January 6th legal proceedings and investigations megathread

[LBJer]

The one thing I found interesting from today's hearing is the following narrative. Long, long before election night (like 3-4 months before), Trump had this scenario in mind that he would be ahead in the early and election day vote as the votes were counted and released to the media, but as the VBM's came in he would fall behind, and that he would then characterize the valid VBM votes as ballot box stuffing, electronic vote switching and so forth. So he was encouraging his voters to vote in person and not by mail, the better to increase his early lead to fuel the narrative. He campaign manager and Kevin McCarthy were worried that would cost the Pubs votes net, and tried to get Trump to change course, but there was no deflecting Trump on any of this.

So the only piece missing was to find someone who would hawk his crazed narrative and make court filings based on it as the VBM's did indeed tank him as they flooded in. And voila - Rudy Giuliani appears from stage left just perfect for the role. And the rest is history. All  that is left is for Trump to grift his supporters, for dough ostensibly to be used to fight the fraud, but actually used to self aggrandize himself.

Yes.  If Trump had encouraged Republican voters to vote by mail, he wouldn't have been able to use the issue after the election as an argument for fraud.  It just shows how much premeditation there was on his part--he decided long beforehand that if he lost, he would maintain that the election had  been stolen from him.  To this end, he was actually willing to do something that reduced his chances of a legitimate victory!

[LBJer]

I didn't forget it. He made an executive decision to break the norm because he was worried what the ramifications would be if it got out after Clinton had won. Maybe he shouldn't have done it  anyway, but I don't think there's going to be an analogous scenario.

Comey put his own personal reputation ahead of what was good for the country.  That was wrong.  Moreover, the FBI exists for the well-being of the United States, not the other way around.

Comey's defense that he didn't want to mislead Congress and the public rings hollow, given that he neglected to mention that the Trump campaign was under investigation for collusion with Russia--something far more serious than Hillary Clinton's email issue.  

[LBJer]

Anyone who voted in a poll here that 1/6 was not comparable to 9/11 wanna change their position on that at this point?

[LBJer]

Eastman is right that SCOTUS may have refused to hear the case because of the political question doctrine.

No. SCOTUS would never refuse to hear a case when doing so would be tantamount to saying: "Go have a civil war over this."

[LBJer]

Anyone who voted in a poll here that 1/6 was not comparable to 9/11 wanna change their position on that at this point?

It's... really still not. The comparison is hysterical, frankly. Yes, it was a bit shocking watching live, but when the dust settled, there were 5 deaths, most natural and of people there by choice, compared to 3000 innocent people just going about their day and targets struck to cause the most fear.

You just don't get it.  Deaths are not the only measure of seriousness here.  There's also the issue of our democracy--and 1/6 was a much greater threat to that than 9/11.  And may I remind you of the many people throughout American history who have voluntarily given their lives to preserve the United States as the democracy that it is.  That alone suggests your analysis is simplistic and shallow at best. 

[LBJer]

The article below quotes several prosecutors as thinking Trump committed crimes. While I agree that Trump's grifting might well be  crime, as to the Jan 6 events, I don't see how pursuing bogus legal theories in bad faith that will be thrown out by the courts, including pushing for phony electors picked by state legislatures, and that Pence had the power to delay the count and accept them, is a crime. It is not as if anything is covered up, and once the courts rule, it is over. Sure it would get you disbarred, sure it is wrong, and in some circumstances a civil tort perhaps, and subject to sanctions for the costs imposed on the parties and the courts for filing frivolous claims in bad faith. But not a crime. So based on what I know so far, I dissent.

The closest we come to a crime is Trump telling the GA SOS over whom he has no authority to find more votes that he knows are there. I don't think that is enough.

https://www.theguardian.com/us-news/2022/jun/19/trump-charges-january-6-hearings-capitol-attack

But there's now testimony that Trump told Pence to refuse to accept electoral votes for Biden even though those around him--including Eastman himself, the person whose idea it was to do this--had informed him it was illegal.  That makes Trump's own conduct here criminal.

[LBJer]

The article below quotes several prosecutors as thinking Trump committed crimes. While I agree that Trump's grifting might well be  crime, as to the Jan 6 events, I don't see how pursuing bogus legal theories in bad faith that will be thrown out by the courts, including pushing for phony electors picked by state legislatures, and that Pence had the power to delay the count and accept them, is a crime. It is not as if anything is covered up, and once the courts rule, it is over. Sure it would get you disbarred, sure it is wrong, and in some circumstances a civil tort perhaps, and subject to sanctions for the costs imposed on the parties and the courts for filing frivolous claims in bad faith. But not a crime. So based on what I know so far, I dissent.

The closest we come to a crime is Trump telling the GA SOS over whom he has no authority to find more votes that he knows are there. I don't think that is enough.

https://www.theguardian.com/us-news/2022/jun/19/trump-charges-january-6-hearings-capitol-attack

But there's now testimony that Trump told Pence to refuse to accept electoral votes for Biden even though those around him--including Eastman himself, the person whose idea it was to do this--had informed him it was illegal.  That makes Trump's own conduct here criminal.

1. The illegal bit was blowing off the electoral count statute. The theory Eastman was promoting was that that act was unconstitutional because state legislatures have the final say. Eastman wanted that tested before SCOTUS, and then the discussion with Jacob, Pence's attorney, about the vote being 7-2 and then 9-0 against Trump. But just because a legal theory appears to be frivolous, that does not make it a crime to give it a test drive in court. I suspect if Pence had adjourned the count for 10 days as Eastman was urging, SCOTUS would have ordered it to re-commence within 72 hours thereafter. (It was a no brainer, because there was no evidence that the vote count in the subject states was fraudulent or wrong.)

2. I understand that you don't agree, but it is my view that it is hard to criminalize something that will be resolved by the court in a hurry. In other words, Trump persuades Pence (he can't order Pence), to do something that is almost certainly not within Pence's power and would be wrong in any event, but even if Pence goes for it, the court will reverse, and it is over. If Trump defies SCOTUS or course, then in this context he is a felon. But everyone gets their day in court. Think of it this way. If Pence did Trump's bidding, and SCOTUS made its ruling within 72 hours, and the count was completed on Jan 10, 2021, and that was the end of it, do you think Trump committed a crime by attempting, and then succeeding, in changing Pence's mind?

3. Thus, I don't see Garland indicting on this issue. If the GA SOS makes clearer that Trump wanted him to create phony votes, via doing something fraudulent, like fiddling with the machines or something, and there is a crime of trying to persuade something to do a crime (hey, shoplift that pair of socks for me please), that would be considerably more promising material for Garland. We shall see.

No dice.  You can't avoid liability for asking to someone to do something illegal based on a novel "legal theory" if you know perfectly well that theory is bogus to begin with, just because a court hasn't ruled on it yet.  

[LBJer]

Rusty Bowers (the Arizona House Speaker) is a very compelling witness.

I was just going to say the same. I may not agree with him on much politically, but I think his modesty and dedication to his oath make him one of the most compelling witnesses thus far.

Same here.

[LBJer]

Well, we got a bit closer to crime time, although without more, still not there, in my view. That is when I heard on the Trump recording berating the Georgia SOS, Raffensperger, that it was or would be "dangerous" for him to say/find that that there had been no fraud. Raffensperger was then harassed. He was characterized as writing in his book that he viewed Trump's "dangerous" comment as a threat. If Trump really was threatening Raffensperger that bad things would happen to him if the votes were not found, that I think gets us there. What we don't have though is evidence that Trump was telling people to harass and threaten the SOS (and family), and make his life hell.

We're already there with Trump knowing that Eastman's plan was illegal.  Believing a law in unconstitutional (even if it's a good faith belief, which this wasn't) doesn't give you the right to break it and obstruct an official proceeding.  It entitles you to seek a remedy from the court, which they didn't do:

https://www.nycsouthpaw.com/p/whats-really-stopping-a-trump-prosecution

With all due respect, it seems like you've been bending over backwards to say there isn't enough evidence.

[LBJer]

I call them as I see them. But you have a point, LBJer, which is that it probably is annoying. The only reason I made the post is that I think that bit of evidence moved the ball. I had the other day opined that I was quite confident that Garland would not indict based on Trump telling the Georgia SOS to find him some more votes, without more.

Btw, you need not say you respect me, to disagree with me. I do disagree that I am trying to salvage Trump. I would be delighted if Trump becomes a felon.  But my motives really don't matter, nor really my opinion other than to the extent it gives others more information.

Time will tell better what the lay of the land is, and who does what.

I didn't think you were necessarily motivated by any pro-Trump sentiment.  I just thought your standards and way of looking at the evidence was unreasonable.  And if higher standards of proof are being used--regardless of the reason--regarding Trump than would be regarding ordinary defendants, then that's just another form of injustice. 

[LBJer]

It should also be noted that while there's the possibility of jury nullification--jurors voting to acquit Trump even if they're convinced he's legally guilty--there's also the possibility of what's known as "reverse jury nullification"--jurors concluding that the prosecution did not meet the legal standards required to convict Trump, but also concluding that he needs to be stopped and, to that end, voting to convict him anyway.  While reverse jury nullification, unlike jury nullification, can be overturned by a judge, that doesn't mean it would be.

[LBJer]

Some legal experts have argued that Trump's best defense is arguing that he relied on lawyers he thought knew what they were doing and/or that he was detached from reality.  Apart from the fact that critical holes have now appeared in that defense (particularly Eastman telling Trump that violating the Electoral Count Act, as he wanted Pence to do, was illegal, and Trump pressuring Pence to do it anyway), the main problem with this approach is that if Trump was going to go that route, he'd have to effectively admit that the election was NOT stolen.  He'd have to abandon the "Big Lie" that he continues to preach.  I don't think he'd be willing to do that, even if doing so was the only possible route to an acquittal. 

[LBJer]

Some legal experts have argued that Trump's best defense is arguing that he relied on lawyers he thought knew what they were doing and/or that he was detached from reality.  Apart from the fact that critical holes have now appeared in that defense (particularly Eastman telling Trump that violating the Electoral Count Act, as he wanted Pence to do, was illegal, and Trump pressuring Pence to do it anyway), the main problem with this approach is that if Trump was going to go that route, he'd have to effectively admit that the election was NOT stolen.  He'd have to abandon the "Big Lie" that he continues to preach.  I don't think he'd be willing to do that, even if doing so was the only possible route to an acquittal.  

Again Eastman's theory was that the Electoral Count Act was itself Unconstitutional, so that act was void.

Believing a law is unconstitutional isn't a legal defense for breaking it, even if the belief is sincere and well-founded (and Eastman's was neither).  Such a belief entitles you to seek redress in court.  That's not what Trump and Eastman did.  The legal way of doing it would have been to go to court first, not tell Pence to break the law and, as they were planning on doing, only argue their theory when someone else challenged what they did in court.  

[LBJer]

Some legal experts have argued that Trump's best defense is arguing that he relied on lawyers he thought knew what they were doing and/or that he was detached from reality.  Apart from the fact that critical holes have now appeared in that defense (particularly Eastman telling Trump that violating the Electoral Count Act, as he wanted Pence to do, was illegal, and Trump pressuring Pence to do it anyway), the main problem with this approach is that if Trump was going to go that route, he'd have to effectively admit that the election was NOT stolen.  He'd have to abandon the "Big Lie" that he continues to preach.  I don't think he'd be willing to do that, even if doing so was the only possible route to an acquittal.  

Again Eastman's theory was that the Electoral Count Act was itself Unconstitutional, so that act was void.

Believing a law is unconstitutional isn't a legal defense for breaking it, even if the belief is sincere and well-founded (and Eastman's was neither).  Such a belief entitles you to seek redress in court.  That's not what Trump and Eastman did.  The legal way of doing it would have been to go to court first, not tell Pence to break the law and, as they were planning on doing, only argue their theory when someone else challenged what they did in court.  

If the belief turns out to be right, of course it is. If the belief turns out to be wrong, it isn't, and one bears the consequences of being wrong. Laws are often deliberately broken in order to test their validity in court. That is what happened to the anti-sodomy law in Texas. Two guys did it, and told the cops in advance, so they could watch and then arrest them. The rest is history.

But "turns out to be right" in this context means "if a court rules that you are correct."  If that never happens, then your belief never becomes a defense for breaking the law.  No court ever ruled that Trump and Eastman were right about this.  So they can't use their (insincere) argument that it is unconstitutional as a defense for telling Pence to break it.

And two guys having consensual sex is hardly the same as a vice-president throwing out electoral votes for no valid reason and overruling the American people as to who will be president (and vice-president).  

[LBJer]

You know, I ironically wonder if Clinton ever feels regret in conceding that gracefully to Trump. Not to the point where she regrets not having her supporters storm the capitol, but regret in the sense that she didn't seriously push for recounts in WI, MI and PA. I ask because given everything that's happened since the election and especially given the darning stuff that has come out of Trump today, I can imagine Clinton being like "Man, maybe I should've more open about requesting that PA, WI and MI be investigated and recounted to the fullest extents. Maybe it wouldn't have changed the outcome, but there might've been a small chance all of this could've been prevented had I pushed for recounts in those states."

There was a recount of the presidential election in 2016 in Wisconsin. Jill Stein pushed it.

I'm pretty sure Clinton has 0 regrets on behaving appropriately. It definitely wouldn't have prevented anything related to January 6.

This, and there's also the fact that, as Benjamin Ginsberg (who was one of George W. Bush's lawyers in the 2000 election battle in Florida) said in one of the previous Trump hearings, you don't make up tens of thousands of votes spread out over multiple states in recounts.  Given how intelligent and knowledgeable Clinton is, she had to have known that.  

[LBJer]

https://twitter.com/PeterAlexander/status/1541910389289635841?t=dSAxG-9RZu9RBqfd...

I am skeptical. I'm fairly sure the J6 Committee verified this statement by questioning others about it, otherwise they wouldn't have asked her about it in the public hearing.

Edit: And it does appear that both Bobby Engel and Tony Ornato did speak to the committee, so I'm sure the committee had corroborating statements.

This article backs you up:

https://www.politico.com/news/2022/06/07/jan-6-committee-interviews-head-of-trumps-secret-service-detail-on-day-of-capitol-attack-00037748

[LBJer]

Do you rubes not realize that you couldn't reach the steering wheel of a limo from the back seat if your life depends on if?

It was actually the presidential SUV in this case, not the limo.  But the solution here is simple.  Hutchinson testified she heard it from Oranto(sp?) in Engel's presence.  Bring them both in to testify under oath; they'll either corroborate it or not.

But if their testimony conflicts with what they told the committee before, it could be a classic case of witness tampering. 

[LBJer]

I can't imagine the Committee would have let her say that if they didn't corroborate the story with someone else, namely the secret service agents who have already testified. Something doesn't add up here, and somebody in this story may be lying on purpose to make fools out of the Committee.

Yeah, the committee aren't idiots.  They understand the gravity of what they're doing.  Are we really to believe they somehow forgot to discuss this issue with the agents themselves?  Ridiculous.  And if Engel and Ornato are really changing their story about this now--either because of intimidation, or loyalty to Trump, or both--their new version isn't credible. 

[LBJer]

They probably embellished when they told her and she further embellished it in her mind over the last 1.5 years. I doubt anybody is lying.

I think this "source" is part of a Trump disinformation campaign.

[LBJer]

They probably embellished when they told her and she further embellished it in her mind over the last 1.5 years. I doubt anybody is lying.

Not buying that--the committee would have seen the differences in the accounts and not put her on if the agents were saying something significantly different. 

[LBJer]

Interesting:

https://twitter.com/jaketapper/status/1541955418292998147?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet

[LBJer]

I'm not assuming they talked with them about this specific issue since she might have just told the committee about it recently. I don't understand Tapper's tweets.

They would never have her testify about something this important knowing that someone else might contradict it in the future.  And by "contradict it" I mean under oath.  Saying things to the media means nothing--Giuliani, Powell etc. didn't tell judges the lies about fraud they told the media because, unlikely lying to the media, lying to a judge or in testimony given under oath can have serious consequences.  

Tapper's point seems to be that Alyssa Farah, former Trump White House Communications Director, says that Ornato lied to the media about something else in the past. 

And then there's this:

https://twitter.com/FordJohnathan5/status/1541931217741905922

[LBJer]

I feel that this is a smear tactic against Hutchinson. These sources came out hours after she testified and not right away, then they say they're "prepared" to testify under oath. I have a hard time believing the committee would have her say this without verifying it. If it's not true, then they have to come forward and testify, until they do her word is to be believed.  Until otherwise proven.

And even if they do testify it didn't happen, why does that mean they're the ones telling the truth? Particularly because, as you said, it's extremely hard to believe the committee wouldn't have verified this.  And what exactly does a "Secret Service official" (as the person telling the media these people are "prepared" to testify is being called) even mean?  Is this person the Secret Service's version of Jeffrey Clark?  

According to CNN, this supposed "official" says that the agents weren't even asked about the limo incident.  Utterly impossible to believe.

Maybe if they do testify, the committee will then release testimony they've already given that contradicts their new testimony.

[LBJer]

The more I think about it, the more the SUV dustup makes me convinced that the rest of Hutchinson’s testimony is true. If they were so quick to bring people out to testify under oath that Trump didn’t attack Engel, it raises the obvious question of why they haven’t done the same regarding any other part of what she said. Where’s Mark Meadows contradicting the idea that Trump endorsed the “hang Mike Pence” chants? Or the allegations that he knew the protesters were armed and was warned not to direct them to the Capitol?

Meadows would contradict her in the press but refuse to testify?

That's actually not at all an unreasonable idea, because there are no penalties for lying in the press (unless libel is involved).  There are serious ones for lying under oath and/or in court proceedings.  This is why Giuliani, Powell etc. weren't telling judges  the same things they were saying in public during those sham court cases.  

[LBJer]

But given the unanimous point of view, yes the committee made the most of it.

For a presentation of any type to have credibility, it cannot present a "point of view" that it simply factually wrong.  The 2020 election was legitimate, period.  To have people who deny this on the committee would be like a documentary about the Holocaust having David Duke and other neo-Nazis on it, or an astronomy program having creationists on it.