Trump lashes out at Gov. Doug Ducey following certification

Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sun Nov 07, 2021 5:10 am

Boebert and Gaetz under fire over ‘joke’ about blowing up Capitol metal detectors at rally: ‘Is it tannerite or C4 we want to put in those metal detectors when we blow them up?’
by Gustaf Kilander
Independent.co.uk
November 1, 2021


Florida Rep Matt Gaetz talks about blowing up the metal detectors in the Capitol

Colorado Republican Representative Lauren Boebert and her fellow GOP House member, Matt Gaetz from Florida, have come under fire for joking about blowing up the Capitol metal detectors.

Mr Gaetz was speaking at a rally for Florida State Representative and Congressional candidate Anthony Sabatini on Sunday when he falsely claimed that the metal detectors were installed because of Ms Boebert, who carries a firearm.

The metal detectors were installed following the Capitol riot on 6 January when a mob of Trump supporters laid siege to the building in an attempt to stop Congress from certifying President Joe Biden’s election victory.

“My friend Lauren Boebert from Colorado – they put in metal detectors on the floor of the House ... because she’s a five-foot-nothing woman, she carries a firearm for her personal protection,” Mr Gaetz told rallygoers.

“They got triggered by that. I said, ‘Is it tannerite or C4 we want to put in those metal detectors when we blow them up?’” he added.


PatriotTakes
*patriottakes
Matt Gaetz talks about blowing up the metal detectors in the House with Tannerite or C4.
11:53 AM Oct 31, 2021
[x]


“I’ll bring the Tannerite!” Ms Boebert tweeted on Sunday evening. “To the fools who think this would be done inside the Capitol: get a life! The metal detectors are useless and we are getting rid of them when Republicans take back the House,” Ms Boebert later added as Twitter users started tagging the FBI, the Secret Service, the Justice Department, and other institutions in their responses to Ms Boebert and Mr Gaetz.

@teacheranddancer
@BlackboardLover
Nothing to see here, just 2 congress members talking in code about using explosives at the Capitol. Where is the DOJ and the FBI????!!!
Lauren Boebert@laurenboebert
I'll bring the Tannerite! twitter.com/mattgaetz/stat...

6:57 PM Oct 31, 2021


“Are any of you paying attention to the likes of Lauren Boebert and Matt Gaetz?” one Twitter user asked as they tagged the federal agencies. “They claim these are jokes, but we know damn good and well that we ordinary citizens would be arrested in a heartbeat for such ‘joking’.”

The Hoarse Whisperer
@TheRealHoarse
Threatening to bomb the Capitol
Where is @TwitterSafety?
Lauren Boebert@laurenboebert
I'll bring the Tannerite! twitter.com/mattgaetz/stat...

6:50 PM Oct 31, 2021


“This is the very rhetoric that put our country at risk on Jan 6th,” another account holder wrote. “They claim it is joking, but they know their supporters only need a spark to get someone moving in a direction. These are not funny ‘jokes’.”

Mueller, She Wrote
@MuellerSheWrote
Oh. Just @laurenboebert and @RepMattGaetz threatening to detonate a bomb inside the capitol. Totally cool with @TwitterSupport @FBIWFO
Lauren Boebert@laurenboebert
I'll bring the Tannerite! twitter.com/mattgaetz/stat...

7:07 PM Oct. 31, 2021


“I honest to God did not think this was a real tweet until I looked up your account,” Paul Swinebaum wrote. “@GOP Members of Congress are discussing acts of domestic terrorism. @POTUS @VP @SpeakerPelosi It’s past time to invoke Section 3 of the 14th Amendment, for several @GOP members of Congress.”

Section 3 of the 14th Amendment states that a person who has “engaged in insurrection or rebellion against the” US “or given aid or comfort to the enemies thereof” shouldn’t be allowed to hold any office of power.

Damin Toell is BrooklynDad_Bod!
@damintoell
I'm not one of the "oh my dear, the norms!" types, but members of Congress joking about using explosives in the Capitol may be a touch unusual.
Lauren Boebert@laurenboebert
I'll bring the Tannerite! twitter.com/mattgaetz/stat...

5:25 PM Oct 31, 2021
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Nov 10, 2021 5:20 am

Former 'Apprentice' Staffer Claims Donald Trump Wore Diapers On Set: 'He Would Often Soil Himself'
by Damir Mujezinovi
Inquisitr
November 28, 2020


The diapers is not a joke -- it's Depends. You know, DiaperDon is trending but it's based in reality. He would often soil himself on the Apprentice set. He's incontinent from all the Speed, all the Adderall he does, the Cocaine that he's done for decades. You know, all that stuff has a laxative, and it has an effect on your bowels. And his are uncontrollable. He's worn diapers since probably the '90s. But I saw it firsthand in the 2000s on Celebrity Apprentice, in late 2000s, and we'd have to stop the show and change him. And that was Keith Schiller's job. He would take him off set, he would wipe him down. Our nickname for Keith was "Wet Wipes." It's not a joke. It's happened several times. And you've seen it happen while he's in office. You've seen he was in the Oval Office with Erdogan, and you could clearly hear him sort of evacuating himself. He did it in front of Senator Dianne Feinstein at a press conference. So he does it and he almost sits there like unaware of it. You know, and one time I saw Ivanka have to go kind of whisper in his ear and then Keith came and took him off stage. He'll also do it in a rage, and this is where it gets really drug-related. He'll start to freak out. One time there was the word "arbitrage" on a cue card, and he started screaming that the Script Department was setting him up: "You're setting me up!" And he just freaked out and then very loudly evacuated his bowels, and you could smell it. And you know, the guy was holding the boom mike was tearing up. So that's where the nickname "The S-h-i-t Show" came from. That was the crew nickname for Celebrity Apprentice. So when you hear "DiaperDon" it's not a joke. He tries to hide it. I'll give you one more fact. If you look up the video of him when he was doing the WWF thing, he tackles a guy on the ground outside of the ring, and you can clearly see the outline of the Depends in his pants. And that was back in the early '90s. So he's lost control of his bowels, he's lost control of his brain, and that's who he is: "Diaper Don."


Comedian and former The Apprentice staffer Noel Casler alleged on Friday that President Donald Trump wears adult diapers and often soils himself in public.

In a video released by MeidasTouch.com, which can be viewed below, Casler said the "DiaperDon" hashtag -- which has been trending on Twitter -- is not just a joke. In fact, he claimed, it is "based in reality."

"He would often soil himself on The Apprentice set," he said of Trump, speculating that the commander-in-chief is "incontinent" from all the mind-altering substances he ingests on a daily basis.

"You know, all that stuff has a laxative, it has an effect on your bowels and his are uncontrollable. He's worn diapers since probably the '90s."

"You've seen it happen while he's in office," he added, claiming Trump soiled himself on at least two occasions: once during a meeting with Turkish leader Recep Tayyip Erdogan and another time at a press conference with Democratic Sen. Dianne Feinstein of California.

Trump is sometimes "unaware" of what's happening, Casler alleged, so aides and members of his family have to intervene.

The president often soils his diapers "in a rage," he claimed.

"He'll start to freak out, you know. One time, there was the word 'arbitrage' on a cue card and he started screaming that the script department was setting him up... and he just freaked out and then very loudly evacuated his bowels and you could smell it," he said.

Casler added that Trump and his aides have desperately tried to hide this problem, but alleged the outlines of the diapers are visible in many videos available online.

The comedian has previously made similar allegations.

In a 2018 interview with People, Casler said Trump took Adderall while filming his reality show and claimed he was often inappropriate around young women. Comedian Kathy Griffin vouched for Casler's credibility and praised him for releasing this information to the public.

Actor Tom Arnold also spoke highly of Casler, saying that journalists should pay attention to what he is saying because he has evidence that his claims are true.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Nov 11, 2021 2:50 am

Federal Judge: Trump Can’t Keep Records From Jan. 6 Committee
by Lawrence O'Donnell
MSNBC
Nov 9, 2021





Constitutional Law Professor Laurence Tribe joins Lawrence O’Donnell to discuss the new ruling that Donald Trump must turn over records to the Jan. 6 committee and why he believes Merrick Garland “should have acted already” in the criminal contempt referral of Steve Bannon.

Transcript:

[Lawrence O'Donnell] Professor Tribe, I hope you heard your eager students, Rachel and I, discussing the Judge's opinion tonight at the beginning of the house. Please weave together for us your analysis of the Judge's opinion, and what that might mean for Merrick Garland's decision about the criminal prosecution referral for contempt of Congress by Steve Bannon

[Professor Laurence Tribe] I'm glad to, Lawrence. And I did hear your conversation with Rachel as I was finishing reading the remarkably powerful opinion by Judge Chutkan. It's a 39-page opinion, dissecting closely all of the arguments that are made by Donald Trump's lawyers claiming that even though he is no longer the President, he has executive privilege to prevent the turning over of hundreds of government documents, Presidential documents, Presidential logs, information about what he knew and when he knew it -- a familiar concept -- that somehow he could prevent turning that over. She rejected that argument. We only have one President at a time, and that President is not Donald Trump. The current President has to weigh the claims of executive privilege, which are designed to encourage confidential advice for the President, against the needs of the country, and in particular, in this case, the legitimate needs of Congress, to find out why the coup was attempted, and why the insurrection occurred, and what the role of the President and the President's high lieutenants was in doing all of that.

Now, the only thing that I can imagine my former student, Merrick Garland, thinking as to why he hasn't acted already, and I really think he should have -- he's smart enough; the case is clear; the statute says that when Congress refers someone who is in contempt of Congress, refers them to prosecution, the U.S. Attorney should [SHALL!] convene a grand jury -- the only possible argument is that there are a couple of opinions of the Office of Legal Counsel, one in 1980 and one in 2008, that suggests that when executive privilege protects the assertion by someone that he or she cannot comply with a Congressional subpoena, then the Department should not prosecute. Well, perhaps Merrick Garland being a good lawyer and wanting to dot his "i's" and cross his "t's" was waiting to hear a court say that the executive privilege doesn't apply to the former President when the current President doesn't assert that privilege and when there is a legitimate need for the information. If that's what he was waiting for, he got it tonight. And if he does not move IMMEDIATELY, it will be inexcusable. HE WILL, IN ALL EFFECTS AND PURPOSES, HE WILL BE OBSTRUCTING CONGRESS! He will be preventing the effectuation of a legitimate and crucial Congressional investigation. Because all of these guys who are getting subpoenas have no particular incentive to comply is Steve Bannon can get away with stonewalling -- not even showing up -- being in contempt of Congress, saying that he's waiting for some judicial signal. Well, he certainly got it tonight. If nothing happens to the guy, why should Clark who has also been subpoenaed, why should Eastman, why should any of these people comply if there are no consequences? If it's just like a "Dear John" letter, "show up, please", that's not what these subpoenas are, and when Congress returns a contempt citation and asks the Justice Department to performs its Constitutional function, there is just NO EXCUSE FOR ANY FURTHER FOOT DRAGGING.

I know a number of former U.S. Attorneys [Glenn Kirschner] have tried to make Merrick Garland look good. He's a good guy. He's got a lot of integrity. And they've tried to say, "Well, maybe he's trying to make sure all the ducks are in a row." THERE ARE NO MORE DUCKS. This duck quacks like a duck; it's a duck! And there are no more ducks left. MERRICK GARLAND SHOULD GO AHEAD AND NOT GET IN THE WAY OF THIS ABSOLUTELY VITAL CONGRESSIONAL INVESTIGATION.

[Lawrence O'Donnell] Donald Trump, his lawyers have already announced they're going to appeal this decision by the District Court judge. Take us through that Appeals process.

[Professor Laurence Tribe] Well, they're going to first ask the Judge herself to issue an administrative stay claiming that she really shouldn't be so sure of herself. But she's already explained why there is no basis for a stay. A stay can be granted if there is a probable outcome on appeal that is a reversal of what the Judge did. That's not going to happen. A stay can be granted if there is irreversible harm that is threatened to the person who has to turn over documents or show up to testify. Well, here she's quite clearly shown that there is no harm. It's not his private documents -- these are all government documents. And during the oral argument in her Court when she pressed Trump's lawyers to say, "Well, what's the harm to your client as a citizen?" and Trump's lawyer said, "Well, its executive privilege." And she said, "No, I've already explained that that's up to the current President." "You've lost that one," she basically predicted, and of course, that's what she did, "So what's the harm to your client as a private citizen? These aren't his tax records; these aren't private records. There is no harm."

So there is absolutely no basis for a stay. What will happen is he will go to the Court of Appeals, he'll ask the Court of appeals to prevent the turnover of the documents at the end of this week. It's all going to move very fast. I don't think the Court of Appeals has any basis to grant him a stay. And then the documents will be turned over and the case will be moot! Although he will still try to drag it into the Supreme Court. I can't imagine this Supreme Court finding any basis to rule for him. I can't imagine even the three Justices that he put on the Court doing that. So I think the fat lady has sung; the music is over and he's got to turn over the documents. And I think Bannon has got to be prosecuted, and that will require an indictment by this Attorney General. The Grand Jury, of course, is the body that has to return the indictment. And I think we're about to watch a very rapid show!
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Nov 11, 2021 3:31 am

Part 1 of 2

Memorandum Opinion Re Donald Trump vs. Bennie G. Thompson, U.S. House Select Cmte. to Investigate the Jan. 6 Attack
by USDC Judge Tanya S. Chutkan
November 9, 2021

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DONALD J. TRUMP,

Plaintiff,

v. 

BENNIE G. THOMPSON, in his official capacity as Chairman of the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol, et al.,

Defendants.

Civil Action No. 21-cv-2769 (TSC)

MEMORANDUM OPINION

On January 6, 2021, hundreds of rioters converged on the U.S. Capitol. They scaled walls, demolished barricades, and smashed windows in a violent attempt to gain control of the building and stop the certification of the 2020 presidential election results. This unprecedented attempt to prevent the lawful transfer of power from one administration to the next caused property damage, injuries, and death, and for the first time since the election of 1860, the transfer of executive power was distinctly not peaceful.

The question of how that day’s events came about and who was responsible for them is not before the court. Instead, the present dispute involves purely legal questions that, though difficult and important to our government’s functioning, are comparatively narrow in scope. Plaintiff—former President Donald J. Trump—challenges the legality of a U.S. House of Representatives Select Committee’s requests for certain records maintained by the National Archives and Records Administration (“NARA”) pursuant to the Presidential Records Act. Plaintiff argues that the Committee’s requests are impermissible because at least some of the records sought are shielded by executive privilege and because the requests exceed Congress’ constitutional power. He seeks an injunction prohibiting Defendants—the House Select Committee, the Chairman of the House Select Committee, NARA, and the Archivist of NARA—from enforcing or complying with the Committee’s requests. For the reasons explained below, the court will deny Plaintiff’s requested relief.

I. BACKGROUND

A. The 2020 Presidential Election and January 6, 2021


While not material to the outcome, some factual background on the events leading up to and including January 6, 2021, offers context for the legal dispute here. In the months preceding the 2020 presidential election, Plaintiff declared that the only way he could lose would be if the election were “rigged.” See, e.g., Donald J. Trump, Speech at Republican National Convention Nomination Vote at 22:08 (Aug. 24, 2020) in C-SPAN, https://www.c-span.org/video/?475000-10 ... ntion-vote. In the months after losing the election, he repeatedly claimed that the election was rigged, stolen, and fraudulent. For example, in a December 2 speech, he alleged “tremendous voter fraud and irregularities” resulting from a late-night “massive dump” of votes. See President Donald J. Trump, Statement on 2020 Election Results at 0:39, 7:26 (Dec. 2, 2020) in C-SPAN, https://www.c-span.org/video/?506975-1/ ... on-results. He also claimed that certain votes were “counted in foreign countries,” that “millions of votes were cast illegally in the swing states alone,” and that it was “statistically impossible” he lost. Id. at 12:00, 14:22, 19:00.

After losing the election, Plaintiff and his supporters filed a plethora of unsuccessful lawsuits seeking to overturn the results. See, e.g., Current Litigation, AMERICAN BAR ASSOCIATION: STANDING COMMITTEE ON ELECTION LAW, Apr. 30, 2021, https://www.americanbar.org/groups/publ ... itigation/. The United States Supreme Court also denied numerous emergency applications aimed at overturning the results. Id. In response, Plaintiff tweeted that the Court was “totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.” Donald J. Trump (@realDonaldTrump), TWITTER (Dec. 26, 2020, 1:51 PM), https://www.presidency.ucsb.edu/documen ... -26-2020.1 [1 Plaintiff was permanently suspended from Twitter on January 8, 2021. See Press Release, Twitter, Inc., Permanent Suspension of @realDonaldTrump (Jan. 8, 2021), https://blog. twitter.com/en_us/topics/company/2020/suspension. As a result, Plaintiff’s tweets are permanently unavailable in their original form. See Quint Forgey, National Archives can’t resurrect Trump’s tweets, Twitter says, POLITICO (Apr. 7, 2021), https://www.politico.com/news/2021/04/0 ... ump-479743. The court has relied on the University of California, Santa Barbara’s The American Presidency Project for archived tweets. See John Wolley & Gerhard Peters, THE AMERICAN PRESIDENCY PROJECT, https://www.presidency.ucsb.edu/.] He continued his claim that “We won the Presidential Election, by a lot,” and implored Republicans to “FIGHT FOR IT. Don’t let them take it away.” Id. (Dec. 18, 2020, 2:14 PM), https://www.presidency.ucsb.edu/documen ... er-18-2020.

A Joint Session of Congress was scheduled to convene on January 6, 2021, to count the electoral votes of the 2020 presidential election and to officially announce the elected President, as required by the Twelfth Amendment to the U.S. Constitution and the Electoral Count Act, 3 U.S.C. § 15. In the days leading up to January 6, Plaintiff began promoting a protest rally to take place hours before the Joint Session convened. On December 19, 2020, he tweeted “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Donald J. Trump (@realDonaldTrump), TWITTER (December 19, 2020, 6:42am), https://www.presidency.ucsb.edu/documen ... er-19-2020. During a rally, he warned that “Democrats are trying to steal the White House . . . you can’t let that happen. You can’t let it happen,” and promised that “[w]e’re going to fight like hell, I’ll tell you right now.” See Donald J. Trump, Remarks at Georgia U.S. Senate Campaign Event at 8:40, 14:19 (Jan. 4, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507634-1/ ... es-georgia.

On January 6, Plaintiff spoke at the rally at the Ellipse, during which he (1) repeated claims, rejected by numerous courts, that the election was “rigged” and “stolen”; (2) urged then-Vice President Pence, who was preparing to convene Congress to tally the electoral votes, “to do the right thing” by rejecting certain states’ electors and declining to certify the election for President Joseph R. Biden; and (3) told protesters to “walk down to the Capitol” to “give them the kind of pride and boldness that they need to take back our country,” “we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and “you’ll never take back our country with weakness.” See Donald J. Trump, Rally on Electoral College Vote Certification at 3:33:04, 3:33:36, 3:37:20, 3:47:02, 3:47:22, 4:42:26, 4:41:27 (Jan. 6, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507744-1/ ... tification.

Shortly thereafter, the crowds surged from the rally, marched along Constitution Avenue, and commenced their siege of the Capitol.

B. The Select Committee and its Presidential Records Act Request

On June 30, 2021, the U.S. House of Representatives passed House Resolution 503, creating the Select Committee. ECF No. 5, Pl. Mot., Ex. 3, H.R. 503, § 3, 117th Cong. (2021). H.R. 503 empowers the Select Committee to (1) “investigate the facts, circumstances, and causes relating to” the January 6 attack; (2) “identify, review, and evaluate the causes of and the lessons learned from” the attack; and (3) “issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures . . . as it may deem necessary.” Id. § 4(a). Such corrective measures may include:

[C]hanges in law, policy, procedures, rules, or regulations that could be taken— (1) to prevent future acts of violence, domestic terrorism, and domestic violent extremism, including acts targeted at American democratic institutions; (2) to improve the security posture of the United States Capitol Complex while preserving accessibility of the Capitol Complex for all Americans; and (3) to strengthen the security and resilience of the United States and American democratic institutions against violence, domestic terrorism, and domestic violent extremism.


Id. § 4(c). The resolution also authorizes the Select Committee to publish interim reports, which may include “legislative recommendations as it may deem advisable.” Id. § 4(b).

The Select Committee is authorized “to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of books, records, correspondence, memoranda, papers, and documents as it considers necessary.” 47 Rule XI.2(m)(1)(B), Rules of the U.S. House of Rep., 117th Cong. (2021) (“House Rules”); see also H.R. 503, § 5(c) (unless otherwise specified, Rule XI applies to the Select Committee). Under House Rule XI:

Subpoenas for documents or testimony may be issued to any person or entity, whether governmental, public, or private, within the United States, including, but not limited to, the President, and the Vice President, whether current or former, in a personal or official capacity, as well as the White House, the Office of the President, the Executive Office of the President, and any individual currently or formerly employed in the White House, Office of the President, or Executive Office of the President.


House Rule XI.2(m)(3)(D).

On August 25, 2021, pursuant to section 2205(2)(C) of the Presidential Records Act (“PRA”), the Committee issued a document request to NARA seeking several categories of records from the Executive Office of the President and the Office of the Vice President. Compl., Ex. 1. Specifically, the Select Committee sought written communications, calendar entries, videos, photographs, or other media relating to Plaintiff’s January 6 speech, the January 6 rally and subsequent march, the violence at the Capitol, and the response within the White House. See id. at 2-4. The Committee also requested materials from specific time periods relating to any planning by the White House and others regarding the January 6 electoral count, id. at 4-7; preparations for rallies leading up to the January 6 violence, id. at 7-8; information Plaintiff received regarding the election outcome, id. at 9-10; Plaintiff’s public remarks regarding the election outcome and the validity of the election system more broadly, id.; and for a specified timeframe surrounding the 2020 election, documents and communications of the Plaintiff and certain of his advisors relating to the transfer of power and obligation to follow the rule of law, including with respect to actual or potential changes in personnel at certain executive branch agencies, and relating to foreign influence in that election, id. at 10-12. These requests are the subject of this lawsuit.

C. Presidential Records in the Nixon Era

In the wake of its investigation of presidential wrongdoing in the Watergate scandal, Congress passed two laws relating to presidential records. The first was the Presidential Recordings and Materials Preservation Act of 1974 (“PRMPA”), enacted after former President Richard Nixon indicated that he intended to destroy certain tape recordings of his conversations while in office.

Four years later, after the Supreme Court’s ruling in Nixon v. Adm’r of Gen. Servs. (Nixon v. GSA), 433 U.S. 425, 448 (1977),2 [2 See discussion infra at § III.A.1.ii.a.] Congress passed the PRA, which changed the legal ownership of the President’s official records from private to public, and established a new statutory scheme under which Presidents, and NARA, must manage the records of their Administrations. In passing the PRA, Congress sought a balance between, on the one hand, “encourag[ing] the free flow of ideas within the executive branch” by allowing a President to restrict access to their Presidential records for up to twelve years after their tenure ends, and on the other hand, permitting Congress to access any records it needs to conduct its business before the twelve-year clock runs. See, e.g., 95 Cong. Rec. H34895 (daily ed. Oct. 10, 1978) (statement of Rep. Brademas); see also 95 Cong. Rec. S36845 (daily ed. Oct. 13, 1978) (statement of Sen. Nelson) (explaining that the legislation was “carefully drawn” to strike a balance between the confidentiality of the President’s decision-making process and the public interest in preservation of the records).

The PRA defines “Presidential records” as records reflecting “the activities, deliberations, decisions, and policies” of the Presidency. 44 U.S.C. § 2203(a). Under the Act, when a President leaves office, the Archivist “assume[s] responsibility for the custody, control, and preservation of, and access to” the Presidential records of the departing administration. Id. § 2203(g)(1). The Archivist must make Presidential records available to the public under the Freedom of Information Act five years after the President leaves office. Id. § 2204(b)(2), (c)(1); see also 36 C.F.R. § 1270.38. However, the outgoing President can restrict access to especially sensitive materials for a period of up to 12 years. 44 U.S.C. § 2204(a); see also 36 C.F.R. § 1270.40(a). One exception is that “Presidential records shall be made available . . . to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available.” 44 U.S.C. § 2205(2)(C).

The PRA gives the Archivist the power to promulgate regulations to administer the statute. 44 U.S.C. § 2206. Pursuant to those regulations, the Archivist must promptly notify both the former President as well as the incumbent President of a request for the former President’s records. See 36 C.F.R. § 1270.44(c). Either the former or incumbent President “may assert a claim of constitutionally based privilege” against disclosure within thirty calendar days after the date of the Archivist’s notice. Id. § 1270.44(d). If a former President asserts the claim, the Archivist consults with the incumbent President as soon as practicable and within 30 calendar days from the date that the Archivist receives notice of the claim to determine whether the incumbent President will uphold the claim. Id. § 1270.44(f)(1). If the incumbent President does not uphold the former President’s claim, the Archivist must disclose the Presidential records 60 calendar days after receiving notification of the claim unless a federal court order directs the Archivist to withhold the records. Id. § 1270.44(f)(3); see also Exec. Order No. 13489, § 4(b) (providing that the Archivist shall abide by the incumbent President’s determination as to a privilege assertion by a former President unless otherwise directed by a final court order). The Archivist may also “adjust any time period or deadline . . . to accommodate records requested.” 36 C.F.R. § 1270.44(g).

D. Response to Select Committee’s Request

On August 30, 2021, after receiving the Select Committee’s requests, the Archivist notified Plaintiff that NARA intended to produce a first tranche of approximately 136 pages of records responsive to the Committee’s requests. ECF No. 21, NARA Br. at 11.

On October 8, 2021, White House Counsel notified the Archivist that President Biden would not be asserting executive privilege over the first tranche of Presidential records because doing so “is not in the best interests of the United States.” Pl. Mot., Ex. 4 at 1. Counsel further explained the President’s position:

Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events. . . . The Documents shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War. These are unique and extraordinary circumstances. . . . The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.


Id. at 1-2.

That same day, Plaintiff notified the Archivist that he was asserting executive privilege with respect to thirty-nine pages of records in the first tranche, and seven pages of records that were subsequently withdrawn from the first tranche as non-responsive. NARA Br. at 11. Plaintiff also made a “protective assertion of constitutionally based privilege with respect to all additional records following the First Tranche.” Pl. Mot., Ex. 5 at 2.

White House Counsel then notified the Archivist that President Biden “does not uphold the former President’s assertion of privilege.” Pl. Mot., Ex. 6. Counsel further instructed the Archivist to turn the requested records over to the Committee thirty days after the Archivist notified Plaintiff, absent an intervening court order, “in light of the urgency of the Select Committee’s need” for the requested records. Id.

On October 13, 2021, the Archivist notified Plaintiff that, “[a]fter consultation with Counsel to the President and the Acting Assistant Attorney General for the Office of Legal Counsel, and as instructed by President Biden,” the Archivist “determined to disclose to the Select Committee,” on November 12, 2021, all responsive records that President Trump determined were subject to executive privilege, absent an intervening court order. Id., Ex. 7.3 [3 On the same date, the Archivist produced to the Select Committee the ninety pages of records in the first tranche that were both responsive to the Committee’s requests and not subject to Plaintiff’s assertions of privilege. NARA Br., Laster Decl. ¶ 20.]

The review and submission process for additional tranches of records is proceeding on staggered timelines. Regarding the second and third tranches of records, NARA notified Plaintiff and President Biden on September 9 and 16 that it was planning to disclose 888 pages of additional records, three of which NARA later withdrew because they were not Presidential records. NARA Br. at 11-12. Plaintiff asserted privilege over 724 pages. Id. at 12. President Biden again responded that he would not uphold the privilege. Id. NARA notified Plaintiff and President Biden that it would turn over the 724 pages to the Committee on November 26 absent an intervening court order. Id. On October 15, NARA sent notification of its intent to disclose a fourth tranche of 551 pages of responsive records. Id. The review period for the fourth tranche is ongoing, and NARA anticipates that it will identify additional tranches of responsive records on a rolling basis. Id.

E. Procedural History

On October 18, Plaintiff filed this action, seeking a declaratory judgment that the Select Committee’s requests are invalid and unenforceable, an injunction against the Congressional Defendants’ enforcement of the requests or use of any information obtained via the requests, and an injunction preventing the Archivist and NARA’s production of the requested information. See ECF No. 1, Compl. at 25-26. The following day, Plaintiff moved for a preliminary injunction “prohibiting Defendants from enforcing or complying with the Committee’s request.” Pl. Mot. at 3. At the parties’ request, the court set an accelerated briefing schedule and heard argument on the motion on November 4, 2021. See Min. Order (Oct. 22, 2021).

On November 8, 2021, Plaintiff filed a preemptive emergency motion requesting an injunction pending appeal, or an administrative injunction, “should the court refuse” to grant his requested relief. ECF No. 34, at 1. The court denied Plaintiff’s emergency motion without prejudice as premature and stated that the court would consider a motion for a stay from the non-prevailing party following its ruling. See Min. Order (Nov. 9, 2021) (citing Fed. R. Civ. P. 62(d)).

II. LEGAL STANDARD

A preliminary injunction is an “extraordinary” remedy that “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail on a motion for preliminary injunction, the movant bears the burden of showing that: (1) “he is likely to succeed on the merits”; (2) “he is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where the federal government is the opposing party, the balance of equities and public interest factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). In the past, courts in this jurisdiction have evaluated the four preliminary injunction factors on a “sliding scale”— a particularly strong showing in one factor could outweigh weakness in another. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011). However, it is unclear if this approach has survived the Supreme Court’s decision in Winter. See, e.g., Banks v. Booth, 459 F. Supp. 3d 143, 149-50 (D.D.C. 2020) (citing Sherley, 644 F.3d at 393 (D.C. Cir. 2011)). Despite this uncertainty, each factor must still be present. Thus, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief on that basis alone. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015) (citing CityFed Fin. Corp. v. Off. of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)).

III. ANALYSIS

A. Likelihood of Success on the Merits

1. Executive Privilege


This case presents the first instance since enactment of the PRA in which a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege. Plaintiff argues that at least some of the requested records reflect his decision-making and deliberations, as well as the decision-making of executive officials generally, and that those records should remain confidential. Specifically, Plaintiff claims such records fall within two constitutionally recognized categories of executive privilege—the presidential communications privilege and deliberative process privilege—and that he can prevent their disclosure. He argues that his power to do so extends beyond his tenure in Office, in perpetuity, and that his assertion of privilege is binding on the current executive branch. Plaintiff also argues that to the extent the PRA constrains his ability to assert executive privilege, the Act is unconstitutional. In the alternative, he contends that when a former President and current President disagree about whether to assert privilege, a court must examine each disputed document and decide whether it is privileged.

Defendants acknowledge that executive privilege may extend beyond a President’s tenure in office, but they emphasize that the privilege exists to protect the executive branch, not an individual. Therefore, they argue, the incumbent President—not a former President—is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the on the ability of future executive branch advisors to provide full and frank advice. The court agrees.

i. The Executive Power and the Origins of Executive Privilege

The Constitution vests all “executive Power” in the President, who “must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. Const. art. II, § 1, cl. 1 & § 3)). Only the “incumbent is charged with performance of the executive duty under the Constitution.” Nixon v. GSA, 433 U.S. at 448. It is the incumbent President who is best situated to protect executive branch interests; the incumbent has “the information and attendant duty of executing the laws in the light of current facts and circumstances.” Dellums v. Powell, 561 F.2d 242, 247 (D.C. Cir. 1977). And only the incumbent remains subject to “political checks against . . . abuse” of that power. Nixon v. GSA, 433 U.S. at 448.

The Constitution does not expressly define a President’s right to confidential communications. The executive privilege “derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibility.” Id. at 447. Indeed, as far back as George Washington’s presidency, it has been established that Presidents may “exercise a discretion” over disclosures to Congress, “communicat[ing] such papers as the public good would permit” and “refus[ing]” the rest. Trump v. Mazars USA, LLP (Mazars), 140 S. Ct. 2019, 2029-30 (2020) (quoting 1 Writings of Thomas Jefferson 189-90 (P. Ford ed. 1892)). The notion of executive privilege is “inextricably rooted in the separation of powers under the Constitution,” and is meant to protect the President’s ability to have full and unfettered discussions with advisors, liberated by the veil of confidentiality. United States v. Nixon, 418 U.S. 683, 708 (1974). The privilege “belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party.” United States v. Reynolds, 345 U.S. 1, 7 (1953).

Presidential conversations are presumptively privileged, but the privilege is not absolute. Nixon v. GSA, 433 U.S. at 447. It exists for the benefit of the Republic, not any individual, and accordingly, the presumption can be overcome by an appropriate showing of public need by the judicial or legislative branch. See, e.g., Nixon v. GSA, 433 U.S. at 447, 449; Nixon, 418 U.S. at 707; Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Select Committee), 498 F.2d 725, 730 (D.C. Cir. 1974).

a) Senate Select Committee

In 1973, a special committee of the Senate was formed to investigate “illegal, improper or unethical activities” occurring in connection with then-President Nixon’s presidential campaign and election of 1972. Senate Select Comm., 498 F.2d at 726. The committee issued a subpoena to Nixon for tape recordings of his conversations with White House Counsel; in response, Nixon invoked executive privilege. See id. at 727. The D.C. Circuit noted that presidential conversations are presumptively privileged, and that the “presumption can be overcome only by an appropriate showing of public need.” Id. at 730. Weighing these two principles, the court held that the committee had not overcome the presumption of privilege because it had not shown that the tapes were “demonstrably critical” to its investigation. Id. at 731. The court explained that because the House Committee on the Judiciary already had access to copies of the tapes, the special committee’s stated interest was “merely cumulative” and not sufficient to overcome the presumption favoring confidentiality. Id. at 732.

ii. Former President’s Ability to Assert Privilege

a) Nixon v. GSA


In 1974, shortly after he resigned from office, former President Nixon indicated that he intended to destroy tape recordings he made during his presidency. See Nixon v. GSA, 433 U.S. at 432. The legislative and executive branches, recognizing the public interest in such materials, intervened. Congress enacted, and President Ford signed, the PRMPA, to give custody of Nixon’s records to the National Archives and to prohibit the destruction of the tapes or any other presidential materials. See H.R. Rep. No. 95-1487 at 5 (1978). Nixon sued, arguing that the PRMPA violated the separation of powers, presidential privilege, and several personal rights. Nixon v. GSA, 433 U.S. at 439-55. The Supreme Court rejected each of his arguments, holding that the PRMPA was constitutional on its face. As to the separation of powers, the Court noted that the “Executive Branch became a party to the Act’s regulation when President Ford signed the Act into law, and the administration of President Carter . . . vigorously supports . . . sustaining its constitutionality.” Id. at 441. The Court further explained that “in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Id. at 443 (citing Nixon, 418 U.S. at 711-12).

The Supreme Court also examined whether Nixon could assert privilege over his presidential records and prevent their disclosure to the Archivist. It found, as a threshold matter, that the privilege survives the end of a President’s tenure in office. Id. at 449. The Court explained that the basis for the privilege—to allow the President and his advisors the assurance of confidentiality in order to have full and frank discussions—“cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure.” Id. It concluded that the privilege exists for the benefit of the Republic and is not tied to any one individual, and therefore survives the end of a President’s term. Id.

But the Court also found that “to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, . . . a former President is in less need of it than an incumbent.” Id. at 448. Consequently, the fact that neither former President Ford nor then-President Carter supported Nixon’s contention that the PRMPA undermined the presidential communications privilege “detract[ed] from the weight” of Nixon’s argument. Id. at 449. The Court found that while the privilege may extend beyond the term of any one President, “the incumbent President is . . . vitally concerned with and in the best position to assess the present and future needs of the executive branch, and to support invocation of the privilege accordingly.” Id.

The Court further held that Nixon’s claim of privilege was outweighed by Congress’ intent in enacting the PRMPA, noting that Congress had “substantial public interests” in enacting the statue, including Congress’ “need to understand how [the] political processes [leading to former President Nixon’s resignation] had in fact operated in order to gauge the necessity for remedial legislation.” Id. at 453. The Court also observed that the “expectation of the confidentiality of executive communications . . . has always been limited and subject to erosion over time after an administration leaves office.” Id. at 451.

b) The Presidential Records Act

In the aftermath of Nixon v. GSA, Congress and the Executive established a framework under which a former President can assert privilege over Presidential records. As explained above, the Act permits an outgoing President to shield certain Presidential records for up to twelve years, with an exception for records that a House or Senate committee or subcommittee needs “for the conduct of its business and that is not otherwise available.” 44 U.S.C. § 2205(2)(C).

iii. President Biden’s Privilege Determination Outweighs that of Plaintiff

At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight. This principle is grounded in “the fact that the privilege is seen as inhering in the institution of the Presidency, and not in the President personally.” Dellums, 561 F.2d at 247 n.14 (citing Nixon v. Adm’r of Gen. Servs., 408 F. Supp. 321, 343 (D.D.C. 1976), aff’d, 433 U.S. 425 (1977)). Only “the incumbent is charged with performance of the executive duty under the Constitution.” Nixon v. GSA, 433 U.S. at 448. And it is the incumbent who is “in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” Id. at 449.

Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.” Hearing Tr. at 19:21-22. But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion. Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988).4 [4 Plaintiff also retains the right to assert his own personal “rights or privileges,” if any. 44 U.S.C. § 2204; see also Nixon v. GSA, 433 U.S. at 455-83 (analyzing former President Nixon’s assertion of personal rights, including privacy and First Amendment associational rights). Plaintiff, however, does not do so here. He makes conclusory assertions of attorney-client privilege and attorney work product, but he appears to do so as a species of executive privilege. See, e.g., Pl.’s Mot. at 3 (referring indiscriminately to “various privileges,” including “conversations with (or about) foreign leaders, attorney work product, the most sensitive national security secrets, along with a litany of privileged communications among a pool of potentially hundreds of people”); id. at 5 (referring without elaboration to “executive privilege and attorney-client privilege”); id. at 30 (referring to deliberative process privilege and attorney-client privilege in the same discussion relating to “the President”). In any event, Plaintiff does not elaborate on these claims with sufficient detail for this court to assess them, nor would any such claim be convincing, because the records maintained by the Archivist, by definition, only include those records reflecting the “activities, deliberations, decisions, and policies” of the Presidency, 44 U.S.C. § 2203(a), and not private communications. Plaintiff offers no evidence that the records contain anything of a personal nature; in fact, he concedes that the responsive records do not involve private conversations between him and a personal attorney. See Hearing Tr. at 60:21-61:6. The court need not credit Plaintiff’s concern in the abstract. See Barenblatt v. United States, 360 U.S. 109, 112 (1959) (the congressional “power [of inquiry] and the right of resistance to it are to be judged in the concrete, not on the basis of abstractions.”).] That is because Plaintiff is no longer situated to protect executive branch interests with “the information and attendant duty of executing the laws in the light of current facts and circumstances.” Dellums, 561 F.2d at 247. And he no longer remains subject to political checks against potential abuse of that power. Nixon v. GSA, 433 U.S. at 448.

Moreover, contrary to Plaintiff’s assertion that President Biden’s decision not to invoke executive privilege is “unprecedented,” Pl. Mot. at 2, history is replete with examples of past Presidents declining to assert the privilege. From President Nixon permitting the unrestricted congressional testimony of present and former White House staff members,5 [5 See Letter Responding to the Senate Select Committee on Presidential Campaign Activities Request for Presidential Testimony and Access to Presidential Papers (July 7, 1973), Pub. Papers of Pres. Richard Nixon 636, 637 (1973).] to President Ronald Reagan’s decision to authorize testimony and the production of documents related to the Iran-Contra affair, including information about his communications and decision-making process,6 [6 See Report of the Congressional Committees Investigating the Iran-Contra Affair, H.R. Rep. No. 100-433, S. Rep. No. 100-216, at xvi (1987).] to President George W. Bush’s decision to sit for an interview with the 9/11 Commission to answer questions about his decision-making process in the wake of the attack,7 [7 See Philip Shenon & David E. Sanger, Bush and Cheney Tell 9/11 Panel of ’01 Warnings, N.Y. TIMES, Apr. 30, 2004, at A1, https://www.nytimes.com/2004/04/30/us/t ... nings.html.] past Presidents have balanced the executive branch’s interest in maintaining confidential communications against the public’s interest in the requested information. The Supreme Court noted that this tradition of negotiation and compromise between the legislative and executive branches extends back to the administrations of Washington and Jefferson. See Mazars, 140 S. Ct. at 2029-31. President Biden’s decision not to assert executive privilege because “Congress has a compelling need in service of its legislative functions to understand the circumstances” surrounding the events of January 6, see Pl. Mot., Exs. 4, 6, is consistent with historical practice and his constitutional power.

Plaintiff appears to view the dispute as resulting in some sort of equipoise, and asks the court to act as a tiebreaker, reviewing each disputed record in camera. The court, however, is not best situated to determine executive branch interests, and declines to intrude upon the executive function in this manner. It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch. See Nixon v. GSA, 433 U.S. at 449. As the Supreme Court noted in Mazars, decisions about whether to accommodate congressional requests for information are best “hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive.’” Mazars, 140 S. Ct. at 2029 (quoting Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel). When the legislative and executive branches agree that the nation’s interest is best served by a disclosure to Congress, as they do here, then the court has a “duty of care to ensure that [it] does not needlessly disturb ‘the compromises and working arrangements that [those] branches . . . themselves have reached.” Mazars, 140 S. Ct. at 2031 (quoting NLRB v. Noel Canning, 573 U.S. 513, 524-26 (2014)). Plaintiff has pointed to no legal authority mandating a different outcome.

The court therefore holds that Plaintiff’s assertion of privilege is outweighed by President Biden’s decision not to uphold the privilege, and the court will not second guess that decision by undertaking a document-by-document review that would require it to engage in a function reserved squarely for the Executive.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

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Part 2 of 2

iv. Plaintiff’s Constitutional Challenge to the Presidential Records Act

Plaintiff’s argument that the PRA strips him of his constitutional rights is unavailing. The Act establishes a framework under which a former President may assert executive privilege, subject to the incumbent’s decision on whether to uphold the privilege, which is consistent with the constitutional principle explained by the Court in Nixon v. GSA. Compare Nixon v. GSA, 433 U.S. at 449 (explaining that the incumbent President is best positioned “to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly”), with 44 U.S.C. § 2208(c)(1) (establishing that when a former President makes a privilege assertion, the Archivist shall then “determine whether the incumbent President will uphold the claim asserted by the former President”). And because the PRA applies only to “Presidential records,” defined as records reflecting “the activities, deliberations, decisions, and policies” of the Presidency, Plaintiff’s personal records, such as those reflecting conversations with a personal attorney or campaign staff, would not be subject to preservation or disclosure by the PRA. 44 U.S.C. § 2203(a); see also Hearing Tr. at 57:1-13 (counsel for NARA explaining that records relating to the president’s own election, campaign activity, or strictly personal matters are not “Presidential records” and are thus sorted out during an accommodation process). Accordingly, the concerns at issue in Mazars, that Congress may attempt “to harass” the President about matters of a personal nature, are plainly not present here, where the records to be produced are confined to Plaintiff’s activities, deliberations, and decision making in his capacity as President. Mazars, 140 S. Ct. at 2034.

Nor does the Act disrupt the balance between the branches of government. “Congress and the President have an ongoing institutional relationship as the ‘opposite and rival’ political branches.” Mazars, 140 S. Ct. at 2033 (quoting THE FEDERALIST NO. 51, at 349 (James Madison)). It is assumed that these two branches, guided by ambition, will act in furtherance and preservation of their own constitutional power, helping to ensure a balance of power between them. See THE FEDERALIST NO. 51, at 349. The executive branch became a party to the PRA’s regulations over forty years ago when President Carter signed the Act into law. As President Carter said at the time, the PRA was enacted to “make the Presidency a more open institution,” and to “ensure that Presidential papers remain public property after the expiration of a President’s term.” Presidential Statement on Signing the Presidential Records Act of 1978, 14 Weekly Comp. Pres. Doc. 39, 1965 (Nov. 6, 1978). President Carter’s decision to sign the Act into law, and each subsequent President’s—including Plaintiff’s—acquiescence to its framework, demonstrates that the PRA does not prevent the executive branch from accomplishing its constitutionally assigned functions. Each “branch of Government has the duty initially to interpret the Constitution for itself, and that interpretation of its powers is due great respect from the other branches.” Nixon v. GSA, 433 U.S. at 442-43 (citing Nixon, 418 U.S. at 708). Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-637 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . . If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.”) (footnote omitted). And finally, by interpreting the PRA’s framework as consistent with Nixon v. GSA’s constitutional principle, the court adheres to the canon of constitutional avoidance. See Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883) (“Every legislative act is to be presumed to be a constitutional exercise of legislative power until the contrary is clearly established.”).

Applying these principles, the court rejects Plaintiff’s constitutional challenge to the PRA.

1. Congress’ Power to Request Presidential Records

Plaintiff argues that the Select Committee has ventured beyond its constitutionally allotted “legislative Powers” by requesting records that are unrelated to the events of January 6, and by failing to articulate any valid legislative purpose that could be served by its requests. See Pl. Mot. at 15-19. He further argues that the court must scrutinize the Select Committee’s requests either by using the D.C. Circuit’s balancing test in Senate Select Committee, 498 F.2d 725 (D.C. Cir. 1974), or the four-factor evaluation articulated by the Supreme Court in Trump v. Mazars, 140 S. Ct. 2019 (2020), and that the Committee’s requests, having no valid legislative purpose, cannot survive such scrutiny.

Defendants counter that the Select Committee’s legislative purpose is legitimate and compelling. Specifically, they contend that the Select Committee is investigating the facts, circumstances, and causes of the events of January 6, 2021, and that the requests are intended to support remedial legislation. See ECF No. 19, Comm. Br. at 18-22; NARA Br. at 15-27. Defendants also maintain that neither the Senate Select Committee balancing test nor the four-factor Mazars test apply.

i. Legislative Powers

Article I of the Constitution grants Congress all “legislative Powers,” U.S. Const. art. I, § 1, encompassed in which is the power to secure “needed information.” McGrain v. Daugherty, 273 U.S. 135, 161 (1927). Indeed, the power to secure “needed information” is deeply rooted in the nation’s history: “It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.” Id. While the powers of the British Parliament and Congress are clearly not the same, there is “no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation.” Quinn v. United States, 349 U.S. 155, 160 (1955).

That power permits “Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). “From the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Id. (citing James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 168–194 (1926)). In the words of one former President—words later adopted by the Supreme Court:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.


United States v. Rumely, 345 U.S. 41, 43 (1953) (quoting Woodrow Wilson, Congressional Government: A Study in American Politics, 303 (1913)). Thus, the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Mazars, 140 S. Ct. at 2031 (quoting McGrain, 273 U.S. at 161). It is a “critical responsibility uniquely granted to Congress under Article I.” Trump v. Comm. on Oversight and Reform, 380 F. Supp. 3d 76, 91 (D.D.C. 2019). To ensure that Congress is able to properly carry out that critical responsibility, its power to obtain information is necessarily “‘broad’ and ‘indispensable.’” Mazars, 140 S. Ct. at 2031 (quoting Watkins, 354 U.S. at 187). It “encompasses inquiries into the administration of existing laws, studies of proposed laws, and ‘surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.’” Id. In short, “[t]he scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt, 360 U.S. at 111.

Congress’ power to obtain information, however, is not without limit. A congressional subpoena “must serve a valid legislative purpose; it must concern a subject on which legislation could be had.” Mazars, 140 S. Ct. at 2031 (cleaned up). Consequently, a congressional request for information that extends “to an area in which Congress is forbidden to legislate,” is out of bounds. For example, “Congress may not use subpoenas to try someone before a committee for any crime or wrongdoing,” because “such powers are assigned under our Constitution to the Executive and Judiciary.” Id. (cleaned up). Nor is there a “congressional power to expose for the sake of exposure.” Watkins, 354 U.S. at 200. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. at 187. On the other hand, an inquiry is not illegitimate simply because it calls for information that is private or confidential, might be embarrassing, or could have law enforcement implications. See, e.g., id. at 198; Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938) (the fact that a congressional inquiry might seem “incompetent, irrelevant,” “embarrass[ing],” or even “impertinent” is generally immaterial).

When a court is asked to decide whether Congress has used its investigative power improperly, its analysis must be highly deferential to the legislative branch. Courts “are bound to presume that the action of the legislative body was with a legitimate object, if it is capable of being so construed.” McGrain, 273 U.S. at 178. See also Barry v. U.S. ex rel. Cunningham, 279 U.S. 597, 619 (1929) (holding that “the proceedings of the houses of Congress, when acting upon matters within their constitutional authority” are entitled to a “presumption in favor of regularity”). Moreover, the Supreme Court has repeatedly held that courts may not “test[ ] the motives of committee members” to negate an otherwise facially valid legislative purpose. Watkins, 354 U.S. at 200; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“Our cases make clear that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”). Accordingly, it is not this court’s role to decide whether Congress is motivated to aid legislation or exact political retribution; rather, the key factor is whether there is some discernable legislative purpose. See Watkins, 354 U.S. at 200.

ii. The Select Committee’s Requests Serve a Valid Legislative Purpose

The Supreme Court considers congressional resolutions a primary source from which to determine whether information “was sought . . . in aid of the legislative function.” McGrain, 273 U.S. at 176; see also Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (observing that relevant sources of evidence to “ascertain whether [an inquiry] is within the broad investigative authority of Congress” include “the resolution authorizing the inquiry”). Accordingly, the court begins its inquiry with the resolution stating the Select Committee’s intended purpose. H.R. 503, which established the Select Committee and the subject matter within its purview, outlines several purposes and functions of the Select Committee, including:

• Obtaining information and reporting on (1) “the facts, circumstances, and causes relating to” the January 6 attack and “the interference with the peaceful transfer of power”; (2) the “activities of intelligence agencies, law enforcement agencies, and the Armed Forces, . . . with respect to intelligence collection, analysis, and dissemination” surrounding the attack; and (3) the “influencing factors that contributed to the” attack, including how “online platforms, financing, and . . . campaigns may have factored into [its] motivation, organization, and execution,” id. §§ 3, 4(a)(1);

• Identifying, reviewing, and evaluating “the causes of and the lessons learned from the” January 6 attack, including as to “the command, control, and communications of” law enforcement and the coordination and planning of the Federal Government, id. § 4(a)(2); and

• Issuing “a final report to the House” with “recommendations for . . . changes in law, policy, [or] procedures . . . that could be taken[ ] to prevent future acts of violence, domestic terrorism, and domestic violent extremism, including acts targeted at American democratic institutions” . . . and “strengthen the security and resilience of” American democratic institutions, id. § 4(a)(3), (c).

Defendants argue that, as set forth in H.R. 503, the Select Committee’s August 25 requests are in furtherance of an effort to understand the facts and circumstances that led to the events of January 6, inform its final report, and make recommendations for legislative changes. The Committee Defendants contend that they have questions and concerns about election integrity, coordination of law enforcement, use of executive resources to pressure Department of Justice and state officials regarding the election outcome, and building safety, and that their investigation into these areas for legislative purposes is legitimate. See id.

Plaintiff concedes that the statements in H.R. 503 concerning “safety and election integrity are topics on which legislation theoretically ‘could be had.’” Pl. Mot. at 19. He argues however, that the Committee does not “explain with any specificity how this information will in fact assist the Committee in evaluating the proposed legislation” and that the requested information is not “reasonably related” to its investigation. Id. at 17, 19.

Plaintiff contends that the Select Committee “fails to identify a single piece of legislation [] the Committee is considering.” This claim is a straw man. Congress need not (and usually does not) identify specific legislation within the context of a request for documents or testimony, nor must it do so when establishing a select committee or when that committee requests documents. For instance, the Supreme Court has upheld the validity of a select committee subpoena even though the Senate’s “resolution directing the investigation d[id] not in terms avow that it is intended to be in aid of legislation.” McGrain, 273 U.S. at 177; see also In re Chapman, 166 U.S. 661, 669-70 (1897) (“[I]t was certainly not necessary that the resolutions should declare in advance what the [S]enate meditated doing when the investigation was concluded.”). The Court found the subpoena valid because the investigation’s subject “was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.” McGrain, 273 U.S. at 177 (emphasis added).

The court has no difficulty discerning multiple subjects on which legislation “could be had” from the Select Committee’s requests. Id. at 177. Some examples include enacting or amending criminal laws to deter and punish violent conduct targeted at the institutions of democracy, enacting measures for future executive enforcement of Section 3 of the Fourteenth Amendment against any Member of Congress or Officer of the United States who engaged in “insurrection or rebellion,” or gave “aid or comfort to the enemies thereof,” U.S. Const. amend. XIV, § 3, imposing structural reforms on executive branch agencies to prevent their abuse for antidemocratic ends, amending the Electoral Count Act, and reallocating resources and modifying processes for intelligence sharing by federal agencies charged with detecting, and interdicting, foreign and domestic threats to the security and integrity of our electoral processes. See Comm. Br. at 20; NARA Br. at 18; ECF No. 25, Amicus Br. by Former Members of Congress at 7. These are just a few examples of potential reforms that Congress might, as a result of the Select Committee’s work, conclude are necessary or appropriate to securing democratic processes, deterring violent extremism, protecting fair elections, and ensuring the peaceful transition of power. Of course, other forms of legislation not currently imagined may also follow. The critical fact is that Congress reasonably might consider the requested records in deciding whether to legislate in a host of legitimate areas.

To be sure, the Committee has cast a wide net. While some of the requests pertain to Plaintiff’s communications and actions, the former Vice President, and other former executive officials on January 6, 2021, other requests more broadly seek information regarding events leading up to January 6, including communications concerning the election, conversations between Plaintiff and Department of Justice and state government officials regarding Plaintiff’s allegations that the election was “rigged,” records relating to the recruitment, planning, and preparation for rallies leading up to and including January 6, and conversations regarding the process for transferring power to the incumbent. For example, one of the Committee’s requests is for all documents and communications from April 1, 2020, through January 20, 2021, related to the 2020 presidential election, including forecasting, polling, or results, which were authored or presented by, or relate in any way to one of five specific individuals who the Committee presumably believes were involved in strategies to delay, halt, or otherwise impede the electoral count. Pl. Mot., Ex. 1 at 5. Another similarly broad request seeks all documents and communications concerning the 2020 election and relating to any of one of forty named individuals who the Committee presumably believes participated in the recruitment, planning, and preparations for rallies on days leading up to and including January 6. Id. at 7-8.

While broad, these requests, and each of the other requests made by the Committee, do not exceed the Committee’s legislative powers. Three facts undergird this conclusion.

First, the court again notes that the Committee’s requests pertain only to “Presidential records,” which by statute are limited to records reflecting “the activities, deliberations, decisions, and policies” of the Presidency. 44 U.S.C. § 2203(a). Accordingly, there is a natural, statutory limit on the types of records that will ultimately be maintained in the Archives and produced to the Select Committee in response to its requests. For example, although the Select Committee has requested certain records, such as polling data, concerning the 2020 election dating back to April 2020, those records, by their very nature, are not Presidential records under the statute, and would not be included in any responsive document tranches sent to the Committee. The same goes for any personal papers or communications.

Second, while some of the Select Committee’s requests are indeed broad, so too is Congress’ power to obtain information. See Watkins, 354 U.S. at 187. The Select Committee appears to be operating under the theory that January 6 did not take place in a vacuum, and instead was the result of a months-long groundswell. See Hearing Tr. at 41:4-7; 42:22-23. Defendants argue that to identify effective reforms, Congress must first understand the circumstances leading up to January 6 and how the actions of Plaintiff, his advisors, and other government officials contributed or responded to that groundswell. NARA Br. at 18. The court notes that the Select Committee reasonably could find it necessary to investigate the extent to which the January 6 attack on the Capitol may have been an outgrowth of a sustained effort to overturn the 2020 election results, involving individuals both in and outside government. But the “very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.” Eastland, 421 U.S. at 509. In fact, the Committee need not enact any legislation at all. Trump v. Mazars USA, LLP, 940 F.3d 710, 727 (D.C. Cir. 2019) (explaining that the “House is under no obligation to enact legislation after every investigation”). Nor is it problematic that some requests might ultimately return records that are “irrelevant,” or “impertinent” to its stated goals. Townsend, 95 F.2d at 361. It is not for this court to decide whether the Select Committee’s objective is prudent or their motives pure. See Watkins, 354 U.S. at 200; Eastland, 421 U.S. at 508. Instead, the pertinent question is whether Congress could legitimately legislate in these areas, and, as explained above, it can.

Third, President Biden’s decision not to assert the privilege alleviates any remaining concern that the requests are overly broad. In cases such as Mazars, which involved separation of powers concerns, limitations on the breadth of a congressional inquiries serve as “important safeguards against unnecessary intrusion into the operation of the Office of the President.”

Mazars, 140 S. Ct. at 2036. Plaintiff argues that the requests at issue here are burdensome because they are “unbelievably broad” and that their breadth is “striking” because they could “be read to include every single e-mail sent in the White House” on January 6. See Pl. Mot. at 21-24. But upon whom is the burden imposed? President Biden has determined that the requests are not so intrusive or burdensome on the Office of the President as to outweigh Congress’ “compelling need in service of its legislative functions.” Pl. Mot., Ex. 4 at 1-2. Unlike the circumstances presented in Mazars, here, the legislative and executive branches are in harmony and agree that the requests are not unduly intrusive, thus extinguishing any lingering concerns about the breadth of the requests.

iii. The Alternative Mazars Standard Results in the Same Outcome

Plaintiff urges the court to apply either the balancing test from Senate Select Committee, 498 F.2d 725 (1974), or the four-factor standard from Trump v. Mazars, 140 S. Ct. 2019 (2020). In the alternative, Plaintiff argues that the court could apply a “Mazars lite” test by applying the four Mazars factors, but using “reduced judicial scrutiny,” “cognizant of the fact that this case now involves a subpoena directed at a former President.” Trump v. Mazars, USA, LLP, No. 19-cv-01136, 2021 WL 3602683, at *13 (D.D.C. Aug. 11, 2021), appeal pending, No. 21-5176 (D.C. Cir.).

Defendants argue that neither the Senate Select Committee or Mazars standards apply because both cases involved Congressional requests for information from a sitting President, and therefore presented separation of powers concerns arising from a “clash between rival branches of government.” Mazars, 140 S. Ct. at 2034. Defendants contend that the “Mazars lite” approach is inappropriate because, unlike the situation when Mazars was decided on remand, “the executive branch has agreed to provide the requested documents under the PRA, and compulsory process is not at issue.” NARA Br. at 23.

The court agrees that the stringent balancing test of Senate Select Committee does not apply because, for reasons already stated, the requested records are not privileged. Indeed, at oral argument, Plaintiff’s counsel did not mention this test and instead asserted only that the Mazars four-factor test is appropriate. See Hearing Tr. at 8:12-16. The court also agrees with Defendants that Plaintiff’s status as a former President, and the fact that the legislative and executive branches agree that the records should be produced, reduces the import of the Mazars test. Each of Plaintiff’s arguments about why Mazars is applicable assumes separation of powers concerns that have little, if any, force here. Nonetheless, because this is a matter of first impression, the court will apply the four Mazars factors, conscious of the fact that Plaintiff is a former President.

Under the first Mazars factor, “the asserted legislative purpose” must warrant “the significant step of involving the President and his papers.” Id. at 2035. “Congress may not rely on the President’s information if other sources could reasonably provide” the information Congress needs in light of its legislative objective. Id. at 2035–36. The court starts with the obvious: the concerns raised by the “significant step” in Mazars are plainly not present here, where Plaintiff is no longer President, and the incumbent President has decided that Congress’ legislative purpose warrants production. See Pl. Mot., Ex. 4. Moreover, the Select Committee has demonstrated that its asserted legislative purpose is indeed significant. It seeks to learn about what, if anything, Plaintiff, his advisors, other government officials, and those close to him knew about efforts to obfuscate or reverse the results of the 2020 election, recruitment, planning, and coordination of the January 6 rally, the likelihood of the protest turning violent, and what actions they took in response. See Pl. Mot., Ex. 1. Plaintiff has not identified any source from which the Select Committee could gain answers to these questions other than the Presidential records they seek. See Pl. Mot. at 19 (offering only the conclusory statement that the Select Committee “could obtain any and all of the information it seeks” from non-privileged sources); Hearing Tr. at 16:10-13 (suggesting without evidence or explanation that non-privilege documents should be sufficient). Accordingly, the Select Committee clears the first hurdle.

Second, under Mazars, the congressional inquiry should be “no broader than reasonably necessary to support Congress’ legislative objective.” Id. This limitation is necessary, the Court explained, to “safeguard against unnecessary intrusion into the operation of the Office of the President.” Id. (cleaned up); see also Nixon v. GSA, 433 U.S. at 443 (explaining that “the proper inquiry” for courts is to consider the extent to which a congressional act “prevents the Executive Branch from accomplishing its constitutionally assigned functions”). Here, President Biden has not objected to any of the requests as being overly broad or unnecessarily intrusive. His counsel has reviewed the first three tranches of responsive records and stated that President Biden supports their production because of Congress’ compelling interest in them. See Pl. Mot., Exs. 4, 6. Plaintiff’s argument to the contrary, that the Select Committee’s “broad” requests are overly intrusive into the operations of an office he no longer occupies, is therefore unpersuasive.

Third, “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” Mazars, 140 S. Ct. at 2036. “[U]nless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of possible legislation,” “it is impossible to conclude that a subpoena is designed to advance a valid legislative purpose.” Id. The Select Committee has adequately identified its aims and indicated why the requested records may support a valid legislative purpose. As noted above, the Select Committee was created to investigate the facts and circumstances of the January 6 attack, including “influencing factors that contributed to the attack.” H.R. 503 § 4(a)(1)(B). Defendants tie this aim to the Committee’s Presidential records requests by pointing to Plaintiff’s statements claiming the election was “rigged,” promoting the January 6 rally, and calling on his supporters to “walk down to the Capitol” to “take back our country,” Comm. Br. at 7, public reports regarding Plaintiff’s efforts to pressure Department of Justice and state officials to reverse the election results, id. at 5-7, and the Committee’s findings about the effort of Plaintiff’s former aides to stop or delay the counting of election results, H.R. Rep. No. 117-152, at 6 (Oct. 19, 2021). The Committee could reasonably expect the requested records to shed light on any White House planning and strategies concerning public messaging about the election, any efforts to halt or delay the electoral count, and preparations for and responses to the January 6 rally and attack. See Pl. Mot., Ex. 1 at 4, 7-9. Such information would be plainly material to the Select Committee’s mandate to discover and report on “the facts, circumstances, and causes relating to the January 6 [attack],” H.R. 503, § 3(1), and to pass remedial legislation in any number of previously identified areas within their legislative purview.

Fourth, courts should “assess the burdens imposed on the President by [the] subpoena” because “[the burdens] stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.” Mazars, 140 S. Ct. at 2036. Defendants satisfy this factor as well, because the “burdens imposed on the President” by the Committee’s request are of considerably less significance when the Presidential records sought pertain to a former President and when the incumbent President favors the production. Mazars, 2021 WL 3602683, at *13. Moreover, unlike the compulsory nature of the subpoena in Mazars, here, the Select Committee made its request pursuant to a statutory framework to which the executive branch is a party and has long acquiesced. This fact, too, undermines any notion that the office of the President is unduly burdened by the requests.

Having found that all four Mazars factors weigh against Plaintiff’s position, the court concludes that the Select Committee’s requests are a valid use of legislative power and refuses to enjoin what the legislative and executive branches agree is a vitally important endeavor.

B. Irreparable Harm

A party seeking preliminary injunctive relief must show an imminent threat of irreparable harm by the challenged action or inaction. The “injury must be both certain and great, actual and not theoretical, beyond remediation, and of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (cleaned up).

Plaintiff fails to show that any irreparable injury is likely to occur. First, to the extent Plaintiff argues that he, as a private citizen, will suffer injury, he has not identified any personal interest that is threatened by the production of Presidential records. He claims no personal interest in the records or the information they contain, and he identifies no cognizable injury to privacy, property, or otherwise that he personally will suffer if the records are produced, much less a harm that is “both certain and great,” id., 787 F.3d at 555, if injunctive relief is denied.

Second, Plaintiff’s argument that the executive branch will suffer injury is similarly unavailing. Plaintiff invokes the executive privilege protecting presidential communications, contending that compliance with the Select Committee’s requests “will undoubtedly cause sustainable injury and irreparable harm” to future Presidents because releasing confidential communications between him and his advisors concerning his duties and responsibilities as President to a “rival branch of government” will “chill[ ] advice given by presidential aides[.]” Pl.’s Mot. at 6-7, 36. That privilege, however, is not for the benefit of any “individual, but for the benefit of the Republic.” Nixon v. GSA, 433 U.S. at 449. Moreover, the notion that the contemplated disclosure will gravely undermine the functioning of the executive branch is refuted by the incumbent President’s direction to the Archivist to produce the requested records, and by the actions of past Presidents who similarly decided to waive executive privilege when dealing with matters of grave public importance, such as the Watergate scandal, the Iran-Contra affair, and 9/11. Plaintiff therefore has made no showing of imminent irreparable harm to any interests protected by executive privilege that compels an immediate halt to compliance with the Select Committee’s requests.

Plaintiff also contends that an injunction is needed to protect against a risk of inadvertent disclosure of privileged documents, allegedly due to the “short time periods” provided under the PRA for review of potentially large volumes of records whose sensitivity may not be apparent if their authors or custodians cannot be readily ascertained. See Pl.’s Mot. at 37. This too is not a convincing injury. Thus far, Plaintiff’s PRA representatives have successfully reviewed the records in the first three tranches, and Plaintiff has invoked privilege over many of them. Moreover, NARA routinely accommodates requests from former Presidents for additional time to complete their reviews when the volume or complexity of records requires. NARA Br., Laster Decl. ¶ 11. NARA maintains the records in the same order and manner of organization as they were transmitted by the outgoing administration. Id. ¶ 6. To the extent practicable and necessary, NARA informs the PRA representatives where the responsive records came from, such as from a staff member’s office files. Id. And when asked, NARA also assists former Presidents in identifying records’ authors and custodians. Id. ¶ 11. These accommodations are sufficient to mitigate any claim by Plaintiff that he is prejudiced by the PRA statutory process.

C. Balance of the Equities and the Public Interest

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining—the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

IV. CONCLUSION

For reasons explained above, the court will deny Plaintiff’s request to enjoin Defendants from enforcing or complying with the Select Committee’s August 25, 2021, requests because Plaintiff is unlikely to succeed on the merits of his claims or suffer irreparable harm, and because a balance of the equities and public interest bear against granting his requested relief.

Date: November 9, 2021

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Nov 16, 2021 9:21 am

Trump ally Michael Flynn condemned over call for ‘one religion’ in US
by Martin Pengelly @MartinPengelly
The Guardian
Mon 15 Nov 2021 02.00 EST

Michael Flynn, Donald Trump’s first national security adviser, was widely condemned after calling for the establishment of “one religion” in the US.

Religious freedom is enshrined in the first amendment to the US constitution, which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

Regardless, at a rally staged in San Antonio on Saturday by the Christian “nonprofit news media network” American Faith, Flynn said: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God and one religion under God.”

In response, the Minnesota Democrat Ilhan Omar, one of the first Muslim women elected to Congress, said: “These people hate the US constitution.”

Mark Hertling, a retired general and media commentator, called Flynn, himself a retired general, “an embarrassment to the US army”.

“His words are disgusting,” Hertling said.

On Sunday, the veteran reporter Carl Bernstein told CNN that Flynn, as one of the “knaves and fools and dangerous authoritarian figures” with whom Trump surrounded himself in and out of office, was “saying out loud things that have never been said by an aide or close associates to the president of the United States”.


Bernstein added: “It should be no surprise to know that Michael Flynn is saying the kind of things that he is saying, but what’s most significant here is that much of the Republican party … something like 35% in in exit polls said they favour Trump because Christianity is being taken away from them.

“So Michael Flynn is not that far away from huge numbers of people in this country.”

Flynn is no stranger to controversy. Fired from a senior intelligence role by Barack Obama, he became a close aide to Trump before resigning as national security adviser after less than a month in the role, for lying to the FBI about contacts with Russians.

Flynn pleaded guilty to one criminal charge under Robert Mueller’s investigation of Russian election interference and links between Trump and Moscow, a plea he sought to withdraw before receiving a pardon from Trump.

He has since emerged as an influential figure on the far right, linked to the QAnon conspiracy theory and appearing to advocate armed insurrection.

In San Antonio, Flynn called the indictment of another Trump ally, Steve Bannon, over the investigation of the Capitol attack, an “abuse of freedom of speech” – another first amendment freedom.

The Capitol was attacked on 6 January by Trump supporters seeking to overturn his election defeat. Flynn is himself the subject of a subpoena from the investigating House committee. On Friday, he told Fox News he had nothing to hide.

In Texas, Flynn called the House investigation “a crucifixion of our first amendment freedom to speak, freedom to peacefully assemble”.

His remarks about religion attracted support from a prominent contender in a vicious party fight for a Republican Senate nomination in Ohio.

Josh Mandel, a former Ohio state treasurer, tweeted: “We stand with General Flynn.”

Mandel’s own religion has been the subject of debate and controversy. In September, the Forward published an op-ed which asked if he was “obscuring his Jewishness” in order to appeal to far-right Christian voters.

In response, Mandel described himself as a “Proud American. Proud Jew. Proud Marine. Proud Zionist. Everything Democrats hate.”

Mandel’s religion was the subject of a controversial attack ad from another Republican hopeful, Mark Pukita, who denied charges of antisemitism.

Amid criticism of his support for Flynn, Mandel said “freedom of religion [is not equal to] freedom FROM religion”. He also said: “America was not founded as a secular nation.”
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Nov 18, 2021 7:09 am

Close Trump Adviser Pushed Pentagon To Raid Germany On Bizarre Conspiracy Theory: Book
by Rachel Maddow
Nov 16, 2021



Rachel Maddow shares new reporting from Jonathan Karl's new book, "Betrayal," in which Donald Trump adviser Sidney Powell, after Trump's 2020 election loss, is convinced of a conspiracy theory involving CIA Director Gina Haspel and a mysterious computer server in Germany, and insists to a Trump Pentagon appointee that the U.S. launch a special operation in Germany to overturn the election result for Trump.

********************
New Reporting: Trump Lawyer Actually Believed This ‘Outlandish’ Conspiracy Theory
by Chris Hayes
Nov 16, 2021



“Trump's lawyer was not just cynically promoting bogus conspiracies to sow doubt in the election. According to this reporting, she was a true believer,” says Chris Hayes, discussing how Sidney Powell reportedly fell for an outlandish election conspiracy theory.

*****************

Sidney Powell tried to get the DOD to 'rescue' the CIA director, citing a QAnon conspiracy theory that claimed she was captured in Germany, book says
by Bill Bostock
Insider
November 17, 2021

• A claim that the CIA director had been hurt and captured in Germany spread in QAnon circles in late 2020.
• Sidney Powell called a DOD official and demanded a special ops rescue mission, a new book says.
• The CIA rubbished the theory at the time, saying Gina Haspel was safe in her office.

The former Trump lawyer Sidney Powell called a Pentagon official demanding a mission to save the CIA director last year, citing a false QAnon conspiracy theory, according to a new book.

In "Betrayal," excerpts of which were published by ABC News, the journalist Jonathan Karl wrote that Powell phoned Ezra Cohen, a senior Department of Defense official, shortly after the 2020 election claiming that CIA Director Gina Haspel was in danger.

"Gina Haspel has been hurt and taken into custody in Germany," Powell told Cohen on the call, according to Karl's book. "You need to launch a special operations mission to get her."

Powell was referring to a false theory spreading in QAnon circles which claimed Haspel had been injured and captured during a top secret CIA mission to steal a computer server belonging to a company named Scytl in Frankfurt. The theory claimed that Haspel had then been flown to Guantanamo Bay and "received a tribunal for treason."

Powell believed the servers contained evidence showing that hundreds of thousands of US votes had been switched with rigged voting machines, and that Haspel set out to secure the servers so she could destroy the evidence, Karl wrote.

Powell, who has long referenced QAnon conspiracy theories, was axed from the Trump campaign's legal team in mid-November 2020. The journalist Maggie Haberman reported one Trump advisor saying at the time that it was because "she was too conspiratorial even for him."

According to Karl, Cohen "thought Powell sounded out of her mind" and immediately informed the acting US defense secretary of the call. That official at the time was Chris Miller.

There is no evidence to support the theory and, in a statement to Reuters in December 2020, CIA spokesperson Nicole de Haay said the theory was "the most absurd inquiry I've ever addressed."

"I'm happy to tell you that Director Haspel is alive and well and at the office," de Haay said.

Powell did not immediately respond to Insider's request for comment.

In "Betrayal," Karl also wrote that Powell and former National Security Advisor Michael Flynn, who previously employed Powell as his attorney, tried to enlist Cohen to help them overturn the 2020 election, ABC News reported. Cohen responded by telling Flynn: "Sir, the election is over," Karl reported.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Nov 18, 2021 7:14 am

Man At Center Of GOP Vote Fraud Hype Lied, Pleads Guilty [Donald “Kirk” Hartle]
by Rachel Maddow
MSNBC
Nov 16, 2021



Jon Ralston, founder and CEO of the Nevada Independent, talks with Rachel Maddow about a story that formed the basis of Republican voter fraud claims in Nevada, only to have the man at the center of that story admit in court that he lied about voting on behalf of his own dead wife.

*********************\
Nevada man who voted twice using dead wife’s ballot sentenced to probation, fined $2,000 [ Donald “Kirk” Hartle]
by David Charns
8 News Now Las Vegas
Posted: Nov 16, 2021 / 12:51 PM PST / Updated: Nov 16, 2021 / 04:31 PM PST

LAS VEGAS (KLAS) — A judge on Tuesday sentenced a Las Vegas man to probation on a charge he voted twice in the 2020 election by mailing in his deceased wife’s ballot.

The I-Team was first to report that Donald “Kirk” Hartle, 55, was facing two charges relating to last year’s election. In court Tuesday, Hartle pleaded guilty to one charge of voting more than once in the same election.

Hartle appeared virtually in court with his attorney, David Chesnoff. Hartle reached a deal with prosecutors to avoid prison time.

Judge Carli Kierny also fined Hartle $2,000 as part of the plea agreement. The original Category D felony carried a maximum prison sentence of four years.

“Ultimately to me, this seems like a cheap political stunt that kind of backfired and shows that our voting system actually works because you were ultimately caught,” Kierny told Hartle in court.

The charges came after an investigation from the Secretary of State’s Office, which looks into any voter fraud allegations in connection with the Nevada Attorney General’s Office.

Rosemarie Hartle, of Las Vegas, died in 2017 at age 52 from breast cancer, Kirk Hartle, told the I-Team last November. A ballot for Rosemarie was issued in October 2020 and later received by the county, but Kirk said the ballot never came to his house. The I-Team found even though Rosemarie died in 2017, her name appeared on the active voter list.

“I would like to say that I accept full responsibility for my actions and regret them, and I’m thankful for your consideration,” Kirk Hartle told the judge Tuesday.

If Kirk Hartle stays out of trouble for a year, he will be able to withdraw his plea and instead plead guilty to a charge of conspiracy to commit voting more than once in the same election, which is a misdemeanor.

Rosemarie Hartle’s ballot was one of two cited by Nevada Republicans and national party leaders as evidence of voter fraud in Nevada.

“‘Disbelief’ and ‘sickening’… that’s how Kirk Hartle feels about someone voting in his deceased wife’s name,” a tweet from the Nevada GOP, posted Nov. 10, 2020, said. “How did the forged signature pass Clark County’s signature verification machine? And this isn’t the only case of a deceased person voting in NV.”

The tweet remained posted as of Tuesday, the day Hartle was sentenced.

Nevada GOP
@NVGOP
"Disbelief" and "sickening" ... That's how Kirk Hartle feels about someone voting in his deceased wife's name.
How did the forged signature pass @ClarkCountyNV's signature verification machine?
And this isn't the only case of a deceased person voting in NV.
10:13 AM Nov 10, 2020


“That is pretty sickening to me to be honest with you,” Kirk Hartle told the I-Team in an interview last year. “It was disbelief. It made no sense to me, but it lent some credence to what you’ve been hearing in the media about these possibilities and now it makes me wonder how pervasive is this?”

“Though rare, voter fraud can undercut trust in our election system,” Nevada Attorney General Aaron Ford said in a statement. “This particular case of voter fraud was particularly egregious because the offender continually spread inaccurate information about our elections despite being the source of fraud himself. I am glad to see Mr. Hartle being held accountable for his actions, and I want to stress that our office will pursue any credible allegations of voter fraud.”

[x]
Hartle appeared virtually in court Tuesday with his attorney, David Chesnoff. (KLAS)

Hartle is the chief financial officer at Ahern Rentals, which hosted a rally for former President Donald Trump last September and was cited for violating coronavirus protocols. The umbrella company hosted a QAnon conference in October at the Ahern Hotel off the Las Vegas Strip.

Audits and lawsuits filed in states, including Nevada, found no evidence of widespread voter fraud.

Though Biden won Nevada’s six electoral votes, Republicans gained seats in the Senate and Assembly amid the state’s first widescale test of mail-in voting in the most recent election. Biden won the state by more than 30,000 votes, or about 2%.

Since last November, the I-Team has found 10 instances of dead individuals having votes cast in their names. Nevada state officials have not commented on ongoing investigations. In April, the Secretary of State’s Office said 10 voters may have voted twice.

The office, which is headed by a Republican, the Nevada Supreme Court and several judges said there was no evidence of widespread voter fraud. One lawsuit, brought by the Republican Party’s six electors and President Donald Trump’s re-election campaign, sought to have Nevada’s election results overturned.

Earlier this year, Nevada Democratic Gov. Steve Sisolak signed Assembly Bill 321 into law, making Nevada the sixth state to have a permanent mail-in voting system. The law requires a Nevada voter opt-out rather than opt-in to receive a mail-in ballot. It passed the Nevada Assembly and state Senate along party lines.

The Nevada GOP has not responded to repeated requests for comment.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Nov 20, 2021 2:49 am

The Trump Coup: Notes on an Authoritarian Conspiracy: Inside the Claremont Institute’s “79 Days to Inauguration” Report. Claremont’s post-election war game provides a window into the group’s ambitions.
by Christian Vanderbrouk
The Bulwark
November 8, 2021 5:04 AM



Holding public confrontational rallies is understood within the WSM as providing an opportunity to provoke (or “trigger”) their racial enemies in the hope of igniting a large-scale racial conflict and the societal chaos that will spread across the U.S. to the advantage of white supremacists who are positioned to seize control. This is a strategy that scholars now describe as “accelerating.”

-- Expert Report of Kathleen Blee (Distinguished Professor of Sociology and Bailey Dean of the Dietrich School of Arts and Sciences, University of Pittsburgh) and Peter Simi (Associate Professor of Sociology, Chapman University), Sines v. Kessler, No. 17-cv-00072, Submitted on July 20, 2020


The sun rises on January 6, 2021 while a nation is in crisis.

Michigan’s presidential electors are in dispute after a mysterious fire in Detroit destroyed thousands of mail-in ballots, ultimately throwing the election to Congress.

The nation’s capital is overwhelmed by riots organized by left-wing radicals.

A Republican member of Congress is attacked and critically injured in the violence, potentially depriving Donald Trump of the decisive vote.

However, the representative heroically insists on being taken to the House floor. “With IVs and blood transfusions being administered, the member casts the deciding vote, giving Trump 26 state delegations and the needed majority.”


This is the grisly climax of a report published in mid-October 2020 by the Claremont Institute and Texas Public Policy Foundation’s (TPPF) called “79 Days to Inauguration,”
prepared by “Constitutional scholars, along with experts in election law, foreign affairs, law enforcement, and media . . . coordinated by a retired military officer experienced in running hundreds of wargames.”

Among these luminaries were figures such as John Eastman—lawyer for Donald Trump and author of a memo advising Vice President Mike Pence to unilaterally block certification of Joe Biden’s win in order to buy time for GOP-controlled state legislatures to send competing slates of electors—and K.T. McFarland, who served as deputy national security advisor under Michael Flynn in the Trump White House.

Other participants include Kevin Roberts, then-executive director of the Texas Public Policy Foundation (soon to be head of the Heritage Foundation), Jeff Giesea, “a [Peter] Thiel protégé and secret funder of alt-right causes,” and Charles Haywood, a fringe blogger who anxiously awaits an American “Caesar, authoritarian reconstructor of our institutions.”

Ryan Williams, President, Claremont Institute
Chuck DeVore, Vice President TPPF, former California State Assemblyman (simulation designer and umpire)
John Eastman, Senior Fellow of the Claremont Institute
Jeff Giesea, entrepreneur, communications strategist
Charles Haywood
Jason Isaac, Director, Director of Life: Powered, TPPF, former Texas State Representative
Brian T. Kennedy, President, The American Strategy Group
Kathleen Troia McFarland, former Deputy National Security Advisor
Roy Maynard, Senior Writer, TPPF
Kevin Roberts, Executive Director, Texas Public Policy Foundation
Chelsea Murphy, Florida State Director for the Right on Crime Initiative, TPPF
Jeff Nyquist
Ky Olbert, Independent Researcher
Gladden Pappin, Department of Politics, University of Dallas and Deputy Editor, American Affairs
Randy Petersen, Senior Researcher, TPPF
James Quintero, Director, Center for Local Governance, TPPF
Kyle Shideler, Director/Senior Analyst for Homeland Security and Counterterrorism, Center for Security Policy
Ron Simmons, Distinguished Senior Fellow, TPPF, former Texas State Representative

The distinguished wargamers.

Yet despite the authors’ pretensions to scholarship and rigor—“for a simulation to be valuable, the other side gets a vote and actions must be based in realism”— the final document is a frenzied and paranoid piece of work, revealing of the anxieties and aspirations of the authoritarian right.

Practically, the report is an instruction manual for how Trump partisans at all levels of government—aided by citizen “posses” of Proud Boys and Oath Keepers—could, quite literally, round up opposition activists, kill their leaders, and install Donald Trump for a second term in office.


The scenario begins late on Election Night. The networks have declared Joe Biden the winner, his campaign having upset Trump in the state of Texas. The call is withdrawn moments later, following reports of a cyberattack involving the state’s tabulation system. As it becomes clear there will be no definitive winner on Election Night, attention shifts to a few battleground states with large numbers of outstanding ballots.

Riots break out in more than a dozen major cities . . . 14 law enforcement officers are known to have been shot, with one confirmed death. There are unconfirmed reports of a car bombing of a police precinct building in Philadelphia.


The violence, as imagined by Claremont and TPPF, overwhelms police and fire officials.

Police recede to a defensive posture around their precincts, it is unsafe to maneuver police vehicles down the streets and responding to calls for service, even emergency calls, is suspended. Fire departments are unable to approach buildings on fire without police escorts, which are not happening.


The next day, the federal government announces Operation Spearfish, targeting

Leaders and agitators within the groups associated with BLM, Antifa, Boogaloo, and NFAC . . . with over one thousand arrest warrants issued using federal and state statutes from RICO to disorderly conduct… The decision to obtain arrest warrants even for the barest minimum of probable cause on the lowest of charges is meant to remove the players from the picture, at least temporarily. Social media sources and other intelligence sources were used to find any instances of incitement to violence, threats, or other criminal activity that met federal or local statutes and act on them.


Remember, this narrative is the result of a role-playing exercise in which the participants imagined themselves as key decision-makers in the federal government. The actions described, therefore, might be best understood as a combination of group therapy and suggestions for how they believe the federal government and law enforcement should behave in a moment of constitutional crisis.

Some of the report is revealing. Some of it is sad. Some of it is darkly funny. For instance, the authors’ recommendation for mass, politically motivated arrests “to remove the players from the picture” sits oddly next to the right’s outraged reaction to the prosecution of Trump supporters who stormed the U.S. Capitol on January 6.

There’s more irony in how the task force imagines right-wing gangs would operate during such a period: with quiet discipline and in cooperation with law enforcement.


A lack of social media activity and overt action by the rioting by members of the Proud Boys draws the attention of law enforcement officials suspecting they may be operating covertly on the ground in several major urban rioting areas, but their exact involvement is unknown. Reports of militias moving into suburban areas is being monitored. Several groups affiliated with the Three Percenters and Oath Keepers have openly offered to assist law enforcement in putting down the violence via social media, touting significant current and retired law enforcement and military membership.


Which is . . . not how the Trumpist forces behaved during the actual crisis:

[x]
The Capitol rioters kept posting incriminating things on social media. Unsurprisingly, they were mocked -- and arrested.
by Travis M. Andrews
January 18, 2021

There is a pretty simple reason Bruce Wayne never fires up twitter and writes "Off 2 do sum cool Batman stuff" before donning his bat suit: Because then everyone would know he's Batman.


In reading the report, it becomes clear that task force participants see law enforcement as a critical adjunct to the more traditional political actors and that they believe law enforcement could act with greater impunity and force, independent from—and at times in defiance of—elected leaders.

There are rumors that several sheriffs in conservative counties throughout the country are hinting that they may deputize regular citizens into posses should the lawlessness come to their counties. Social media is ablaze with volunteers from Proud Boys, Three Percenters, and Oath Keepers and other Posse Comitatus groups to form posses.


This isn’t an innocent game of “what if?”

Earlier this year the Claremont Institute created a Sheriffs Fellowship program. Claremont claims that this program will offer “training of unparalleled depth and excellence in American political thought and institutions.” But then, this is the same group that produced a report hoping that “several sheriffs in conservative counties” would give groups like the Proud Boys actual legal authority.


Which is it?

Law enforcement plays an openly insurrectionist role throughout the “79 Days” exercise, defying civilian leaders, refusing to offer them protection, and threatening them with arrest.

For example, the report imagines Chicago police (with vocal backing from their union) abandoning Mayor Lori Lightfoot’s residential block, permitting protesters to set up camp on her front lawn.

In imagined dialogue, the wargame quotes the city’s Fraternal Order of Police president as saying “We have officers risking their lives by not shooting people they should be shooting, or waiting too long because Lightfoot and her Soros-funded prosecutor Kim Foxx seem more interested in arresting cops than criminals.”

The union leader goes on to defend a police sickout (“Foxx and Lightfoot use this department and its officers as political scapegoats all the time, maybe they will enjoy not having us around”) and “excessive force” against rioters (“Take a look out the window there, you tell me, what the hell is excessive right now?”).

The authors use an imaginary appearance by former Milwaukee Sheriff David Clarke on Fox News to issue an open threat to elected leaders of the political opposition, which is imagined as going “viral”:


“The police are here to protect people and preserve the peace. They will do that. Politicians might get in the way for a while like they’re doing right now, but at some point, cops will remember their oath and will take back their communities for the good, law-abiding people in those communities. You won’t want to be on the other side of that once they have had enough of this nonsense.”


The National Fraternal Order of Police issues a partisan statement attacking Joe Biden’s “irresponsible” call for peaceful protests, “calling on President Trump to assist our men and women in blue in putting an end to the violence and anarchy and to restore law and order.”

At which point the “79 Days” report moves into truly authoritarian wishcasting:


• Federal and local law enforcement officials “entered into meetings with Google, Facebook, and Twitter to discuss tracking phones and electronic communication devices that have been traveling together to various cities” to track various “agitator groups.”
Checkpoints are established “along major corridors entering Michigan, Texas, and Florida [to] stop and detain any suspicious caravans or large transport vehicles and to identify passengers for verification in the state fusion centers as members of Antifa and BLM are expected to descend on the capitol buildings in those states.”
The FBI’s elite counterterrorist Hostage Rescue Team is sent to “execute search warrants for weapons in and around Washington, DC… Seven Antifa members are killed by gunfire” during the simultaneous raids with “no injuries to the agents.”


A barely concealed bloodlust runs through the report. During a battle with rioters at a Portland police precinct building, a:

SWAT sniper conducting overwatch shot and killed one of the arsonists as he drew his arm back to throw his device (captured on police surveillance video and released immediately: warning graphic). The Molotov Cocktail exploded when he dropped the bottle and covered several rioters in flames, three injured severely and one dead at the scene.


At a confrontation near the White House, a non-lethal directed-energy weapon called the “Active Denial System” is used against protesters “to great effect with limited, precise application to specific threats. Social media erupts with claims of abuse through military weaponry.”

The body count grows with “officer-involved shootings” related to the RICO-authorized Operation Spearfish, resulting in “at least three suspects dead.” However, “none of the agencies is releasing information on the circumstances or identities of the officers or suspects involved, citing the ongoing investigation.”

These raids, which operate with all the impunity of a death squad, “are executed in middle to upper class neighborhoods where the Antifa and BLM activists/leadership tend to reside.

The exercise ends with crude myth-making: the noble and sacrificial decision by a “Republican member from an at-large delegation” suffering from “life-threatening wounds” who, “understanding what is at stake, demands to be transported to the House for the state delegation vote and arrives in a heavily guarded convoy.”

This isn’t a serious wargame or a policy study so much as a bowdlerized [(of a text or account) having had material considered improper or offensive removed. "A bowdlerized version of the story"] retelling of The Turner Diaries.

The “79 Days Report” was created as a rejoinder to the bipartisan Transition Integrity Project’s (TIP) exercise on “Preventing a Disrupted Presidential Election and Transition.”


Founded in June 2020, the TIP gathered more than a hundred experts (including Bill Kristol, editor-at-large of The Bulwark) to game out a number of scenarios, including the worrying prospect that a refusal by President Trump to concede defeat would lead to violence.

The TIP final report also included detailed “recommendations to avoid a crisis,” such as educating state and local officials about their constitutional responsibilities, combating misinformation, and ensuring that protests were not hijacked by violent actors or agent provocateurs.

Despite their remaining affinity for Trump and their questions about the vote, both sources say they were motivated to come forward because of their concerns about how the pro-Trump protests against the election ultimately resulted in the violent attack on the Capitol....

“The reason I’m talking to the committee and the reason it’s so important is that — despite Republicans refusing to participate … this commission’s all we got as far as being able to uncover the truth about what happened at the Capitol that day,” the organizer says. “It’s clear that a lot of bad actors set out to cause chaos. … They made us all look like shit.”

And Trump, they admit, was one of those bad actors.
A representative for Trump did not respond to a request for comment.

“The breaking point for me [on Jan. 6 was when] Trump starts talking about walking to the Capitol,” the organizer says. “I was like. ‘Let’s get the fuck out of here.’ ”

“I do kind of feel abandoned by Trump,” says the planner. “I’m actually pretty pissed about it and I’m pissed at him.”

The organizer offers an even more succinct assessment when asked what they would say to Trump.

“What the fuck?” the organizer says....

Both sources also describe Trump’s White House chief of staff, Mark Meadows, as someone who played a major role in the conversations surrounding the protests on Jan. 6. Among other things, they both say concerns were raised to Meadows about Alexander’s protest at the Capitol and the potential that it could spark violence....

“Meadows was 100 percent made aware of what was going on,” says the organizer. “He’s also like a regular figure in these really tiny groups of national organizers.”...

Both the organizer and the planner say Alexander initially agreed he would not hold his “Wild Protest” at the Capitol and that the Ellipse would be the only major demonstration. When Alexander seemed to be ignoring that arrangement, both claim worries were brought to Meadows.

“Despite making a deal … they plowed forward with their own thing at the Capitol on Jan.y 6 anyway,” the organizer says of Alexander and his allies. “We ended up escalating that to everybody we could, including Meadows.”...

“We had also been coordinating with some of our congressional contacts on, like, what would be presented after the individual objections, and our expectation was that that was the day the storm was going to arrive,” the organizer says, adding, “It was supposed to be the best evidence that they had been secretly gathering. … Everyone was going to stay at the Ellipse throughout the congressional thing.”

Heading into Jan. 6, both sources say, the plan they had discussed with other organizers, Trump allies, and members of Congress was a rally that would solely take place at the Ellipse, where speakers — including the former president — would present “evidence” about issues with the election. This demonstration would take place in conjunction with objections that were being made by Trump allies during the certification on the House floor that day....

“The Capitol was never in play,” insists the planner.

A senior staffer for a Republican member of Congress, who was also granted anonymity to discuss the ongoing investigation, similarly says they believed the events would only involve supporting objections on the House floor. The staffer says their member was engaged in planning that was “specifically and fully above board.”

“A whole host of people let this go a totally different way,” the senior Republican staffer says. “They fucked it up for a lot of people who were planning to present evidence on the House floor. We were pissed off at everything that happened.”

The two sources claim there were early concerns about Alexander’s event. They had seen him with members of the paramilitary groups 1st Amendment Praetorian (1AP) and the Oath Keepers in his entourage at prior pro-Trump rallies. Alexander was filmed with a reputed member of 1AP at his side at a November Stop the Steal event that took place in Georgia. The two sources also claim to have been concerned about drawing people to the area directly adjacent to the Capitol on Jan. 6, given the anger among Trump supporters about the electoral certification that was underway that day.

“They knew that they weren’t there to sing “Kumbaya” and, like, put up a peace sign,” the planner says. “These frickin’ people were angry.”


-- Jan. 6 Protest Organizers Say They Participated in ‘Dozens’ of Planning Meetings With Members of Congress and White House Staff: Two sources are communicating with House investigators and detailed a stunning series of allegations to Rolling Stone, including a promise of a “blanket pardon” from the Oval Office, by Hunter Walker


“Peaceful protesters will need specialized training on de-escalation and non-violent techniques—and on how to document the non-violent nature of their protests, given the likelihood that agitators will attempt to blame any violence on them,” goes one TIP recommendation.

Another TIP proposal is for “military and law enforcement leaders to be particularly attuned to the possibility that partisan actors will seek to manipulate or misuse their coercive powers for inappropriate political ends.”...

To the extent that the Claremont-TPPF report offers recommendations, they are mostly focused on how to emerge victorious from the chaos, including preparation “for destructive urban unrest [with] potential targets includ[ing] ballot counting facilities, government buildings, especially state capitols and city halls, as well as television and radio studios.”

The Claremont task force seems either resigned to—or perhaps energized by—the view that “prudent steps are likely to be spun as preparations for a military takeover or coup and may result in negative consequences either way.”

Either way. It’s as if they’re steering into the violence instead of trying to avoid it.

The message is clear: do whatever it takes to crush your opponents and all will be forgiven in the second Trump term.

Indeed, the wargamers expect readers to find their work heartening precisely because the bloodshed and strife will lead to the outcome they desire:

We hope that our work will reassure the American people that our system of government is resilient—having been crafted by the Founders to withstand crises and to emerge through the turmoil with a government of the people, by the people, for the people, that shall not perish from the earth, but endure to secure the Blessings of Liberty to ourselves and our children.


Establishment conservatives like to pretend they can insulate themselves from the Big Lie that Trump won the 2020 election.

But the Big Lie doesn’t stand up all by itself. It requires the supporting architecture of smaller lies and evasions, like the claim that our republic was never really threatened because Donald Trump lacks sufficient competence.

The particular focus on Trump the man misses the movement for its leader.

Given the weight of the evidence against that larger movement, one wonders if the myopia is intentional.

Christian Vanderbrouk served eight years in the George W. Bush administration, and later managed global affairs and government relations at the New York Stock Exchange. He can also be found on Twitter at @urbanachievr.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Nov 20, 2021 3:51 am

Part 1 of 2

79 Days to Inauguration Taskforce Report: A Project of the Claremont Institute and the Texas Public Policy Foundation
by Claremont Institute and Texas Public Policy Foundation
November 4, 2020



Highlights:

Purportedly aiming to make sense of this fraught election year, in early August, the Transition Integrity Project (TIP) released a report suggesting that President Donald Trump would not likely leave office without an unprecedented struggle. The TIP, a self-proclaimed “bipartisan” group of some 100 people, was entirely composed of those utterly opposed to President Trump. Their purpose wasn’t so much gaming out plausible post-election scenarios as much as it was to generate breathless propaganda suggesting that no matter the outcome, President Trump would refuse to leave the White House on Jan. 20, 2021, Inauguration Day.

TIP’s effort marks a lost opportunity, one that the Claremont Institute in partnership with the Texas Public Policy Foundation (TPPF), sought to remedy with their own simulation of election night and what might be a highly charged and competitive aftermath—a contest after the contest....

The TIP effort appears to have labored under a serious Mirror-Image Fallacy in that it assumed that Republicans under President Trump would routinely violate the law to win, threaten mass demonstrations in the streets, seize the assets of political opponents, and start a conflict overseas to divert attention from the highly-contested post-election period.

In contrast, the Claremont-TPPF simulation featured vigorous use of the courts by both sides, with the Biden team seeking to negate state election law to maximize the counting of late or flawed mail-in ballots while the Trump team sought to have state election law followed... our simulation also featured the Biden team calling protesters to the streets....


The team foresaw four significant post-election eventualities: widespread urban unrest; state and federal litigation; brazen media and social media narrative shaping (detailed in Appendix C); and foreign interference and adventurism. The first two issues are detailed in the appendices.

State and local public safety authorities should be prepared for destructive urban unrest as well as communications difficulty due to interference with or overload of systems, such as the 9-1-1 system. Potential targets include ballot counting facilities, government buildings, especially state capitols and city halls, as well as television and radio studios. At the same time, prudent steps are likely to be spun as preparations for a military takeover or coup and may result in negative consequences either way.

-- 79 Days to Inauguration Taskforce Report: A Project of the Claremont Institute and the Texas Public Policy Foundation, by Claremont Institute and Texas Public Policy Foundation


Executive Summary

There is no shortage of polls or pundits offering predictions on the outcome of the 2020 Presidential election. But “outcomes” include more than simply election results; who is gaming out how America—and the world—will respond? We are.

While national polls suggest an edge for Vice President Joe Biden, the winner isn’t determined by national polls—it is determined by who wins the Electoral College. Victory is won in the states.

Due to the political stoking of fears of contracting COVID-19, a massive push has been made, mostly by the left, to encourage voting by mail. This significantly alters the calculus on Election Day and completely upends the post-election period.

Most states and local election officials aren’t prepared to process, validate, and count large number of mail-in ballots. In five swing states (totaling 68 Electoral College votes)—Georgia, Iowa, Michigan, Pennsylvania, and Wisconsin—no mail-in ballots may be counted before Election Day (Nevada’s legislature changed election law to allow early mail-in ballot counting in August). Since reports indicate a far greater interest in voting by mail for Democrats than Republicans, it’s likely that President Trump will be winning these states by large margins on Election Day, only to see that margin shrink in the days and weeks after Election Day.

Further, voting by mail doesn’t result in the same success rate as does voting in person. The Washington Post reported that some 534,000 ballots were rejected during the 2020 primaries, either because they arrived late, the voter’s signature appeared invalid, or other failures. A separate analysis published in the Post found that as many as 4.9% of mail-in ballots fail to result in a counted vote. Depending on the state and the share of the vote by mail for each major party, the 1 in 20 ballots that fail to convert into a vote could be determinative.

Adding uncertainty to what is a routine exercise in vote counting (the 2000 contest in Florida being an exception) is this year’s urban unrest. An election night featuring competing claims of victory, confusion, and early calls by the media, only to be reversed on the receipt of newer data, may lead to post-election violence unlike that seen in more than 150 years.

THE WINNER WILL NOT BE KNOWN ON ELECTION NIGHT DUE TO MILLIONS OF UNCOUNTED MAIL-IN BALLOTS IN 5 BATTLEGROUND STATES

• THE POST-ELECTION PERIOD WILL LIKELY SEE A TRUMP LEAD STEADILY ERODED BY MAIL-IN BALLOT COUNTING

• LAWSUITS WILL BE FILED IN MANY STATES, WITH REPUBLICANS SEEKING TO UPHOLD STATE LAW AND DEMOCRATS SEEKING RELIEF FROM STATE LAW

• THE U.S. CONSTITUTION IS REMARKABLY RESILIENT IN CHALLENGING TIMES AND THE AMERICAN PEOPLE SHOULD GIVE IT TIME TO WORK

• SHOULD THE ELECTORAL COLLEGE NOT PRODUCE A WINNER, THERE ARE TWO ISSUES OF CONCERN: THE ABILITY OF THE HOUSE MAJORITY TO DENY THE SEATING OF NEWLY ELECTED MEMBERS AND HOW LONG THE SPEAKER MIGHT SERVE AS TEMPORARY PRESIDENT UNDER THE SUCCESSION ACT

• MAJOR MEDIA AND INTERNET GIANTS WILL ACTIVELY SEEK TO SHAPE THE POST-ELECTION NARRATIVE, SUPPRESSING INFORMATION OF WHICH THEY DON’T APPROVE

• THERE IS AN INCREASED CHANCE OF URBAN UNREST, ESPECIALLY IN JURISDICTIONS WHERE LOCAL AND STATE OFFICIALS ARE RELUCTANT TO MAINTAIN ORDER

• CHINA AND RUSSIA MAY TRY TO INCITE VIOLENCE

• THERE IS A GREATER LIKELIHOOD OF OVERSEAS CONFLICT INITIATED BY POWERS THAT MISUNDERSTAND THAT AMERICA HAS ONE PRESIDENT AT A TIME


Purportedly aiming to make sense of this fraught election year, in early August, the Transition Integrity Project (TIP) released a report suggesting that President Donald Trump would not likely leave office without an unprecedented struggle. The TIP, a self-proclaimed “bipartisan” group of some 100 people, was entirely composed of those utterly opposed to President Trump. Their purpose wasn’t so much gaming out plausible post-election scenarios as much as it was to generate breathless propaganda suggesting that no matter the outcome, President Trump would refuse to leave the White House on Jan. 20, 2021, Inauguration Day.

TIP’s effort marks a lost opportunity, one that the Claremont Institute in partnership with the Texas Public Policy Foundation (TPPF), sought to remedy with their own simulation of election night and what might be a highly charged and competitive aftermath—a contest after the contest.

For the task, Claremont and TPPF assembled a taskforce of 35 people, and over the course of seven days, these Constitutional scholars, along with experts in election law, foreign affairs, law enforcement, and media, made decisions as to how they would react to fast-moving events. The entire operation was coordinated by a retired military officer experienced in running hundreds of wargames.

The Claremont-TPPF effort produced a detailed roadmap of the likely challenges at the state level, how those might be adjudicated in the state and federal court, how domestic unrest and foreign adventurism might intensify, and, in the unlikely event that the Electoral College cannot determine a winner, how a President and Vice President could be constitutionally determined.

The team foresees three basic scenarios, one of which was gamed out in detail:

• A clear victory for President Trump, winning 32 states and 322 Electoral College votes, better than the 304 Trump won in 2016, but, due to the massive use of mail-in ballots, especially in the five states in which counting cannot commence until Election Day, victory likely won’t be formally declared until days or weeks after election day as Trump would only have 248 Electoral votes known for certain.

• A clear victory for Vice President Biden, winning 26 states and D.C. for a total of 342 Electoral College votes. Again, because of the six states that cannot count mail-in ballots until Election Day, even in this scenario, victory won’t be known for certain as Biden may only have 268 Electoral votes late into election night.

• An ambiguous result, with several states’ final election results delayed and subject to intense court fights resulting in a struggle right up to the Jan. 6 joint session of Congress where the Electors’ ballots are unsealed. Uncertainty could extend even beyond this as decisions for both the presidency and vice presidency are battled out in Congress and before the U.S. Supreme Court.

It is this last scenario that the team simulated in detail. The key takeaways from the effort included:

• Regardless of the outcome, the winner isn’t likely to be known on election night.

• The large number of mail-in ballots may prove hard to validate in many states, as systems have not been prepared to process the ballots and count them while tremendous pressure will be brought to bear to bypass safeguards against fraud and produce results.

• When employed, the legal system will be up to the task of adjudicating disputes over election results.

There is a significant chance for unrest, stoked by a major media in which the American people have lost trust, by domestic opponents to America’s Constitutional system, and by foreign powers, mainly the People’s Republic of China (PRC) and Russia. Further, major media and the internet giants (Facebook, Twitter, Google) will actively shape and suppress news.

• There is a heighted danger of international adventurism by the PRC and Russia, the leaders of which, misperceiving the nature of American governance, may think that the post-election uncertainty gives them leave and opportunity for military action.

• If the contest doesn’t produce a majority (50% +1) of the votes of seated Electors by Jan. 6, there are clearly established Constitutional procedures to determine a victor.

• There are two areas of uncertainty at the late stage of a contested election:

o Each house determines the final election results of its membership. This means that the Democratic majority in the U.S. House might decide not to seat duly elected Republican Members so as to prevent the Republicans from holding a 26-seat majority in the state delegations in the event that state delegations, each with one vote per state, are used to determine the President in the event that no candidate has the needed absolute majority of seated Electors’ votes. Given that the majority’s power to determine the membership of the body, House or Senate, is absolute, the sole check on the use of this absolute political power is the potentially dire consequences of its abuse.

o Should the results be undetermined through Jan. 20, Inauguration Day, the Succession Act would suggest that the Speaker of the House would become President. Should the results be undetermined through Jan. 20, Inauguration Day, the Succession Act would suggest that the Speaker of the House would become acting President until one is determined and, if the House cannot decide, then elevating the Vice President, even if selected out of the Senate.


Comparing the TIP wargame to the Claremont-TPPF simulation

In August, the Transition Integrity Project (TIP) issued a report regarding the “results” of its “wargame” conducted over the summer. The “wargame” was conducted by about 100 Democrats and so-called “Never-Trump” Republicans, allowing it to be characterized as “non-partisan.”

TIP’s four scenarios were:

• Ambiguous. The first game investigated a scenario in which the outcome of the election remained unclear from election night and throughout gameplay. The results from three states are in contention and ballots are destroyed in one of the states, making it unclear who should have won that state. Neither campaign is willing to concede.

• Clear Biden Victory. Biden wins both the Electoral College and the popular vote. Trump alleges fraud and takes steps to benefit himself and his family but ultimately hands the White House over to Biden.

• Clear Trump Win. The third scenario started with an Electoral College victory for President Trump (286 to 252), but a popular vote win (52% to 47%) for former Vice President Biden. In this scenario Biden refused to concede, convinced the Democratic governors of two states that Trump won to send separate slates of electors to the Electoral College, encouraged three states to threaten secession and convinced the House of Representatives to refuse to certify the election and declare Biden the victor.

• Narrow Biden Win. The final scenario explored a narrow Biden win where he leads with less than 1% of the popular vote and has a slim lead at 278 electoral votes. The Trump campaign sows chaos but Senate Republicans and the Joint Chiefs of Staff eventually signal that they accept Biden's win. Trump refuses to leave and is removed by the Secret Service.

In response to TIP’s 2020 election wargaming, the Claremont Institute and the Texas Public Policy Foundation brought together 35 Constitutional, legal, political, foreign affairs, and law enforcement experts to simulate the post-election period, carrying the contest to the furthest Constitutional endpoint.

The TIP effort appears to have labored under a serious Mirror-Image Fallacy in that it assumed that Republicans under President Trump would routinely violate the law to win, threaten mass demonstrations in the streets, seize the assets of political opponents, and start a conflict overseas to divert attention from the highly-contested post-election period.

In contrast, the Claremont-TPPF simulation featured vigorous use of the courts by both sides, with the Biden team seeking to negate state election law to maximize the counting of late or flawed mail-in ballots while the Trump team sought to have state election law followed. As with the TIP wargame, our simulation also featured the Biden team calling protesters to the streets. The TIP effort hinted at how this might get out of hand, noting on page 9 of their report,


During TIP’s exercises, Team Biden almost always called for and relied on mass protests… participants in the exercise noted that racial justice activists and others will likely act independently of the Biden campaign…


This is TIP’s candid admission of the high likelihood of Team Biden encouraging street demonstrations that might spiral out of control. The Claremont-TPPF team simulation also saw this left-wing street violence as a near-certainty. Instructively, the TIP organizers urged Democrats to coordinate with the leadership of “recent demonstrations”—presumably, Black Lives Matter and Antifa—while meeting their demands (Reparations? Defund the Police?), writing,

If anything, the scale of recent demonstrations has increased the stakes for the Democratic Party to build strong ties with grassroots organizations and be responsive to the movement’s demands.


Lastly, there are two areas where the TIP team admits they didn’t do a lot of work,

Two words of caution about the findings from the exercises. First, TIP intentionally did not game legal strategies in any detail… One question is whether a candidate is able to convince the state legislature to send a package of electoral college votes inconsistent with the certified popular vote. Even if a court disapproved of this action, Congress might nonetheless consider those votes on January 6. Second, the exercises were not able to fully capture the ways in which the media will shape and drive public opinion, or how specific media outlets would cover events differently and drive increasingly partisan responses. Social media in particular will undoubtedly play a heavy role in how the public perceives the outcome of the election. Political operatives, both domestic and foreign, will very likely attempt to use social media to sow discord and even move people to violence. Social media companies’ policy and enforcement decisions will be consequential, and this merits further exploration and consideration.


Claremont and TPPF recruited players to simulate state and federal courts, including the U.S. Supreme Court, as well as major media outlets and social media firms. This is a significant portion of our output.

Unlike TIP’s effort, which appeared aimed more at generating headlines unfavorable to President Trump, the Claremont-TPPF effort had as its objective conducting a full simulation of an ambiguous election outcome having a three-fold intent:

1. Document the Constitutional, legal, and precedent-shaping history to support what might happen and actions the players on all sides may take.

2. Prepare key officials and supporters for the coming crisis.

3. Prepare the public and key institutions to recognize the post-Election landscape to reduce hype and fear and instill confidence in Constitutional mechanisms.

As such, unlike the TIP effort, the Claremont-TPPF exercise includes footnotes linking to online sources for important Constitutional, legal, or historical matters.

The Claremont-TPPF simulation

For a simulation to be valuable, the other side gets a vote and actions must be based in realism.

The Claremont-TPPF simulation used an iterative process running over the course of six days to simulate the days and weeks after Election Day. Chuck DeVore, vice president of National Initiatives for TPPF designed and led the simulation. As a U.S. Army lieutenant colonel intelligence officer, now in the retired reserve, and a Reagan-era special assistant for foreign affairs in the Pentagon, DeVore has created, run, or participated in hundreds of wargames, including those which resulted in military action.

Our effort employed some 35 players representing key people or entities such as: President Trump, Vice President Pence, Vice President Biden, Senate Majority Leader McConnell, Speaker Pelosi, the U.S. Supreme Court, various U.S. Circuit courts, state supreme courts, state governors and legislatures, major media groupings, internet companies, law enforcement, the intelligence community, street protesters, the People’s Republic of China, Russia, and others.

The simulation started on Election Night and proceeded with one turn every day. If a player wanted to coordinate an action, they were encouraged to do so, so long as it would be realistic in real life. Intended actions did not always result in exactly what the players wished as those actions could themselves be acted upon by other players or by friction—understood by Karl von Clausewitz as “the concept that differentiates actual war from war on paper.”

The turns represented the following timeline:

1. Election Night and the following day

2. Nov. 4-5, counting the votes and legal challenges

3. Nov. 6-12, intensifying legal challenges over disputed ballots

4. Nov. 13-Dec. 3, certifying the election results and seating the Electors

5. Dec. 4-Jan. 6, Electors vote and the joint session of Congress

6. Jan. 7-Jan. 20, Inauguration Day

All participants were given the following as the starting scenario.

Election Night, Nov. 3.

Former Vice President Joe Biden is declared the winner by all major networks by 11:05pm Eastern with 280 Electoral College votes as polls close on the West Coast. Biden leads in the popular vote with 49% to President Trump’s 47.5% with minor candidates netting 1.5%. Pressure builds on President Trump to accept the results and concede. (Map by Real Clear Politics.)

Image

At 11:12pm, reports out of Texas indicate that the internet communication of county results to the Secretary of State’s central tabulation was hacked. All county results are correct, though many counties had their election reporting webpages disrupted by denial of service attacks. County election officials, alarmed at the attack, call the Secretary of State and alert the official to the actual results.

By 11:35pm, Texas is moved from a Biden upset to too close to call. No candidate has the needed 270 Electoral College votes to be declared a winner
, with the margin of Election Day votes in four states, Florida, Michigan, Pennsylvania, and Texas smaller than the number of outstanding mail-in and provisional ballots, though Trump leads in all four states.

Riots break out in more than a dozen major cities, including Seattle, San Francisco, Sacramento, Los Angeles, Chicago, Detroit, St. Louis, Houston, Louisville, Miami, Philadelphia, New York, and Boston. 14 law enforcement officers are known to have been shot, with one confirmed death. There are unconfirmed reports of a car bombing of a police precinct building in Philadelphia.

Biden must win either Texas or Florida or Michigan and Pennsylvania to win. Trump must win Florida and Texas and either Michigan or Pennsylvania to win using the Electoral College.

Image

Wednesday morning. Foreign actors are now suspected of being behind the confusion out of Texas.

From that beginning on Monday morning, the team worked through Saturday, making decisions on the following major milestones:

• On election night, Texas is called for Biden early as a surprise upset, only to discover minutes later that hacking (from foreign powers as is determined the following morning) caused the results to be improperly reported at the state level (the county counts being accurate). This put the race back into undecided status with Florida, Michigan, Pennsylvania, and Texas too close to call—a condition further compounded by the large number of uncounted mail-in ballots in Michigan and Pennsylvania. (In reality, we may see that in Georgia, Iowa, and Wisconsin as well due to state law preventing the counting of mail-in ballots before Election Day.)

• The early calling of the race for Biden followed by the change back to undecided served as a catalyst for urban unrest. This unrest was stoked by foreign powers, especially China and Russia. It was further complicated by local politicians unwilling to vigorously restore order.

• As the lawsuits and court cases stacked up and were resolved, eventually Texas and Florida were called for Trump, about a week after the election with Pennsylvania following shortly after for Biden, leaving the Electoral College count at 262 Biden, 260 Trump.

• With America fully occupied with the most-contested post-election period since 1876, the PRC took the initiative to amplify their genocide against the Uyghurs while increasing pressure on Taiwan. Russia made a move on Belarus, seized the Suwalki Corridor, and sent unconventional forces into Estonia and Latvia (the “Little Green Men”). These actions were not without consequences as the U.S. retaliated with offensive cyber operations on both nations, causing economic damage.


• The contest came down to Michigan, where Trump was leading by a few hundred votes when a fire of unknown origin destroyed thousands of uncounted mail-in ballots in Detroit. Michigan’s Secretary of State refused to certify the election.

• The Michigan Legislature failed to provide clarity as, though the Republicans controlled the State Senate, the State House was deadlocked 55-55. Michigan’s 16 Electors were not seated.

• At this point, sometime around December 8, Republicans sought legal remedies to force the seating of Michigan’s Electors.

• The Republican efforts fail to seat Michigan’s Electors, leaving the final count 262 to 260. The Constitution doesn’t require 270 (a majority of 538), rather, it requires a majority of the seated Electors, meaning Biden/Harris would win at this point—assuming there were no faithless electors (in 2016, there were seven).

Republicans hear of the Speaker’s plan to deny the seating of key Republican Members in certain closely-contested races (each house is the judge of their own elections) to shift the state delegation count from a 26 Republican majority, 22 Democrat and two tied, to a majority of 26 for the Democrats, or, failing that, something less than 26 for the Republicans. The Speaker’s intent is to become President herself on January 20. In response, Republicans conduct a major nationwide poll on what the public would think about such a radical power grab and massively publicize it. (The rationale here is that, like impeachment, such acts are political acts, and, as such, incur political consequences.) Public opinion turns massively against the power grab and the Speaker publicly backs off, likely anticipating a victory anyway on a 262 to 260 vote of the Electors.

• As Congress assembles to unseal the Electors’ ballots, there are two faithless electors from states without laws preventing such electors from voting in line with the state’s vote. The count is 261 Biden, 260 Trump, 1 Sanders. Per the Constitution, a majority of the seated Electors’ votes is needed to win, meaning 50% +1. The vote for President moves to the House for a vote by state delegation, with the top three candidates on the first ballot. The vote for Vice President was 261 to 261, one faithless elector voting for Biden and Pence. The vote for Vice President moves to the Senate.

• In the House, the Speaker considers not calling the House to prevent the vote, but the President calls the House into session.

• Over in the Senate, a 2/3rds quorum is needed to start the process of selecting the Vice President. The Democrats walk out and the Vice President orders the Sergeant-at-Arms to arrest the Members and bring them to the chamber. A quorum is established, but two members of the majority vote for the Democrat, leading to a 50-50 tie. The Vice President breaks the tie by casting the deciding vote for himself.

As the House is returning to session to vote by state delegation, there is a massive and violent Antifa demonstration in D.C. In the confusion, a Republican member from an at-large delegation is attacked and sent to the hospital with life-threatening wounds. With only 25 state delegations in control, it looks like the Speaker might become temporary President on January 20 per the Succession Act pending the elevation of the Vice President or unless the House comes to agreement. The critically injured Member of Congress, however, understanding what is at stake, demands to be transported to the House for the state delegation vote and arrives in a heavily guarded convoy. With IVs and blood transfusions being administered, the Member from (AK, MT, ND, SD, or WY) casts the deciding vote, giving Trump 26 state delegations and the needed majority.


The team responded as events unfolded, deploying tactics such as press conferences, leaks, calls for demonstrations (with the urban unrest in Appendix B), and lawsuits with the latter generating a significant body of legal scholarship (seen in Appendix A).

Foreign powers took advantage of the mounting confusion in America by stoking violence and increasing military activities on their borders.

The media and internet firms vigorously censored stories unfavorable to the Biden/Harris team, for instance, not reporting allegations of election fraud and shutting down any discussion along those lines. This effort was pervasive and aggressive, forcing the public to find alternative means of collecting and sharing information.

Recommendations

The team foresaw four significant post-election eventualities: widespread urban unrest; state and federal litigation; brazen media and social media narrative shaping (detailed in Appendix C); and foreign interference and adventurism. The first two issues are detailed in the appendices.

State and local public safety authorities should be prepared for destructive urban unrest as well as communications difficulty due to interference with or overload of systems, such as the 9-1-1 system. Potential targets include ballot counting facilities, government buildings, especially state capitols and city halls, as well as television and radio studios. At the same time, prudent steps are likely to be spun as preparations for a military takeover or coup and may result in negative consequences either way.

Legal arguments need to be anticipated and prepared now, during the relative calm of the pre-election environment.

Methods of bypassing the major media while breaking through social media censorship need to be planned. (The simulation was run a week before Facebook and Twitter censored the New York Post series on Hunter Biden, predicting the behaviors seen by the internet giants during the week of October 12). For instance, campaigns and parties might encourage their supporters to sign up for email updates or to check in with specific websites (the establishment of backup servers would be prudent as well). Talk radio may also be a good source of news that may be difficult to embargo.

The likelihood of foreign intervention and military adventurism might be diminished by keeping the Secretaries of Defense and State focused on projecting the message that America only has one chief executive at a time and that the U.S. is more than capable of defending its interests during even a contentious and uncertain post-election period.

Conclusions

America already has a well-established “transition integrity” procedure—the Constitution.

It is the participants’ earnest desire that this scholarship will illuminate the path for both state elected officials and local election officials as they struggle through what may likely be the most difficult period of their professional careers.

Furthermore, we hope that our work will reassure the American people that our system of government is resilient—having been crafted by the Founders to withstand crises and to emerge through the turmoil with a government of the people, by the people, for the people, that shall not perish from the earth, but endure to secure the Blessings of Liberty to ourselves and our children.

Ryan Williams, President, Claremont Institute

Chuck DeVore, Vice President, TPPF, former California State Assemblyman, (simulation designer and umpire)

John Eastman, Senior Fellow of the Claremont Institute

Jeff Giesea, entrepreneur, communications strategist

Charles Haywood

Jason Isaac, Director, Director of Life: Powered, TPPF, former Texas State Representative

Brian T. Kennedy, President, The American Strategy Group

KT McFarland, former Deputy National Security Advisor

Roy Maynard, Senior Writer, TPPF

Kevin Roberts, Executive Director, Texas Public Policy Foundation

Chelsea Murphy, Florida State Director for the Right on Crime Initiative, TPPF

Jeff Nyquist

Ky Olbert, Independent Researcher

Gladden Pappin, Department of Politics, University of Dallas and Deputy Editor, American Affairs

Randy Petersen, Senior Researcher, TPPF

James Quintero, Director, Center for Local Governance, TPPF

Kyle Shideler, Director/Senior Analyst for Homeland Security and Counterterrorism, Center for Security Policy

Ron Simmons, Distinguished Senior Fellow, TPPF, former Texas State Representative

APPENDIX A – Lawsuits and Court Decisions

FLORIDA

The Biden campaign and the DNC files


FL state law prohibiting the counting of ballots received after polls closed is an unconstitutional deprivation of the fundamental right to vote under the Voting Rights Act and the 14th Amendment. Florida law, while questionable in normal times, is unconstitutionally restrictive during a pandemic, when many—especially the disabled and minorities—voters are less able to obtain or renew valid ID in a timely manner and are thus less able to fulfill the official requirements for mail-in voting.

Florida Supreme Court Ruling

This Court (the Supreme Court of Florida) has been made aware that a lawsuit was filed earlier today in the 17th Circuit Court (Broward County) by attorneys for the Biden for President campaign, alleging that the requirement in Florida law, Fl. St. § 101.67 that absentee ballots must be received by the supervisor of elections of the county of the voter's residence by 7:00 p.m. on Election Day deprives voters of the fundamental right to vote in violation of the federal Voting Rights Act and the 14th Amendment. Given the time sensitivity of this challenge, and the fact that the complaint raises a matter of pure law, we are directing the Circuit Court to transfer the case to this Court in the exercise of our original jurisdiction, pursuant to Rule 9.030(a)(3) of the Florida Rules of Court. The Secretary of State, as the Chief Elections Office of Florida, is directed to file an answer to the complaint, together with any supporting memorandum of legal points and authorities, by Noon tomorrow (Wednesday, Oct. 6, simulated time). The Clerk of Court is directed to give notice of this Order to the Circuit Court, the attorneys for Plaintiff, and the Secretary of State of Florida forthwith.

Biden for President 2020, Plaintiff, v. Laurel M. Lee, in her official capacity as Secretary of State of Florida, Defendant.

Florida Supreme Court Ruling

The Court (the Supreme Court of Florida) rejects the Biden campaign's challenge to the absentee ballot requirements of Fl. St. Sec. 101.67. Voting is one of the foremost rights protected by the Fl. constitution. The Fl. legislature is duly authorized to establish rules and regulations for the fair and efficient administration of elections, and this for two reasons. First, the very nature of an election is to have a defined point at which the receipt of ballots is complete and a victor is declared. Plaintiffs urge no reason to believe that the 7pm election-day deadline deprives voters of their rights anymore than a statutory deadline of a week before or a week after the election. The legislature has determined that requiring the receipt of ballots by the evening of election day secures an efficient resolution to the election process. The court will not second guess that decision. Second, ballot requirements are designed to prevent fraud and other misconduct that would taint the fairness and integrity of the election and cast doubt upon the validity of the results. Taylor v. Martin Cnty. Canvassing Brd., No. SC00-2448 (Fl. S.C., December 2000). These lofty goals permit the Fl. legislature to proscribe rules protecting the sanctity of the ballot box, and the court will not rewrite those statutory protections from the bench. This state's experience in the primary elections a few months ago demonstrates that only a small percentage of mailed ballots were not counted due to late return. Of those, it is unclear whether the ballots were even postmarked by the time they should have been received, illustrating one of the many, many problems with extending the deadline for absentee voting. Although "technical statutory requirements must not be exalted over this right" to vote, in the absence of fraud or evidence of intentional malfeasance by the legislature, this Court will not interfere with the election procedures. Palm Beach Canvassing Board v. Harris, No. SC00-2346 (Fl. S.C., December 2000). As this Court has previously expressed, "absent an assertion that there has been substantial noncompliance with the law, [We] do not believe that the possibility of affecting the outcome of the election is enough to justify ignoring the statutory deadline." Id.

MICHIGAN

The Biden campaign and the DNC files


Michigan state law requiring a valid postmark on mail-in ballots, while normally valid, is unconstitutional in light of the unprecedented lengths to which the Trump administration has gone to under-fund, under-resource, and generally manipulate the Postal Service's ability to process and distribute mail. All mail-in ballots that arrive within two weeks of election day, regardless of postmark, must be counted.

U.S. Court of Appeals for the Sixth Circuit Ruling

This Court (the U.S. Court of Appeals for the Sixth Circuit) has been made aware that a lawsuit was filed earlier today in the U.S. District Court for the Western District of Michigan (Lansing Division) by attorneys for the Biden for President campaign, alleging that the requirement in the Michigan Constitution that absentee ballots must be postmarked on or before election day to be counted is unconstitutional in light of the Trump administration's alleged efforts to "under-fund, under-resource, and generally manipulate the Postal Services ability to process and distribute mail." From the report we have received, it appears that the district court issued a writ of mandamus ordering county clerks to count all mail-in ballots that arrive within two weeks of election day, regardless of postmark. Anticipating an appeal from the Michigan Secretary of State and/or attorneys for the Trump 2020 Re-Election Campaign, and given the extreme time sensitivity involved in this matter, we hereby assert jurisdiction over the pending appeal, and reverse the judgement of the lower court, which is patently contrary to the further requirement in Michigan law, MI. St. § 168.764a, that absentee ballots must be received by the county clerk of the county of the voter's residence before the close of polls on Election Day to be counted, a statute that was just upheld this past summer by the Michigan Court of Appeals against a constitutional challenge. See League of Women Voters of Michigan v. Sec'y of State, No. 353654, 2020 WL 3980216 (Mich. Ct. App. July 14, 2020), appeal denied, 946 N.W.2d 307 (Mich. 2020), reconsideration denied, 948 N.W.2d 70 (Mich. 2020). County Clerks are directed to count only those absentee ballots that were received in their office before the close of polls at 8:00 p.m. Eastern time on election day.

U.S. Court of Appeals for the Sixth Circuit Ruling

Case No. 20-1001

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPUBLICAN PARTY OF MICHIGAN, Plaintiff-Appellant
v.
JOCELYN BENSON, SECRETARY OF STATE OF MICHIGAN, Defendant-Appellee

On Appeal from the United States District Court for the Eastern District of Michigan

FILED November 6, 2020

BEFORE: SUTTON, THAPAR, and LARSEN, Circuit Judges

Michigan law, MI. St. § 168.764a, quite clearly requires that, in order to be counted, vote-by-mail ballots must be “received” by the county clerk before the close of polls on election day, which this year was 8:00 p.m. on Tuesday, November 3. That law was upheld by the Michigan Court of Appeals as recently as July, in a decision that the Michigan Supreme Court twice declined to review. League of Women Voters of Michigan v. Sec'y of State, No. 353654, 2020 WL 3980216 (Mich. Ct. App. July 14, 2020), appeal denied, 946 N.W.2d 307 (Mich. 2020), reconsideration denied, 948 N.W.2d 70 (Mich. 2020). It was relied on by this Court only two days ago when we reversed a decision by the District Court for the Western District of Michigan ordering, at the request of the Biden for President Campaign Committee, that county clerks accept and count ballots received up to two weeks after election day, regardless of postmark. In that decision, we ordered County Clerks to count only those absentee ballots that were received in their office before the close of polls at 8:00 p.m. Eastern time on election day. Our ruling became final later that same day, when an emergency petition for writ of certiorari was denied by the Supreme Court of the United States.

Nevertheless, based on a decision last month by a state inferior court judge in the Michigan Court of Claims that ordered county clerks to accept and count ballots received up to two weeks after election day—in a case that has all the hallmarks of being a collusive suit, brought by the Michigan Alliance for Retired Americans (a group closely aligned with the Michigan Democrat Party) against the Michigan Secretary of State (also a Democrat), who did not oppose MARA’s request for an injunction, which was granted by the Court of Claims Judge (a recent appointee of Democrat Governor Gretchen Whitmer), and which the Michigan Attorney General (also a Democrat) declined to appeal—county clerks have been counting said ballots, in direct violation of our order. The argument put forward to the Court of Claims and accepted by that Court is that neither our order nor the July ruling by the Michigan Court of Appeals took account of the fact that the U.S. Postal Service was indicated that it could not guarantee the timely delivery of vote-by-mail ballots. The “evidence” in support of that claim appears to have been manufactured to create the plausible ground for the collusive suit, by a long-time career employee of the Postal Service (also a Democrat) who, in his capacity as General Counsel of the Service, sent a letter to the Democrat leadership of the Senate (and only the Democrat leadership) complaining that changes proposed by the recently-appointed head of the postal service would cause delays in postal delivery. Those claims were disavowed in sworn testimony before the Senate by the head of the agency, but the General Counsel then, on his own initiative, sent letters to several state Secretaries of State repeating the charges he had made in his initial letter. Copies of those letters were then provided to major media organizations, along with a picture of chained mailboxes (which, in fact, was a decade old, taken merely for nostalgic purposes to document that modern communications via the internet were making a lot of the postal system’s old post offices obsolete).

In response to this, the Republican Party of Michigan yesterday filed an emergency request for an injunction to prevent the counting of ballots received after election day, in violation of Michigan law. It argued that the Court of Claims order compelling the County Clerks to count said ballots violated the Equal Protection Clause of the 14th Amendment as well as the Republican Guaranty Clause of Article IV. The district court denied the injunction, and the Republican Party of Michigan filed an emergency appeal with his Court late last night.

We agree with the district court that the decision of the Court of Claims does not violate the Equal Protection Clause, because the order to count late-received ballots has equal application throughout the State. But we disagree with the district court’s holding that the Republican Guaranty Clause is not violated. That Clause, long thought to be non-justiciable, was revived by Justice O’Connor in New York v. United States, where she contended that it would be justiciable in the situation where state officials were ignoring the structural requirements of their own state law.

That has occurred here. The federal Constitution makes clear that the “Manner” for choosing electors shall be directed by the Legislature. U.S. Const. Art. II, § 1, cl. 2. The Michigan legislature as determine that vote-by-mail ballots must be received by the close of polls on election day. To allow a low-level court of claims judge, rather than the legislature itself, to alter that “manner” of election, with apparent complicity from the executive officials of the state, is to ignore those basic structural requirements.

We therefore grant the requested injunction. The county clerks are again ordered to county only ballots received in their office before 8:00 p.m. on election day, November 3. For any ballots received after that time and day that have already been counted, those ballots are to be removed from the final tally (to the extent possible). The decision below is REVERSED.

U.S. Court of Appeals for the Sixth Circuit Ruling

Case No. 20-1001
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPUBLICAN PARTY OF MICHIGAN, et al., Plaintiffs-Appellants
v.
GRETCHEN WHITMER, GOVERNOR OF THE STATE OF MICHIGAN; JOCELYN BENSON, SECRETARY OF STATE OF MICHIGAN; MICHIGAN BOARD OF STATE CANCASSERS, Defendants-Appellees
On Appeal from the United States District Court for the Western District of Michigan
FILED January 2, 2021
BEFORE: MOORE, STRANCH, and READLER, Circuit Judges

Due to the overwhelming number of vote-by-mail ballots that were submitted for the presidential election last November 3, and disputes over the validity of large number of those ballots, the Michigan Governor had not certified who had been elected as electors for the State prior to December 14, 2020—the date set by federal law for the casting of electoral votes, see 3 U.S.C. § 6. Indeed, the Governor has still not certified electors, yet the date set by federal law for the counting of electoral votes in a joint session of Congress, January 6, see 3 U.S.C. § 12, is hard upon us. Efforts by the Vice President of the United States, in his role as President of the Senate, to obtain a certification of electors from the Governor pursuant to authority granted to him by 3 U.S.C. § 7, have been unavailing, as the issue is not simply one of the Governor’s failure to transmit the certificate of the electors’ vote, but of the fact that the election of the electors has itself still not been determined.

The Republican Party of Michigan, joined by the Trump for President Re-Election Campaign Committee, the Vice President (in his role as President of the Senate), the President Pro-Tem of the Senate Charles Grassley, Senate Majority Leader Mitch McConnell, and House Minority Leader Kevin McCarthy, filed this action in the court below seeking injunctive relief compelling the Secretary of State to certify the election of electors in Michigan, based on the vote tally as it exists now. The district court denied the request for injunctive relief without opinion, and the plaintiffs have filed an emergency appeal with this Court, as they are entitled to do under 28 U.S.C. § 1292(a)(1).

The standards for injunctive relief are well-known, and given the time urgency of this appeal, we will not repeat them here. Suffice it to say, a key requirement is the likelihood of success on the merits, and for that, there has to be some legal duty with which plaintiffs are attempting to compel Michigan officials to comply. We find no such legal duty in Michigan law. Section 841 of Chapter 168 does provide that “The board of state canvassers shall canvass the returns and determine the result of all elections for electors of president and vice president of the United States,” MI ST § 168.841 (emphasis added), but there is no timetable specified in that statute by which that duty must be completed. Section 46 of Chapter 168 provides that the Governor “shall certify” the names of the electors chosen at the election, but only “[a]s soon as practicable after the state board of canvassers has, by the official canvass, ascertained the result of [the] election.” MI ST § 168.46. She can hardly certify which electors have been chosen when the board of canvassers has not yet ascertained the election results. Section 47 of that same chapter mandates that said electors “shall convene” on the date specified by Congress, MI ST § 16 8.47 (emphasis added), but until the results of the election have been ascertained by the board of canvassers and the electors “certified” by the Governor, there are no such electors against whom that mandate can run.

Neither do we find any such legal duty in federal statutes or the U.S. Constitution. What we do find is a presumption that electoral votes cast by the First Monday after the Second Wednesday in December following the election (which this year was December 14) are valid unless both houses of Congress agree that the votes of said electors were not “regularly given.” But the failure of Michigan to avail itself of that safe harbor, or indeed to appoint electors at all, is not enjoined by any law or constitutional requirement.

One might contend that by failing to certify electors, Michigan officials have deprived the voters of Michigan of their right to vote for President and Vice-President of the United States. But there is no such right. Rather, as the Constitution makes clear, “Each State shall appoint, in such Manner as the Legislature thereof may direct, [the] Number of Electors” to which it is entitled. U.S. Const. Art. II, § 1, cl. 2. The Legislature of Michigan could remove the choice of electors from the people altogether without giving rise to any constitutional violation. What we have here is a failure to choose electors at all, but that is a function of the manner that the Legislature of Michigan has crafted for its process. Whether that was wise or foolish, it is a matter that the Constitution of the United States leaves entirely in the hands of the Legislature. Not only is there no duty that we could enforce by an injunction, there is no justiciable question for us to consider at all. We therefore cannot even affirm the district court’s denial of an injunction, but must dismiss the appeal for lack of jurisdiction, and remand to the district court to dismiss the action there for lack of jurisdiction as well.

The appeal is DISMISSED and the matter is REMANDED to the district court to enter an order DISMISSING the action there as well, for lack of jurisdiction.

The Biden campaign and the DNC appeals the ruling to the U.S. Supreme Court

MI state law requiring a valid postmark on mail-in ballots, while normally valid, is unconstitutional in light of the unprecedented lengths to which the Trump administration has gone to under-fund, under-resource, and generally manipulate the Postal Service's ability to process and distribute mail. All mail-in ballots that arrive within two weeks of election day, regardless of postmark, must be counted.
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