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Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

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CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A  Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a  statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.

Elmer Stewart Rhodes Found Guilty of Seditious Conspiracy

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The verdicts are starting to come in on the Oath Keepers verdicts. The topline verdict: the jury found Elmer Stewart Rhodes and Kelly Meggs guilty on the seditious conspiracy count. The other three defendants — Ken Harrelson, Jessica Watkins, and Thomas Caldwell — were found not guilty on that charge.

All five defendants were found guilty of some kind of obstruction, though not always as part of a conspiracy.

Here’s a thread with the verdicts from the superb Brandi Buchman.

Here’s a table of the verdicts from Jordan Fischer.

Friends of Sedition: The Networked January 6 Conspiracy

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I’d like to look at several developments in recent days in the interlocking January 6 investigations.

First, as I noted Friday, the January 6 Committee subpoena to the former President focuses closely on communications with or on behalf of him via Signal. It specifically asks for communications with the Proud Boys and Oath Keepers (including on Signal). And Roger Stone is the first person named on the list of people all of whose post-election communication with Trump (including on Signal) the Committee wants. Clearly, the Committee has obtained Signal texts from others that reflect inclusion of the then-President and expects they might find more such communications, including some involving Stone and the Proud Boys and Oath Keepers.

Then, on Friday, one of the the main Proud Boy prosecutors, Erik Kenerson, asked to continue Matthew Greene’s cooperation for another 120 days, which would put the next status update in late February, over a month after the Proud Boy leader’s trial should be done. There are, admittedly, a great number of Proud Boy defendants who will go to trial long after that, but Greene doesn’t know many of them (he had just joined the Proud Boys and mostly interacted with other New York members like Dominic Pezzola). Nevertheless, prosecutors seem to think he may still be cooperating after the first big trial.

Those details become more interesting given how DOJ is presenting the Oath Keeper conspiracy at trial. Last Thursday, DOJ added the various communication channels each participant was subscribed to on their visual guide of the various co-conspirators.

It’s not surprising they would do that. To prove the three conspiracies these defendants are charged with, DOJ needs to prove each entered into an agreement to obstruct the vote certification, obstruct Congress, and attack the government. DOJ is relying on the various statements in advance of (and, for sedition, after) January 6 to show such intent. The fact that an intersecting collection of Signal channels incorporated most of the charged defendants will go a long way to show they were all willfully part of these three conspiracies.

But as you can see with Elmer Stewart Rhodes and Kellye SoRelle (circled in pink), DOJ has included Stone’s Signal channel — Friends of Stone — along with the Oath Keeper ones. As DOJ laid out last week, in addition to Rhodes and SoRelle, Enrique Tarrio, Alex Jones, and Ali Alexander were on the FOS channels, in addition to Stone himself.

DOJ has included things Rhodes said on the FOS chat in its timeline leading up to and on January 6. Significantly, at 2:28 on January 6, Rhodes informed the FOS chat that they were at “the back door of the Capitol.” (See the context in Brandi Buchman and Roger Parloff live threads.)

The thing is, many of the participants in FOS that prosecutors have, thus far, identified as participating in the chat (SoRelle, Ali Alexander, and Alex Jones) and most of the Oath Keepers were there on the East side of the Capitol or had only recently left. So was Owen Shroyer, who was also on FOS; he had been on the top of the stairs with Alexander and Jones.

Enrique Tarrio is one exception. He wasn’t present at the East side of the Capitol, but he was following along closely on social media — and likely already knew what was happening on the East side of the Capitol from Joe Biggs, who went through the East doors right along with the Oath Keepers.

Which means the only person mentioned so far who now needed to be told where the Oath Keepers were was Stone, back at the Willard.

We learned one more thing recently, at the last January 6 Committee hearing.

At 1:25PM — after the attack on the Capitol had started — Trump’s Secret Service detail was still planning on bringing him to the Capitol two hours later, around 3:30. That was after, per a video clip in which Nancy Pelosi said she would punch Trump if he showed up, Secret Service told Pelosi they had talked him out of coming.

But 18 minutes after Rhodes told the Friends of Stone list where the Oath Keepers were, at 2:46, Joseph Hackett came out of the Capitol and looked around, as if he was expecting someone to show up.

The fact that Rhodes was updating the FOS list from the Capitol suggests he may have been getting feedback from Stone and whoever else was on the list, including those who may have been coordinating with the then-President.

And whatever else DOJ’s use of the FOS list as part of this conspiracy does, it establishes the basis to argue that those coordinating on the FOS list were, themselves, in a conspiracy together: Rhodes and SoRelle with Tarrio (whom both met in the parking garage) and Alex Jones and Ali Alexander and Stone.

Just as importantly, it would network the conspiracies. That would put all the various Proud Boys taking orders from Tarrio in a conspiracy with those on the FOS list. It would put all the Oath Keepers conspiring with Rhodes and SoRelle in a conspiracy with those on the FOS list.

And it would put those on the FOS list in a conspiracy with those directing the attack on the Capitol.

I laid out over 14 months ago that, if DOJ were to charge Trump in conjunction with the attack on the Capitol, it would likely be part of an intersecting conspiracy with those already being charged.

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

In the last two weeks, DOJ has started to show how those conspiracies intersect.

Unsurprisingly, they intersect right through the former President’s rat-fucker.

Update; Corrected Pelosi timing, per Nadezhda.

Update: Tried to clarify that Tarrio was on the chat but was not (as the Oath Keepers, Jones, and Alexander were) on the East side of the Capitol.

The Additional Complexities of the Proud Boy Sedition Case

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Some weeks ago, someone involved in the Proud Boy case emailed me a personal invitation to the Proud Boy leader trial later this year: “please accept my invitation to come report on the proceedings in person.  In my opinion, it will prove far more interesting than the OK trial.” It had been a long time since I had heard from this person — since I warned him, for a second time, I would not treat his emails to me as presumptively off the record, because by then the frequency of them and the conflicts between what he said about the First Amendment publicly and what he said to me on emails had become newsworthy in and of itself.

I have no intention of traveling to DC for the Proud Boy trial. Like the Oath Keeper one, there will be scores of journalists who are very familiar with the case who will do great live coverage. I would add little, if anything.

But this person’s promise that the trial will be more interesting than the Oath Keeper one is a sound prediction. To be clear: I think the evidence shows that the Proud Boys are far more complicit in the attack on democracy on January 6 than the Oath Keepers, who were mostly whack right wingers with delusions of grandeur. But I also recognize that the Proud Boy case has been far more difficult for DOJ to put together than the Oath Keeper one, in significant part because they have been more successful at cultivating authoritarian law enforcement that likes their mob culture.

Remember, several Proud Boys, including Tarrio, worked with Roger Stone to threaten Amy Berman Jackson and Bill Barr’s DOJ treated it as a mere legal technicality. The Proud Boys got sanction, as a mob, from the President’s own mouth, which had ripple effects throughout government on the way they were treated.

So I wanted to look at three indications of the difficulties the Proud Boy prosecution may face that the Oath Keeper prosecutors did not.

Delayed phone exploitation

First, in a hearing yesterday in the case against five men who were co-travellers with Joe Biggs the day of the attack, prosecutor Nadia Moore mentioned that she had just provided the “scoped” phones from (I think) Paul Rae and Eddie George — “scoped” is what they call it when the FBI pulls out the things that are responsive to a warrant. That’s a fairly shocking delay in exploiting their phones. Rae was arrested on March 24, 2021 and George was arrested on July 15, 2021. But it’s true that a May discovery index from the Proud Boy leader case only shows a scoped LG Tablet from George, with no scoped phone listed for either (though there is a phone video from Rae listed).

It may well be that — like Enrique Tarrio — they had really complex passwords on their phone. It took over a year to exploit the content of his phone, even though it was seized before January 6. There appear to be others, too, whose phones were not yet exploited in May.

Aside from a delay in the scoping of Stewart Rhodes’ phone due to the volume of encrypted texts on it and a privilege review holding up the exploitation of Kellye SoRelle’s phone, there were no known similar delays on the Oath Keeper side.

Complicit FBI and law enforcement

While the Oath Keepers, like the Proud Boys, intentionally recruit law enforcement, the Proud Boys have been better at co-opting cops. Around five of the charged Proud Boys were former or still cops when charged. Tarrio had been a formal informant during a prior criminal prosecution. And several other members of the Proud Boys, including Joe Biggs, provided information to the FBI about what they claimed were Antifa.

Biggs described his own relationship with the FBI this way:

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

This is the same office where an FBI Agent, in August, refused to participate in the arrest of militia-associated men who planned to bring weapons to January 6. The agent then ran to Chuck Grassley and Ron Johnson, bitching, after his clearance was suspended because he didn’t like the way FBI was running domestic terrorism investigations.

The single FBI informant known to have been present on January 6 appears not to have told his handlers about a meeting he was at the night before where using violence was discussed. And so DOJ has given two members of the Kansas City Proud Boy cell who were with him — Ryan Ashlock and Louis Colon — unbelievably sweet plea deals, I suspect to sustain the rest of the cases against the Proud Boys.

Both Tarrio and Biggs have made specific requests for their own communications with law enforcement — in Tarrio’s case, he claims it is Brady material. That is, they plan to argue they couldn’t be guilty of plotting against the government because they’ve been so chummy with often right wing authoritarian cops in the past.

Witness backsliding

The Proud Boys have also been very good at pressuring witnesses not to testify against the mob. It had seemed that Ryan Samsel might enter into a plea deal describing what transpired between him and Biggs right before he kicked off the entire riot, for example, until Samsel was assaulted in still unexplained circumstances at the DC jail. Zach Rehl seemed like he was considering a plea deal until Tarrio called Rehl’s wife about it.

Jeff Finley, who was a co-traveller of Rehl’s, seems like he cooperated his way into a misdemeanor plea deal (like Brandon Straka is known to have), but in a July request for a four-month continuance, the government seemed to suggest they weren’t sure how complicit Finley was.

The government requests this continuance to allow time for the parties to fully evaluate the nature and seriousness of the defendant’s misconduct and for the parties to prepare a full and complete allocution to assist this Court in its sentencing.

All this is background to the Jeremy Bertino plea rolled out yesterday. Bertino was a high level Proud Boy who, because he was injured in a December 12 brawl, was not present on January 6, but was closely involved in discussions in advance of it.

Bertino’s possible arrest has been anticipated for months. A misdemeanor docket for Bertino was briefly unsealed on September 15 but then sealed. Yesterday, he pled guilty to one count of seditious conspiracy and one count of unlawful weapons possession for a small arsenal he had in spite of a past felony conviction. He is, as everyone (including me) has reported, the first Proud Boy to plead to seditious conspiracy. And he’s another participant in key leadership discussions in advance of the attack.

His statement of offense, however, leads me to wonder whether he didn’t get this plea deal in part to keep Charles Donohoe — who like Bertino is from North Carolina, and who pled guilty to obstruction and assault in April — from backsliding as a cooperator.

Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020 and emphasizing the import of the December 12, 2020 confrontations, including explicit discussions about using Tarrio’s anticipated arrest to rile people up against the cops. The description of changing attitudes about the cops (something that has featured in Proud Boy indictments from the start) may serve to combat Tarrio and Biggs’ efforts to claim chumminess with the cops.

Bertino further understood that due to a number of negative interactions with law enforcement, including the events of December 12, the Proud Boys increasingly viewed police as the enemy and Proud Boy members increasingly referred to the police as “coptifa,” meaning that they viewed the police as siding with Antifa.

The SOO explains that Bertino did not know what plan Biggs and Nordean came up with at a still unexplained meeting around 9PM on January 5. A very similar paragraph appears in Donohoe’s statement of offense.

What I’m most surprised about is who it includes and who it excludes: The SOO names Donohoe at least twelve times — sworn statements implicating Donohoe in events, many of which he himself admitted to in his own SOO. That shouldn’t be necessary for a cooperating witness (though because they were both in the Carolinas, the two men would have worked closely together). While it mentions Person-3, whom Alan Feuer has identified as John Stewart, it does not name Aaron Wolkind at all, referred to frequently in earlier Proud Boy materials as Person-2. With the exception of Person-3 (who is not yet charged), the focus is entirely on those already charged in the leaders conspiracy, not any other Proud Boys.

It is undoubtedly an important step to get a plea to sedition from someone who wasn’t even present the day of the attack. But that doesn’t alleviate the many things that make this case more complex than the Oath Keeper one.

Kellye SoRelle: Oath Keeper Capper or Potential Pivot?

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The government arrested Kellye SoRelle yesterday via an indictment charging three counts of obstruction and one count of trespassing. She’s best known as the lawyer for the Oath Keepers, though for a period she was acting as the President of the militia.

That she was arrested was not surprising. It has been known for some time that she’s the person who advised Rhodes to start deleting evidence of his activities on January 6, which he and others did. She even admitted it to MoJo’s Dan Friedman. Those who did delete their comms have all been charged for deleting evidence. The government even included that in Joshua James’ statement of offense, who is now cooperating with the government.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

So it’s unsurprising that she was also charged under 18 USC 1512(b)(2) for corruptly persuading and attempting to corruptly persuade others to delete evidence.

On its face, the indictment against SoRelle is all about capping off the Oath Keeper conspiracy. Her arrest warrant lists the two conspiracies, 22-cr-15 (the Rhodes seditious conspiracy) and 21-cr-28 (the lesser conspiracy now named after Donovan Crowl), as related cases, landing her case before Judge Amit Mehta. All seven of the Oath Keeper prosecutors were listed on the motion to seal her arrest warrant.

At that level, charging her seems like a way to ensure defendants in the sedition trial cannot foist all the blame for deleting those communications off on an uncharged co-conspirator.  In fact, Gateway Pundit, which has invented some of the central conspiracy theories about this case (including one spun directly by SoRelle), yesterday complained that DOJ only charged SoRelle because she recently agreed to testify in Rhodes’ defense.

Gateway Pundit’s earlier conspiracy theory, based on claims made by another cooperating Oath Keeper witness, Jason Dolan, appears to be one of the ways prosecutors managed to argue that her communications were not privileged.

As such, much of this indictment is about capping off the Oath Keeper case. But there are a few details that I find interesting.

First, unlike Michael Greene (the field commander for the Oath Keepers the day of the attack), who was superseded into the Crowl (lesser) conspiracy case on June 22, SoRelle was charged via indictment with conspiracy by herself. By comparison, when DOJ spun Jonathan Walden off onto his own indictment, the conspiracy charge against him was dropped.

Perhaps DOJ treated her this way because she mostly just interacted with Rhodes on January 6, but since she didn’t do anything meriting a sedition charge, she was charged by herself?

But there are other details that make me wonder whether DOJ isn’t doing something more by charging her.

SoRelle was charged by the same grand jury that did the bulk of the investigative work against all January 6 attackers for all of 2021, but which focused especially on the Oath Keepers. Its work seemed to culminate in January with the seditious conspiracy indictment. Since then, its main public work was to supersede Greene into the lesser conspiracy, 17 months after it was convened, as well as supserseding the Rhodes indictment to tweak how sedition was charged, also in that 17th month.

But the indictment against SoRelle means that grand jury is still at work in the 19th month after it was convened. Grand juries are usually convened for 18 months, so this seems to suggest the Oath Keeper grand jury has been extended, and extended (thus far) solely to charge someone whose phone the government seized last September.

Meanwhile, SoRelle’s indictment seems to have been initialed by Jocelyn Ballantine.

Up until now, Ballantine was known only to have a (behind-the-scenes) role in managing the Proud Boys investigation, which is not only less orderly than the Oath Keepers investigation, but seems to be understaffed, particularly as compared to the consistent 7-person team that has relentlessly pursued the Oath Keepers.

One reason you might charge SoRelle, by herself, on a conspiracy indictment is to add others to it. And while she’s best known for her role with the Oath Keepers and this indictment is closely tied to the Oath Keepers prong of the investigation, she actually has a number of ties to other key players in January 6.

She was present at the January 4, 2021 parking garage meeting between Rhodes and Enrique Tarrio, for example. She would have been a key facilitator for it. At the time, she was serving as the lawyer for both the Oath Keepers and Latinos for Trump. (It was via Tarrio’s involvement in Latinos for Trump that he went on December tour of the White House, arranged by Bianca Gracia, who was also at that garage meeting.)

As Ryan Reilly noted yesterday, SoRelle was also a volunteer for Lawyers for Trump, and in that guise, Rhodes tried to get her to put him in touch with people in Trump’s orbit. SoRelle claims that she declined to do that.

In the weeks leading up to the Jan. 6 attack on the Capitol, Oath Keepers founder Stewart Rhodes tried to get the organization’s general counsel, Kellye SoRelle, to put him in touch with the White House, she told NBC News.

In addition to her work with the Oath Keepers, SoRelle was a volunteer for Lawyers for Trump during the 2020 election and was in contact with many of the people fighting a doomed legal battle to try to overturn the 2020 presidential election and keep former President Donald Trump in office. The contacts include, she said, people in Rudy Giuliani’s and Sidney Powell’s camps, as well as those inside the administration, although she added that she “wasn’t, like, communicating with Trump directly.”

Rhodes wanted her to put him in touch with the White House. “He was hitting me up for a contact,” said SoRelle, a family law lawyer who previously ran for the Texas state House. “He didn’t have any access points.”

As he prepared an open letter calling on Trump to invoke the Insurrection Act in the weeks leading up to Jan. 6, 2021, Rhodes asked SoRelle to send it to the White House. She says she declined.

SoRelle has been caught making false claims to the press before.

Finally, in the clip of SoRelle’s testimony to the January 6 Committee that has been made public, she described how Roger Stone, Alex Jones, and Ali Alexander took the lead on planning the Stop the Steal events.

JAMIE RASKIN: Kelly Sorrell, a lawyer who assists the Oath Keepers and a volunteer lawyer for the Trump campaign, explained to the committee how Roger Stone and other figures brought extremists of different stripes and views together. [Begin videotape]

UNKNOWN: You mentioned that Mr. Stone wanted to start the Stop the Steal series of rallies. Who did you consider the leader of these rallies? It sounds like from what you just said, it was Mr. Stone, Mr. Jones, and Mr. Ali Alexander. Is that correct?

KELLY SORRELL: Those are the ones that became like the — the center point for everything. [End videotape]

In other words, while SoRelle didn’t breach the Capitol in body armor like the rest of the Oath Keepers, she was (along with Roger Stone) one of the key pivots between the Oath Keepers and the rest of the organizing effort behind January 6. She was networked with other planners in a way that even Rhodes was not.

For over a year, I’ve been describing that the elegant thing about the obstruction conspiracy charges DOJ has used to charge the Oath Keepers, Proud Boys, and others, is those separate conspiracies might one day start to coalesce via the nodes between them. Kellye SoRelle has, by all appearances, been charged in a conspiracy with the Oath Keepers.But if she also conspired on other aspects of January 6 with other people and organizations, including White House lawyers, then the various existing conspiracies might network into a larger conspiracy.

The lead prosecutor on SoRelle’s case, incidentally, also happens to be the lead prosecutor on Owen Shroyer’s prosecution.

Update: Corrected that SoRelle stepped down as President when Rhodes was arrested.

The Evidentiary Hole in the Middle of Ari Melber’s “Not anything but evidence”

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Fresh off giving Andrew Weissmann a platform to complain that DOJ’s multi-spoked investigation into January 6 should be multi-spoked, fresh off giving Adam Schiff an opportunity to make the (still-uncorrected) false claim that Congress never gets ahead of DOJ on parts of investigations they’re conducting in parallel, Ari Melber rolled out a schema (one, two) about his understanding of Trump’s corrupt acts that others have found really helpful.

It came with a nifty, mostly-accurate graphic that shows how multiple attempts to stay in power worked in parallel.

That graphic is helpful for those trying to keep track of all the efforts Trump pursued.

But Ari’s “special report,” which he claims is “built on evidence, not anything but evidence,” is most useful for demonstrating the evidentiary hole in the middle of his understanding of events leading up to January 6. And not just his understanding: also my own, and (at least based off their hearings) even the January 6 Committee’s. Neither Ari, the Committee, nor I, nor anyone I know to be investigating — save possibly DOJ and one or two really well sourced journalists — knows for certain what happened between the end of the December 18, 2020 meeting where Sidney Powell pitched Trump on a plan to seize voting machines and Trump’s December 19 tweet that led Stop the Steal plotters to start taking steps that led to a violent attack on the Capitol.

Before I lay out how well Ari illustrates that evidentiary hole, there are multiple things that Ari gets wrong (I’ve put my transcription of the most important parts of his presentation below). Most have to do with Ari’s apparent misunderstanding of how the blue collar violent attack on the Capitol related to the white collar parts of the coup attempt he has familiarity with.

For example, he claims, without evidence, that Rudy Giuliani, Mark Meadows, and John Eastman wanted pardons, “totally separate from the January 6 violence.” But according to Cassidy Hutchinson, both Rudy and Meadows knew by January 2 that Trump planned to go to the Capitol and it might get “real, real bad.”

CASSIDY HUTCHINSON: As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy, could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol.

It’s going to be great. The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators. Talk to the chief about it, talk to the chief about it. He knows about it.

LIZ CHENEY: And did you go back then up to the West Wing and tell Mr. Meadows about your conversation with Mr. Giuliani?

CASSIDY HUTCHINSON: I did. After Mr. Giuliani had left the campus that evening, I went back up to our office and I found Mr. Meadows in his office on the couch. He was scrolling through his phone. I remember leaning against the doorway and saying, I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.

He didn’t look up from his phone and said something to the effect of, there’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.

Hutchinson also tied White House awareness of the militias now charged with seditious conspiracy with Rudy’s presence.

CASSIDY HUTCHINSON: I recall hearing the word Oath Keeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

As for Eastman, Mike Pence’s Counsel, Greg Jacob, accused Eastman in real time, as his family was worried whether Jacob would get out alive, of causing the “siege” on the Capitol by “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law.”

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

Judge David Carter’s opinion finding it likely Eastman and Trump conspired to obstruct the vote count included Trump’s effort to send the mob, which we now know he knew to be armed, to the Capitol.

President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

So all of these three men, per key witnesses and one judge, have legal exposure that is directly tied to the violence at the Capitol. Maybe they only wanted pardons for their white collar crimes, but — according to the evidence — all are implicated in the blue collar crimes.

Ari also treats the consideration of a plan to have DOD seize the voting machines as “the military plot,” one that ended on December 18. There are two problems with this. First, Ari ignores that this plan was revised to put DHS in charge of seizing the machines, which is how the plan resurfaced on December 31, when Trump serially tried to get DOJ and DHS to seize the machines.

ADAM KINZINGER: Mr. Rosen, the President asked you to seize voting machines from state governments. What was your response to that request?

JEFFREY A. ROSEN: That we had — we had seen nothing improper with regard to the voting machines. And I told him that the — the real experts that had been at DHS and they had briefed us, that they had looked at it and that there was nothing wrong with the — the voting machines. And so that was not something that was appropriate to do.

ADAM KINZINGER: There would be no factual basis to seize machines. Mr. Donoghue —

JEFFREY A. ROSEN: — I — I don’t think there was legal authority either.

ADAM KINZINGER: Yeah. Mr. Donohue can you explain what the President did after he was told that the Justice Department would not seize voting machines?

RICHARD DONOGHUE: The President was very agitated by the Acting Attorney General’s response. And to the extent that machines and — and the technology was being discussed, the Acting Attorney General said that the DHS, Department of Homeland Security, has expertise in machines and certifying them and making sure that the states are operating them properly.

And since DHS had been mentioned, the President yelled out to his Secretary get Ken Cuccinelli on the phone. And she did in very short order. Mr. Cuccinelli was on the phone. He was the number two at DHS at the time. It was on the speakerphone, and the President essentially said, Ken, I’m sitting here with the Acting Attorney General.

He just told me it’s your job to seize machines and you’re not doing your job. And Mr. Cuccinelli responded.

More importantly, Ari ignores that both militias charged with sedition and a goodly number of other armed rioters believed that larger scale violence would break out (possibly via clashes with counter-protestors, possibly in response to the GOP attempt to steal votes at the Capitol) on January 6, which would create the excuse for Trump to invoke the Insurrection Act to accord legal authority to the mob to act on his behalf. That will literally be Stewart Rhodes’ defense against a sedition charge, that he expected his attack on the US to come with Trump’s legal sanction.

And the plan may have gone further than that. To the extent that Trump asked the National Guard to be prepared for January 6, it was to protect his supporters, not to protect the Capitol.

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

When reports that the Guard would deploy first started to come out on January 6, Proud Boy Charles Donohoe [now a cooperating witness] reacted with surprise that the Guard would attack, rather than protect, Trump supporters.

That is, the actual plans for a military coup, rather than a Sidney Powell plan that Trump rejected then revisited, envisioned having armed Trump supporters and the National Guard holding the Capitol together. It was a plan that multiple militia members — most notably Rhodes, which forms a key part of the sedition evidence against him — but even joined by some members of Congress continued to pursue after January 6. There was a military plot that was far worse than the one that Ari labels as “that very bad red illegal plan,” but to understand it, you need to understand what happened at the Capitol, and what plans continued for weeks — still continue!! — after, per Ari, the violence “ended within one day.”

On top of a lack of understanding of what actually happened at the Capitol, Ari’s scheme includes conflicting claims. Ari claims that after Trump chose not to pursue Sidney Powell’s plan on December 18, he turned to “muscle.” “So that’s when I bring muscle to January 6.” His nifty graphic shows the plans to “sabotage Jan. 6” (adopting an utterly bizarre word, “sabotage,” which whitewashes both the violence planned and the legal crime, obstruction, committed) started right then, on December 19. But then, after claiming that Trump turned to “muscle” starting on December 19, Ari suggests that Trump’s only agency in the violence that ensued was the speech he gave on January 6. “The law makes it hard to pin an insurrection on one speech.”

In his presentation, at least, Ari ignores that “muscle” had been a part of the plan from the start, with operatives forming mobs at counting locations in the swing states that in turn created the cover for the fake electors plot and elicited threats against election officials, and it continued through to January 6 and beyond.

This may stem from an unfortunate unevenness on the part of the January 6 Committee.

The seventh hearing — the one purportedly focused on the rioters — depicted the actions of Ali Alexander and Alex Jones as an organic response to Trump’s December 19 tweet.

Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

ALEX JONES: It’s Saturday, December 19th. The year is 2020, and one of the most historic events in American history has just taken place. President Trump, in the early morning hours today, tweeted that he wants the American people to march on Washington DC on January 6th, 2021.

That hearing similarly implied that Oath Keeper Kelly Meggs’ efforts to set up an alliance between the militias, which undoubtedly started at least days earlier, was a response to Trump’s tweet.

On December 19th at 10:22 a.m., just hours after President Trump’s tweet, Kelly Meggs, the head of the Florida Oath Keepers, declared an alliance among the Oath Keepers, the Proud Boys and the Florida Three Percenters, another militia group.

He wrote, we have decided to work together and shut this shit down. Phone records obtained by the Select Committee show that later that afternoon, Mr. Meggs called Proud Boys leader Enrique Tarrio, and they spoke for several minutes. The very next day, the Proud Boys got to work. The Proud Boys launched an encrypted chat called the Ministry of Self-defense.

That is, in places, the Committee encouraged this notion that everything pivoted on December 19 after that tweet.

But elsewhere, the Committee made it clear that the “muscle” and the militia were part of the plan from the start. Its fourth hearing on the Big Lie, for example, made clear that the earlier mobs were led by the very same people who seemingly sprung to action in response to Trump’s December 19 tweet.

[Ali Alexander]:

Let us in. Let us in. Let us in. Special session. Special session. Special session. We’ll light the whole shit on fire.

NICK FUENTES:

What are we going to do? What can you and I do to a state legislator besides kill him? Although, we should not do that. I’m not advising that, but I mean what else can you do? Right?

UNKNOWN:

The punishment for treason is death.

[End Videotape]

ADAM SCHIFF:

The state pressure campaign and the danger it posed to state officials and to State Capitols around the nation was a dangerous precursor to the violence we saw on January 6th at the US Capitol.

[snip]

The Select Committee has uncovered evidence in the course of our investigation that at stop the steal protests at state capitols across the country, there were individuals with ties to the groups or parties involved in the January 6th attack on the US Capitol. One of those incursions took place in the Arizona House of Representatives building, as you can see in this footage.

This is previously undisclosed video of protesters illegally entering and refusing to leave the building. One of the individuals prominently shown in this video is Jacob Chansley, perhaps better known as the QAnon Shaman. This rioter entered the Capitol on January 6th, was photographed leaving a threatening note on the dais in the US Senate chamber, and was ultimately sentenced to 41 months in prison after pleading guilty to obstruction of an official proceeding. Other protesters who occupied the Arizona House of Representatives building included — included Proud Boys, while men armed with rifles stood just outside the entrance.

And different parts of the seventh hearing showed that these ties are much better established, including through Roger Stone’s Friends of Stone listserv that started plotting immediately after the election.

Raskin: In the same time frame, Stone communicated with both the Proud Boys and the Oath Keepers regularly. The committee obtained encrypted content from a group – – from a group chat called Friends of Stone, FOS, which included Stone, Rhodes, Tarrio and Ali Alexander.

The chat focused on various pro-Trump events in November and December of 2020, as well as January 6th. As you can see here, Stewart Rhodes himself urged the Friends of Stone to have people go to their state capitols if they could not make it to Washington for the first million MAGA March on November 14th. These friends of Roger Stone had a significant presence at multiple pro-Trump events after the election, including in Washington on December the 12th. On that day, Stewart Rhodes called for Donald Trump to invoke martial law, promising bloodshed if he did not.

[snip]

JAMIE RASKIN: Encrypted chats obtained by the Select Committee show that Kelly Meggs, the indicted leader of the Florida Oath Keepers, spoke directly with Roger Stone about security on January 5th and 6th. In fact, on January 6th, Stone was guarded by two Oath Keepers who have since been criminally indicted for seditious conspiracy.

One of them later pleaded guilty and, according to the Department of Justice, admitted that the Oath Keepers were ready to use, quote, lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard. As we’ve seen, the Proud Boys were also part of the Friends of Stone Network.

Stone’s ties to the Proud Boys go back many years. He’s even taken their so-called fraternity creed required for the first level of initiation to the group.

[snip]

Katrina Pierson, one of the organizers of January 6th rally and a former campaign spokeswoman for President Trump, grew increasingly apprehensive after learning that multiple activists had been proposed as speakers for the January 6th rally. These included some of the people we discussed earlier in this hearing.

Roger Stone, a longtime outside advisor to President Trump; Alex Jones, the founder of the conspiracy theory website Infowars; and Ali Alexander, an activist known for his violent political rhetoric. On December 30th, Miss Pierson exchanged text messages with another key rally organizer about why people like Mr. Alexander and Mr. Jones were being suggested as speakers at the President’s rally on January 6th. Ms. Pierson’s explanation was POTUS, and she remarks that the President likes the crazies.

Remember that the Committee cut a good deal of their presentation focused on the militia in that seventh hearing to integrate more of Pat Cipollone’s testimony, which I think was one of the more unsuccessful planning decisions the Committee made.

Even still, taken as a whole, the Committee shows that the network around Roger Stone, which linked Ali Alexander, Alex Jones, and other movement activists to the militias (Jones had his own long-standing ties to the militias, including his former employee Joe Biggs), was riling up crowds starting immediately after the election, took concrete steps seemingly in response to Trump’s December 19 tweet, and continued to do so on January 6.

I mean, Roger Stone has been doing this since 2000.

In his most recent schema at least, Ari ignores all of that. Stone, Alexander, the militias, go unmentioned, and Trump’s role in the violence is limited to a single speech.

Which brings me back to the evidentiary gap that Ari and I share, seemingly in conjunction with the Committee.

In Ari’s telling, Donald Trump and Peter Navarro (with whom Ari has had a series of interviews) are the agents of this timeline. In his telling, Trump made an effort to “find a coup plotter” who would go further than his personal lawyer Rudy, who at least according to Hutchinson, had ties to the militias (though Powell is currently funding the legal defense of several Oath Keepers). Ari claimed that Powell was still on the campaign team, even though Rudy had explicitly and publicly stated she had no role on the campaign as early as November 22.

And Ari suggested that Trump adopted Powell’s plan, then either “back[ed] down” or “quit” it.

But as the January 6 Committee described it, it’s not really clear what happened; Pat Cipollone couldn’t even say whether Powell was appointed Special Counsel.

PAT CIPOLLONE: I don’t know what her understanding of whether she had been appointed, what she had been appointed to, Ok? In my view, she hadn’t been appointed to anything and ultimately wasn’t appointed to anything, because there had to be other steps taken. And that was my view when I left the meeting. But she may have a different view, and others may have a different view, and — and the president may have a different view.

To make matters worse, there are few if any credible witnesses here. Sidney Powell and her entourage (including Patrick Byrne, Mike Flynn, and an unnamed attorney) are batshit insane. So is Rudy. Cipollone, who gets treated as a grown-up, seems to be protecting Trump with his privilege claims. Meadows showed up later, but he’s a liar. Cassidy Hutchinson was texting details about the screaming and took a picture of Meadows escorting Rudy from the premises, but she is not known to have been in the meeting.

What seems common to all descriptions is that the Powell entourage showed up without an appointment and were let in by (as Ari notes) Peter Navarro aide Garrett Ziegler, though Patrick Byrne’s account describes two others being involved in their unplanned entry as well. That’s not a plan, it’s a pitch.

During the course of the meeting, Trump entertained the Powell plan because, he complained, Rudy and others were offering him nothing better.

UNKNOWN: So one of the other things that’s been reported that was said during this meeting was that President Trump told White House lawyers Mr. Herschmann and Mr. Cipollone that they weren’t offering him any solutions, but Ms. Powell and others were. So why not try what Ms. Powell and others were proposing? Do you remember anything along those lines being said by President Trump?

DEREK LYONS: I do. That sounds right.

ERIC HERSCHMANN: I think that it got to the point where the screaming was completely, completely out there. I mean, you got people walk in, it was late at night, had been a long day. And what they were proposing I thought was nuts.

RUDY GIULIANI: I’m gonna — I’m gonna categorically describe it as you guys are not tough enough. Or maybe I put it another way. You’re a bunch of pussies. Excuse the expression, but that — that’s I — I’m almost certain the word was used.

But the impression given by virtually all versions of this story (key versions linked below) is that by the end of the night, the White House lawyers and Rudy had mostly convinced Trump not to adopt this plan.

If that’s the case (and several people have backed that story under oath), this will be exculpatory if and when Trump ever goes to trial, not inculpatory. Entertaining a suspect idea — even the arguably legal one of appointing Jeffrey Clark to more aggressively pursue voter fraud claims, and especially a plan to seize the poll machines — but rejecting it on the advice of lawyers, even if Trump was persuaded to do so largely out of self-interest, is evidence someone is trying to stay inside the law, not break it. To be sure, there’s plenty of other evidence that Trump knowingly broke the law, but some of the most contentious meetings will actually be used in his defense. That just means prosecutors will find their proof of motive in places more directly tied to the crimes.

But the meeting accounts showing lawyers at least stalling on any decision about seizing the machines is where the trail goes dark.

No one has yet explained what happened between the time everyone left and the moment Trump’s tweet went out, and the understanding with which key planners adjusted their own timelines. Instead, we get narratives like Ari’s, or Jamie Raskin’s, that present the timing as proof that Trump took a third alternative — a pretty strong inference, undoubtedly — without an explanation of how the tweet got sent out or whether those involved knew where things would lead or who pitched Trump.

Not long after Sidney Powell, General Flynn, and Rudy Giuliani — Giuliani left the White House in the early hours of the morning, President Trump turned away from both his outside advisers’ most outlandish and unworkable schemes and his White House counsel’s advice to swallow hard and accept the reality of his loss.

Instead, Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

It appears that both Powell’s contingent and Rudy left after midnight, with Meadows and Rudy together alone as Rudy left. Less than two hours later, that tweet went out, a tweet that was demonstrably central to both the organized and disorganized mobilization of the mob, one that has long been a focus of DOJ’s prosecutions (proof, among other proof, that Ari’s claim that DOJ has only focused on January 6 and the days immediately before it is false).

It’s certainly possible that after everyone left Peter Navarro came in, or maybe just Ziegler, and presented an alternative plan, a mob, but Ari presents no evidence that happened and it’s unlikely either Ziegler or Navarro would have been silent about their role in it. It’s more likely that Rudy and Meadows agreed they had to offer Trump another alternative, and they settled on January 6 (certainly, Meadows had advanced knowledge of Rudy’s plans for January 6). It’s possible that Trump had a late night call with someone else — Roger Stone or Bannon, maybe — who operationalized what came next. Maybe the dim-witted Meadows came up with the plan by himself.

Meadows, who refused to cooperate with the Committee, surely knows. Dan Scavino, who refused to cooperate, spent four years knowing what led up to most every tweet that Trump sent out. He also must know.

And while Ari doesn’t appear to know and I don’t either and the Committee doesn’t explain it if they know the answer, the one other place one might learn the answer is from those who turned existing infrastructure — the Stop the Steal effort, the permits — towards planning for January 6 (both of which DOJ has issued grand jury subpoenas to learn).

DOJ has been a bit coy about whether they know. That’s why I pointed to the remarkable use of the passive voice in Donohoe’s statement of offense in April, which virtually alone among January 6 filings obscures Trump’s role in announcing the riot on December 19, then turns immediately to Enrique Tarrio’s very hierarchical plan to instill discipline in the Proud Boys that didn’t exist at the December 12 MAGA March (the same trip to DC where Tarrio visited the White House as part of a Latinos for Trump visit).

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

That happened “on or before” December 20, allowing for the possibility that the Proud Boys started to plan before Trump publicly announced the rally. Among other communications that DOJ likely has that the Committee has more limited access to are at least three versions of the Friends of Stone listserv (from Tarrio, Rhodes, and Owen Shroyer’s phones).

My instinct — based on all the evidence that these same people had been the muscle going back to the election — is that that’s where one could find the answer: Meadows, Scavino, Trump, Rudy, but also those who directed existing infrastructure towards January 6. But that’s just instinct. We still really don’t know for sure.

Presidents often adopt the plans of the last person in the room, and that’s probably more true with Trump than many of his predecessors. We know — or believe — that Sidney Powell and Rudy both left. Which means we don’t know who pitched Trump on the plan he ultimately adopted, the one that led directly to an attack on the Capitol.

There absolutely is a slew of evidence that that tweet made the difference, not just with the militias, but with disorganized conspirators and individuals who took Trump’s tweet as an order to make travel plans. It is absolutely the case that after that meeting, Trump took a fateful step (though that has been clear for at least a year). We just don’t know what led him to post that tweet.

Many of those people [Rudy, Meadows, Eastman] wanted pardons totally separate from the January 6 violence and that is important as we look at a different plot Trump’s effort to find a coup plotter would who go farther than Giuliani, his lawyer, Sidney Powell. She would go even farther. So the plan was to take her off the campaign team and try to install her inside the government to get the military to seize voting machines.

[snip]

Trump did back down on that very bad red illegal plan. And by the way, quitting an illegal coup would be a good thing, but this was the military plot: another conspiracy’s prong that hits a dead end. And this is key, because facing that dead end, late that same night of December 18th, Trump turned to the other plot pushed by Eastman and Navarro, posting what is by now an infamous tweet that announces the January 6 rally, beginning, quote, Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. That was the lie Trump needed to build on when he summons the people to DC for the first time. Quote, big protest in DC on January 6th. Will be wild. Now that’s the first time Trump ever told supporters there was a place to come join this fight. And none of this happened in isolation. The evidence of Trump’s criminal intent is worse when all the facts are shown about the plot. Trump began the public operation to sabotage January 6 as a certified vote which was criminal, only after hitting this dead end in the failed plot to have the military help a coup. Now his lawyers warned him of the criminal issues here. Of the criminal intent and actions of that military plot. And he still moved, continuously, from that conspiracy to this one. Now, that’s damning evidence if prosecutors are indicting a broader conspiracy. And the White House aide connecting both plots is Navarro whose aide helped sneak in the military plotters there, then, he’s part of Trump’s January 6th announcement.

[A quote about seizing machines, ignores DHS]

This is something that Rudy Giuliani said would land them all in prison. Rudy Giuliani. He’s already lost his law license. We’ll see what else happens to him. But that is the context as we showed tonight: That when that fails, is the same time, the same night, that Donald Trump comes in and says, alright, I can’t abuse military power. I’m even being told by my most aggressive, lawless lawyers — the kind that he apparently prefers — that that’s not gonna work. So that’s when I bring muscle to January 6. But we have had, in this country, in our minds and apparently at the Justice Department as we reported tonight, a fixation on only looking here [post December 19]. On basically the 6th, or the lead-up to the 6th, or a few days out. And that’s understandable, given what we lived through. We’re human beings and the 6th was one of the worst attacks and one of the worst national security crises America has ever faced, from a domestic threat, let alone an incumbent outgoing President. The point tonight, which we’ve built on evidence, not anything but evidence, is that when you actually go all the way back, when you actually understand how this started, and how many different plots were pursued, thwarted, warned about, and then desperately doubled down upon, that goes to the criminal intent. Let me put it simply. Taken separately, some of these plots can be viewed like a gray area, clumsy plans that didn’t occur or the insurrection that exploded but also ended within one day. I’ll tell you something. The law makes it hard to pin an insurrection on one speech. As it should. But taken together, you have the evidence of this wider criminal conspiracy with criminal intent running across weeks if not more. Remember, in court, prosecutors have to prove criminal intent in a moment, just that you meant to do it. This is weeks of that with lawyers warning these were crimes, especially after the legal door was closed in mid-December when the Electoral College voted — everything after that, when it comes to overturning votes and installing fraudulent electors, that’s that illegal red zone. That’s where you see the evidence of several crimes. And taken together? Well, this evidence suggests the question is no longer whether there are any indictable election offenses here, but how prosecutors would explain a failure to indict and enforce the law and how that does risk letting the close call of this documented and attempted multi-prong coup conspiracy turn into a training exercise that American democracy may not survive.

 

Jeffrey Clark: Physics Takes Over the Investigation Now

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Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.

Three Months Later, DOJ Finally Gets Interested in Sidney Powell’s Militia Defense Fund

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In the Oath Keepers case, the government just sent out a letter raising concerns about DC’s Rule 1.8(e) that governs the ethical obligations in cases where a third party pays for someone else’s defense. That’s allowed, but there are three necessary conditions: that the defendant make informed consent, that the payor not interfere in case decisions, and that information about the case may not be shared with the payor.

(1) The client gives informed consent after consultation;

(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) Information relating to representation of a client is protected as required by Rule 1.6.

At issue is the scheme that BuzzFeed revealed and Mother Jones later reported that describes that Sidney Powell is paying for some of the Oath Keepers’ defense.

As the government describes, in response to the government’s queries, lawyers for Stewart Rhodes and Jessica Watkins did not respond, the Meggs’ lawyers and that of Kenneth Harrelson say they’re in compliance with the rule, and William Shipley, who is representing Roberto Minuta, said he’d respond to Judge Mehta’s inquiries, but didn’t answer to DOJ.

1. Attorney David Fischer, who represents Thomas Caldwell, stated that he was in compliance with Rule 1.8(e) and that he “has received no funding from, and has no affiliation with, Defending the Republic.”

2. Attorney Scott Weinberg, who represents David Moerschel, stated he was in compliance with Rule 1.8(e) and that he was not receiving any funding from Defending the Republic.

3. Attorney Gene Rossi, on behalf of himself and co-counsel Natalie Napierala and Charles Greene, who represent William Isaacs, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

4. Attorney Tommy Spina, on behalf of himself and co-counsel Edward B. MacMahon, Jr., who represent Jonathan Walden, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

5. Attorneys Julia Haller and Stanley Woodward, who together represent Kelly Meggs and Connie Meggs, stated that they were in compliance with Rule 1.8(e). They did not specifically inform the government whether their fees were being paid by Defending the Republic.

6. Attorney William Shipley, who represents Roberto Minuta, declined to answer, but wrote, “Should Judge Mehta wish for my client or me to explain the arrangement for funding my client’s legal defense in order to confirm that my client’s Sixth Amendment right to conflict-free counsel are being afforded – or waived – we will provide him with whatever information he requests.”

7. Attorney Bradford Geyer, who represents Kenneth Harrelson, stated that he was in compliance with Rule 1.8(e). He declined to inform the government whether his fees were being paid by Defending the Republic.

The other defense counsel whom the government believes to be retained rather than court-appointed – Phillip Linder and James Lee Bright for Stewart Rhodes, and Jonathan Crisp for Jessica Watkins – have not yet responded to the government’s letter.

The letter DOJ sent to the defense attorneys suggested that Powell’s interests may diverge from these defendants.

The Supreme Court has said that “inherent dangers . . . arise when a criminal defendant is represented by a lawyer hired and paid by a third party.” Wood v. Georgia, 450 U.S. 261, 269 (1981). In Wood, the third-party payer was the “operator of the alleged criminal enterprise,” and thus the lawyer had an interest in the clients not testifying against the third-party payer or taking other actions contrary to the payer’s interest.4 Id. Indeed, comment 10 to Rule 1.8 explains that “third-party payers frequently have interests that differ from those of the client.” Here, Defending the Republic may have interests that diverge from these defendants.

4 As Defendant Kelly Meggs’s former counsel Jonathon Moseley told Mother Jones, Defending the Republic’s “financial support has the effect of making plea bargains less likely.” This fact could be against the interest of a particular defendant.

I’m happy DOJ is addressing this. The lawyers who are reported to be on Powell’s dole seem to be pushing conspiracy theories in lieu of a real defense.

What I don’t understand is the timing. BuzzFeed first reported this on March 9. DOJ only sent out its inquiry letter on June 16, over three months later.

And thus far, DOJ is only raising this in the Oath Keepers’ case. At the very least, you’d think DOJ would make similar inquiries in the Ryan Samsel case; he’s represented by the same team, Stanley Woodward and Juli Haller, as is representing the Meggses. And after he was assaulted, Samsel seemed to decide not to cooperate (against what would be Joe Biggs).

Similarly, William Shipley is representing a slew of defendants, including many of the Proud Boys who might most immediately implicate Biggs.

Finally, Jimmy Haffner, one of the Proud Boys accused of helping to open up the East Door of the Capitol, posed with Powell when her fundraising bus came through town in 2020.

Of course, DOJ has been investigating Powell herself since at least September, so maybe they’re learning of new conflicts only now.

So who else is Sidney Powell paying? And why is DOJ only doing something about it now?

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

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Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

  • Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
  • Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
  • Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
  • Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
  • Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
  • Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
  • Reconfirmation that Trump never called Pence to check on the Vice President’s safety
  • Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

The January 6 Militia Witnesses Are Cooperating with DOJ, Probably Not the January 6 Committee

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Liz Cheney made a comment in Thursday’s public hearing that has attracted some attention. As part of her explanation that the January 6 investigation is ongoing, she said,

As we present these initial findings, keep two points in mind. First, our investigation is still ongoing. So what we make public here will not be the complete set of information we will ultimately disclose. And second, the Department of Justice is currently working with cooperating witnesses and has disclosed to date only some of the information it has identified from encrypted communications and other sources.

Some have wondered whether this reflects some kind of insight into where the DOJ investigation is headed.

I doubt that Cheney’s comment reflects any greater insight into where DOJ is headed than I’ve gotten from tracking DOJ’s investigation closely, though as I’ll explain below, the Committee undoubtedly has non-public insight into how the militias coordinated with those close to Trump. (One possible — and important — exception to this assumption might be Joshua James, the Oath Keeper who is known to have testified in an NYPD inquiry targeting Roger Stone associate Sal Greco.)

While the Committee showed clips of depositions it had with Stewart Rhodes (pleading the Fifth in response to a question about arming members), Enrique Tarrio (expressing regret he didn’t monetize the Stand Back and Stand By comment), and Jeremy Bertino (who is Person-1 in the sedition indictment charging the Proud Boy leaders and who told the Committee that membership tripled in response to Trump’s comment), the more substantive claims about the militias on Thursday always cited the indictments against them, not evidence independently gathered by the Committee.

For example, Cheney described how Trump’s December 19, 2020 tweet, “initiated a chain of events. The tweet led to the planning for what occurred on January 6, including by the Proud Boys, who ultimately led the invasion of the Capitol and the violence on that day.” In his questioning of documentarian Nick Quested, Bennie Thompson likewise cited the indictment against the Proud Boys for claims about the lead-up to the attack.

To be sure, Thompson laid out details of the attack that are not generally known, but which are public: the Proud Boys skipped Trump’s speech and kicked off their attack to coincide with the Joint Session, not Trump’s speech; the Proud Boys first attacked at the site where the mob soon to be led by Alex Jones would arrive. I’ve laid out some of these dynamics in this post, and the Sedition Hunters have developed two detailed timelines that show how this worked, one describing the phases of the attack, and another capturing key communications of those implicated in it.

I’ve likewise noted what Cheney has: The Proud Boys — and virtually everyone else who organized in advance — responded to Trump’s tweet as if it was an order. I’ve also described — in a post called, “Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense” — how in cooperating witness Charles Donohoe’s Statement of Offense, DOJ for the first time used the passive voice to describe how the riot was announced.

[T]he foundation of that hierarchy that is so remarkable.

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

The implication from the Statement of Offense is that Donohoe learned certain things starting on December 20 that he has shared with prosecutors. One reason I’m pretty sure that prosecutors haven’t shared it with the Committee, yet, is because Donohoe’s cooperation does not show up in the discovery index provided to the defendants themselves on May 12, over a month after Donohoe flipped, which prosecutors filed publicly last week. Similarly, prosecutors have not yet explicitly told defense attorneys the person who shared a plan with Tarrio talking about occupying the Capitol, though they have the returns for Tarrio’s phone that should help defense attorneys learn that person’s identity.

(I do wonder whether a challenge to a very recent call records subpoena from the Committee by Russian-American Kristina Malimon, discovered by Kyle Cheney, not to mention the high profile former Trump impeachment lawyers representing her, means the Committee thinks they’ve figured out the person’s identity, though.)

The schedule of upcoming January 6 hearings explains one reason why Cheney referenced the ongoing investigation when citing DOJ’s cooperating witnesses:

  • June 13: The Big Lie
  • June 15: Decapitate DOJ
  • June 16: Pressuring Pence
  • June 21: Pressuring the States
  • Hearing 6: Trump Assembles a Mob and Sics it on Congress
  • Hearing 7: Trump Does Nothing as Capitol Is Attacked

The dates for the last two hearings, hearings that will include details about how the Proud Boys paused their attack to await reinforcements brought by Alex Jones, opened a second front in seeming coordination with the Oath Keepers and Jones, and considered a second assault until learning the National Guard had finally been deployed, are not known yet. Whenever they are, though, they’ll come after June 21, and therefore after the June 17 discovery deadline in the Proud Boy Leaders case. DOJ has said they won’t supersede the Leaders indictment beyond what it currently is (meaning no more co-conspirators will be added to it). But the fates of Persons-1 (Bertino), -2, and -3 are up in the air right now, as well as a number of charged Proud Boys (like Ron Loehrke), who played key roles in the tactical success of the attack but who have not yet been indicted. Similarly, the fates of those known to coordinate most closely with the militias — Roger Stone, Alex Jones, and Ali Alexander — remain uncertain.

Who knows? Their fates may be less uncertain between now and the last Committee hearing!

To be clear: as Chairman Thompson told Jake Tapper this week, the Committee does know of some of the coordination. I’ve heard of a communication implicating Stone that I believe the Committee has. Alex Jones complained about how many communications the Committee — specifically those of Cindy Chafian and Caroline Wren — had obtained, and one or both of them also communicated with Tarrio. A key focus of the testimony of Dustin Stockton and Jennifer Lawrence — and surely, Katrina Pierson, whom Stone and his associates have tried to blame for the attack — described their panic after Trump told his mob to walk to the Capitol. That testimony must explain why Pierson fought so hard to keep Wren’s chosen speakers, including Mike Flynn, Roger Stone, Brandon Straka, and others, off the stage. This fight also shows up in Mark Meadows’ texts. And Ali Alexander testified for eight hours; we’ll see how successfully the Committee debunked his already-debunked cover story, but Alexander lost his shit during the hearing on Thursday. The role of the Stop the Steal effort in delivering bodies to the right places at the Capitol is the most important known coordination from the day of the attack.

Rudy Giuliani also had communications with Proud Boy associate James Sullivan, Mike Flynn had some ties to militias (especially the First Amendment Praetorians), and Sidney Powell was paying for the defense of a number of militia members.

The Committee knows a great deal about how Trump’s mob got directed to the Capitol. But I suspect they’re still waiting to learn all the details that cooperating witnesses have provided.

Known cooperating witnesses

Oath Keepers

Jon Schaffer: The substance of Schaffer’s cooperation against the Oath Keepers is still not clear (and could well extend beyond them).

Graydon Young: Young interacted with Roger Stone in the weeks leading up to the attack, may know details of the alliance struck between Proud Boys and Florida Oath Keepers, and was part of the First Stack to bust into the Capitol; he also implicated his sister.

Mark Grods: Grods was the first Oath Keeper who was present at the Willard the day of the attack to flip, and likely provided details of the QRF and implicated Joshua James.

Caleb Berry: Berry would provide more details of Oath Keeper activities, potentially implicating Stone, in Florida, and also was witness to the attempt to hunt down Nancy Pelosi.

Jason Dolan: Dolan would explain why he and Kenneth Harrelson were waiting at the top of the East Stairs when the First Stack, Joe Biggs and his co-travelers, and Alex Jones and Ali Alexander converged there before the door was opened from the inside.

Joshua James: James called in reports from someone who is almost certainly Stone the day of the attack, participated in key discussions with Stewart Rhodes, Kelly Meggs, and Mike Simpson during the attack, and was closely involved in Rhodes’ continued efforts after January 6.

Brian Ulrich: Ulrich would provide details of planning specific to Georgia Oath Keepers and the advance planning in December.

Todd Wilson:  Wilson would explain the mobilization of the North Carolina Oath Keepers; he also witnessed a call Rhodes made to someone close to Trump after the riot.

Proud Boys

Matthew Greene: Greene will explain details of the communications involved the day of the attack and the specific goal to pressure Mike Pence.

Charles Donohoe: Donohoe will provide prosecutors an inside understanding of how the leadership of the Proud Boys worked, including with whom Tarrio may have been working starting in December and details about Tarrio’s arrest, which led Donohoe to try to fill in.

Louis Colon: A Kansas City Proud Boy who received perhaps the most favorable deal will undoubtedly implicate his co-conspirators and describe how the cell structure of the Proud Boys worked on January 6; he may also provide important debunking of someone who had been an FBI informant the day of the attac.

Others

Gina Bisignano: Bisignano cooperated against her fellow SoCal anti-maskers, but in the light of Carl Nichols’ rejection of DOJ’s application of obstruction, is attempting to withdraw her guilty plea. A hearing on her attempt to withdraw her plea will be held on June 22. She has not withdrawn her stated intent, one directly influenced by Trump’s speech, to pressure Mike Pence.

Josiah Colt: Colt cooperated against his co-conspirators, Ronnie Sandlin and Nate DeGrave, describing how they armed themselves and helped open both the East Door and the Senate Gallery.

Klete Keller: The substance of Keller’s cooperation is not known.

Jacob Fracker: Fracker testified against fellow VA cop Thomas Robertson.

Robert Lyon: Lyon testified against his co-defendant, Dustin Thompson.

Misdemeanor cooperators

Virtually all plea deals require the defendant to share their social media and sit for an interview with the FBI. A handful of defendants are known to have convinced prosecutors to drop or hold off felony charges by providing limited cooperation (including sharing encrypted communications) in advance. They are believed to include:

Jeff Finley: Finley was a co-traveler of Proud Boy Zach Rehl on January 6.

Brandon Straka: Straka who was among those excluded from speaking on January 6,  was on Ali Alexander’s Stop the Steal listserv, and spent time with Mike Flynn before heading to the Capitol.

Anthime “Baked Alaska” Gionet: Baked Alaska could share communications involving white nationalists like Nick Fuentes. But Gionet fucked up his plea colloquy, so prosecutors can charge him with a felony incorporating his cooperation if he doesn’t plead by July 10 (not like I’m counting days but that’s less than a month away).

Jacob Hiles: Hiles cooperated against Capitol Police Officer Michael Riley and his buddy James Horning.

Father and son Proud Boy pair Jeffrey and Jeremy Grace likely also avoided felony exposure by cooperating (though Jeffrey’s plea just got pushed back two weeks); they spent much of January 6 with Ron Loehrke.