasheed, a Marine Corps veteran and a member of the far-right group from West Virginia. During testimony on Thursday at the trial of Mr. Rhodes and four of his subordinates, Mr. Rasheed told the jury that he was so disturbed by what he heard during the meeting that he recorded the conversation and ultimately called the F.B.I. to alert them about Mr. Rhodes.

“The more I listened to the call,” he said, “it sounded like we were going to war against the United States government.”

The testimony by Mr. Rasheed, a heavy-equipment mechanic, was clearly intended to bolster accusations by the government that Mr. Rhodes and his co-defendants — Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — committed seditious conspiracy by using force to oppose Mr. Biden’s ascension to the White House.

[snip]

On Tuesday, prosecutors at the Oath Keepers trial played several clips of Mr. Rasheed’s recording for the jury. The jurors heard Mr. Rhodes make baseless claims about foreign interference in the election and declare that he would welcome violence from leftist antifa activists because that would give Mr. Trump an excuse to invoke the Insurrection Act and call on militias like his own to quell the chaos.

“We’re not getting out of this without a fight,” Mr. Rhodes said. “There’s going to be a fight. But let’s just do it smart, and let’s do it while President Trump is still commander in chief.”

While Mr. Rasheed initially called an F.B.I. tip line to complain about Mr. Rhodes not long after the meeting took place, the bureau did not reach out to him until March 2021, two months after the Capitol was attacked. He also tried to warn other law enforcement agencies, he testified, writing to the Capitol Police that Mr. Rhodes was “a friggin’ wacko that the Oath Keepers would be better without.”

It doesn’t consider whether Shane Lamond, Enrique Tarrio’s MPD buddy who was charged in May with obstructing the investigation into Proud Boy activities in December 2020, tainted FBI’s own understanding of what would occur on January 6.

It only mentions the FBI’s own informants once, describing how FBI’s confidential human sources led the Bureau to believe the number of “protestors” on January 6 would be lower than in November and December — something any passing glance at social media would have debunked.

WFO sent an email that afternoon that appeared to rely only on its confidential human sources and other investigative leads, concluding, “[a]s of today, WFO has no information indicating a specific and credible threat. All [confidential human sources] and Guardians are not indicating anything specific and credible. Most of what WFO is seeing are random chatter with no specificity. […] WFO expects the number of participants to be fewer than the previous times – each time the numbers get smaller.”174

Most importantly, it doesn’t consider how FBI’s decision to pay a bunch of Proud Boys to inform not on the Proud Boys, but on Antifa, guaranteed that FBI would wrongly see things in terms of protestors and counter-protestors. Two witnesses testified at the Proud Boy leader trial that they were never asked to — nor would they have agreed to — inform on their buddies. Descriptions of seven other FBI informants similarly suggest the FBI had tasked a bunch of Proud Boys and friends to narc out Antifa.

If you pay a bunch of gang members to tell the FBI that their largely manufactured adversaries are the same kind of threat, rather than paying them to tell you about the attack on the Capitol the gang has planned, you have tainted your understanding of things at the outset.

And not even the behavior of those with good intelligence on the far right — those very same counter-protestors — led the FBI and DOJ to reconsider that understanding. When anti-fascists didn’t show up, DOJ concluded nothing would happened, not that the people who really did track what the far right had in mind had concluded that January 6 would be something different.

Former Principal Associate Deputy Attorney General Richard Donoghue also told the Committee that then-FBI Deputy Director Bowdich gave a briefing the morning of January 4th to Acting Attorney General Rosen and Donoghue regarding January 6th, and that while they recognized the potential for violence, they felt “relief” that counter-protesters were not expected to attend in large numbers, as there would likely not be “a situation that concerned us so much, where you would have two different political factions fighting in the streets.”324

The HSGAC Report scratches the surface of how badly FBI did in advance of January 6. It suggests that FBI affirmatively tried to prevent the Federal government from responding with due concern.

But it doesn’t begin to consider how the FBI’s own relationship with the Proud Boys, in which the Bureau deemed the militia that would lead the attack on the Capitol as partners rather than adversaries, guaranteed that the FBI would miss the attack.

The WaPo Shows There Should Be More Scrutiny of Steve D’Antuono

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The WaPo has a story that many Merrick Garland attackers claim confirms their fears about the DOJ investigation. Except the story has really important gaps, most importantly in its portrayal of the fake electors investigation, which is the damning part of the story about Garland or Lisa Monaco’s direct decisions (as opposed to those of FBI).

Moreover, the one thing it proves definitively is that former FBI Washington Field Office head Steve D’Antuono repeatedly shot down investigative prongs of this investigation, just like he did the stolen documents investigation. That the head of the WFO was running interference for Trump raises key questions about FBI missteps with people like Brandon Straka, someone arrested early who had direct ties to the scheme in the Willard, to say nothing about WFO’s ineptitude in advance of the attack.

Here are the main disclosures.

Steve D’Antuono shot down an effort by JP Cooney early

The story describes that — after such time as Brandon Straka was being treated as a cooperative witness — JP Cooney pitched an idea to get to Stone through the Oath Keepers, not the Proud Boys.

But a group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.

[snip]

According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers, who were photographed together outside the Willard hotel in downtown Washington on the morning of Jan. 6.

[snip]

D’Antuono called Sherwin. The two agreed Cooney did not provide evidence that Stone had likely committed a crime — the standard they considered appropriate for looking at a political figure. Investigating Stone simply because he spent time with Oath Keepers could expose the department to accusations that it had politicized the probe, they told colleagues.

D’Antuono took the matter to Abbate, Wray’s newly named deputy director. Abbate agreed the plan was premature.

It’s genuinely hard to believe this was the plan. To be sure, FBI did investigate Stone’s ties to the Oath Keepers, starting no later than March 2021. But that wasn’t the obvious route to get to Trump.

The route to get there, importantly, was via a route that Bill Barr had affirmatively dismissed in advance of the attack: through the Proud Boys, not the Oath Keepers. Stone’s ties to the Oath Keepers was not obviously criminal; it still may not be. His ties to the Proud Boys are central.

In any case, Steve D’Antuono — who stalled the stolen documents case investigation last summer — shot down this angle of the investigation early on.

The initial decision to exclude Trump came from a guy who had presided over a politicized DOJ

Michael Sherwin — who as US Attorney played a role in killing investigations into Trump’s people in summer 2020 — did not include Trump in his summary of the investigation in March 2021.

[A]ccording to a copy of the briefing document, absent from Sherwin’s 11-page presentation to Garland on March 11, 2021, was any reference to Trump or his advisers — those who did not go to the Capitol riot but orchestrated events that led to it.

[snip]

Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature, according to five individuals familiar with the decision. Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.

The strategy was embraced by Garland, Monaco and Wray.

This may or may not have been the right decision — but WaPo only mentions Sherwin’s role in Barr’s sabotage of ongoing Trump cases in passing.

Whether certain FBI decisions came from Steve D’Antuono or Chris Wray is unclear

Chris Wray absolutely comes off as gun-shy in this story, which is perfectly consistent with the way he threw his own agents under the bus in the wake of the DOJ IG Report on Carter Page.

Wray and his team sought to avoid even an appearance of top-down influence by having local field offices run investigations and make day-to-day decisions. In fact, when it came to the Jan. 6 investigation, agents noticed that Wray did not travel the five blocks from FBI headquarters to the bureau’s Washington field office running the investigation for more than 21 months after the attack. In that time, people familiar with the investigation said, he had never received a detailed briefing on the topic directly from the assistant director in charge of the office, Steven D’Antuono.

[snip]

D’Antuono, who was interacting with lawmakers and reporters, told colleagues: “Everybody keeps asking, ‘Where the hell is the FBI?’”

The answer they heard did not instill confidence. Top FBI aides told D’Antuono and Sherwin that Wray wanted to stay on as Biden’s FBI director. They said they would not put the top boss “out there” — in the public eye — because they feared any public comments might spur Trump to unceremoniously fire him.

I’m more concerned about Wray’s later actions — but the later timidity is described to have come from Steve D’Antuono, not Wray (and on the stolen documents investigation, Wray pushed for a more aggressive investigation, whereas D’Antuono pushed the slow it).

D’Antuono shot down an effort to pursue the Willard

In November 2021, when Thomas Windom asked to pursue the plotting in the Willard in November 2021, D’Antuono refused, and tried to get Windom to pursue militia ties instead.

At a meeting in November 2021, Windom asked D’Antuono to assist in a grand jury investigation, which would include subpoenaing the Willard hotel for billing information from the time when Trump lawyer Rudy Giuliani was working with Stephen K. Bannon, Boris Epshteyn and other Trump associates in their “war room.” Stone was staying there around Jan. 6 as well, in a different suite.

D’Antuono was skeptical. The investigative track sounded eerily similar to the Cooney proposal that had been shot down in February, he later confided to colleagues.

“I’m not serving subpoenas on the friggin’ Willard,” D’Antuono told Windom, according to a person familiar with their discussions. “You don’t have enough to issue subpoenas.”

This was absolutely the wrong decision, but it is yet another case where D’Antuono was thwarting the investigation. His refusal to investigate the Williard also should focus more attention on the treatment of Brandon Straka and others, because if the FBI hadn’t been so credulous months earlier, they would have had more evidence on the Willard.

800 words of this story pertain to Michael Sherwin’s firing

Sherwin’s firing for trying to force sedition charges is a distraction. Yet 800 words of this story focus on it.

While the story does show that under Chandler Phillips, there was uncertainty about direction of the investigation (Lisa Monaco’s office was micro-managing at that point, partly in an attempt to enforce consistency across hundreds of defendants, partly to ensure that more deliberate rioters were charged with felonies). But it does seem that the delay in getting Matthew Graves in place did delay a renewed focus on Trump. That’s Joe Biden’s fault.

The focus on Stewart Rhodes is a distraction

Similarly, the focus on Stewart Rhodes, as opposed to Enrique Tarrio, is a distraction.

The outstanding issue of whether to charge Rhodes and other militia leaders with seditious conspiracy quickly rose to the top of to-do lists for the two new appointees. It had been eight months since Sherwin directed his deputies to raise the idea in a memo to the office of the deputy attorney general.

A long story in which the Proud Boys investigation is treated as “other militia leaders” is a long story that doesn’t understand the most basic things about January 6.

Details about the decision not to pursue the fake electors are vague and at times inaccurate

The WaPo described that the original decision not to pursue the fake electors plot happened “about the same time,” as D’Antuono’s decision to shoot down Cooney’s Stone investigation without presenting a date.

About the same time, attorneys at Main Justice declined another proposal that would have squarely focused prosecutors on documents that Trump used to pressure Pence not to certify the election for Biden, The Post found.

Officials at the National Archives had discovered similarities in fraudulent slates of electors for Trump that his Republican allies had submitted to Congress and the Archives. The National Archives inspector general’s office asked the Justice Department’s election crimes branch to consider investigating the seemingly coordinated effort in swing states. Citing its prosecutors’ discretion, the department told the Archives it would not pursue the topic, according to two people with knowledge of the decision.

If that decision happened before Garland came in (as it appears to have), then the story is about how Garland chose to revisit and reopen the fake electors decision, not why he chose not to pursue it.

The story describes that when Lisa Monaco did publicly confirm DOJ was pursuing fake electors in January 2022, people were surprised to hear that.

Law enforcement officers, including some who would be called upon to join the investigation in ensuing months, were taken aback by Monaco’s comments because they had not been told work was beginning, and it was extremely rare for Justice Department officials to comment on ongoing investigations.

Behind the scenes, federal prosecutors in Michigan who received Nessel’s referral were waiting to hear from Monaco’s office about how Main Justice wanted to proceed. National Archives officials were dumbstruck; the Justice Department was suddenly interested in the fake electors evidence it had declined to pursue a year earlier.

One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.

In the weeks and days before Monaco’s announcement, DOJ had finalized exploiting Rudy’s phone (as I note below, the WaPo story doesn’t focus on Rudy). The DOJ pursuit of the fake electors plot included aspects and subjects the January 6 Committee never pursued. So it is virtually certain that Rudy’s phone, not just J6C, drove at least part of the renewed focus on this.

It took two months after this for the FBI — for D’Antuono and Wray — to open the investigation, and they did not open the investigation against Trump at first.

In April 2022, more than 15 months after the attack, Wray signed off on the authorization opening a criminal investigation into the fake electors plot.

Still, the FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump.

Note, this is still two months before Cassidy Hutchinson’s public testimony, which had publicly been viewed as the first focus on Trump.

WaPo suggests that the first subpoenas in the fake elector plot went out on June 21, 2022 (which in any case would still be proof DOJ acted before the public hearing).

On June 21, 2022, the House select committee held a nationally televised hearing on fake electors — a topic the committee had, in contrast to the Justice Department, identified early on as a major target for investigation. Testimony revealed what the committee had learned in nine months: The Trump campaign had requested that fake elector documents be flown to D.C. in time to help pressure Pence.

[snip]

That day, FBI agents delivered subpoenas about electors for Trump to state lawmakers in Arizona. The next day, agents served subpoenas to people who signed documents claiming to be Trump electors in Georgia and Michigan.

But as I note below, the first fake electors subpoenas went out a month earlier, by May 25. This part of the narrative is misleading at best.

WaPo suggests there was an inordinate delay in interviewing fake electors.

In several cases, before the special counsel’s office got in touch, witnesses in the fake electors scheme hadn’t heard from the FBI in almost a year and thought the case was dead. Similarly, firsthand witnesses to Trump’s Jan. 2, 2021, call to Georgia Secretary of State Brad Raffensperger — in which Trump asked him to “find” enough votes to win that state — were not interviewed by the Justice Department until this year, after Smith’s team contacted them.

It’s not clear whether this is true at all. It has persistently taken 6 months or more to exploit cell phones. The Boris Epshteyn interviews in April took place on that schedule, even with complications of claiming work product with Rudy.

This is, rather, consistent with much of the January 6 investigation, or any investigation. All the more so given increasing signs that the January 6 and stolen documents case is intersecting at Trump’s PAC, which is not discussed in the article.

The most damning part of this story for DOJ leaves out the Rudy phones and the May subpoena. Including those two things, though, really undermines the narrative about that prong of the investigation.

The gaps in the WaPo story

There are many things not mentioned in this story, which betray real blind spots in the sourcing. Those include:

  • The failure by WFO under Steve D’Antuono to prevent January 6. D’Antuono is good at playing the press, and some quotes in here suggest that he was pushing for more aggressive investigation and Wray was resisting. Tellingly, then, this story doesn’t even mention — much less attempt to explain — why the FBI under D’Antuono failed to act on intelligence predicting January 6 (and indeed, kept Proud Boys on as informants targeting “Antifa” even as they were planning to come to DC for January 6). That’s where this story begins, yet it’s not included here.
  • Brandon Straka and similarly other well-connected VIPs. Brandon Straka got credit for cooperating in February and March 2021 interviews; he was in a position (and did) provide evidence about ties to the Stop the Steel investigation and the Willard. But the FBI — led by Steve D’Antuono, who also obstructed the investigation into the stolen documents — proved remarkably credulous with Straka and similar witnesses. A different treatment of Straka may well have led to far different results. Yet Straka is not mentioned here.
  • The Proud Boys’ history of teaming with Roger Stone to sow violence. According to the story, Michael Sherwin set his sights on the Oath Keepers and that initiative led to the sedition conviction of Stewart Rhodes and others. At sentencing, the sedition conviction proved important only for Rhodes and Kelly Meggs; everyone else was treated similarly as obstruction defendants, even with terrorist enhancements. But the more obvious starting point to understand Trump’s ties to January 6 — and an absolutely critical one given how bodies led by Alex Jones made the attack successful — is the Proud Boys. Given DC USAO’s treatment of the threats Stone made with Enrique Tarrio against Amy Berman Jackson in 2019, the focus on the Oath Keepers as distinct from the Proud Boys is inexcusable.
  • Rudy Giuliani’s phone. In September 2021, DOJ made a decision to do a privilege review on Rudy Giuliani’s phone that would access all information on his phones, not just the Ukraine-related topics the warrants to obtain the phones targeted in April 2021. Rudy has since confirmed that this included all the January 6 related material he admits to have had in his possession when the phones were seized in Lisa Monaco’s first week. It is absolutely certain that this should have produced information on the fake elector plot, starting in November 2021, yet WaPo doesn’t mention it.
  • The May 2022 Fake Electors subpoenas. The story implies DOJ first sent out subpoenas in the fake elector plot in June 2022. That’s false: the first subpoenas went out in May 2022. Importantly, there were names on those subpoenas that weren’t the focus of J6C’s public investigation (and in any case, preceded the public hearings). [Update: As Kyle Cheney noted, DOJ also obtained the email accounts of John Eastman and others, three of four lawyers.] That suggests that some of this investigation came from DOJ’s own work, not J6C’s.
  • Sidney Powell. The investigation into Sidney Powell, started no later than September 2021, is not mentioned in this piece. It’s unclear what became of that investigation, but DOJ did pursue it as a prong of the investigation at a time when, the story suggests, DOJ was not pursuing any Public Integrity prong of the investigation.
  • January 6 Committee’s delayed sharing. Some of this story is told from the perspective of the January 6 Committee. Yet it doesn’t mention that the committee’s decision to delay sharing of its transcripts did real and predictable damage to the Proud Boys case, and withheld tools from DOJ they could have used to flip witnesses six months earlier than they did.

Ultimately, this is a story first and foremost about Steve D’Antuono, who left the FBI in November. And I suspect it is just scratching the surface on the story about him.