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The Tommy Tuberville Gap in the Trump Indictment

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The release of details about Dan Scavino’s testimony in Trump’s January 6 case made me realize something: Trump’s call to Tommy Tuberville around 2:26PM on January 6 isn’t in the indictment.

As you’ll recall, Trump attempted to call Tommy Tuberville, but instead got Mike Lee’s phone. Back before he became Based Mike Lee, the Utah Senator told the local UT press what happened next.

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

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

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

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

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

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

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

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

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

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

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

Tuberville, in real time with impeachment, confirmed the substance of the call.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

During impeachment, Lee released call records that (at the time) undercut something Democrats were suggesting about the call: that Trump may have been told by Tuberville about the mob before he sent the Tweet targeting Pence. Lee also tried to get any mention of the call — the call he had revealed — stricken from the Congressional Record.

Back on February 14, 2021 — a good ten months before Liz Cheney and through her the TV lawyers discovered Trump’s exposure on this count — I argued that was compelling evidence that Trump had obstructed the vote certification.

Trump’s indictment does describe efforts he and Rudy Giuliani and Co-Conspirator 6 (who is most likely Boris Epshteyn) made to get Congress to further delay the vote count, later in the day (perhaps hoping the Coffee County caper would provide cause to create more delay). But it places those efforts later, during the evening.

119. On the evening of January 6, the Defendant and Co-Conspirator 1 attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification, including:

[Per ABC report, Trump showed Nick Luna a draft Tweet here]

a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.

[Tweet released, an hour later Trump cut off Twitter]

b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.

c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.

d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow-ideally until the end of tomorrow.”

e. In another message intended for another United States Senator, CoConspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Co-Conspirator 1 also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster[.]”

There’s no mention of the call that Trump made at around 2:26.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

[Tommy Tuberville call took place here]

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. [my emphasis]

Two people who might be interested in the Scavino testimony released the other day, then, are Senators Lee and Tuberville. They’ve now been told that Scavino testified that he was not in the room when that call was placed (consistent with the indictment’s claim that Trump had been left alone in the dining room), meaning there’s no witness to the call besides Trump and the two Senators, both of whom would be protected from compelled testimony under Speech and Debate.

If Scavino’s testimony ever were to change, if Scavino ever were to recall witnessing that call, it would be among the most damaging evidence available: proof that in the wake of Pence’s evacuation, Trump turned immediately to stalling doubling down on the advantage he had won.

Instead, prosecutors are left with the later calls, which can be introduced under a co-conspirator hearsay exception.

Still, it’s telling: While Trump’s advisors were someplace else squabbling about whether Scavino was responsible for that Tweet that might get Mike Pence killed, Trump was (presumably still alone) seeking more delay.

How a Trump Prosecution for January 6 Would Work

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

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

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

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

Assumptions

The piece makes three assumptions.

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

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

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

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

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

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

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

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

The other conspiracies

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

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

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

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

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

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

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

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

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

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

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

Questions

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

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

What a Trump conspiracy might look like

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

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

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

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

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

I’m not saying DOJ will charge Trump.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

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

They’re going. I would just stop.

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

Stop the Steal! Stop the Steal!

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

There they are! What the fuck!

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

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

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

Go! Let’s go! Get this thing!

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

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

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

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

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

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

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

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

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

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

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

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

19 Minutes: The Tuberville Call and DOJ’s Use of Obstruction in January 6 Prosecutions

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Nine minutes after President Trump called Tommy Tuberville at 2:26PM on January 6 to ask him to raise more objections in an effort to delay the vote count, riot defendant Brady Knowlton entered the Capitol in what DOJ alleges was an intentional effort to delay the vote count.

Nineteen minutes after Trump placed that call, at 2:45PM, Knowlton entered the Senate Gallery, maybe fifteen minutes after Tuberville had told the President he had to hang up because the Senators were being evacuated because people like Knowlton were invading the Capitol.

A number of people have pointed me to this article on Tuesday’s hearing before Judge Randolph Moss in Knowlton’s challenge to DOJ’s use of 1512(c)(2) to charge those who, DOJ alleges, came to the insurrection with the intention of delaying or stopping the certification of the votes. Here’s my live thread of the hearing and my own post on it; I’ve linked some of my other posts on the application of obstruction below.

The article is a good summary of the legal questions around the application. But in my opinion, its emphasis does not adequately convey what went on at the hearing. For example, the headline and first three paragraphs emphasize Judge Moss’ concerns about constitutional vagueness, which Moss didn’t focus on until an hour into the hearing.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing this week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

It doesn’t mention how Moss started the hearing — by expressing skepticism about Knowlton’s argument — until the last line of the fourth paragraph.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point. [my emphasis]

At least before Moss, then, this challenge faces an uphill climb (some of the other challenges to this application of obstruction make a slightly different legal argument that may have more promise of success). And while the WaPo piece notes that Moss asked for additional briefing from both sides, it doesn’t note what I consider a fairly major strategic error from Knowlton’s team: choosing to define an “official proceeding” as one in which the ultimate decision of the proceeding is an adjudication that has real import to the life and liberty of those involved.

In effect, Knowlton lawyer Brent Mayr claimed that Joe Biden (and the 81 million Americans who voted for him) would have suffered no harm if Congress had been so intimidated by the people roaming the hallways threatening their assassination that they certified Donald Trump as the victor of the 2020 election instead of Biden, or if the insurrectionists managed to cause lasting unrest that delayed the certification indefinitely, giving Trump a chance to attempt another desperate ploy to remain in power.

By making that argument, Mayr provided DOJ the opportunity to lay out — in the additional briefing Moss ordered — the real adjudication that took place on January 6 and the import to justice and rule of law that the adjudication had, something DOJ has done, albeit in less focused fashion, in other filings in this investigation. Mayr gave DOJ an opportunity to explain that there was a very real risk that the lawfully elected President of the United States would not have his victory officially recognized, which was precisely the goal, DOJ would argue, that Brady Knowlton sought.

Mayr gave DOJ that opportunity even amid heightened coverage of how real the threat of a travesty of justice was.

The reporting on Jeffrey Rosen’s testimony about Jeffrey Bossert Clark’s attempt to force DOJ to endorse Trump’s Big Lie makes it clear how corrupt all this was (showing corrupt intent is key to proving Knowlton or anyone else guilty of the obstruction charge).

Filling in just one more detail will tie together Trump’s efforts to recruit DOJ in telling his Big Lie and Brady Knowlton’s response to that Big Lie of flying to DC, invading the Capitol, and heading to the place where the vote was supposed to be counted.

[B]ody-worn camera footage from the Metropolitan Police Department [] shows Knowlton and [Knowlton’s co-defendant Patrick] Montgomery outside the Capitol at around 2:00 p.m.  In the video, Knowlton confronts officers who are making their way through the crowed and yells at them saying, “You took an oath! You took an oath!” and pointedly asking them, “Are you our brothers?” Montgomery is standing right behind Knowlton. The government also located another body-worn camera video of both defendants after they left the Senate Gallery, confronting officers inside the Capitol in a hallway near Senate Majority Leader Schumer’s office. In the video, both Knowlton and Montgomery direct officers to move out of the way. Knowlton tells the officers, “We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

That detail is that Donald Trump made an effort to ensure the Senators would still be there when Knowlton and others arrived.

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

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

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

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

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

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

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

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

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

To be clear: there’s no evidence that Knowlton had direct ties to Trump (though Knowlton is one of just seven defendants thus far from Utah, and a week after the riot, Rudy Giuliani appears to have been in contact with James Sullivan, the brother of defendant John Sullivan, who told Rudy he had gotten his “agent” and three others from Utah out of trouble). There’s even less evidence that, at the moment Knowlton crossed the threshold of the Capitol, he knew Trump had just tried to convince Tuberville to delay long enough for Knowlton to arrive in the Senate.

This is not yet a conspiracy that ties the President’s actions to obstruct the vote count with Brady Knowlton’s alleged actions to achieve the same goal.

But even as Brady Knowlton’s lawyers have argued that an official proceeding is one in which the parties can suffer dire consequences if rulings don’t go in their favor, more evidence is coming out about how Knowlton’s actions fit into a larger, undeniably corrupt scheme to deprive Joe Biden (and Kamala Harris, who was present and participating on that day) of their electoral win.

If that’s the standard, then Knowlton’s lawyers have made a compelling argument against his case.

The WaPo’s not wrong about the seriousness of this larger challenge. And whether or not this argument succeeds, it’s still not clear that DOJ will be able to prove that Knowlton had the requisite corrupt intent to delay the vote.

But Knowlton’s argument may be overtaken by the new evidence proving just how corrupt this effort was.

Posts on obstruction

July 17, 2021: General thoughts on the application of obstruction in advance of the Paul Hodgkins’ sentencing

June 4, 2021: How Ethan Nordean’s challenge to the application of obstruction degrades the challenge

June 14, 2021: How the III Percenter conspiracy indictment might use the threats of violence enhancement from the obstruction statute

July 31, 2021: How DOJ blew an opportunity to explain the difference between the Brett Kavanaugh protests and the January 6 rioters

July 27, 2021: How Donald Trump might be charged with obstruction

August 3, 2021: Brady Knowlton’s lawyer falsely claimed his client’s alleged obstruction posed no harm of injustice

August 4, 2021: Trump’s Big Lie demonstrates the threat of harm from insurrectionists’ obstruction

List of all obstruction challenges

 

Mike Lee Provides Key Evidence Implicating Trump in the Existing Criminal Conspiracy

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Because Donald Trump’s Personal Injury lawyer, Michael Van der Veen, made a specious argument about the First Amendment to successfully give 43 Republicans cover to vote to acquit the Former President in his impeachment trial, the discussion about Trump’s potential criminal exposure for January 6 (which according to CNN he is concerned about) has largely focused on incitement charges.

That’s true even though the trial led Mike Lee to offer up evidence implicating Trump in the same conspiracy charges already charged against 10 defendants: conspiring to delay Congress’ official proceeding to certify the electoral college vote. As I have noted, DOJ has started mapping out conspiracy charges against both the Oath Keepers and the Proud Boys:

While there are differences in the scope of the conspiracy and overt acts involved, all three charging documents charge defendants with conspiring “to stop, delay, and hinder Congress’ certification of the Electoral College vote,” effectively conspiring to commit 18 USC 1512, tampering with the official procedure of certifying the electoral college vote, an official procedure laid out in the Constitution.

And in spite of their votes to acquit the Former President last night, both Tommy Tuberville and Mike Lee provided evidence that the FBI might use to investigate Trump in that conspiracy. As I noted days after the attack, during the attack, Trump twice attempted to reach out to Tuberville to ask him to delay the count. The second time, Rudy Giuliani even left a message specifically asking for a delay as such, precisely the object of the already charged conspiracy charges.

I know they’re reconvening at 8 tonight, but it … the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. [snip]

Over the last few days, both Tuberville and Lee offered up more details on the earlier call. Tuberville confirmed the content of the call, including that he told the President that his Vice President had been evacuated.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

And Lee — who twice demanded that references to this call be removed from the Congressional record — ultimately provided phone records showing that even after Pence had been publicly rushed to safety, Trump was still working on delaying the vote rather than addressing the danger. Trump tweeted about Pence at 2:24, specifically complaining that Pence hadn’t given states a chance to “correct” facts, effectively a complaint that Pence had not disrupted the orderly counting of the vote.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

And then, two minutes later, Trump attempted to call Tuberville and, after Lee turned over his phone to the former coach, spoke to him for four minutes. It matters that Tuberville told Trump about the evacuations, though it is highly unlikely he had not been informed both informally and formally at that point. But it matters just as much that even after the insurrectionists had breached the building, Trump took two overt acts to attempt to delay the vote.

A Trump defense might argue — as his Personal Injury Lawyer did this week — that he was just trying to count the votes, but Trump had already made an unconstitutional request of Mike Pence, something Trump’s team provided no defense for. And that’s before you consider the evidence that Rudy, at least, was in direct contact with James Sullivan, who is affiliated with the group, the Proud Boys, that has already been accused of conspiring to breach the Capitol (indeed, another conspiracy case, against Proud Boys Dominic Pezzola and William Pepe, charges that they conspired to interfere with cops trying to keep protestors out of the Capitol, and the Chrestman indictment also includes that as a separate conspiracy).

I’m not saying this will definitely happen. The bar to charging a Former President remains high.

But DOJ has already charged ten people for doing what Trump was also demonstrably doing that day. And, partly because of Mike Lee’s desperate effort to avoid having the record of him implicating Trump in the congressional record, Lee ended up making the timeline of the events public without the FBI having to breach speech and debate concerns to obtain it. By doing so, Lee made it easier for the FBI to make a case against Trump if they ever attempt to do so.

Mike Lee may have helped prevent Trump from being barred from running for President again. But Mike Lee also made it easier to prosecute Trump for those very same acts.

Update: NYT just posted a story showing that six of the Oath Keepers Roger Stone was palling around with leading up to the attack entered the Capitol on January 6.

The Soft Bigotry of Expecting the Commander in Chief to Only Tweet

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Based on what source does the lawyer for Donald Trump — a client who never listened to security briefings when he used to be President — state (in an interview with Maggie Haberman, but not in his written defense) that the January 6 insurrectionists planned their attack in advance?

Mr. Schoen pointed to another potential argument that could help Mr. Trump, one not related to free speech: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that Mr. Trump was not the inciting force.

“I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol.

This defense doesn’t help Doug Schoen as much as he thinks. After all, the House brief lays out how, even before the Proud Boys were overtly planning for the insurrection (and meeting with Lindsey Graham and finding a spot on a tour of the White House), Trump had called on the extremist group to

During a debate on September 29, for instance, he told the Proud Boys— a violent extremist group with ties to white nationalism—to “stand back and stand by.”48

[snip]

On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60

As someone who has spent much of the last four weeks tracking what is publicly known about the terrorist attack, anyone following closely enough to know how the Proud Boys, especially, plotted in advance also knows that Trump was coordinating with them going back months and his rat-fucker Roger Stone was coordinating with them even longer, also knows that the mobs breaking into the Capitol timed their move closely with (among other things) Trump’s speech, and knows as well that Trump and Rudy were both coordinating with events on the Hill using the mob as a delaying tactic.

But Schoen seems to be considering talking about what someone who refused briefing knew and did not know about an attack while he was still President.

I especially find Schoen’s certainty about what an ongoing investigation shows given a fairly remarkable passage in the House trial brief. There’s an 11-paragraph section describing, “President Trump’s Dereliction of Duty During the Attack.” The first describes how Trump watched in delight.

As armed insurrectionists breached the Capitol—and as Vice President Pence, the Congress, and the Capitol Police feared for their lives—President Trump was described by those around him as “borderline enthusiastic because it meant the certification was being derailed.”141 Senior administration officials described President Trump as “delighted” and reported that he was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.”142

But it’s another five paragraphs before the House brief mentions that Trump was the Commander in Chief.

During this time, not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.

That is, the House brief focuses on what Trump did or didn’t tweet, and what victims he never called (while calling Tommy Tuberville to coordinate his delaying tactics).

But it barely mentions that Trump sat in the White House watching an attack on the Nation’s Capitol — one his lawyer now suggests he had some knowledge of — and he did literally nothing to intervene. True, there is a thoroughly unreliable Vanity Fair piece quoting Trump’s flunkies claiming that Trump made preparations the night before. But that account doesn’t match the known events, nor does it accord with the long delay in deploying the Guard troops.

In the middle of the impeachment case against Trump is a tacit admission not just that Trump did nothing as he watched a terrorist attack on the Capitol, but no one expected him to be able to do more than Tweet.

The former President’s defense claims, with no proof, that he faithfully executed his duty to protect and defend the Constitution and served to the best of his ability.

To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors

[snip]

It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people. The 45th President believes and therefore avers that in the United States, the people choose their President, and that he was properly chosen in 2016 and sworn into office in 2017, serving his term to the best of his ability in comportment with his oath of office.

Perhaps that’s right. But if that’s true, it’s a confession that when the nation’s capital came under attack, Trump was helpless to do the least demanded of him as Commander in Chief.

Yes, the case against Trump is deeply rooted in his Tweets inciting terrorists and he should be impeached based just on those and his speech. But along the way, all sides seem to admit that Trump didn’t even consider doing anything as Commander in Chief as the country was attacked.

Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

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There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘‘if you don’t fight like hell you’re not going to have a country anymore’’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. [my emphasis]

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.

Where’s The Anger? Where Are The Consequences?

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On January 6 a mob attacked the Capitol. Legislators were rushed out of their chambers and into safe rooms barely ahead of thousands of seditionists. Staff people, Senators and Representatives cowered under desks and behind barricaded doors. People died. Dozens of police were injured, many hospitalized.

Then the legislators resumed business as if nothing horrible and terrifying had happened. The newly-created Insurrection Party shouted about the theft of an election and lied about their concerns. Democrats responded with facts and logic. In the middle of the proceedings, Sen. Amy Klobuchar appeared on A Late Show with Stephen Colbert. In response to Colbert’s increasingly agitated questions, she said that the important thing was that they went back to the floor and did their job. Like Colbert, I’m stunned by the normalcy she displayed. There isn’t a hint of anger, hostility, or outrage in her face, even when she claimed to be angry about it.

Colbert asks if it upsets her at all that six Senators only changed their votes after they were physically attacked, even though they knew they were stirring up trouble around the country by repeating Trump’s big lie about election fraud. She says (my transcription):

Of course it does. But I figured my job today was to bring as many people with me and with our side as we could and to do it in a way that would give them that space. And the reason I did it is because, I made this case to our caucus, is that I want Joe and Kamala to come in with bipartisan support. I want to leave the what Joe Biden calls the grim era of demonization behind us and actually get things done. … I think what they did was atrocious, but at the same time we have to move forward as a nation.

[1] Colbert, his voice rising with emotion, asks if there shouldn’t be consequences for people who promulgated the lie that the election was stolen, consequences “… so severe that no one will ever think to foment an insurrection against this government again without shuddering at the prospect of what will happen to them.” She moves straight to “I’m a former prosecutor”, and starts talking about jailing the invaders. Colbert tries to focus her on the Senators, but she won’t answer whether they should face consequences. She launches into what a toad Trump is, and never responds about the co-toads. Colbert surrenders.

Nothing changed among Democratic politicians after that. On January 15, for example, I saw Jason Crow, D CO-6, on CNN discussing the revelation that some Representatives or their staffers might have led invaders on a reconnaissance tour of the Capitol the day before the attack, even though tours were banned. The oily flow from Crow could be used to lubricate a Mack Truck.

Where’s the demand for accountability for those shits who repeated Trump’s lies with their own imprimatur? [2] Are there no consequences for lies that undermine our democracy? Are elites just utterly free from any duties? Cruz, Hawley, Blackburn, Hyde-Smith, Marshall, Tuberville, and Kennedy are not stupid. Well, Tuberville is a couple of hundred million neurons short of a human brain. But the rest are pretty close to average in intelligence and a couple of them might pass for bright normal.

There are two who simply should be expelled immediately: Mo Brooks, R AL-05, [3] and Madison Cawthorn, R NC-11. These bastards spoke at Trump’s incitement rally and encouraged the assembled mob to action. There’s video. We know what they said, we know what they meant, and we know what happened. If Speaker Pelosi can ask the House to impeach Trump for his incitement based solely on what he said, what he meant and what happened, why can’t she summon the anger and grief we all feel and throw those anti-democratic shits out of the House?

======
[1] I’ve got a mental draft of remarks in response to objections to certification, starting with “I ask the Gentleman from Texas who told him there was fraud in the election? Was it the loser, the guy who lied about his own election in 2016, and has lied continuously about rigging ever since? Or was it @JohnnyFeathers39873858 Flag Flag? Or one of the witnesses dug out of internet swamps by the Loser’s elite legal team of crack lawyers? Were they vetted by the Gentleman’s brilliant staff?”

[2] I salute Freshman Representative Cori Bush, who introduced a resolution, co-sponsored by Freshman Representative Marie Newman;

St. Louis representative Cori Bush is calling for the investigation and expulsion of any representatives who objected to election certification, saying their actions lead to the Capitol riots that cost five people their lives.

Compare the aggressive action of the Freshman Congresswomen with elderly Senator Ben Carden D-MD. On January 16 on CNN Carden said expelling these seditionists was up to the voters in their states.

[3] There is a resolution calling for censure of Brooks, sponsored by Debbie Wasserman-Schultz and Tom Malinowski. That’s bullshit. He’ll frame it and use it in the next election.

Why I Agreed to Stop Calling Liz Cheney “BabyDick”

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I made a vow on Twitter one of these days that I would no longer refer to Liz Cheney as “BabyDick” if she voted for impeachment.

She is going to vote for impeachment — the second Republican House member to announce their vote.

So I’m on my last legs using the term that invokes her protection of her own father for torture. But this seems like an obviously smart strategic position, as I laid out in this thread;

  • Dems need to realize the GOP wants to be purged of Trumpism
  • After Trump lost, Mitch McConnell thought he could make demands as the senior elected GOP
  • That didn’t happen
  • Then Trump lost the GA vote
  • Then Trump almost got Mitch killed
  • That gives Dems an opportunity to demand the purge of insurrectionists like Mo Brooks, Paul Gosar, Andy Biggs, Boebert, Taylor Greene, Madison Cawthorn, Ted Cruz, Josh Hawley, and Tommy Tuberville
  • That means institutional Republicans — like “BabyDick” and McConnell — actually have an incentive to use impeachment to cleanse their party

It’s a small ask for the GOP, because they’d like to get their corporatist party back, thank you.

Liz “BabyDick” Cheney and I will never be friends. But she will have served a key leadership role in this troubled time in providing another path for the Republican party by voting to impeach an authoritarian.

May she help others feel safe in rejecting this scourge.

Investigate Tommy Tuberville’s Pre-Speech and Debate Actions

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

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

I say that for two reasons.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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