For DOJ to complete investigation into Jan. 6, it needs to destroy Trump’s privilege claims

As Kerry Eleveld reported last Friday, Steve Bannon has been found guilty on two charges of contempt of Congress and can now expect to spend some time in federal prison for his refusal to cooperate with the House select committee on Jan. 6. However, Bannon is far from the only member of Donald Trump’s White House team who has failed to show up before the committee or provide requested documents. Most of those who have so far refused are likely to avoid paying any price for hiding information behind claims of “executive privilege.”

The Department of Justice may not be all that anxious to take up these contempt cases in the name of a House committee, but that doesn’t mean the department doesn’t want those Trump officials to testify. Those same figures are critical to the Department of Justice’s own investigation into the conspiracy behind events on Jan. 6, 2021. 

To clear the way for testimony from everyone up to and including Trump, the Department of Justice first has to clear the privilege issue off the board. Trump has made extensive use of the privilege card ever since entering the White House, and that certainly didn’t stop when he left. So far, the Justice Department has been careful to navigate around privilege issues in its interviews with former members of Team Trump, but for the investigation to get serious, that has to end.

As CNN reports, the Department of Justice is “confronting the privilege issue with care.” Attorney General Merrick Garland made a very welcome statement last week in which he finally made it clear that no one, including Trump, was clear of potential charges related to the attempted coup. But so far the department doesn’t seem to have pressed witnesses to provide what they consider to be privileged information, which in this case appears to be any direct communication with Trump. 

This is not how executive privilege is supposed to work. In past cases, claims of privilege have required just that: a claim from the White House asserting privilege over specific written or spoken communications. But throughout his time in Washington, Trump made extensive and expansive claims of privilege, not only refusing to cooperate in matters related to his two impeachments, but instructing officials to refuse to release even routine information. In almost all cases, White House officials refused to say that Trump was officially asserting privilege, and Trump refused to comment. There was just a broad claim of undefined privilege, which in some cases was extended to junior officials who never came close to talking with Trump. 

Such blanket claims of privilege leave the Department of Justice facing a dilemma when it comes to investigating the events of Jan. 6 and the other ways in which Trump attempted to overturn the results of the 2020 election. 

There’s no doubt now that the Department of Justice is deep into an investigation of actions by many members of the White House, including former Chief of Staff Mark Meadows, attorney John Eastman, and attorney Rudy Giuliani. In recent days, a federal grand jury has heard testimony from false electors who were encouraged to take part in Trump’s scheme, as well as Marc Short and Greg Jacob who were, respectively, chief of staff and lead counsel to Mike Pence. 

Trump’s efforts to extend privilege to new levels have already met with some defeats in court, most notably when he was forced to hand over a large tranche of documents that he had sought to protect at Mar-a-Lago and was required to release other documents held by the National Archives. But the broader case of exactly how much right Trump has to protect his conversations after he has left office remains unsettled law. 

There are good reasons to believe that the answer to how much privilege Trump now enjoys is none, and that practically every conversation that Trump had regarding Jan. 6, even those with his personal attorneys, would fail any reasonable test of privilege because these statements were directly related to a conspiracy to commit a serious crime. That would be completely in line with how courts ruled during Ken Starr’s prolonged investigation into the Clinton White House. 

But if the Department of Justice plans to cut through Trump’s privilege claims, it had better get cracking. A Department of Justice inquiry into a member of Clinton’s Cabinet took two years to obtain a final ruling. 

The Republican Party long ago missed its chance to distance itself from Trump. Now it’s far too late

With her jaw-dropping testimony before the House select committee on Jan. 6, former assistant to the White House chief of staff Cassidy Hutchinson has given Republicans an opportunity: Get out the 17.5-foot poles and push Donald Trump as far away as they can while there is still a chance. Hutchinson’s testimony, showing that the man who is petty, spiteful, mean, and cruel on stage, turns out to be even more petty, spiteful, mean, and cruel in private, is to Republicans what Jan. 6 was to Trump’s seditious conspiracy: a last chance.

On the day after Jan. 6, Republican “leaders” like Kevin McCarthy and Mitch McConnell were adamant in renouncing both the assault on the Capitol and the man who drove the mob into the halls of Congress. McCarthy was quoted as saying, “I’ve had it with this guy” after telling a group of Republican representatives that he would push for Trump to resign. McConnell also told fellow Republicans that Trump was responsible for the Jan. 6 attack and vowed to “drive him from politics.”

But within days, McCarthy hurried down to Mar-a-Lago, begging the forgiveness of Trump and denying he’d ever said anything about trying to remove him from office. A position made only slightly more awkward by recordings of McCarthy doing exactly that. 

Now Republicans have another chance to walk away from Trump. Don’t expect them to take it. Because it’s too late.

Campaign Action

Once upon a time, in the Pre-Trumpian age that now seems so far away, but was really just 2016, Republicans up and down the dial were readily aware that Donald Trump was in no sense qualified for high office, and that even putting him on the ballot as the Republican nominee was absolutely ridiculous.

There was Marco Rubio saying, “We’re about to have someone take over the Republican Party who is a con artist” (and Rubio should know). Rubio also called Trump the most “vulgar person to ever aspire to the presidency” and someone “who has fed into language that basically justifies physically assaulting people who disagree with you.” 

Ted Cruz called Trump, “utterly amoral,” “a pathological liar,” and “a narcissist at a level that I don't think this country has ever seen.” Repeating … Ted Cruz said this.

And of course, Lindsey Graham was there to say that Trump was, “a race-baiting, xenophobic, religious bigot. He doesn't represent my party.” 

"You know how you make America great again?,” asked Graham. “Tell Donald Trump to go to hell."

Then every single one of these leaders showed that they had feet, not of clay, because clay has much more consistency than anything demonstrated by these men. Watery mud, at best. 

The Republican Party might have tried to hold itself separate from Trump’s white nationalist kleptocratic authoritarian agenda. It didn’t. It might have broken with Trump when the first impeachment hearings revealed how he attempted to bully Ukrainian President Volodymyr Zelenskyy into generating false evidence against Joe Biden in exchange for the weapons it needed to hold back Russia. It didn’t. It might have broken away from Trump at a hundred different points, before, during, and after Jan. 6. It didn’t. 

Every day Republicans have had an option: Take their lumps for supporting Trump, and try to save what remains of their party. Instead, they’ve picked door number two—the one where they pull out a spade and dig the hole even deeper. Every day they’ve made the bet that wading further into the swamp is the better alternative—even though they’ve watched the waters close over the heads of so many former party stalwarts.

Last night in Illinois, Mary Miller beat out Rodney Davis for the nomination in the 15th congressional district on the sole basis of being the most willing to do anything, anything, anything, that Donald Trump says. It’s a story that has been repeated so many times in the last five years. What’s left of the Republican Party to save at this point? There’s no version of Lauren Boebert and Marjorie Taylor Greene that is not just about being proxies for Trump. Ditto Josh Hawley, Matt Gaetz, Jim Jordan, et. al. 

If Republicans stepped away from Trump, who would lead that charge? McCarthy? Graham? Cruz? Any of them might have preserved something of a dry place to stand that they could leverage now. But they didn’t. There’s maybe Mitt Romney and maybe half a dozen members of the House who have made it through the last four years like kids hunched down at the back of the class, hoping that the teacher would never, ever call on them. The only other Republicans who haven’t groveled at a level that embarrasses earthworms have either lost their seats, retired, or are about to.

Republicans should be thanking Cassidy Hutchinson for this fresh opportunity to declare that they didn’t know Trump was that bad. Because, beyond the ketchup on the walls and the grabbing for the wheel, what Hutchinson made dead obvious was that Donald Trump acted to make sure that his supporters at the Capitol were armed and that he intended to lead their assault on Congress personally. He wanted to be on hand to direct the people chanting “Hang Mike Pence,” which was music to his ears.

There are going to be charges of seditious conspiracy. A number of people are going to go to jail. What’s left of the Republican Party can either take this opportunity to bail on Trump or double down on the destruction of democracy.

Expect them to choose door number two. Again.

Republicans shocked to find that refusing to be on Jan. 6 committee means not being on committee

On Wednesday, multiple Republicans, including Donald Trump, expressed their dissatisfaction with House Minority Leader Kevin McCarthy over how he has handled the House select committee on Jan. 6. On Thursday, as the committee prepares to air its next hearing, the “blame McCarthy” message seems to just keep expanding. One thing is absolutely clear: Republicans can see that the series of public hearings are devastatingly effective.

When House Speaker Nancy Pelosi informed McCarthy that she would not seat either Rep. Jim Jordan or Rep. Jim Banks on the committee because both were likely to be sought as witnesses because of their involvement in the Jan. 6 conspiracy, McCarthy made an immediate response. Rather than appoint replacements, McCarthy reacted by withdrawing his three other nominees to the committee and refusing to cooperate. The intention from McCarthy was to create the impression that the select committee was, as Trump repeatedly claims, “a partisan witch hunt.” However, McCarthy could not stop Republican Reps. Liz Cheney and Adam Kinzinger from participating.

In spite of the continuing cries on the right that the committee is “partisan” and “slanted,” it’s obvious Republicans can see the effect the public hearings are having. Day by day, the committee has reminded the public of the violence committed on Jan. 6. It has shown how white supremacist militias were involved in planning and promoting that violence. In the most recent hearings, the committee has begun the process of unfolding the conspiracy, led by Trump, that hoped to use Jan. 6 as a means of subverting a national election.

The effectiveness of those hearings can be directly measured in the scorn now being heaped on McCarthy.

Campaign Action

It’s not as if total noncooperation was an idea original to McCarthy. Refusal to cooperate and forcing House committees to go to court to get the most trivial documents that are usually handed over as a matter of course was standard operating procedure during the Trump White House. That noncooperation has continued as Trump has made it clear he doesn’t want any of his insiders testifying before the select committee on Jan. 6.

However, as The New York Times now reports, pro-Trump Republicans have discovered that since McCarthy cut them out off the committee, they have, shockingly, been cut out of the committee. That is, they haven’t been privy to the inner workings of the investigation or had any clarity on how the committee staff was building the case against Trump and his supporters. That’s left them open to surprises in terms of documents and testimony turned up in the investigation.

The absence of Trump-defenders on the committee has become exceedingly obvious during the public hearings, as the testimony of witnesses has not been hijacked or sidetracked as it frequently was during the House impeachment hearings. Witnesses to Jan. 6 violence have not been asked to give their opinion on Hunter Biden’s laptop, to discuss how President Joe Biden is responsible for high gas prices, or about anything related to Hillary Clinton. And Republicans are suddenly regretting that.

As The Washington Post notes, McCarthy is still instructing Republicans to simply ignore the hearings until they go away. Except a few Republicans seemed to have removed their heads from holes long enough to note that people are watching these hearings and seeing things that are not so good for Republicans. And especially not good for Trump.

That’s why Trump is said to be at “the point of about to scream at the TV” and why he has been going on right-wing media to complain that McCarthy made “a very, very foolish decision.” Not only does this information highlight the growing rift between Trump and McCarthy, it also provides the satisfying knowledge that Trump is sitting down at Mar-a-Lago, watching the hearings and fuming.

As he watches, Trump is complaining that there is no one to defend him. Blame for that lack is “falling squarely on McCarthy’s shoulders.” 

Elsewhere in the Post, a new Quinnipiac poll shows that 26% of Americas say they are watching the hearings very closely, while 32% say they are watching somewhat closely. In that poll, 64% of Americans also say they believe the Jan. 6 attack was planned, rather than spontaneous. 

As Politico notes, Republicans are now finding themselves in an uncomfortable schism between Trump, who multiple sources indicated intends to run again in 2024, and McCarthy, who hopes to replace Pelosi as House speaker after the fall midterms. The hearings are already hurting them both, but the growing rancor against McCarthy is making things worse.

Trump has refused to endorse McCarthy for the speaker position. And Republicans like Jim Jordan, who is regarded as an ally of McCarthy but a disciple of Trump, is finding there is no safe ground in this fight. Trump is reportedly “leaving room to turn on McCarthy if he chooses.” 

Considering the public statements he’s already making, the question should be if Trump chooses to turn on McCarthy more

However, one thing is certain: If Republicans didn’t see these committee hearings as effective, McCarthy wouldn’t be getting criticism. If they thought the hearings were really being viewed as partisan, or that Americans weren’t paying attention, McCarthy would be collecting praise.

And it’s not as if there haven’t been plenty of Republicans in the committee hearings. They’ve been in there every day, testifying to how Donald Trump pressured them, threatened them, and terrorized them in an effort to overturn a federal election.

As public hearings hammer home Trump’s conspiracy, Republicans have an answer: Blame Kevin

On Tuesday, the nation heard incredibly compelling testimony about the pressure placed on state and local officials by Donald Trump in an attempt to overturn the results of the 2020 election. As Brandi Buchman reported, the testimony showed how Trump personally leaned on these officials, how his bullying opened both them and their families to threats, and how Trump was at the center of a scheme to subvert democracy using a slate of fake electors in multiple states.

Tuesday’s testimony was only the latest in a series of hearings in which the public has seen new information about events on Jan. 6. In those hearings, the House select committee has been working backwards. They started by showing the violence of the assault on the Capitol. Then they showed how Trump recruited white supremacist groups like the Proud Boys to his cause. Then how Trump and his legal team concocted a fictional narrative about voting fraud. Tuesday was the first day dedicated to Trump’s efforts to make that plan reality. 

If it seems familiar, it’s because what the select committee is doing is what the prosecution does at every murder trial: Show the jury a body on the ground, identify the weapon, then prove who was wielding the knife. They’re giving the nation the body of the crime, the tools enlisted to make it happen, and both motive and means of execution. 

And now Republicans are sorry. Not sorry that Jan. 6 happened—sorry that they didn’t corrupt the select committee when they had the chance.

Over at Punchbowl News, there’s a feeling from Republicans that, horror of horrors, the committee is doing a good job. That is, they’ve put together convincing evidence and the presentations to the public have been convincing. Republicans “won’t admit it openly” but in private, they’re fretting over how the committee has created a “blistering portrayal of former President Donald Trump’s refusal to accept defeat following the 2020 elections” and the steps Trump took to overturn the results. And, as happens on almost every occasion, Republicans are looking for the most important thing in any crisis situation: someone to blame. 

It can’t be Trump, because as Lindsey Graham made clear, they’re all terrified of Trump. They love that little frisson of terror they get at the mere mention of his name.

So the finger of blame seems to be pointing at the guy who had the chance to turn this committee into an absolutely ineffective, watered down, good-people-on-both-sides farce, but passed up that opportunity: House Republican Minority Leader Kevin McCarthy. 

Just over one year ago, Republicans in the Senate filibustered a bill to create an independent, bipartisan commission to investigate Jan. 6. As Laura Clawson reported at the time, Democrats made “huge concessions” concerning the makeup of the committee and limits of the investigation in an effort to address concerns expressed by Republicans. It was enough to get 35 House Republicans on board, but in the Senate only six Republicans were willing to go along, and a smirking Mitch McConnell led the filibuster to halt an investigation into crimes that were then only four months in the past. 

A month later, House Speaker Nancy Pelosi handed McCarthy the outline for the current select committee, giving him the opportunity to appoint Republican members. McCarthy might have chosen to take it seriously, but he didn’t. Instead he promptly picked Reps. Jim Jordan and Jim Banks, both of whom McCarthy knew would be sought as witnesses for direct involvement in the Jan. 6 conspiracy.

When Pelosi rejected this attempt to knee-cap the committee, McCarthy had a list of literally hundreds of Republicans to choose from. He might have saddled the committee with any of a number of cynical old hands or hard-charging MAGA freshmen, either of which could have served to turn every session in the committee into the kind of “where is Hunter Biden’s notebook?” madness seen during Trump’s impeachment hearings.

Every public hearing, if there even were public hearings, could have been subject to lengthy diatribes about Benghazi and demands that they subpoena the grandkids of Hugo Chavez. Republicans could have done what Republicans do in defense of Trump: Throw up smokescreens, erupt in faux outrage, and use up committee time making regular statements about how the whole investigation was “a witch hunt.”

Only McCarthy didn’t do that. Refused his first choice of sleeveless wrestling shower guy, McCarthy decided that he wouldn’t name anyone at all, leaving Pelosi the opportunity to select Liz McCarthy and Adam Kinzinger from the very short list of Republicans who were not willing to crown a game show host as America’s king.

Now, as that committee wades into Trump with one punch to the gut after another, Republicans are coming to the consensus that it was McCarthy who screwed this up. That consensus includes Trump.

Trump: “I think in retrospect [McCarthy should’ve put Republicans on] to just have a voice. The Republicans don’t have a voice. They don’t even have anything to say. … “I think it would’ve been far better to have Republicans [on the panel]. [Jim Banks and Jim Jordan] were great. They were great and would’ve been great to have them. But when Pelosi wrongfully didn’t allow them, we should’ve picked other people. We have a lot of good people in the Republican Party.”

This is a trial at which Trump has refused to testify and done everything he possibly can to keep all the others involved in the conspiracy from raising their right hand. And the truth is that every Republican in Washington, D.C., and Mar-a-Lago thought McCarthy had done the right thing at the time, because “illegitimate witch hunt” was a well-established theme they could sell to Trump’s base.

Except Trump’s base isn’t watching the committee hearings. Everyone else is. And Trump is discovering that when you’re on trial for attempting to murder democracy, refusing to put on a defense isn’t a great strategy.

Expect the “blame Kevin” chorus to only grow louder. After all, “scapegoat” is McCarthy’s dedicated role.

Ukraine update: ‘Trying to choke off an aggressive fascist state without starting WW III’

Mike Jason retired from the U.S. Army as a Colonel and went on to become a professor, historian, author, and speech writer. In recent years, he’s been notable both for his cogent explanation of U.S. failings during the occupation of Afghanistan, and his vocal defense of Lt. Col. Alexander Vindman during Donald Trump’s first impeachment. Since this has been a day for looking at analysis of the situation in Ukraine and in Russia, this seems like a good time to bring up Jason’s look the other end of the cost of the war—what it will cost in the United States?

To start with, that costs is definitely worth it. 

“The world, with American leadership, Is trying to choke off an aggressive fascist state without starting WWIII. As a result, gas prices are going to go up. Hell, the price of everything is going to go up.”

On the surface, this tradeoff seems almost superficial. Bring down an aggressive fascist state without directly engaging the U.S. military, and while doing everything possible to prevent the war from expanding outside it’s current area of conflict? It seems like an easy deal. However, as Jason points out, just because it’s a better deal than an actual shooting war between NATO and Russia, doesn’t mean it’s a get-out-of-pain free card. For many people, the increases in costs will hit hard. There are millions of people out there who are always on the brink when it comes to their finances. There are also people out there who might have just made a decision—like buying a new truck—which seemed completely reasonable without factoring in a war they didn’t know was coming.

“First, from my old unit pep talks:  ‘don't be an asshole.’ Now is not the time to make your dig about someone's pick up truck choice or to be smug about your Tesla. Everything will cost more for everyone.  Remember we are all in this together.”

For better than a decade, oil prices have been remarkably low. After peaking around 2008, at a point when it looked like $100 a barrel and up was the indefinite future, the rapid spread of fracking across the U.S. and around the world brought on a super abundance; a world where oil production has been limited by demand rather than production. In Cheap Oil World, some of the dependencies and decisions that were made seemed entirely reasonable (so long, of course, as the environment, and specifically the critical damage to the climate, weren’t considered).

But now we’re seeing the price of cheap oil and cheap natural gas. And if we’re not careful, we’ll pay for it in widening divisions in the U.S.

Tuesday, Mar 8, 2022 · 6:48:43 PM +00:00 · Mark Sumner

So when the gas prices go up, be ready, buckle your chin strap, don't be an asshole, rather find ways to help others mitigate the pain so we can choke the bastards together. End.

— Mike Jason (@mikejason73) March 8, 2022

One thing that can definitely help: All those guys shouting “back to the office!” because seeing people neatly stuffed in rows of cubicles satisfies their ego, can chill for awhile. Working from home saves gas. And saving gas is the best way to limit the cost of this war.

Tuesday, Mar 8, 2022 · 6:54:14 PM +00:00 · Mark Sumner

As Hunter notes, McDonald’s has joined hundreds of other corporations in closing their Russian locations — at least for now. However, there are still big name U.S. companies operating in Russia.

Also, that damn shirt is still up on Amazon.

Tuesday, Mar 8, 2022 · 6:58:47 PM +00:00 · Mark Sumner

Thirty years after this iconic picture, McDonalds withdraws from Russia pic.twitter.com/SeoGX1mvhi

— Samuel Ramani (@SamRamani2) March 8, 2022

Tuesday, Mar 8, 2022 · 7:01:50 PM +00:00 · Mark Sumner

The Ukrainian ministry of defense is setting the number at over 11,000 Russian troops killed, wounded, or captured. That’s about 6% of those who were arrayed for this conflict.

⚡️ Pentagon: 2,000-4,000 Russian soldiers killed in Ukraine. U.S. Defense Intelligence Agency Director Scott Berrier said that the intelligence community has “low confidence” in its assessment of how many Russian soldiers have been killed in Ukraine, CNN reports.

— The Kyiv Independent (@KyivIndependent) March 8, 2022

Tuesday, Mar 8, 2022 · 7:06:36 PM +00:00 · Mark Sumner

Standing ovation for Ukrainian President Zelensky upon completion of his remarks to U.K. Parliament. Watch full video here: https://t.co/q1aqEoXfCB pic.twitter.com/N9YleQQqMX

— CSPAN (@cspan) March 8, 2022

Tuesday, Mar 8, 2022 · 7:10:16 PM +00:00 · Mark Sumner

Movement (literally) on the deal to get more MiG-29s into Ukraine by engineering a swap for F-16s. For now, it seems the MiGs are on their way to a U.S. base in Germany. Whether they’ll fly from there into Ukraine isn’t clear.

BREAKING: Statement by the Polish government approves the transfer of all of the country's MiG-29 fighter jets to the US, likely as the first stage in a swap deal that will see them transferred to Ukraine.https://t.co/opMnx2HenZ

— Conflict News (@Conflicts) March 8, 2022

Tuesday, Mar 8, 2022 · 7:36:42 PM +00:00 · Mark Sumner

This thread checking in with a Ukrainian military officer suggests that things may be going even worse for Russia than they seem. 

"They have lost far more than they expected. That is why they started peace negotiations on the second day of the war."

— Michael Weiss 🌻🇺🇸🇮🇪 (@michaeldweiss) March 8, 2022

Included in this is a claim that Russia lost 30 helicopters yesterday in a Ukrainian counterstrike outside Kharkiv. That would be about 1% of all the helicopters Russia has brought to this conflict taken down at a blow. Note that this hasn’t been recorded at Oryx because, at least at this time, there isn’t circulating video confirming the losses.

Tuesday, Mar 8, 2022 · 7:41:29 PM +00:00 · Mark Sumner

This Polish mayor is not about to let former deputy prime minister of Italy, and head of the hard-right Northern League, Matteo Salvini, brush off his past support of Putin.

Salvini tries to go to the Ukrainian border with Polish mayor. Mayor whips out t-shirt with Putin on it Salvini once wore in European Parliament and says “no respect for you" pic.twitter.com/7ahSzwlHnV

— Ian Bateson (@ianbateson) March 8, 2022

Daily Kos readers have now raised over $1.2 million to help Ukrainian refugees through a group of charities. Help keep that support going.

Trump’s offer to pardon Jan. 6 insurgents is witness tampering, and it’s not just about Jan. 6

There’s a long perception that Donald Trump makes his living as a real estate developer. However, it’s been clear for a long time that Trump’s major occupation is actually going to court. Even before he announced his candidacy in 2015, Trump had been involved in over 3,500 court cases. That doesn’t just include all the times Trump has sued contractors, or all the times contractors have sued Trump. It includes the 106 charges of money laundering lodged against one Trump casino in just 18 months. It does not include the settlement to end legal proceedings over Trump’s fake university scam, or the settlement over Trump’s fake charity scam, and any of the dozens of legal filings Trump has taken in an effort to keep his taxes hidden. It definitely doesn’t include all the lawsuits Trump has filed in an attempt to prevent information from being revealed from his time in the White House, or the hundreds of lawsuits and appeals his team pushed following the election.

The point is, Trump may not be a lawyer, but there are few attorneys in the nation who have anything like Trump’s level of experience in weaseling out of legal issues. That includes how to threaten, pay off, and generally influence witnesses.

That particular skill was evident during Trump’s first impeachment, and during the whole Trump-Russia investigation, where Trump repeatedly made clear that those who kept their lips zipped would find a nice little bonus. Right, Mr. Manafort? While those who cooperated in any way would be left out to dry. Got that, Mr. Cohen

So when Trump gets on a rally stage and tells Jan. 6 defendants that, should he return to power, a pardon is on the menu for them all, he understands that this influences how those charged in connection with the insurgency will testify. And that message goes out to more than just the people who have already been indicted.

As CNN reports, Trump’s offer to issue pardons is absolutely a form of witness tampering. That would be true even if the people involved thought the odds of Trump getting back in the White House were no better than 50-50, but that’s not the crowd he’s addressing. Trump is making this pitch directly to people involved in Jan. 6—the same crowd who thought he’d be restored to power that day, or on Jan. 20, or in April, or in August, or … soon. The people involved in the pro-Trump insurgency are the deepest of his deep swamp believers. They don’t just believe Trump has a chance of being back behind the Resolute Desk, they think it’s inevitable.

So when Trump tells them that he’s got pardons in the works, they understand what this means: Shut up, hunker down, and wait for rescue. No one is exactly unaware of this.

“Robert Jenkins, who is an attorney for several January 6 riot defendants, including Anthony Antonio, said Wednesday his clients are aware of Trump's offers for potential pardons and that the former President's offers could impact the defendants' cooperation. Jenkins also said he is not sure Trump's comments rise to the level of witness tampering but said the former President is putting his ‘fingers on the scales.’”

It’s hard to be more blatant than this. However, much of the media will apparently wait until Trump puts it in writing for them before getting a tiny dab upset.

But it’s not just the people arrested for waving Confederate flags or brandishing handcuffs in the Capitol who are the targets of this message. In addition to the messy, violent insurgency that took place on Jan. 6, there was an even larger threat: the extensive coup attempt conducted by Trump with the cooperation of Republican officials from county level chairmen to members of Congress.

Indictments related to that coup have not yet been filed, but the United States House Select Committee on the Jan. 6 Attack has been making it clearer and clearer that they have all the evidence necessary to explain every step in the six-point plan to overturn democracy. The subpoenas that the select committee has sent to former Trump advisers, as well as members of the slates of false electors assembled to support the attempt, show that the investigation is going well beyond people wearing horned helmets. 

Those people are also getting the message that Trump will save them if they give him a chance. And since some of those same people are in sitting in the House, Senate, or in a position to affect how results are tallied at the state level, it’s a very special form of incentive. What’s good for Trump is good for them. 

And what’s good for both of them is making sure that the next coup attempt is successful.

JUST NOW (WOW): "Absolutely it would impact not only the attorney's perspective but also the client's...Far less likely to cooperate." Robert Jenkins, an attorney for several 1/6 clients says flatly Trump's pardon statements impact the cases.pic.twitter.com/3Y0u9OhI0W

— John Berman (@JohnBerman) February 2, 2022

McCarthy refuses to testify. ‘I wish that he were a brave and honorable man,’ says Cheney

Reinforcing the degree to which Republicans do not want the truth about events on Jan. 6 to reach the public, House Minority Leader Kevin McCarthy has announced he will not cooperate with a request to voluntarily testify before the select committee investigating the assault on the Capitol. In refusing the request, McCarthy becomes the latest in a string of Republican representatives who have made it clear that talking about their role in events leading up to the insurgency is the last thing they want to do.

On Wednesday, the U.S. House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol sent a letter to McCarthy making clear that his testimony is critical to investigation of events that sent Congress scrambling as the Capitol was invaded. McCarthy didn’t just speak with Donald Trump before and after the attempt to prevent the counting of electoral votes, he had a phone conversations with Trump in the midst of the hours-long violence. That conversation reportedly included McCarthy yelling in anger “Who the fuck do you think you are talking to?” after Trump refused to take action to end the violence. Current accounts of the phone call are secondhand, though they are included on an official statement from Rep. Jaime Herrera Beutler.

In the past month, the committee has released text messages from members of Congress as well as those from Fox News propagandists and even Trump’s son, Donald Trump Jr. Those texts clearly show that both Republican lawmakers and right-wing media understood that Trump was in control of the violence. However, the released messages were directed at former Chief of Staff Mark Meadows. A full account of McCarthy’s conversation, including an accurate transcription of Trump’s replies, could be crucial in demonstrating his knowledge of the violence and his complicity in refusing to end the attack.

In refusing to testify, McCarthy is making clear—again—that his first loyalty is to Trump, with any concerns about the truth or what’s best for the nation somewhere far behind.

The letter from Committee Chair Rep. Bennie Thompson noted that McCarthy not only had conversations with Trump concerning his refusal to stop the violence on Jan. 6, but about “the potential [Trump] would face a censure resolution, impeachment or removal under the 25th Amendment. It also appears that you may have identified other possible options, including President Trump’s immediate resignation from office.”

In the hours immediately following the assault, it appeared that McCarthy was angry enough to momentarily forget that he had cooperated in turning his party over to Trump. However, McCarthy swiftly remedied this situation. McCarthy flew to Mar-a-Lago to pay homage and turned his attacks away from Trump and toward his fellow Republicans who failed to join in the leadership cult. That includes attacking Rep. Liz Cheney, one of two Republicans now on the select committee.

It’s been clear for months that McCarthy is terrified to make a full account of his conversations with Trump. His attempts to dodge any questions have led him into making a claim of pseudoprivilege in which “my conversations with the president are my conversations with the president.” Executive privilege does not extend to conversations held with members of the legislative branch. 

On receiving the letter from the select committee, it took only a few hours for McCarthy announce that he would not be appearing. McCarthy—who earlier tried to sabotage the committee with an attempt to force the committee to include in its membership some of those known to be most involved in perpetuating the Big Lie around the 2020 election—indicated that the committee was “only out to hurt political opponents” and that he would not cooperate with what he called “an abuse of power.”

It took even less time for Cheney to make clear what she thought of McCarthy’s refusal. As reported in The Washington Post, Cheney had this to say about her titular leader in the House.

“I wish that he were a brave and honorable man,” said Cheney. “He’s clearly trying to cover up what happened. He has an obligation to come forward and we’ll get to the truth.”

However, in an interview with MSNBC, Rep. Jamie Raskin noted that McCarthy has some very personal reasons for keeping his lips zipped—reasons that include his involvement in possible criminal charges of conspiracy. In recent weeks, reports indicate that the select committee has been seriously considering how it may make criminal referrals to the Department of Justice for those involved not just in planning and encouraging the violence on Jan. 6, but for the dozens of Republicans who were intimately involved in a scheme to overturn the results of the election by refusing to honor electoral votes.

Related to that scheme were revelations on Tuesday showing that Republicans forged documents in multiple states to falsely declare Trump the winner in states where President Joe Biden actually came out on top. This is just one aspect of a plan that was presented in an extensive PowerPoint slide deck to Republican members of the House so that they could properly execute their part of the conspiracy. 

It’s not clear if McCarthy was present for that presentation, but if he were to appear to testify, he would certainly be asked about this event and other meetings held in preparation for overthrowing the legitimate government of the United States. 

Jim Jordan isn’t happy about being called before the Jan. 6 Select Committee, but it could be worse

On Wednesday, Rep. Jim Jordan received a letter from the House Select Committee on Jan. 6, inviting him to voluntarily appear before the committee and discuss “in detail” his communications with Donald Trump on Jan. 6. And Jan. 5. And every other date. The committee would also like to hear about Jordan’s communications with Trump’s campaign staff and legal team involved in planning the multi-stage coup.

This letter was phrased in a way that acknowledges the extraordinary nature of a House committee call for a member of the House to testify. It’s also phrased in a way that makes it clear the committee already knows Jordan was deeply involved in planning the attempted overthrow of the legitimate government. Mostly because Jordan can’t stop running his mouth when talking to right-wing media. It’s not so much that the letter is couched in a subtle threat that failure to cooperate will net Jordan a subpoena, even if the evidence comes out anyway. Because it’s really not that subtle.

On Wednesday evening, Jordan did what any Republican called to tell the truth before the nation does: He went on Fox News to whine and complain that the committee isn’t playing fair. But if Jordan thinks that he can just join the long queue of Trump advisers who are doing their best to delay until an expected Republican victory in 2022 can bail them out, he may be surprised. Jim Jordan could find himself arrested.

As The Hill reports, Jordan went on Fox to speak with Brian Kilmeade—who happens to have also sent texts to the White House on Jan. 6, and might be facing his own request to testify—and explain that he has “concerns” about the select committee. In particular, he alleged that the committee has been “altering documents.”

“We're going to review the letter, but I gotta be honest with you. I got real concerns about any committee that will take a document and alter it and present it to the American people, completely mislead the American people like they did last week,” said Jordan.

That reference to “altering documents” apparently refers to how Adam Schiff read part of a Jordan text earlier in the week, rather than giving the whole thing. The portion that Schiff read was repeating a portion of the coup plot indicating that Mike Pence "should call out all electoral votes that he believes are unconstitutional as no electoral votes at all." Because Schiff didn’t read the full text, Jordan is accusing him of altering documents.

The full text doesn’t make this better. If anything, it shows how serious Jordan was about backing the planned coup.

“On January 6, 2021, Vice President Mike Pence, as President of the Senate, should call out all electoral votes that he believes are unconstitutional as no electoral votes at all—in accordance with guidance from founding father Alexander Hamilton and judicial precedence. ‘No legislative act,’  wrote Alexander Hamilton in Federalist No. 78, ‘contrary to the Constitution, can be valid.’ The court in Hubbard v. Lowe reinforced this truth: ‘That an unconstitutional statute is not a law at all is a proposition no longer open to discussion.’ 226 F. 135, 137 (SDNY 1915), appeal dismissed, 242 U.S. 654 (1916).  Following this rationale, an unconstitutionally appointed elector, like an unconstitutionally enacted statute, is no elector at all.”

Nothing that Schiff omitted lessens the impact of what Jordan wrote in any way. In fact, the full text is much worse. The talk about “altering documents” is simply Jordan mulling an excuse not to appear—in this case, an excuse that was also regularly aired on Fox during Trump’s impeachment hearings.

But as MSNBC reports, Jordan might want to think twice about simply refusing to show up before the select committee. As one of six Republican representatives known to have worked directly with Trump and his campaign to overturn the outcome of the election, Jordan is of keen interest to the committee, and a key participant in events leading up to Jan. 6.

Rep. Scott Perry—who brought would-be attorney-general Jeffery Clark to the White House—has already refused to appear before the committee, If Jordan joins Perry in refusing to provide vital documents and testimony, the House could be entering unknown territory.

So what happens if Perry—or, for example, his fellow schemers Jordan and Rep. Louie Gohmert, R-Texas—gets a subpoena? The short answer is that we don’t really know — there’s never been a situation like this before. “There is no established historical or legal precedent regarding congressional power to enforce subpoenas against members of Congress,” law professor Kimberly Wehle wrote in The Atlantic in August. “But if the bipartisan committee has to defend the subpoenas in federal court, it could make a strong argument that the Constitution allows a court to order compliance.”

Of course, Jordan, Perry, Gohmert, et. al, would be happy to join the long line of Republicans now facing court cases over subpoenas from the select committee. Stonewalling until the GOP rides in to save them on the back of an angry midterm is the bet they are all making. However, there is one thing that keeps getting mentioned, then carefully packed away again—the power of inherent contempt.

Congress’ ability to simply arrest someone directly, without going through a request to the DOJ and a long parade through the ladder of courts, hasn’t been trotted out in a long time. But a special case … could be a special case.

While the discussion is on on shakier ground with private citizens, the fact is that each house of Congress is explicitly allowed to make its own rules under the Constitution. It is also then allowed to enforce those rules as it sees fit, granting it the power of censure and expulsion. And courts have yet to rule on how long, say, a member of Congress could be held while defying a lawful subpoena.

The prospect that Jim Jordan will actually be locked up in some repurposed storeroom beneath the House chambers remains slim. Still, it wouldn’t hurt to start very visibly clearing out some space and testing some padlocks, just to make sure that Jordan, along with the other five Republicans at the top of the list, knows the possibility is still there.

If the Senate can be harangued for failing to end the filibuster even for the purpose of saving democracy, then the same pressure should be applied to the House when it comes to inherent contempt. No one likes the idea. That doesn’t mean it isn’t necessary. 

First Jan. 6 hearings begin with police who were assaulted, GOP continuing that assault

Make no mistake: Republicans do not want any kind of investigation into the events surrounding the Jan. 6 insurrection because they’re extremely afraid of what that investigation will find. That’s why, when given the opportunity to have an impartial panel that examined those events outside the normal back and forth of Congressional politics, Republicans in the Senate shot it down. That’s why when House Speaker Nancy Pelosi revived the idea as a select committee, Republicans voted against it. That’s why Kevin McCarthy first tried to saddle the investigation with a stack of Republicans whose announced intention was to derail any look into those events, then made a pretense of withdrawing Republican “support” when Pelosi rejected the worst of those who were out to make the investigation a farce.

Republicans do not want this to happen. What they want is for everyone else to leave this alone so they can continue the project of turning Jan. 6 from insurrection to tourist visit to patriotic action that’s a model for future events.

That effort is expected to continue on Tuesday as the House holds the first hearing from that select committee. As CNN reports, House Minority Leader Kevin McCarthy is expected to make clear that he “will not cooperate” with the committee’s investigation. They are planning a number of events for the course of the day, all with the same theme: It’s Nancy Pelosi’s fault. Pelosi, according to the cover story being generated on the right, failed to get the Capitol Police and National Guard to the Capitol in sufficient numbers—a claim that ignores how that was both not Pelosi’s job and not within her authority.

Meanwhile, the actual hearing is going to begin. Here’s what to expect.

Tuesday, Jul 27, 2021 · 2:38:18 PM +00:00 · Mark Sumner

Fanone pounds the table as he says, "the indifference shown to my colleagues is disgraceful!" "Nothing has prepared me to address those elected members of our government who continue to deny the events of that day and in doing so betray their oath of office," he adds pic.twitter.com/LrJOxT0ueh

— Aaron Rupar (@atrupar) July 27, 2021

Tuesday, Jul 27, 2021 · 2:41:31 PM +00:00 · Mark Sumner

DC officer Daniel Hodges: "A man attempted to rip the baton from my hands & we wrestled for control. I retained my weapon. After I pushed him back, he yelled at me, 'you're on the wrong team!'...another [shouted], 'you will die on your knees!'" pic.twitter.com/MxZnFTNYlO

— Aaron Rupar (@atrupar) July 27, 2021

Tuesday, Jul 27, 2021 · 2:43:28 PM +00:00 · Mark Sumner

The opening video included new information, including audio communications of insurgents calling for use of the gallows, and those outside the Capitol insisting that federal, state, and local officials needed to be rounded up for mass executions.

This first day of testimony will be focused on the appearance of four members of law enforcement who were present at the assault on the Capitol. D.C. Metro Police Officer Michael Fanone has become well known for his previous statements and a letter to Congress in which he called attempts to downplay the events of Jan. 6 “disgraceful” and demanded recognition for the dozens of officers injured on that day. Fanone was beaten with metal pipes and repeatedly shocked with a Taser. He described the events of that day as the “most brutal, savage, hand-to-hand combat of my entire life.” 

D.C. Metro Police Officer Daniel Hodges’ name may not be quite as familiar as Fanone’s at this point, but millions of Americans have certainly seen his face. It was Hodges who was caught in the entrance as Trump supporters made a game of trying to crush him between two doors. Trapped with his hands and shoulders pinned behind him, insurgents took the opportunity to beat him, hit him with bear spray, and coordinate their movements to press ever harder against Hodges’ trapped form. At least one man has already been arrested specifically for his attack on Hodges. Hodges also made it clear that in spite of the pain and damage he suffered on that day, he knew exactly what was going on. “If it wasn't my job, I would have done that for free ... It was absolutely my pleasure to crush a white nationalist insurrection ... and we’ll do it as many times as it takes.”

Capitol Police Officer Harry Dunn fought against rioters who smashed police lines and assaulted officers outside the building, then teamed up with other officers to follow Trump insurgents inside and attempt to block access to officials. As a Black man, Dunn was subject to special attention from the white supremacist mob, including being called the N-word dozens of times. When Dunn mentioned this, it was enough to have Tucker Carlson attempt to discredit the officer as an “angry activist.” Because that’s how Black men are. Angry … about being kicked, beaten, bear-sprayed, and clubbed while being under constant racist assault.

The final member  of police to speak on this day is Capitol Hill Police Sgt. Aquilino Gonell. Gonell, both a police veteran and a military veteran, was beaten with a flag pole, had his hand sliced open with a knife, and was so dosed in chemical spray that it dripped from his clothing. Gonell, in a stunned haze from the assault and chemical spray, has recounted hearing insurgents say they were going to kill the police and calling them traitors. Gonell has also said he took Republican votes to block an independent Jan. 6 commission as a personal insult.

The hearing is now underway with a review of videos and reports from that day.

Tuesday, Jul 27, 2021 · 1:48:07 PM +00:00 · Mark Sumner

NEW: The Justice Department is green-lighting the participation of ex-Trump officials in the Jan. 6 investigation, according to a letter reviewed by POLITICO. Story TK w/ @woodruffbets

— Andrew Desiderio (@AndrewDesiderio) July 27, 2021

Tuesday, Jul 27, 2021 · 1:53:31 PM +00:00 · Mark Sumner

The initial video presented at the opening of the hearing was genuinely chilling. It not only showed footage previously seen at the Senate impeachment trial, but included new footage, much of  it from the Capitol grounds, showing more Trump supporters urging the use of the gallows to hang members of Congress, as well as making it clear that many of those present saw Jan. 6 as an opening act.

Tuesday, Jul 27, 2021 · 2:04:50 PM +00:00 · Mark Sumner

It’s a real shame we don’t get to have Jim Jordan on this committee, rolling his eyes and making dismissive gestures as they show the MAGA mob assaulting cops and hunting for Pelosi and Pence.

— Kevin M. Kruse (@KevinMKruse) July 27, 2021

Trump insurgents came within seconds of capturing ‘nuclear football’ on Jan. 6

During Donald Trump’s second impeachment trial, video footage of events on Jan. 6 revealed just how close Mike Pence came to falling into the hands of the people who were chanting for his execution. Fourteen minutes after the mob of Trump supporters first breached the Capitol, Secret Service agents led Pence from the Senate chamber and down a flight of stairs. He entered that stairwell just seconds ahead of the arrival of insurgents, some of whom were carrying rope or zip ties. Had those insurgents not been delayed through the actions of Capitol Police Officer Eugene Goodman, they could easily have been there to capture Pence and take him to the gallows waiting on the lawn outside.

But in addition to Pence, they might have captured something else that would have been especially problematic. For most of us, our electronic devices—phones, tablets, and laptops—are regularly trusted with our most confidential information. That’s one of the things that helps to make these devices our constant companions and among the most vital objects that we own. However, there is still information that’s considered too valuable, too sensitive, to be trusted to any electronic device, and one prime example was in the hands of a military aide who was with Mike Pence as he fled from the Senate. 

That aide was carrying a small satchel, and inside that satchel was a book listing the locations of classified military sites, a description of how to activate and use the Emergency Broadcast System, a “black book” of pre-planned military actions, and a small card that contains the codes necessary to authorize a nuclear strike. That aide was with Pence at the top of the stairs in the video that was shown during the Senate trial.

The Jan. 6 insurgents didn’t just almost get Mike Pence. They almost got the backup copy of the president’s Emergency Satchel. Better know as the “nuclear football.”

As Reuters reports, concern over how close the satchel came to being captured by the Trump horde is calling for a review of just how the vital information is carried and secured. Some form of the football goes back to President Dwight Eisenhower, but it was concerns from President John Kennedy that created the system that’s still followed today. Both the president and vice president are closely pursued by aides who have the current information necessary to respond if the nation were to fall under sudden attack. 

Following the events of Jan. 6, in which one of the footballs almost went into the hands of insurgents calling for the overthrow of the elected government, there’s a concern that this 60-year-old program may be due for some review. This wasn’t the only occasion in the last four years in which the vital information came under threat. An aide carrying the information on a trip to China got into what was described as a “tussle” with a Chinese official while Trump was having lunch with Communist Party leader Xi Jinping. That situation apparently required then chief of staff John Kelly to get into a “physical altercation” to secure the satchel.

Neither situation is particularly reassuring.

Exactly what the Trump mob might have done with the satchel had they taken it and opened it isn’t clear. There are procedures for changing the authorizations codes in the case a football is lost or stolen. However, the book of secure sites and the book of military actions—primarily military actions that the U.S. intends to take in case of an attack on the nation—are extremely sensitive and any data released from those sources could cause serious damage to national security. Had that information been captured, it would have been considered compromised even if the military wasn’t aware of any leaks of the contents. 

Just what changes are being considered to better secure the information are not clear. But just as a start, securing the Capitol against future assaults by ravening mobs of Trump supporters out for blood is a good first step.