Trump lashes out at Gov. Doug Ducey following certification

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Chief federal judge in D.C. assails ‘almost schizophrenic’ Jan. 6 prosecutions: ‘The rioters were not mere protesters’
by Rachel Weiner
Washington Post
October 28, 2021 at 5:55 p.m. EDT



CORRECTION: An earlier version of this article misstated the name of a prosecutor who spoke at the hearing. It was Assistant U.S. Attorney Jamie Carter, not Assistant U.S. Attorney Mitra Jafary-Hariri. The article has been corrected.

The chief judge presiding over the federal court in Washington on Thursday unleashed a blistering critique of the Justice Department’s prosecution of Capitol rioters, saying fiery rhetoric about the event’s horror did not match plea offers involving minor charges.

“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”

While she and other judges have expressed similar concerns before, this was Howell’s first time sentencing a rioter and her first chance to fully air her views and demand answers from prosecutors. She took the opportunity, spending over an hour interrogating prosecutors on the decision to let Tennessee video game developer Jack Jesse Griffith plead guilty to the misdemeanor of parading inside the Capitol.

Howell, who was appointed by President Barack Obama in 2010, also oversaw portions of the investigation into Russian interference in the 2016 election. Before taking the bench, she served as a prosecutor and worked on cybersecurity law in the public and private sector.

Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?

“It seems like a bit of a disconnect,” Howell said — “muddled” and “almost schizophrenic.”

The parading charge carries a sentence of at most six months, with no supervised release.

“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”

After asking for probationary sentences in several cases, the government sought a three-month jail sentence for Griffith. Howell questioned what distinguished those cases from this one. Assistant U.S. Attorney Jamie Carter said prosecutors gave some defendants credit for early acceptance of responsibility. Griffith, she added, displayed a lack of remorse after the attack and continued to spread false election claims.

“Probation should not be the norm,” Howell said, but added that Griffith should not be punished more than others who engaged in similar conduct. Instead, she put him on probation for 36 months.

Other federal judges in D.C. have ignored probationary recommendations from prosecutors and imposed jail time in riot cases.

On Thursday, Griffith told the judge his behavior was “truly disgraceful.”

“I am ashamed of the way I acted,” he said. At the time of the break-in, he said, he thought it was a “minor inconvenience” for police, but he now understood they were “crippled by fear and wildly outnumbered.”

Prosecutors also agreed that Griffith, like other misdemeanor defendants, would pay only $500 in restitution. Howell calculated that if everyone charged paid that fine, it would amount to $300,000, while taxpayers are paying $500 million to improve Capitol security in the wake of the attack.

Assistant U.S. Attorney James Pearce said the government was in “somewhat uncharted territory.” The $500 number, he said, came from dividing the cost of repairs to the Capitol — $1.5 million — by the number of people believed to have entered the building — 2,000 to 2,500. Those charged with felonies are asked to pay more, and those charged with misdemeanors less.

The goal, he said, is “to make the victims whole.” Howell shot back that “it doesn’t even come close.”

She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”

It is unclear legally whether a judge can impose a sentence of jail time followed by probation for a petty offense such as parading. Prosecutors argued Howell could, while Griffith’s attorney maintained she had to choose one or the other.

The law is clear that a person can serve a mix of probation and intermittent jail time, prosecutors said. But Howell said it did not seem wise to have defendants going in and out of the prison system during an ongoing pandemic.

“My hands are tied,” Howell said in frustration. “In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.”

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Email From Trump Team Lawyer John Eastman Further Proves Conspiracy to Overturn Election Results
by Glenn Kirschner
Oct 31, 2021



John Eastman is the Trump team lawyer who authored and attempted to implement a 6-point plan to deprive Joe Biden of his election win. New reporting shows that Eastman sent an email to an aide to Vice President Mike Pence on January 6 WHILE THE CAPITOL WAS BEING ATTACKED BY TRUMPS' SUPPORTERS, blaming Pence for the attack because he did not block Joe Biden's win. This email directly contradicts Eastman's own attempts to explain away his memo.

The disclosure of this email shows how valuable the documents, call records, visitor logs, etc., that are maintained by the National Archives will become to the House select committees investigation AND to the Department of Justice.

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During Jan. 6 riot, Trump attorney told Pence team the vice president’s inaction caused attack on Capitol
by Josh Dawsey, Jacqueline Alemany, Jon Swaine and Emma Brown
The Washington Post
October 29, 2021 at 10:26 p.m. EDT


Attorney John Eastman, left, with President Donald Trump’s personal attorney Rudolph W. Giuliani, speaks at a rally on the Ellipse in Washington on Jan. 6. (Jim Bourg/Reuters)


As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.

The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.

“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud.

Eastman sent the email as Pence, who had been presiding in the Senate, was under guard with Jacob and other advisers in a secure area. Rioters were tearing through the Capitol complex, some of them calling for Pence to be executed.

Jacob, Pence’s chief counsel, included Eastman’s emailed remarks in a draft opinion article about Trump’s outside legal team that he wrote later in January but ultimately chose not to publish. The Washington Post obtained a copy of the draft. Jacob wrote that by sending the email at that moment, Eastman “displayed a shocking lack of awareness of how those practical implications were playing out in real time.”

Jacob’s draft article, Eastman’s emails and accounts of other previously undisclosed actions by Eastman offer new insight into the mind-sets of figures at the center of an episode that pushed American democracy to the brink. They show that Eastman’s efforts to persuade Pence to block Trump’s defeat were more extensive than has been reported previously, and that the Pence team was subjected to what Jacob at the time called “a barrage of bankrupt legal theories.”

Eastman confirmed the emails in interviews with The Post but denied that he was blaming Pence for the violence. He defended his actions, saying that Trump’s team was right to exhaust “every legal means” to challenge a result that it argued was plagued by widespread fraud and irregularities.

“Are you supposed to not do anything about that?” Eastman said.

He stood by legal advice he gave Pence to halt Congress’s certification on Jan. 6 to allow Republican state lawmakers to investigate the unfounded fraud claims, which multiple legal scholars have said Pence was not authorized to do.


Vice President Mike Pence exits the House chamber en route to the Senate after objections to the Arizona electoral votes were lodged during a joint session of Congress on Jan. 6. (Amanda Voisard/for The Washington Post)

Eastman said the email saying Pence’s inaction led to the violence was a response to an email in which Jacob told him that his “bull----” legal advice was why Pence’s team was “under siege,” and that Jacob had later apologized.

A person familiar with the emails said Jacob apologized for using profanity but still maintained that Eastman’s advice was “snake oil.” That person, like several others interviewed for this story, spoke on the condition of anonymity to discuss private conversations.

A Trump spokesman did not respond to a request for comment for this article.

The House select committee investigating the Jan. 6 attack has said that it plans to subpoena Eastman as it investigates his role in Trump’s efforts, which included two legal memos in which Eastman outlined how Republicans could deny Joe Biden the White House.

In the days before the attack, Eastman was working to salvage Trump’s presidency out of a “command center” in rooms at the Willard hotel near the White House, alongside such top Trump allies as Rudolph W. Giuliani.

Jacob wrote in his draft article that Eastman and Giuliani were part of a “cadre of outside lawyers” who had “spun a web of lies and disinformation” in an attempt to pressure Pence to betray his oath of office and the Constitution.

Jacob wrote that legal authorities should consider taking action against the attorneys.

“Now that the moment of immediate crisis has passed, the legal profession should dispassionately examine whether the attorneys involved should be disciplined for using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice,” he wrote in the draft.

Robert Costello, a lawyer for Giuliani, said Jacob had a right to his opinion. “This is an opinion piece, and not surprisingly, he agrees with his own opinion,” Costello said.

A bipartisan group of former government officials and legal figures, including two former federal judges, has asked the California bar association to investigate Eastman’s conduct.

Eastman’s memos gave several options for Pence to use the vice president’s ceremonial role of counting electoral college votes to halt Trump’s defeat. Eastman has argued that the 1887 Electoral Count Act is unconstitutional, and that the vice president has power under the 12th Amendment to decide whether electoral votes are valid.

Under the most drastic of the options outlined in the memos, Pence would have rejected electoral votes for Biden from states where Republicans were claiming fraud, making Trump the winner — a proposal that Eastman has more recently tried to disown as a “crazy” suggestion he did not endorse.

Eastman made the case for Pence to act during a meeting in the Oval Office with Trump, Pence, Jacob and Pence’s chief of staff, Marc Short, on the afternoon of Jan. 4, according to two people familiar with the discussions. The meeting was reported in the media soon after. Pence advisers said they had never heard of Eastman before January.

The meeting was called, the people said, because Trump was frustrated that Pence was not acceding to his demands, and wanted the vice president to hear arguments from Eastman, whom he viewed as having more credibility in legal circles than some of Trump’s other legal advisers.

Eastman argued that Pence should at least try the maneuver of not certifying electors on Jan. 6, because it had never been done before, and so had not been ruled on by the courts, one of the people familiar with the discussions said. Eastman told The Post he did not recall making “any such statement.”

Eastman said that, in response to a question from Pence, he said in the meeting that it was an “open question” whether Pence had the ability to unilaterally decide which electoral votes to count.

During a little-noticed radio interview that evening, Eastman said that although it would be politically impossible for a vice president to certify his “favorite slate of electors” without any evidence of fraud, the “level of corruption” in the 2020 vote could not be allowed to stand.

“I think that makes the exercise of the vice president’s power here very compelling,” Eastman said.

In a meeting the following day with Short and Jacob at the Eisenhower Executive Office Building, Eastman began by arguing that Pence should reject Biden electors, according to the two people. He did not share his memos outlining how to stop Biden’s victory with Pence’s team at either the Jan. 4 or the Jan. 5 meetings, according to the people familiar with the discussions. Eastman’s memos were first reported in the book “Peril” by Washington Post reporters Bob Woodward and Robert Costa.

Jacob wrote in his draft article that a Trump lawyer conceded to him in a Jan. 5 meeting that “not a single member of the Supreme Court would support his position,” that“230 years of historical practice were firmly against it,” and that “no reasonable person would create a rule that invested a single individual with unilateral authority to determine the validity of disputed electoral votes for President of the United States.”

The two people familiar with the matter said Eastman was the only lawyer in the Jan. 5 meeting.

By the end of the two-hour meeting, the people said, Eastman had conceded that having Pence reject Biden electors was not a good plan.

Eastman denied to The Post that he made concessions and said he never advocated for Pence to reject the electors outright. “That is false,” he said. “And distorting the conversation, which depends heavily on what scenario was being discussed.”

In telephone calls later on Jan. 5, Eastman proposed to Pence advisers that he take a less drastic option outlined in the memos of “sending it back to the states” for the unfounded fraud claims to be examined. Eastman also suggested on several occasions, according to the people with knowledge of the meetings, that Pence could intervene because the courts would invoke “the political question doctrine” and not intervene.

“But if the courts stayed out of a standoff between the Vice President and Congress over the fate of the presidency, then where would the issue be decided? In the streets?” Jacob wrote in his draft op-ed.

Eastman told The Post: “I did not push for electors to be thrown out, but for the disputes to be referred to state legislatures, as had been requested by key legislators in several states, for assessment of the impact of the acknowledged illegality in the conduct of the election.”

Around 1 p.m. on Jan. 6, as Trump addressed supporters at a rally near the White House, Pence’s office released a letter to Congress stating that he would not block the certification. Thousands of Trump supporters marched to the Capitol and rioted.

“What the lawyers did not tell the crowd — and to the best of my knowledge, never told the president — is that they were pushing an abstract legal theory that had overwhelming drawbacks and limitations,” Jacob wrote in the op ed.

Jacob wrote that Pence never considered a different course of action.

After the unrest began on Jan. 6, Jacob sent an email to memorialize his conversation with Eastman from the day before, according to the two people with knowledge.

After Pence was escorted out of the Senate, Jacob emailed Eastman to criticize the legal advice he had pushed to Pence on stopping certification.

“Thanks to your bull----, we are now under siege,” Jacob wrote, according to Eastman. Eastman, while willing to discuss the email, declined to provide a copy to The Post. One of the other people with knowledge of the matter confirmed the content of Jacob’s email.

That led to Eastman sending the email stating that Pence’s decision led to the “siege.”

The two exchanged further messages in which Jacob apologized for his expletive, but not his critiques, and Eastman said that he had wanted Pence to postpone the count to allow states to investigate, according to Eastman and the two people familiar with the exchange.

That evening, Eastman told Jacob in another email that Pence should still not certify the results, according to Eastman and one of the people familiar with the emails. That email from Eastman came after the rioters had been cleared from the Capitol and Pence had returned to the chair to preside over the proceedings and vowed to continue.


Vice President Mike Pence passes the document certifying Arizona's election to a staffer after it has been challenged by Republicans during the joint session of Congress on Jan. 6. (Bill O'Leary/The Washington Post)

Pence allowed other lawmakers to speak before they returned to counting the votes, and said he wasn’t counting the time from his speech or the other lawmakers against the time allotted in the Electoral Count Act.

Eastman said that this prompted him to email Jacob to say that Pence should not certify the election because he had already violated the Electoral College Act, which Pence had cited as a reason that he could not send the electors back to the states.

“My point was they had already violated the electoral count act by allowing debate to extend past the allotted two hours, and by not reconvening ‘immediately’ in joint session after the vote in the objection,” Eastman told The Post. “It seemed that had already set the precedent that it was not an impediment.”

Eastman, 61, is a veteran conservative legal activist who clerked for Supreme Court Justice Clarence Thomas. A longtime member of the Federalist Society, he has spent much of his legal career fighting same-sex marriage.

He is a senior fellow at the Claremont Institute, a conservative think tank based in Upland, Calif., whose leaders stridently defended Eastman from criticism over his role in Trump’s attempt to overturn the election and attacked the media’s coverage of it.

Eastman was sharply criticized by Democrats in August last year for writing an article for Newsweek that questioned then-Sen. Kamala D. Harris’s eligibility to be vice president on the grounds that her parents were not U.S. citizens when she was born. He said his understanding was that Trump first noticed him arguing against birthright citizenship on Fox News.

Eastman has said that he first made contact with lawyers working on Trump’s election challenges during the weekend after the election in Philadelphia, where he happened to be attending an academic conference. The law firm Jones Day had just withdrawn from representing Trump and, Eastman said in a podcast interview in June, “somebody had heard I was in town and brought me over to the headquarters.”

Eastman’s visit to Trump’s team was brief, but “long enough to catch covid,” he said on the podcast hosted by David Clements, a former New Mexico State University professor who is well known in election-denial circles.

Eastman testified via video about purported fraud to Georgia state senators at a Dec. 3 hearing where Giuliani also spoke. Giuliani said state legislators were given copies of a paper by Eastman that argued they could reject election results and directly appoint electors.

Eastman’s seven-page paper featured theories about voter fraud published by the right-wing blog the Gateway Pundit and an anonymous Twitter user named “DuckDiver19,” according to a copy Eastman shared with The Post.

Eastman has said that Trump asked him to draft a brief calling for the Supreme Court to allow Trump to intervene in a case filed by Texas Attorney General Ken Paxton (R), which sought to block the electoral college votes from four states. Eastman submitted his brief on Dec. 9 and the high court rejected the case two days later.

Eastman was previously a professor of law at Chapman University in Orange, Calif. A week after the Jan. 6 attacks, Chapman President Daniele Struppa announced that Eastman had agreed to retire from the school after what Struppa called a “challenging chapter for Chapman.”

At the time of the Capitol attack, Eastman was on leave from Chapman and serving as a visiting professor at the University of Colorado, which subsequently stripped him of some of his duties there.

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General Michael Flynn is channeling cult leader Elizabeth Clare Prophet
Oct 12, 2021



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Michael Flynn to QAnon Believers: I’m Not a Satanist!: Michael Flynn is finding out the hard way that surrounding himself with QAnon followers can have a pretty sharp downside.
by Will Sommer
Politics Reporter
Updated Oct. 08, 2021 5:18AM ET Published Oct. 08, 2021 5:02AM ET

The Great White Brotherhood, in belief systems akin to Theosophy and New Age, are said to be perfected beings of great power who spread spiritual teachings through selected humans. The members of the Brotherhood may be known as the Masters of the Ancient Wisdom or the Ascended Masters. The first person to talk about them in the West was Helena Petrovna Blavatsky (Theosophy), after she and other people claimed to have received messages from them. These included Helena Roerich, Aleister Crowley, Alice A. Bailey, Guy Ballard, Geraldine Innocente (The Bridge to Freedom), Elizabeth Clare Prophet, Bob Sanders, and Benjamin Creme.

--Great White Brotherhood, by Wikipedia

-- Lucifer: A Theosophical Magazine Designed to "Bring to Light the Hidden Things of Darkness", Edited by H.P. Blavatsky and Mabel Collins and Annie Besant and G.R.S. Mead

-- Lucifer (periodical), by Theosophy Wiki

-- Lucifer: The Light-Bearer, Edited by Moses Harman, Edward C. Walker, and occasionally, during Harman's imprisonments, Lillian Harman, Lois Waisbrooker, et al.

-- Lucis Trust, Alice Bailey, World Goodwill and the False Light of the World, by Terry Melanson

Photo Illustration by Sarah Rogers/The Daily Beast / Photos Getty

Former Trump National Security Adviser Michael Flynn has been on a relentless media tour since his pardon last year, sitting for interviews with even the most obscure right-wing media outlets to promote the MAGA agenda.

But on Tuesday, Flynn appeared on a little-known YouTube channel called Truth Unveiled TV for a very different reason: rebutting the idea that he led a church congregation in a Satanic ritual borrowed from a nuclear doomsday cult.

In a video entitled “Some Have Said That General Flynn Prayed to Satan in a Recent Prayer,” host Paul Oebel gave Flynn a chance to rebut the growing right-wing controversy alleging he’s signed on with Lucifer.

“I even saw a show the other day saying ‘Michael’s flipped on the side of the devil,’” Oebel said. “Can you please explain what happened there?”

“All of these people that talk about turning to whatever...” Flynn said. “People need to stop overthinking what everybody is saying.”

The bizarre YouTube interview marked Flynn’s latest attempt in a weeks-long campaign to convince his one-time fans in the QAnon conspiracy theory movement that he isn’t a Satanist.

Prior to the unusual controversy, Flynn had embraced his position as a hero to supporters of QAnon, taking a QAnon oath, raising money from QAnon believers, and selling QAnon T-shirts. In May, Flynn even appeared at a QAnon conference and endorsed the idea of a military coup.

But QAnon fame is a fickle thing. After promoting QAnon for more than a year, Flynn now finds himself on the business end of the conspiracy theory. Like QAnon targets before him, Flynn is now struggling to persuade angry QAnon believers that he isn’t a secret Satan-worshipper.

Flynn didn’t respond to a request for comment.

Flynn’s trouble started on Sept. 17, when he led a congregation at Nebraska pastor Hank Kunneman’s Lord of Hosts Church in prayer. Flynn’s prayer included invocations to “sevenfold rays” and “legions,” two phrases that struck some of Flynn’s followers as strange.

“We are your instrument of those sevenfold rays and all your archangels, all of them,” Flynn said, later adding, “We will be the instrument of your will, whatever it is. In your name, and in the name of your legions, we are freeborn, and we shall remain freeborn, and we shall not be enslaved by any foe.”

As video of the prayer circulated in online conspiracy theorist groups, the references to “legions” and “rays” soon sparked speculation among Flynn’s right-wing supporters that their hero had been lured to the dark side. Always on the lookout for the Satanic influence they imagine lurks at the heart of the world, they claimed that Flynn had secretly been worshiping the devil. Worse, since the congregation was repeating the prayer after Flynn, the rumor went, he had duped hundreds of Christians into joining the ritual.

“A lot of people in the Christian world believe that when you pray to rays of light and legions that you’re praying to the devil,” Oebel, the YouTube host, explained in his interview with Flynn.

Rick Wiles, an extremist antisemitic Florida pastor who runs a conspiracy theory outlet called TruNews, seized on Flynn’s prayer in a nearly hour-long TruNews broadcast last month blasting the retired lieutenant general. While Wiles’s cohost claimed that the mentions of “rays” and “legions” demonstrated Flynn was praying to the devil, Wiles said Flynn was threatening his followers’ souls.

“My advice to you is to separate from Gen. Michael Flynn,” Wiles told his audience. “I don’t care about politics, I care about your soul.”

The Satanic panic sparked by Flynn’s prayer bears more than a passing similarity to the Flynn-endorsed QAnon movement, in which figures like Hillary Clinton, George Soros, and Barack Obama have been accused of being cannibalistic Satanists—or, in QAnon parlance, ”Luciferians.” It also recalls Pizzagate, the baseless conspiracy theory once endorsed by Flynn’s son, Michael Flynn Jr., which holds that a Washington pizzeria doubles as a Satanic sex dungeon for pedophiles.

Lin Wood, a QAnon-endorsing pro-Trump lawyer who has appeared at some of the same right-wing conferences as Flynn, acknowledged the rumors in a Sept. 22 post on social media app Telegram. In his post, Wood seemed to defend Flynn while distancing himself from the prayer.

“I find nothing in the Bible about seven rays of light or legions,” Wood wrote.

On Sept. 25, Flynn acknowledged the growing controversy among his supporters. In a post on social media app Telegram, Flynn said the prayer was about his namesake, St. Michael, adding that it has “great meaning to me.”

(a) The seven sublime lords are the Seven Creative Spirits, the Dhyan-Chohans, who correspond to the Hebrew Elohim. It is the same hierarchy of Archangels to which St. Michael, St. Gabriel, and others belong, in the Christian theogony. Only while St. Michael, for instance, is allowed in dogmatic Latin theology to watch over all the promontories and gulfs, in the Esoteric System, the Dhyanis watch successively over one of the Rounds and the great Root-races of our planetary chain. They are, moreover, said to send their Bhodisatvas, the human correspondents of the Dhyani-Buddhas (of whom vide infra) during every Round and Race. Out of the Seven Truths and Revelations, or rather revealed secrets, four only have been handed to us, as we are still in the Fourth Round, and the world also has only had four Buddhas, so far. This is a very complicated question, and will receive more ample treatment later on.

So far “There are only Four Truths, and Four Vedas” — say the Hindus and Buddhists. For a similar reason Irenaeus insisted on the necessity of Four Gospels. But as every new Root-race at the head of a Round must have its revelation and revealers, the next Round will bring the Fifth, the following the Sixth, and so on.

-- The Secret Doctrine: The Synthesis of Science, Religion, and Philosophy, by Helena P. Blavatsky, 1888

Yet his post didn’t mollify many of his QAnon followers, who commented in anger under Flynn’s post.

“I’ve never heard anyone pray the 7 fold ray in a Christian prayer,” one confused Flynn supporter replied. “What am I missing?”

Flynn’s prayer bears a striking resemblance to a prayer by Elizabeth Clare Prophet, the now-deceased leader of an anticommunist doomsday cult obsessed with nuclear war. Prophet’s group, the Church Universal and Triumphant, reached its peak in 1990, the year she predicted much of the world would be destroyed in a fiery nuclear exchange between the Soviet Union and the United States. Prophet’s followers flocked to her Montana ranch, building fallout shelters for an apocalypse that never arrived.

Twitter user Jim Stewartson first noted the similarities between Flynn’s prayer and Prophet’s. Both prayers mention “legions” and “seven-fold rays,” and are nearly identical in their phrasing.

For example, in one address to her congregation, Prophet said, “In the name of Archangel Michael and his legions, I am freeborn, and I shall remain freeborn, and I shall not be enslaved by any foe within or without.”

Jim Stewartson, Antifascist, #RIPQ
@jimstewartson
I did a video comparison of I AM / Church Universal Triumphant cult leader Elizabeth Clare Prophet in 1984 and Mike Flynn in 2021.
It's verbatim the same. He just changed "I AM" to "WE WILL"
Please share this with his cult. It's important that they know he is not a Christian.
[x]
1:07 PM Oct 6, 2021

By comparison, Flynn told the Nebraska church congregation, “In your name and the name of your legions, we are freeborn, and we shall remain freeborn, and we shall not be enslaved by any foe within or without.”

Hank Kunneman, the Nebraska pastor whose church played host to Flynn, eventually acknowledged the Satanic accusations himself. In a cryptic address to his congregation on Sept. 26, Kunneman avoided mentioning Flynn by name but said he had received messages claiming a speaker at his church had performed a Satanic prayer.

“Can you just give people a break?” Kunneman asked his congregation.

Wood addressed the Satanism allegations against his MAGA ally again on Wednesday, claiming his own supporters had been asking him about whether Flynn’s prayer meant he was a member of the occult.

“Occult prayer???” Wood wrote. “Are you kidding me???”

Flynn isn’t the first right-wing figure tied to QAnon to see its acolytes turn on him. Oklahoma Senate candidate Jackson Lahmeyer, whose challenge to Sen. James Lankford (R-OK) has been endorsed by Flynn, appeared at an April pro-QAnon conference with Flynn in Tulsa.

A few months later, however, Lahmeyer posted a seemingly innocent picture of his daughter wearing red shoes—apparently unaware that QAnon followers consider red shoes to be yet another sign of their imagined Satanic sex-trafficking cabal. Lahmeyer was soon caught up in a QAnon controversy of his own.

"Unfortunately, I have to say it because people are asking me," Lahmeyer wrote in a Facebook post. "I’m in no way involved in Child Sex Trafficking, pedophilia or devil worship."

[admin]

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
Rolling Stone
OCTOBER 24, 2021 8:33PM ET

As the House investigation into the Jan. 6 attack heats up, some of the planners of the pro-Trump rallies that took place in Washington, D.C., have begun communicating with congressional investigators and sharing new information about what happened when the former president’s supporters stormed the U.S. Capitol. Two of these people have spoken to Rolling Stone extensively in recent weeks and detailed explosive allegations that multiple members of Congress were intimately involved in planning both Trump’s efforts to overturn his election loss and the Jan. 6 events that turned violent.

Rolling Stone separately confirmed a third person involved in the main Jan. 6 rally in D.C. has communicated with the committee. This is the first report that the committee is hearing major new allegations from potential cooperating witnesses. While there have been prior indications that members of Congress were involved, this is also the first account detailing their purported role and its scope. The two sources also claim they interacted with members of Trump’s team, including former White House Chief of Staff Mark Meadows, who they describe as having had an opportunity to prevent the violence.

The two sources, both of whom have been granted anonymity due to the ongoing investigation, describe participating in “dozens” of planning briefings ahead of that day when Trump supporters broke into the Capitol as his election loss to President Joe Biden was being certified.

“I remember Marjorie Taylor Greene specifically,” the organizer says. “I remember talking to probably close to a dozen other members at one point or another or their staffs.”

For the sake of clarity, we will refer to one of the sources as a rally organizer and the other as a planner. Rolling Stone has confirmed that both sources were involved in organizing the main event aimed at objecting to the electoral certification, which took place at the White House Ellipse on Jan. 6. Trump spoke at that rally and encouraged his supporters to march to the Capitol. Some members of the audience at the Ellipse began walking the mile and a half to the Capitol as Trump gave his speech. The barricades were stormed minutes before the former president concluded his remarks.

These two sources also helped plan a series of demonstrations that took place in multiple states around the country in the weeks between the election and the storming of the Capitol. According to these sources, multiple people associated with the March for Trump and Stop the Steal events that took place during this period communicated with members of Congress throughout this process.

Along with Greene, the conspiratorial pro-Trump Republican from Georgia who took office earlier this year, the pair both say the members who participated in these conversations or had top staffers join in included Rep. Paul Gosar (R-Ariz.), Rep. Lauren Boebert (R-Colo.), Rep. Mo Brooks (R-Ala.), Rep. Madison Cawthorn (R-N.C.), Rep. Andy Biggs (R-Ariz.), and Rep. Louie Gohmert (R-Texas).

“We would talk to Boebert’s team, Cawthorn’s team, Gosar’s team like back to back to back to back,” says the organizer.


Rep. Paul Gosar (R-AZ) attends a House Oversight and Reform Committee hearing titled The Capitol Insurrection: Unexplained Delays and Unanswered Questions, on Capitol Hill on May 12, 2021 in Washington, DC. Jonathan Ernst-Pool/Getty Images

And Gosar, who has been one of the most prominent defenders of the Jan. 6 rioters, allegedly took things a step further. Both sources say he dangled the possibility of a “blanket pardon” in an unrelated ongoing investigation to encourage them to plan the protests.

“Our impression was that it was a done deal,” the organizer says, “that he’d spoken to the president about it in the Oval … in a meeting about pardons and that our names came up. They were working on submitting the paperwork and getting members of the House Freedom Caucus to sign on as a show of support.”

The organizer claims the pair received “several assurances” about the “blanket pardon” from Gosar.

“I was just going over the list of pardons and we just wanted to tell you guys how much we appreciate all the hard work you’ve been doing,” Gosar said, according to the organizer.

The rally planner describes the pardon as being offered while “encouraging” the staging of protests against the election. While the organizer says they did not get involved in planning the rallies solely due to the pardon, they were upset that it ultimately did not materialize.

“I would have done it either way with or without the pardon,” the organizer says. “I do truly believe in this country, but to use something like that and put that out on the table when someone is so desperate, it’s really not good business.”

Gosar’s office did not respond to requests for comment on this story. Rolling Stone has separately obtained documentary evidence that both sources were in contact with Gosar and Boebert on Jan. 6. We are not describing the nature of that evidence to preserve their anonymity. The House select committee investigating the attack also has interest in Gosar’s office. Gosar’s chief of staff, Thomas Van Flein, was among the people who were named in the committee’s “sweeping” requests to executive-branch agencies seeking documents and communications from within the Trump administration. Both sources claim Van Flein was personally involved in the conversations about the “blanket pardon” and other discussions about pro-Trump efforts to dispute the election. Van Flein did not respond to a request for comment.

These specific members of Congress were involved in the pro-Trump activism around the election and the electoral certification on Jan. 6. Both Brooks and Cawthorn spoke with Trump at the Ellipse on Jan. 6. In his speech at that event, Brooks, who was reportedly wearing body armor, declared, “Today is the day American patriots start taking down names and kicking ass.” Gosar, Greene, and Boebert were all billed as speakers at the “Wild Protest,” which also took place on Jan. 6 at the Capitol.

Nick Dyer, who is Greene’s communications director, said she was solely involved in planning to object to the electoral certification on the House floor. Spokespeople for the other members of Congress, who the sources describe as involved in the planning for protests, did not respond to requests for comment.

“Congresswoman Greene and her staff were focused on the Congressional election objection on the House floor and had nothing to do with planning of any protest,” Dyer wrote in an email to Rolling Stone.


Rep. Marjorie Taylor Greene speaks during former President Donald Trump’s Save America rally in Perry, Ga., on Saturday, Sept. 25, 2021. Ben Gray/AP

Dyer further compared Greene’s efforts to dispute certification of Biden’s victory with similar objections certain Democrats lodged against Trump’s first election.

“She objected just like Democrats who have objected to Republican presidential victories over the years,” wrote Dyer. “Just like in 2017, when Jim McGovern, Jamie Raskin, Pramila Jayapal, Barbara Lee, Sheila Jackson Lee, Raul Grijalva, and Maxine Waters tried to prevent President Trump’s election win from being certified.”

Dyer also suggested the public is far more concerned with issues occurring under President Joe Biden than they are with what happened in January.

“No one cares about Jan. 6 when gas prices are skyrocketing, grocery store shelves are empty, unemployment is skyrocketing, businesses are going bankrupt, our border is being invaded, children are forced to wear masks, vaccine mandates are getting workers fired, and 13 members of our military are murdered by the Taliban and Americans are left stranded in Afghanistan,” Dyer wrote.

In another indication members of Congress may have been involved in planning the protests against the election, Ali Alexander, who helped organize the “Wild Protest,” declared in a since-deleted livestream broadcast that Gosar, Brooks, and Biggs helped him formulate the strategy for that event.

“I was the person who came up with the Jan. 6 idea with Congressman Gosar, Congressman Mo Brooks, and Congressman Andy Biggs,” Alexander said at the time. “We four schemed up on putting maximum pressure on Congress while they were voting so that — who we couldn’t lobby — we could change the hearts and the minds of Republicans who were in that body hearing our loud roar from outside.”

Alexander led Stop the Steal, which was one of the main groups promoting efforts to dispute Trump’s loss. In December, he organized a Stop the Steal event in Phoenix, where Gosar was one the main speakers. At that demonstration, Alexander referred to Gosar as “my captain” and declared “one of the other heroes has been Congressman Andy Biggs.”

Alexander did not respond to requests for comment. The rally planner, who accused Alexander of ratcheting up the potential for violence that day while taking advantage of funds from donors and others who helped finance the events, confirmed that he was in contact with those three members of Congress.

“He just couldn’t help himself but go on his live and just talk about everything that he did and who he talked to,” the planner says of Alexander. “So, he, like, really told on himself.”

While it was already clear members of Congress played some role in the Jan. 6 events and similar rallies that occurred in the lead-up to that day, the two sources say they can provide new details about the members’ specific roles in these efforts. The sources plan to share that information with congressional investigators right away. While both sources say their communications with the House’s Jan. 6 committee thus far have been informal, they are expecting to testify publicly.

“I have no problem openly testifying,” the planner says.

A representative for the committee declined to comment. In the past month, the committee has issued subpoenas to top Trump allies, government agencies, and activists who were involved in the planning of events and rallies that took place on that day and in the prior weeks. Multiple sources familiar with the committee’s investigation have confirmed to Rolling Stone that, thus far, it seems to be heavily focused on the financing for the Ellipse rally and similar previous events.

Both of the sources made clear that they still believe in Trump’s agenda. They also have questions about how his election loss occurred. The two sources say they do not necessarily believe there were issues with the actual vote count. However, they are concerned that Democrats gained an unfair advantage in the race due to perceived social media censorship of Trump allies and the voting rules that were implemented as a result of the coronavirus pandemic.

“Democrats used tactics to disrupt their political opposition in ways that frankly were completely unacceptable,” the organizer says.

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. Of course, with their other legal issues and the House investigation, both of these sources have clear motivation to cooperate with investigators and turn on their former allies. And both of their accounts paint them in a decidedly favorable light compared with their former allies.

“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.

The two potential witnesses plan to present to the committee allegations about how these demonstrations were funded and to detail communications between organizers and the White House. According to both sources, members of Trump’s administration and former members of his campaign team were involved in the planning. Both describe Katrina Pierson, who worked for Trump’s campaign in 2016 and 2020, as a key liaison between the organizers of protests against the election and the White House.

“Katrina was like our go-to girl,” the organizer says. “She was like our primary advocate.”

Pierson spoke at the Ellipse rally on Jan. 6. She did not respond to requests for comment.

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 subpoenaed by the committee last month as part of a group of four people “with close ties to the former President who were working in or had communications with the White House on or in the days leading up to the January 6th insurrection.”

“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.”

A separate third source, who has also communicated with the committee and was involved in the Ellipse rally, says Kylie Kremer, one of the key organizers at that event, boasted that she was going to meet with Meadows at the White House ahead of the rally. The committee has been provided with that information. Kremer did not respond to a request for comment.

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.”

A representative for Meadows did not respond to requests for comment.

Along with making plans for Jan. 6, the sources say, the members of Congress who were involved solicited supposed proof of election fraud from them. Challenging electoral certification requires the support of a member of the Senate. While more than a hundred Republican members of the House ultimately objected to the Electoral College count that formalized Trump’s loss, only a handful of senators backed the effort. According to the sources, the members of Congress and their staff advised them to hold rallies in specific states. The organizer says locations were chosen to put “pressure” on key senators that “we considered to be persuadable.”

“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.

“It was in a variety of calls, some with Gosar and Gosar’s team, some with Marjorie Taylor Greene and her team … Mo Brooks,” the organizer says.

“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 Organizers: We ‘Lost The Battle’ When Trump Ordered March To Capitol
by Chris Hayes
MSNBC
Dec 15, 2021



Jan. 6 rally organizers Dustin Stockton and Jennifer Lynn Lawrence join Chris Hayes: "There was an internal conflict that was ongoing inside the organizer groups about what the program and what the day on January 6 should look like...we didn't realize we lost that battle until President Trump told people to walk down to the Capitol."

[admin]

The Washington Post releases “The Attack: Before, During and After,” an investigation of the Jan. 6 Capitol insurrection and its aftermath
The three-part immersive series examines Jan. 6 and its fallout through audio, video, photography and revelatory new reporting.
by WashPostPR
October 31, 2021 at 12:16 p.m. EDT

The Washington Post today released a three-part investigation into the forces that led to the insurrection at the U.S. Capitol on Jan. 6 and the growing distrust in America’s elections that has spread in its aftermath. “The Attack: Before, During and After” reveals through new reporting how law enforcement officials failed to heed warnings of impending violence in Washington, documents the bloody consequences of President Donald Trump’s inaction during the siege and shows how a deep distrust of the voting process has taken root across the country.

“An event of the magnitude of the Capitol attack demands deep and revelatory reporting,” said Matea Gold, national political enterprise and investigations editor. “This newsroom-wide collaboration provides our readers with a definitive account of Jan. 6 and its lasting impact on American democracy.”

“The Attack: Before, During and After” lays out striking new details about the cascade of warnings law enforcement officials received before Jan. 6 and uses social media posts, text messages, videos and photographs to show how Trump radicalized his supporters and mobilized them to action. The project also features voicemails of threats made against election officials around the country, and includes intimate reporting about six individuals whose lives were affected by Jan. 6.

More than 75 journalists in the Post newsroom contributed to The Attack, including more than 25 reporters. The findings are based on interviews with more than 230 people and thousands of pages of court documents and internal law enforcement reports, along with hundreds of videos, photographs and audio recordings.

Readers can access “The Attack” on The Post’s website and across Post platforms: www.wapo.st/theattack.

Before: Red flags

Law enforcement agencies fail to heed mounting warnings before Jan. 6 as Trump propels his supporters to Washington, many with the intent to commit violent acts.

Key findings:

Law enforcement officials did not respond with urgency to a cascade of warnings about violence on Jan. 6

• Alerts were raised by local officials, FBI informants, social media companies, former national security officials, researchers, lawmakers and tipsters.
• The FBI received numerous warnings about Jan. 6, but felt many of the threatening statements were “aspirational” and could not be pursued. In one tip on Dec. 20, a caller told the bureau that Trump supporters were making plans online for violence against lawmakers in Washington, including a threat against Sen. Mitt Romney (R-Utah). The agency concluded the information did not merit further investigation and closed the case within 48 hours.
• One of the biggest efforts to come out of Sept. 11, 2001 — a national network of multi-agency intelligence centers — spotted a flood of Jan. 6 warnings, but federal agencies did not show much interest in its information.
• The FBI limited its own understanding of how extremists were mobilizing when it switched its social media monitoring service on the last weekend of 2020.

Pentagon leaders had acute fears about widespread violence, and some feared Trump could misuse the National Guard to remain in power

• Army Secretary Ryan McCarthy was left rattled by Trump’s firing of senior Pentagon officials just after the election and sought to put guardrails on deployment of the National Guard.
• Then-acting defense secretary Christopher C. Miller did not believe Trump would misuse the military but worried that far-right extremists could bait soldiers into “a Boston Massacre-type situation.” Their fears contributed to their fateful decision to keep soldiers away from the Capitol on Jan. 6.

The Capitol Police was disorganized and unprepared

• The U.S. Capitol Police had been tracking threatening social media posts for weeks but was hampered by poor communication and planning.
• The department’s new head of intelligence concluded on Jan. 3 that Trump supporters had grown desperate to overturn the election and “Congress itself” would be the target. But then-Chief Steven Sund did not have that information when he initiated a last-minute request to bring in National Guard soldiers, one that was swiftly rejected.

Trump’s election lies radicalized his supporters in real time

• While the president exerted pressure on state officials, the Justice Department and his vice president to overturn the results, his public attacks on the vote mobilized his supporters to immediately plot violent acts — discussions that researchers watched unfold online.

During: Bloodshed

For 187 minutes, the commander in chief stands back and allows an attack on a branch of the U.S. government.

Key findings:

Escalating danger signs were in full view hours before the Capitol attack but did not trigger a stepped-up security response

• Hundreds of Trump supporters clashed with police at the Washington Monument and the Lincoln Memorial on the morning of Jan. 6, some with shields and gas masks, presaging the violence to come.
• D.C. homeland security employees spotted piles of backpacks left by rallygoers outside the area where the president would speak — a phenomenon the agency had warned a week earlier could be a sign of concealed weapons.

Trump had direct warnings of the risks but stood by for 187 minutes before telling his supporters to go home

• For more than three hours, the president resisted entreaties from House Minority Leader Kevin McCarthy, other Republican lawmakers and numerous White House advisers to urge the mob to disperse, a delay that contributed to harrowing acts of violence.

His allies pressured Pence to reject the election results even after the Capitol siege

• John C. Eastman, an attorney advising Trump, emailed Pence’s lawyer around 9 p.m. to argue that the vice president still should reject electors from Arizona and other states.
• Earlier in the day, while the vice president, his family and aides were hiding from the rioters, Eastman emailed Pence’s lawyer to blame the violence on Pence’s refusal to block certification of Biden’s victory.

The FBI was forced to improvise a plan to help take back control of the Capitol

• After the breach, the bureau deployed three tactical teams that were positioned nearby, but they were small, specialized teams and did not bring overwhelming manpower.
• As the riot escalated, acting attorney general Jeffrey Rosen scrambled to keep up with the deluge of calls from senior government officials and desperate lawmakers.
• Senior Justice Department officials were so uncertain of what was occurring based on chaotic television images that Rosen’s top deputy, Richard Donoghue, went to the Capitol in person to coordinate with lawmakers and law enforcement agencies.

After: Contagion

Menacing threats and disinformation spread across the country in the wake of the Capitol siege, shaking the underpinnings of American democracy.

Key findings:

Republican efforts to undermine the 2020 election restarted immediately after the Capitol attack

• Eight days after the violence, state Republicans privately discussed their intention to force a review of ballots cast in Maricopa County, Ariz., setting in motion a chaotic process that further sowed doubt in the results and set off a wave of similar partisan investigations in other states.

False election claims by Trump that spurred the Capitol attack have become a driving force in the Republican Party

• Nearly a third of the 390 GOP candidates around the country who have expressed interest in running for statewide office this cycle have publicly supported a partisan audit of the 2020 vote, downplayed the Jan. 6 attack or directly questioned Biden’s victory.
• They include 10 candidates running for secretary of state, a position with sway over elections in many states.

Trump’s attacks have led to escalating threats of violence

• Election officials in at least 17 states collectively have received hundreds of threats to their personal safety or their lives since Jan. 6, with a concentration in the six states where Trump focused his attacks on the election results.
• Ominous emails and calls have spiked immediately after the former president and his allies raised new claims.

First responders are struggling with deep trauma

• Those who tried to protect the Capitol are contending with serious physical injuries, nightmares and intense anxiety. “Normal is gone,” said one Capitol Police commander.

[admin]

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

[admin]

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.

[admin]

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

-- 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

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!

[admin]

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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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