Capitol Riot Investigation Thread

[malchior]

Also, fun is that Eastman whose material was part of the basis for the judge's remarks is tied to ... Clarence Thomas.

[malchior]

We're at the point that we need the press to stop chasing the Ukraine for 5 minutes and start asking Biden what is going on with the DOJ.

The DOJ has been sitting on the Meadow's referral for months. We still have absolutely no indication they are going after bigger fish than the foot soldiers and now we've got judges saying Trump probably committed a crime. Enough's enough with the inaction.

[malchior]

I'm right there with Elie Mystal's energy on this.

[malchior]

I'd say the 1/6 commission is doing a hell of a job adding pressure. You have to wonder if it only hardens someone like Garland who will let democracy die rather than "look political". But this at least is an attempt to get someone to save our dying democracy.

[Unagi]

I don’t get this. Who’s property are “White House phone records”?

How does the previous administration still even have access to those records. I would like think those records are the property of ‘the Executive Office’ , not a specific administration.

[LawBeefaroni]

We're at the point that we need the press to stop chasing the Ukraine for 5 minutes and start asking Biden what is going on with the DOJ.

What is going on with the DOJ is related to what's going on in Ukraine. Both were set in motion by the same actors. Biden should be using the distraction of the conflict to be going after the domestic components. The Russians are a bit too busy to help right now.

[malchior]

I don’t get this. Who’s property are “White House phone records”?

How does the previous administration still even have access to those records. I would like think those records are the property of ‘the Executive Office’ , not a specific administration.

They don't. The records were turned over by the National Archives. Trump et. al. have been at large successfully fighting a failed coup rear guard action delaying production of records until the Republicans can shut down the 1/6 committee.

[LawBeefaroni]

I don’t get this. Who’s property are “White House phone records”?

How does the previous administration still even have access to those records. I would like think those records are the property of ‘the Executive Office’ , not a specific administration.

The National Archives controls the records and handed them over.

The gap here isn't like erased data (Watergate Tapes). It is that the logs show no official phone communications during this period when there is evidence he was communicating with people. It is likely that he used someone else's phone or burner phones or a combination of both in an attempt to keep communication off-record. Of course he says he doesn't know what a burner phone is so....

[Blackhawk]

If Garland isn't fulfilling his duties, what is the recourse beyond a stern finger-shaking?

[Unagi]

I don’t get this. Who’s property are “White House phone records”?

How does the previous administration still even have access to those records. I would like think those records are the property of ‘the Executive Office’ , not a specific administration.

They don't. The records were turned over by the National Archives. Trump et. al. have been at large successfully fighting a failed coup rear guard action delaying production of records until the Republicans can shut down the 1/6 committee.

Ok. Thanks. I thought they were saying there was information held back from the White House logs. Which just seemed insane to me.

[El Guapo]

What's a little confusing to me is that if there is no DOJ investigation focused on Trump, then wouldn't there be some leaks about that? I would think that some disgruntled DOJ staffer would want to leak "hey we think there's a case here but leadership is keeping us from pursuing it" to put pressure to generate an investigation.

[malchior]

What's a little confusing to me is that if there is no DOJ investigation focused on Trump, then wouldn't there be some leaks about that? I would think that some disgruntled DOJ staffer would want to leak "hey we think there's a case here but leadership is keeping us from pursuing it" to put pressure to generate an investigation.

That's possible and some are arguing that. A chorus of other watchers said that this would be the first investigation where none of the targets made noise and there wasn't indirect evidence of an investigation. It's possible they've achieved high secrecy and targets are all in the dark, that all records subpoenas haven't come to their attention, etc. Also perhaps most of the fight is being fought mostly in public against the 1/6 committee.

DOJ just added ~130 lawyers to help with the case load. Perhaps that is an effort to free up resources to pick up some other investigation. But time is running out quickly. At what point will the excuse become about not wanting to influence the mid-terms? Weeks? A couple of months? All of us have good reason to expect a GOP take over of the House.

And then who knows what happens from there. At some point perhaps they need to drop in a Special Counsel. Anything to keep this going because this might be it for our democracy. Several cautious smart people who were counseling patience are now starting to speak out with increasing alarm. And it seems clear to people closely watching that the pace has been too languid and not deliberate enough while the attack continues.

[El Guapo]

What's a little confusing to me is that if there is no DOJ investigation focused on Trump, then wouldn't there be some leaks about that? I would think that some disgruntled DOJ staffer would want to leak "hey we think there's a case here but leadership is keeping us from pursuing it" to put pressure to generate an investigation.

That's possible and some are arguing that. A chorus of other watchers said that this would be the first investigation where none of the targets made noise and there wasn't indirect evidence of an investigation. It's possible they've achieved high secrecy and targets are all in the dark, that all records subpoenas haven't come to their attention, etc. Also perhaps most of the fight is being fought mostly in public against the 1/6 committee.

DOJ just added ~130 lawyers to help with the case load. Perhaps that is an effort to free up resources to pick up some other investigation. But time is running out quickly. At what point will the excuse become about not wanting to influence the mid-terms? Weeks? A couple of months? All of us have good reason to expect a GOP take over of the House.

And then who knows what happens from there. At some point perhaps they need to drop in a Special Counsel. Anything to keep this going because this might be it for our democracy. Several cautious smart people who were counseling patience are now starting to speak out with increasing alarm. And it seems clear to people closely watching that the pace has been too languid and not deliberate enough while the attack continues.

Yeah, unfortunately the conclusion most consistent with what we know is that there is no investigation. But it's just confusing because I don't understand why no one within DOJ seems to be making noise about it, if that's the case.

In terms of the timing, I'm less worried about the mid-terms than about the 2024 election. It's theoretically possible to bring a case against Trump in (say) 2024, but assuming that he's running, bringing a case against the leading contender for a major party would be a big f'ing deal and would itself be a major grenade lobbed into our political system. So if they're going to bring a case, realistically it would have to be filed in 2022, *maybe* in 1H2013. And obviously this stuff takes time especially since everything in the case has to be locked down tight given the stakes.

So like...we've gotten started on this, right?

[Unagi]

I feel like this (lack of action) is all akin to Obama's fear about putting too much heat on the Russian election interference. They are focused too much on their need to not look 'political'. I fear that they are worried about looking like they are attacking the GOP. The idea of getting rid of Garland, to be replaced by someone that then sets up a case against Trump, would invite the obvious criticism that they are selecting the head of the DOJ so as to fulfill an agenda and that Garland was indeed following the law better by not opening a case up against Trump, etc, etc.

[El Guapo]

I feel like this (lack of action) is all akin to Obama's fear about putting too much heat on the Russian election interference. They are focused too much on their need to not look 'political'. I fear that they are worried about looking like they are attacking the GOP. The idea of getting rid of Garland, to be replaced by someone that then sets up a case against Trump, would invite the obvious criticism that they are selecting the head of the DOJ so as to fulfill an agenda and that Garland was indeed following the law better by not opening a case up against Trump, etc, etc.

Yes, plus a mix of fretting about the (real) risks of action without sufficiently weighing the risks associated with inaction.

[Unagi]

Yeah, exactly.

[Kurth]

Garland can prosecute, but Garland cannot convict. Is it possible that the explanation is that Garland just doesn’t believe the case is strong enough to get a jury to convict Trump and his attempted coup cronies of anything here? And like any prosecutor, Garland doesn’t want to bring a case he is likely to lose. Plus, maybe the calculus is that prosecuting Trump and failing to convict him actually puts him and the GOP in a better position regarding the mid-terms and 2024.

[Unagi]

Certainly. I believe that is all part of "the (real) risks of action", that they are focused on.

[Grifman]

I thought it was interesting that the judge in the Eastman case said that this was a coup in search of a legal theory.

[malchior]

I appreciate all these theoretical discussions about why Garland isn't acting as much as the next person but Trump is polling as a viable candidate right now. There is real danger here. This isn't some theoretical exercise. People who've seen the evidence with their own eyes say he is committing crimes. Unprovable? We'll never know because no one has the guts to try despite the danger.

I can't help but contrast that Jim Comey can announce a criminal investigation 11 days before an election. The "system" did crazy things that helped Trump. Now in response to Trump they have swung to be as deferential as possible to avoid it and are protecting Trump now? It's unfathomable. We deserve to know that this is being investigated. If it isn't we deserve to know why it isn't. Pretending this is about protecting us from politicization by making what appear to be political decisions is not a great look. And at this point it isn't doing the DOJ or us as citizens any favors.

[Smoove_B]

And then there's this:

Some of the Jan. 6 committee members’ pushback against summoning Ginni Thomas is a realization that they have around 100 depositions left to do and are running out of time if they want public hearings in May. Adding more witnesses makes that difficult, sources say.

Apparently "they can't arrest us all" turned out to be a primo strategy for a coup.

[malchior]

And then there's this:

Some of the Jan. 6 committee members’ pushback against summoning Ginni Thomas is a realization that they have around 100 depositions left to do and are running out of time if they want public hearings in May. Adding more witnesses makes that difficult, sources say.

Apparently "they can't arrest us all" turned out to be a primo strategy for a coup.

It doesn't help that Congress dicked around for 6 months figuring out if they should do anything. Then they dicked around some more and subpoenaed/sued no one for months. Then when they finally acted they ran into the predictable delay games.

The DOJ also aided the delay game by falling into full analysis paralysis on even the Bannon referral which everyone has said was "easy". Months later we still don't have word on the Meadow's referral and the 1/6 committee just piled on more. Of course they all aren't cooperating. It's mostly working in the sense that the goal is to protect the boss.

As to the analysis paralysis, I've heard several prosecutors say there are some legitimate separation of powers concerns. However most I've seen have said the delay is excessive and it borders on dithering. When it comes down to it, the DOJ is not supporting the legitimate mission of Congress to investigate an attack on Congress.

And all of this is just the surface level stuff we know about. There is lots more to dig through here and it's mostly bad. And just for context, we're all watching the fumbling of a fumbling. Trump telegraphed this attack on our system. We didn't take it seriously. The attack happened and we didn't take it seriously for far too long. And a year plus later after the fact it is clear that the risk we face isn't being taken seriously enough. It really does feel like American democracy is in extreme peril.

[LawBeefaroni]

We can't possibly process 101 depositions in just over a month. We're the US Congress with unlimited funds for gods' sake, not a mid-sized law practice!

[Dogstar]

We can't possibly process 101 depositions in just over a month. We're the US Congress with unlimited funds for gods' sake, not a mid-sized law practice!

This. Plus, you'd think you may be more inclined to throw resources and extra hours at stuff related to OVERTHROWING YOUR SYSTEM.

[malchior]

Washington Post

The criminal investigation into the Jan. 6 attack on the Capitol has expanded to examine the preparations for the rally that preceded the riot, as the Justice Department aims to determine the full extent of any conspiracy to stop Congress from certifying Joe Biden’s election victory, according to people familiar with the matter.

In the past two months, a federal grand jury in Washington has issued subpoena requests to some officials in former president Donald Trump’s orbit who assisted in planning, funding and executing the Jan. 6 rally, said the people familiar with the matter, who spoke on the condition of anonymity to discuss an ongoing investigation.

The development shows the degree to which the Justice Department investigation — which already involves more defendants than any other criminal prosecution in the nation’s history — has moved further beyond the storming of the Capitol to examine events preceding the attack.

[Unagi]

So I guess this is some light on it ?

[Kurth]

Not sure which thread this belongs in, but it's certainly related to this one. The NYT Daily podcast knocked it out of the park yesterday with its episode on the political lives of Clarence and Ginni Thomas.

Much of what's in there has been previously reported, but they did a brilliant job packaging it up. Also, some of the nuggets included audio of Phyllis Schlafly presenting Clarence with an award from her Eagle Society in 2008 (and her accompanying poem) were something else.

If Thomas does not recuse himself (which he most certainly will not do) from deciding further cases involving the 2020 election or elections in the future in which Ginni is advocating and lobbying for a result, the Supreme Court is in real trouble.

[malchior]

So I guess this is some light on it ?

Eh sort of. The piece had a lot to unpack. It's lukewarm. Did they in the process of interviewing 1/6 rioters form some investigative leads and act on them? Yes. That's pretty straightforward when you think about it. They are going to chase leads when they see indicators of crime in most cases. But this is clearly an extremely slow approach.

Another part of the article which gives me pause is they described a Trump-y acting AG who essentially raised a ruckus internally at DOJ about investigating the rally last year. It introduced a lot of caution about civil rights. Which is worthwhile in a sense but this was a potential existential attack on the nation's system of governance. You have to balance some of that towards speed IMO. In any case, that's clever if it's just a way to keep the heat off the organizers of the rally and a path to Trump. And in essence we don't have as a clear path getting to Trump as some people are wishing this was.

[Carpet_pissr]

the Supreme Court is in real trouble.

Personally I think we are way past that. Hell, some justices think that and are openly admitting as much.

[El Guapo]

So I guess this is some light on it ?

Eh sort of. The piece had a lot to unpack. It's lukewarm. Did they in the process of interviewing 1/6 rioters form some investigative leads and act on them? Yes. That's pretty straightforward when you think about it. They are going to chase leads when they see indicators of crime in most cases. But this is clearly an extremely slow approach.

Another part of the article which gives me pause is they described a Trump-y acting AG who essentially raised a ruckus internally at DOJ about investigating the rally last year. It introduced a lot of caution about civil rights. Which is worthwhile in a sense but this was a potential existential attack on the nation's system of governance. You have to balance some of that towards speed IMO. In any case, that's clever if it's just a way to keep the heat off the organizers of the rally and a path to Trump. And in essence we don't have as a clear path getting to Trump as some people are wishing this was.

On the other hand, a Twitter account named Mueller, She Wrote assures me that this is HUGE NEWS, so I'm not sure what to believe.

[malchior]

So I guess this is some light on it ?

Eh sort of. The piece had a lot to unpack. It's lukewarm. Did they in the process of interviewing 1/6 rioters form some investigative leads and act on them? Yes. That's pretty straightforward when you think about it. They are going to chase leads when they see indicators of crime in most cases. But this is clearly an extremely slow approach.

Another part of the article which gives me pause is they described a Trump-y acting AG who essentially raised a ruckus internally at DOJ about investigating the rally last year. It introduced a lot of caution about civil rights. Which is worthwhile in a sense but this was a potential existential attack on the nation's system of governance. You have to balance some of that towards speed IMO. In any case, that's clever if it's just a way to keep the heat off the organizers of the rally and a path to Trump. And in essence we don't have as a clear path getting to Trump as some people are wishing this was.

On the other hand, a Twitter account named Mueller, She Wrote assures me that this is HUGE NEWS, so I'm not sure what to believe.

She is one I specifically thinks is overhyping it. I like her reporting in general but I consider her to be uncalibrated. In the sense she is more in the direction of the Palmer Report style of analysis. Along the lines that the very serious people are serious and working hard for us. They'll get their man (just like Mueller amirite!?) I mean I wish it was true but lots of very smart people are saying otherwise with regards to the DOJ.

[El Guapo]

So I guess this is some light on it ?

Eh sort of. The piece had a lot to unpack. It's lukewarm. Did they in the process of interviewing 1/6 rioters form some investigative leads and act on them? Yes. That's pretty straightforward when you think about it. They are going to chase leads when they see indicators of crime in most cases. But this is clearly an extremely slow approach.

Another part of the article which gives me pause is they described a Trump-y acting AG who essentially raised a ruckus internally at DOJ about investigating the rally last year. It introduced a lot of caution about civil rights. Which is worthwhile in a sense but this was a potential existential attack on the nation's system of governance. You have to balance some of that towards speed IMO. In any case, that's clever if it's just a way to keep the heat off the organizers of the rally and a path to Trump. And in essence we don't have as a clear path getting to Trump as some people are wishing this was.

On the other hand, a Twitter account named Mueller, She Wrote assures me that this is HUGE NEWS, so I'm not sure what to believe.

She is one I specifically thinks is overhyping it. I like her reporting in general but I consider her to be uncalibrated. In the sense she is more in the direction of the Palmer Report style of analysis. Along the lines that the very serious people are serious and working hard for us. They'll get their man (just like Mueller amirite!?) I mean I wish it was true but lots of very smart people are saying otherwise with regards to the DOJ.

But what does Louise Mensch think about this?

[malchior]

But what does Louise Mensch think about this?

Hmm. Indeed. I forgot she even existed.

[stessier]

Official review of Trump phone logs from January 6 finds record is complete

According to multiple sources familiar with Trump's phone behavior and the White House switchboard records, the January 6 log reflects Trump's typical phone habits. He mainly placed calls through the switchboard when he was in the residence but rarely used it when he was in the Oval Office. The fact the log does not show calls on January 6, 2021, from the Oval Office is not unusual, said the sources, because Trump typically had staff either place calls directly for him on landlines or cell phones. Those calls would not be noted on the switchboard log.

The six pages of White House switchboard logs for January 6, 2021, are complete based on an official review of White House records, according to a source familiar with the matter. There are no missing pages and the seven-hour gap is likely explained by use of White House landlines, White House cell phones and personal cell phones that do not go through the switchboard.

The missing calls also underscore something more endemic: the imperfect and antiquated system of tracking a president's communications.
The White House call log is generated by a switchboard system that dates back to the 1960s, according to the National Archives. The version installed in 1963 was already considered "somewhat outdated" just two decades later.

And it's certainly not one suited for the era of cell phones and text messages or to a President well known for his efforts to circumvent official channels of communications.

[malchior]

You also have to think it's impossible to close that gap and it could easily result in a lengthy battle about separation of powers interests.

[malchior]

We have the first Capital Riot acquittal. A defendant waived his right to a jury trial and the judge found him not guilty in a bench trial. His ruling was that even though the prosecutor's argued the circumstances of the riot including alarms going off in the building and there being deployed tear gas that he was waved into the building by two Capitol police officers. The judge involved was a Trump appointee and has generally been considered very conservative. I expect we'll see people appearing in front of McFadden may elect to waive jury trial and try to offer similarly thin defenses in increasing numbers.

[El Guapo]

A couple questions - do we know anything about how judges are assigned in the DC federal system - is there any practical way for defendants to steer their cases to McFadden? I'm assuming not, but not totally sure.

Another question that maybe I should know - defendants have the right to insist on a jury trial if they want. But do they have the right to insist on a bench trial? If not, can't DoJ push for jury trials even if the defendant is willing to waive their right to one?

[malchior]

A couple questions - do we know anything about how judges are assigned in the DC federal system - is there any practical way for defendants to steer their cases to McFadden? I'm assuming not, but not totally sure.

As far as I know it's randomized. I expect we might see a pattern emerge that people appearing before *him* will opt for a bench trial. It'd be illuminating because I'd be curious to see how that plays out. Sort of a natural experiment.

Another question that maybe I should know - defendants have the right to insist on a jury trial if they want. But do they have the right to insist on a bench trial? If not, can't DoJ push for jury trials even if the defendant is willing to waive their right to one?

Good question. Is it absolute? I doubt it. Would that change if it started to get out of control? Perhaps, it'd be an interesting to watch again in the natural experiment sense. I seem to recall there is a presumption that the defendant gets to choose. It's been awhile but I think that's baked into due process jurisprudence but that's definitely a hazy recollection.

[ImLawBoy]

It's been ages since I've done anything in the crim law world (clerked at the Cook County State's Attorney's office in law school), so giant salt lick here. I believe the right to a jury trial is baked in for the defendant and not for the prosecution, so it basically becomes the defendant's choice, which makes sense when you think about how the criminal legal system is (supposed to be) set up to protect the rights of defendants. If the defendant doesn't want a jury (worried about inflammatory evidence, for example, that they think a judge would be more neutral and less emotional on), then that's their choice.

[El Guapo]

It's been ages since I've done anything in the crim law world (clerked at the Cook County State's Attorney's office in law school), so giant salt lick here. I believe the right to a jury trial is baked in for the defendant and not for the prosecution, so it basically becomes the defendant's choice, which makes sense when you think about how the criminal legal system is (supposed to be) set up to protect the rights of defendants. If the defendant doesn't want a jury (worried about inflammatory evidence, for example, that they think a judge would be more neutral and less emotional on), then that's their choice.

FWIW criminaldefenselawyer.com says the a defendant does not have the right to a bench trial.

No. While a constitutional right to a jury trial exists in most criminal cases, the same isn't true with a bench trial. A defendant may waive (give up) their right to a jury trial, but if the prosecutor objects or the judge rejects the defendant's waiver, the trial will go before a jury.

Which makes some sense. The reason why defendants have the right to a jury trial is that the judge is an agent of the state while a jury is not. So if you're worried about the state potentially railroading innocent people in an oppressive manner, a useful protection is to make sure that they can choose to have their case decided by someone who doesn't work for the state. But if the defendant is saying that they'd prefer to have their case heard by the state, then that concern doesn't really apply.