Capitol Riot Investigation Thread

[ImLawBoy]

Interesting, but I think my 3 months of prosecutorial adjunct experience 25 years ago probably means more than what "experts" think.

[Jaymann]

Nice post for the top of a page.

[ImLawBoy]

I'm establishing my impeccable credentials right up front.

[Grifman]

[Kraken]

Will the 1/6 committee recommend prosecution? They have ample evidence, but some members don't want to make the DOJ look partisan.

WASHINGTON — The leaders of the House committee investigating the Capitol attack have grown divided over whether to make a criminal referral to the Justice Department of former President Donald J. Trump, even though they have concluded that they have enough evidence to do so, people involved in the discussions said.

The debate centers on whether making a referral — a largely symbolic act — would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it.

Yeah, because Republicans will believe the DOJ is being fair if Congress holds its tongue.

Despite concluding that they have enough evidence to refer Mr. Trump for obstructing a congressional proceeding and conspiring to defraud the American people, some on the committee are questioning whether there is any need to make a referral. The Justice Department appears to be ramping up a wide-ranging investigation, and making a referral could saddle a criminal case with further partisan baggage at a time when Mr. Trump is openly flirting with running again in 2024.

The committee's report will present all of their evidence to the DOJ anyway. Maybe it's better to let Garland draw his own conclusions?

The shift in committee leaders’ perspective on making a referral was prompted in part by a ruling two weeks ago by Judge David O. Carter of the Federal District Court for Central California. Deciding a civil case in which the committee had sought access to more than 100 emails written by John C. Eastman, a lawyer who advised Mr. Trump on efforts to derail certification of the Electoral College outcome, Judge Carter found that it was “more likely than not” that Mr. Trump and Mr. Eastman had committed federal crimes.

The ruling led some committee and staff members to argue that even though they felt they had amassed enough evidence to justify calling for a prosecution, the judge’s decision would carry far greater weight with Mr. Garland than any referral letter they could write, according to people with knowledge of the conversations.

The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.

Even if the final report does not include a specific referral letter to Mr. Garland, the findings would still provide federal prosecutors with the evidence the committee uncovered — including some that has not yet become public — that could be used as a road map for any prosecution, the people said.

On one hand, the fallacy that making no recommendation will leave the DOJ politically untainted in Republican minds is laughable. OTOH, such a recommendation carries no legal weight. If Congress's investigation ends with a slam-dunk legal case against trump and his cronies, is there any advantage to recommending prosecution, or should they let the facts speak for themselves?

[malchior]

OTOH, such a recommendation carries no legal weight. If Congress's investigation ends with a slam-dunk legal case against trump and his cronies, is there any advantage to recommending prosecution, or should they let the facts speak for themselves?

I don't see any real downside from not making a recommendation. Claims of partisanship? Who cares anymore. That ship has sailed. More we already saw the DOJ ignore clearly laid out crimes outlined in the Mueller report that many argued were ready for prosecution. We also saw the media whiff explaining the Mueller report. The committee should aim to make their case in the strongest way possible. I think we've already seen this approach with their out loud grousing about Garland's inaction and some of the strong language they've used in related court filings. They should be be aggressive within some bounds to match the seriousness of the situation.

[Kurth]

Again, I’d be interested to know specifically which prosecutions people feel are more likely than not to end in convictions?

[El Guapo]

Again, I’d be interested to know specifically which prosecutions people feel are more likely than not to end in convictions?

Any prosecution against senior people involved in 1/6 is an enormous political and social grenade, *especially* as to Trump and his inner circle.

However, we are currently on the path to autocracy, so doing nothing is also enormously risky. We need to be smart, but we're going to have to take some significant risks and be aggressive at the appropriate spots.

[malchior]

To answer the specific question, I am speaking to the charges people thought were strong were charges related to obstruction of justice statutes documented in the Mueller report. The DOJ didn't even talk to them which has been incredibly frustrating. Lots of top legal minds thought they were chargeable but with hurdles. The last sentence is the one that keep reverberating in my mind. We look like a system where the powerful get away with crimes in plain sight. And it is corroding all trust in this system.

My thinking is in line with El Guapo on the risk aspect. Not doing anything versus taking a risk seems foolhardy. Where I might break is the why it is happening. I unfortunately fully expect that nothing will be done and the danger will come or not without the protection of our justice system. The very people who made many of these decisions that got us into this mess won't let go of control. I have zero faith in their ability to save us.

Edit: Re-formatted a little but also to add the following, I also worry about the implied effect of all this. They very well might not be pursuing charges because they are truly weak/hard to win but we have scenarios that also range into the downright scary. What if they've concluded that they can't win because 40% of the population is deplorable and one or more are likely to end up on a jury. It could be that sort hard realpolitik calculus. The problem is if that is the case we would have to have high trust that they are making the right decisions for the right reasons. But many don't trust them because the same bad actors have undermined the system. In any case, stoic silence might be normative but it isn't working here.

Washington Post

The other possibility was that Trump could be charged with obstruction if he left office in 2021. In congressional testimony in 2019 about his report, Mueller noted that a sitting president could be indicted once he left office. Once Joe Biden was sworn in as president, there was no policy impediment to his Justice Department pursuing the obstruction charges.

But more than a year has passed, and we have heard nothing but crickets from Justice about the Mueller report. Admittedly, the department has been a little busy handling, among other things, the massive investigation into efforts to overthrow the election. But the clock is ticking on the potential obstruction charges outlined by Mueller. Is anyone at Justice watching that clock?

I’m not one who argues that Mueller presented a slam-dunk case. No one should underestimate how challenging it would be to prosecute Trump for obstruction. Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.

But many believe the evidence of Trump’s obstruction is overwhelming. And if the passage of time starts to close the windows on possible obstruction charges, the public will be left to wonder whether the Justice Department even considered them. That’s not good for the department — or for the principle that no one, including a former president, is above the law.

[Kraken]

When you're damned if you do and damned if you don't, you might as well do.

[Kurth]

When you're damned if you do and damned if you don't, you might as well do.

I’m sorely tempted by this line of “reasoning” (seriously, I am), but,

Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.

Continues to give me pause.

We are not a country that has a history of prosecuting formerly elected presidents once they leave office. That’s not a small precedent to leave in the dust. I tend to feel like, at the end of the day, unless a conviction is a slam dunk, we’re better off maintaining precedent.

I can only imagine what malchior thinks of that position.

[Kraken]

When you're damned if you do and damned if you don't, you might as well do.

I’m sorely tempted by this line of “reasoning” (seriously, I am), but,

Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.

Continues to give me pause.

We are not a country that has a history of prosecuting formerly elected presidents once they leave office. That’s not a small precedent to leave in the dust. I tend to feel like, at the end of the day, unless a conviction is a slam dunk, we’re better off maintaining precedent.

I can only imagine what malchior thinks of that position.

I agree that prosecuting prominent politicians sets a bad precedent. Prosecuting rivals is banana republic shit, and having lived in the White House for four years legitimizes trump. But we're at DefCon1 here. If our system can't squash its domestic enemies now, it will perish.

[malchior]

When you're damned if you do and damned if you don't, you might as well do.

I’m sorely tempted by this line of “reasoning” (seriously, I am), but,

Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.

Continues to give me pause.

We are not a country that has a history of prosecuting formerly elected presidents once they leave office. That’s not a small precedent to leave in the dust. I tend to feel like, at the end of the day, unless a conviction is a slam dunk, we’re better off maintaining precedent.

I can only imagine what malchior thinks of that position.

I think that this is a small sample size bias. There are less than 50 President's in all of history. Only 2 or 3 ever merited anything approaching a prosecution. One was explicitly pardoned which is tantamount to accepting a crime was committed (Burdick v. United States, 1915). I'm sort of kidding here but I'm also not. I get that the appearance that a prosecution could look political is a problem but it is inevitable no matter the choice! It should be weighed but only one of many competing interests. The choice to let Trump set in Mar-A-Elba while he waits to possibly end our democracy looks exceedingly political as well. It however also feels like bad risk management from a justice and societal point of view.

As to the "slam dunkness". I sort of fear this argument. That has pretty much evolved into the foremost guidance for prosecutors. We're told this is a good thing because prosecutor's should wisely use their power. And that sounds just in principle. In reality, very few court cases are considered a "slam dunk". Except for the vast majority that never see a trial. It is essentially an argument for the current state of our justice system. A state that uses high leverage against people who can't afford a defense or risk it to plead out cases and then tiptoes all too often around crime committed by elite actors.

Plus, what Kraken said as well. I believe we're deep into a crisis that we've ignored too long. Maybe to a point it is unrecoverable but we should try. We just watched efforts all across the "red states" that might have weaponized electoral law in a way that didn't work in 2020/2021. Mostly to serve a single political party. While that party radicalizes in plain view.

[malchior]

NY Times reporters expose profiles in cowardice - NY Times

The boil down here is that we have new information about leadership discussing how they were specifically going to push Trump in the days after the attack on the Capitol. It talks about internal deliberations of McCarthy and McConnell. McCarthy's spokesperson called the story 'totally false and wrong' (as below) but then Rachel Maddow had these folks on and played damning audio recorded from a leadership call on her show (Tweet below). McConnell's office being evil geniuses had the good sense not to comment on something that was *true*. McConnell gets to watch McCarthy face the usual unaccountability show where his already bad name will get kicked around for a few days but ultimately nothing will happen.

In the days after the Jan. 6 attack on the Capitol building, the two top Republicans in Congress, Representative Kevin McCarthy and Senator Mitch McConnell, told associates they believed President Trump was responsible for inciting the deadly riot and vowed to drive him from politics.

Mr. McCarthy went so far as to say he would push Mr. Trump to resign immediately: “I’ve had it with this guy,” he told a group of Republican leaders, according to an audio recording of the conversation obtained by The New York Times.

But within weeks both men backed off an all-out fight with Mr. Trump because they feared retribution from him and his political movement. Their drive to act faded fast as it became clear it would mean difficult votes that would put them at odds with most of their colleagues.

“I didn’t get to be leader by voting with five people in the conference,” Mr. McConnell, the Senate Republican leader, told a friend.

The confidential expressions of outrage from Mr. McCarthy and Mr. McConnell, which have not been previously reported, illustrate the immense gulf between what Republican leaders say privately about Mr. Trump and their public deference to a man whose hold on the party has gone virtually unchallenged for half a decade.

...

Mr. McConnell’s office declined to comment. In a statement on Twitter early Thursday, Mr. McCarthy called the reporting “totally false and wrong.” His spokesman, Mark Bednar, denied that the Republican leader told colleagues he would urge Mr. Trump to leave office. “McCarthy never said he’d call Trump to say he should resign,” Mr. Bednar said.

But the recording tells a different story.

Edit: Editorial note - these discussions are related...to yet another book. The authors of the NY Times piece conveniently have a book coming out that contained these revelations, and conveniently the audio was leaked to a different outlets at the same time.

Members of the media seem to be cashing in on the end of our democracy by sitting on these stories until they get their payout. I'm utterly disgusted by the way the media works in this country. I say media because it isn't journalism anymore. It's endless money grabs, sitting on key information, favor trading, and ultimately self-congratulatory back slapping. It isn't hard to get why the appeal of fake news works.

[pr0ner]

And so it begins.

[pr0ner]

[Unagi]

That’s just locker room talk.

[Hyena]

That’s just locker room talk.

"When you're rich, you can do whatever you want! Kiss up to them, grab 'em by the electoral college, whatever."

[malchior]

Oy vey.

[Isgrimnur]

*Anthime Gionet

[El Guapo]

I bet Gionet's lawyers were thrilled.

[malchior]

I bet Gionet's lawyers were thrilled.

Yeah seriously. I can't imagine going from 80% of the way done with an idiot to being reset to what - maybe 10%? March 2023?! I know the courts are slammed but jeez.

[Defiant]

Sounds like Half Baked Alaska would be a better name.

[Holman]

Sounds like Half Baked Alaska would be a better name.

Nah. I imagine he is fully baked.

[malchior]

In a pretty surprising turn of events, the 1/6 committee subpoenaed sitting members of Congress. A lot of folks thought this was unlikely and the GOP members will almost certainly decry it as a political stunt and wear it as a badge of honor. It is hard to handicap them appearing but gut feeling is almost no chance.

CNN

The House select committee investigating the January 6 attack on the US Capitol is taking the extraordinary step of sending subpoenas to House Minority Leader Kevin McCarthy and four other Republican lawmakers who have rejected the panel's requests to voluntarily cooperate.

In addition to McCarthy, the Democrat-led panel is subpoenaing Republican Reps. Jim Jordan of Ohio, Mo Brooks of Alabama, Andy Biggs of Arizona and Scott Perry of Pennsylvania.

Lawmakers on the panel have been weighing whether to subpoena their Republican colleagues for months, wrestling with whether they had the constitutional right to do so, and debating if they wanted to set such a precedent.

And with hearings less than a month away, the panel is facing a ticking clock to get all the information it can.

"The Select Committee has learned that several of our colleagues have information relevant to our investigation into the attack on January 6th and the events leading up to it," the panel's chairman, Democratic Rep. Bennie Thompson of Mississippi, said in a statement. "Before we hold our hearings next month, we wished to provide members the opportunity to discuss these matters with the committee voluntarily."

"Regrettably, the individuals receiving subpoenas today have refused and we're forced to take this step to help ensure the committee uncovers facts concerning January 6th," he continued. "We urge our colleagues to comply with the law, do their patriotic duty, and cooperate with our investigation as hundreds of other witnesses have done."

[Isgrimnur]

Bloomberg Law

Candidates who take part in an insurrection may be barred from holding public office under the 14th Amendment of the US Constitution, a federal appeals court ruled, overturning a lower court judge’s decision.
...
While the ruling is legally binding only in the states that make up the 4th Circuit -- Maryland, Virginia, West Virginia, North Carolina, and South Carolina -- it could influence the outcome of legal challenges to multiple Republican House candidates tagged by critics for participating in events surrounding the Jan. 6, 2021, attack on the Capitol.

[Isgrimnur]

CNN

A federal grand jury has indicted former Trump White House adviser Peter Navarro for contempt of Congress after he refused to cooperate in the House January 6 committee's investigation.

Navarro was arrested by the FBI on Friday. He is currently in custody, according to Bill Miller, a spokesperson for the US attorney's office in DC. He is scheduled to appear in court at 2:30 p.m. ET in Washington.

He faces two contempt counts: one for his failure to produce documents demanded by the committee and the second for failing to show up for subpoenaed testimony before House investigators.

Prosecutors initially had asked for Navarro's indictment to be under seal Friday, citing the possibility that he could flee or tamper with witnesses or evidence, according to court records.

[Grifman]

This thread is hilarious. Don’t understand why Navarro is defending himself, isn’t he fairly wealthy?

[Grifman]

Question answered:

[malchior]

It seems like a good time to remind people this guy was deep in the COVID-19 response loop at one point. And was thought to be a top mind in the Trump administration.

[malchior]

Negotiate just a little and then refuse to cooperate with Congress and you get a pass from the DOJ if it'll protect the imperial Presidency. In comparison, Peter Navarro got burned because he blew it off completely. In any case, another day that in retrospect will explain why the rule of law died here. Congressional subpoenas might as well be printed on toilet paper if you are powerful enough.

Bigger picture and context for second tweet is that there is a segment of folks arguing that Scavino and Meadows are cooperating with DOJ. Honig is arguing that you'd typically see them charge *this* as leverage for the bigger things. You don't take it unilaterally off the table if you are hunting bigger game.

[Unagi]

So they literally get to plead ‘defiant’ and that’s a pass?

[malchior]

So they literally get to plead ‘defiant’ and that’s a pass?

The DOJ is pretty mich saying they are raising legitimate executive privilege objections over the riot. Congress is on its own. The Garland has a plan people are out on a limb IMO now. Also Harland is giving them ammunition to turn around and claim Congress is overstepping.





That last line is sadly simply not true. Especially since Meadows and Scavino are at the heart of what happened.

[Carpet_pissr]

I think general concensus for those still in denial is if you repeat that silly phrase enough, then it will be true.

[Smoove_B]

I guessed I missed that this was happening?

“We’ve made a lot of major decisions,” Sen. Susan Collins, R-Maine, a leader of the group, said in an interview before the meeting. “We’ve resolved a lot of issues, but we have some more work to do, which I hope we’ll finish up this week.”

The areas of consensus, Collins said, include amending the Electoral Count Act to restrain the vice president’s role, raising the congressional threshold for objecting to electoral votes, overhauling the transition process and protecting election officials from threats.

Susan Collins...a leader? Did I slip into an alternative dimension?

The group is trying to close loopholes in the electoral system in a flurry of activity among members and staffers in recent weeks to reach consensus on a cause that lawmakers in both parties see as urgent. It was the first face-to-face meeting of members since April. The negotiations were sparked in part by President Donald Trump’s unsuccessful effort to exploit gaps in the law to stay in power even though he lost the 2020 election.

Seems reasonable enough. Wait, is that the sound of a shoe dropping?

The senators haven’t reached a final agreement, and success would mean avoiding a number of potential political pitfalls. In addition, any bill would require at least 60 votes to break a filibuster and pass the Senate.

Right, right. DOA.

[LawBeefaroni]

Susan Collins...a leader? Did I slip into an alternative dimension?

She's just an opportunist. Any appearance of leadership is purely incidental.

[El Guapo]

On top of that, you also have the problem that any ECA reforms that limit Congress's ability to review / reject state EC delegates would make it easier for the GOP to steal an election via subverting election results at the state level.

[malchior]

Even if it would pass it'd be false hope. It is only one avenue of the attack.

[Smoove_B]

Even if it would pass it'd be false hope. It is only one avenue of the attack.

But can we surmise that when it doesn't, it's a pretty good sign that it's going to be an all-out assault by the GOP in 2024? Like...is this a useful barometer for where we're seemingly headed?

[Pyperkub]

Even if it would pass it'd be false hope. It is only one avenue of the attack.

But can we surmise that when it doesn't, it's a pretty good sign that it's going to be an all-out assault by the GOP in 2024? Like...is this a useful barometer for where we're seemingly headed?

If the GOP Pennsylvania race for Governor is any indicator, the answer is an emphatic YES.