Trump lashes out at Gov. Doug Ducey following certification

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

Postby admin » Sat Feb 19, 2022 10:02 am

Part 5 of 6

To sum up, the court holds that Plaintiffs have successfully pleaded a § 1985(1) conspiracy claim against President Trump, the Oath Keepers, and Tarrio. They have fallen short as to Giuliani and Trump Jr.

C. Failure to State a § 1986 Claim

The court already has held that President Trump is immune from suit as to Swalwell’s § 1986 claim. The question remains whether Swalwell has stated such a claim against the other defendants, Giuliani and Trump Jr. He has not.

Recall, § 1986 provides a cause of action against anyone who has “knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having the power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” 42 U.S.C. § 1986. Thus, if Giuliani or Trump Jr. “knew of a [§ 1985(1)] conspiracy, were in a position to prevent the implementation of that conspiracy, and neglected or refused to prevent it, they are liable under § 1986.” Park v. City of Atlanta, 120 F.3d 1157, 1160 (11th Cir. 1997). Swalwell’s pleading falls short in two respects. First, it fails to plead sufficient facts establishing that Giuliani or Trump Jr. knew of a tacit plan to prevent members of Congress from discharging their duties. The Complaint does not, for example, allege either was involved in the planning of the January 6 Rally or knew in advance that the President would call on rally-goers, including organized groups, to march on the Capitol while Congress was in session. Second, it does not allege that Giuliani or Trump Jr. had the “power” to prevent such conspiracy. Few courts appear to have addressed this element, but those finding the requisite power to be present have done so where the defendant was a government official or employee with some formal authority to act. See, e.g., Peck v. United States, 470 F. Supp. 1003, 1013 (S.D.N.Y. 1979) (FBI agents); Santiago v. City of Philadelphia, 435 F. Supp. 136, 156 (E.D. Pa. 1977) (mayor and city managing director who had “some authority, though limited, to control policies and practices”), abrogated on other grounds by Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317 (3d Cir. 1982). Giuliani and Trump Jr., as personal lawyer to the President and the President’s son, respectively, evidently do not so qualify. Swalwell’s Complaint thus fails to plead a § 1986 claim against Giuliani and Trump Jr.

D. The First Amendment Defense

The court thus far has held that President Trump is not immune from suit as to Plaintiffs’ § 1985(1) claim and that Plaintiffs have successfully pleaded such claim against him. The question remains, however, whether that claim (and others) can move forward when, as here, the President’s alleged conspiratorial acts are predicated entirely on his speech. This is a substantial constitutional question. The First Amendment grants all citizens expansive protections in what they can say, but that protection must be particularly guarded when it comes to the President of the United States. As the Supreme Court has repeatedly reminded, a President’s position in our system of government is unique and his duties and responsibilities “are of unrivaled gravity and breadth.” Vance, 140 S. Ct. at 2425. A President could not function effectively if there were a risk that routine speech might hale him into court. Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech. But the court believes this is that case. Even Presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the President from liability.

1. The First Amendment and Speech on Matters of Public Concern

The Supreme Court has spoken in soaring terms about the First Amendment’s protection of speech on matters of public concern. “Expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (citation omitted). “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). The First Amendment embodies our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co., 376 U.S. at 270. Such speech may “well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause.” Claiborne Hardware, 458 U.S. at 928.

Protection for speech on matters of public concern is decidedly capacious, but it is not unbounded. “The presence of protected activity . . . does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances.” Id. at 912. But when considering liability in such “narrowly defined instances,” courts must tread carefully. When, as here, liability is based in part on “a public address—which predominantly contained highly charged political rhetoric— [the court must] approach this suggested basis of liability with extreme care.” Id. at 926–27. Such care extends even when, as in this case, the allegation is that speech produced violence. “When violence occurs during activity protected by the First Amendment, that provision mandates ‘precision of regulation’ with respect to ‘the grounds that may give rise to damages liability’ as well as ‘the persons who may be held accountable for those damages.’” McKesson v. Doe, 141 S. Ct. 48, 50 (2020) (quoting Claiborne Hardware, 458 U.S. at 916–17).

Thus, the court’s task here is to determine whether a “narrowly defined instance” applies to President Trump’s speech such that he “may be held accountable” for the damages it may have caused. Plaintiffs here advance two such “narrowly defined instances”: (1) the President participated in an unlawful conspiracy and (2) the President’s January 6 Rally Speech incited violence. Thompson Pls.’ Opp’n at 49–56; Swalwell Opp’n at 18–19; Blassingame Pls.’ Opp’n at 36–39. The court considers in turn each of these grounds for denying President Trump’s speech First Amendment protection.

a. Participation in an unlawful conspiracy

Plaintiffs say that “conspiratorial statements and agreements in furtherance of unlawful actions are not protected by the First Amendment.” Thompson Pls.’ Opp’n at 50. They cite various cases for various propositions, including that the First Amendment does not authorize “knowing association with a conspiracy,” id. at 50 (quoting Scales v. United States, 367 U.S. 203, 229 (1961)); it does not confer a right to “impede or obstruct” a government employee’s “performance of duty by threats,” id (quoting United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)); it does not protect “speech integral to criminal conduct,” Blassingame Pls.’ Opp’n at 18 (quoting United States v. Alvarez, 567 U.S. 709, 717 (2012)); and it does not “immunize[] [speech] from regulation when [ it] is used as an integral part of conduct which violates a valid statute,” id. at 18–19 (quoting Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 514 (1972)).

But the court finds these broad-stroke principles inapt here. For one, cases like Scales, Varani, and Alvarez involve criminal conspiracies, which the Supreme Court seems to have put in its own category. Plaintiffs sometimes suggest that the President engaged in criminal conduct, but what is before the court is a civil conspiracy, and it would be imprudent for the court to assess whether factual allegations in a civil complaint make out criminal conduct. Even the low probable-cause standard is higher than Rule 8’s plausibility standard. Other cases, like California Motor Transport, arise in the context of economic regulation, involving, for example, statutes barring monopolization or concerted activity, where the speech at issue usually is not on matters of public concern. Speech used to facilitate the fixing of prices or the manipulation of markets is naturally afforded less First Amendment protection than a presidential speech on a matter of public concern.

Speech on matters of public concern may even be protected if it is part of a concerted violation of law. That is the lesson of the Supreme Court’s decision in Claiborne Hardware. There, Mississippi state courts had found the NAACP; its state field secretary, Charles Evers; and others liable for losses incurred by white merchants as a result of a boycott—a kind of civil conspiracy—that violated state law “on three separate conspiracy theories.” 458 U.S. at 891. Indeed, the Mississippi Supreme Court had found that the defendants “had agreed to use force, violence, and ‘threats’ to effectuate the boycott.” Id. at 895. The Supreme Court observed that the boycott was “supported by speeches and nonviolent picketing” aimed at expressing dissatisfaction with “the social structure that denied them rights to equal treatment and respect”— plainly matters of public concern. Id. at 907. The Court, in assessing the defendants’ plea for First Amendment protection, did not dismiss it out of hand merely because the defendants had conspired to violate state law. Rather, in recognition of the weighty First Amendment values at stake, the Court narrowed the scope of inquiry to whether any of the business losses were caused by speech that was not otherwise protected under the First Amendment—namely, speech that caused violence or constituted threats of violence. Id. at 916. Once the Court identified speech that might so qualify, it did not declare the speech unprotected because it was part of a conspiracy; instead, it evaluated the speech under the narrow “incitement” standard announced in Brandenburg v. Ohio, 395 U.S. 444 (1969).

The court here must follow the same path the Court did in Claiborne Hardware. President Trump’s speech cannot be deemed unprotected merely because Plaintiffs have alleged it to be part of a conspiratorial agreement to violate a civil statute. Instead, because his speech is on a matter of public concern, it will lose its First Amendment protection only if it meets the stringent Brandenburg “incitement” standard. See Tri-Corp Housing, Inc. v. Bauman, 826 F.3d 446, 449 (7th Cir. 2016) (recognizing that public officials have the right to “urge their constituents to act in particular ways . . . , as long as they refrain from making the kind of threats that the Supreme Court treats as subject to control under the approach of Brandenburg” (citation omitted)). It is to that inquiry the court now turns.

b. Brandenburg and incitement

A trio of Supreme Court cases has come to define the incitement exception to the First Amendment. They are Brandenburg, Hess v. State of Indiana, and Claiborne Hardware. A brief discussion of each helps to frame the determination this court must make.

Brandenburg involved the conviction of a member of the Ku Klux Klan under Ohio’s Criminal Syndicalism statute. 395 U.S. at 444.28 Two films of the defendant were introduced at trial. One showed him among twelve hooded Klansmen, surrounding a large wooden cross, which they burned. Words uttered on the film included statements disparaging of Black and Jewish people. The defendant also said the following: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong . . . .” Id. at 446. Seen on the film, and introduced into evidence, were a pistol, shotgun, and ammunition. Id. at 445–46. The second film was along the same lines. Id. at 447. The Supreme Court overturned the defendant’s conviction, finding the films to be protected speech. Articulating what is now termed the “Brandenburg test,” the Court said that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. Thus, Brandenburg has come to stand for the proposition that “mere advocacy” of the use of force or violence is protected speech; only when speech is directed at inciting imminent lawless action, and likely to do so, does it lose the cloak of the First Amendment’s protection.

Four years later, in Hess v. State of Indiana, the Court applied Brandenburg to a defendant convicted under Indiana’s disorderly conduct statute. 414 U.S. 105, 105–06 (1973). The defendant was participating in a demonstration of between 100 and 150 people when the sheriff gave an order to clear the streets. As the sheriff passed him, Hess was standing off the street and said words to the effect of “We’ll take the fucking street later” or “We’ll take the fucking street again.” Id. at 107. Witnesses testified that Hess did not appear to be exhorting the crowd to go back into the street, was not addressing any particular person, and though loud, was no louder than anyone else in the area. Id. Applying Brandenburg, the Court overturned Hess’s conviction. The Court observed that Hess’s statement was “[a]t best, . . . counsel for present moderation, at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.” Id. at 108. The Court said that, because Hess was not directing his statement to any person or group of persons, it could not be said he was advocating any action. Id. Also, “since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder,” his words could not be punished based on the mere “tendency to lead to violence,” as the Indiana Supreme Court had held. Id. at 108–09 (citation omitted).

The last of the three cases is Claiborne Hardware, the facts of which the court already has briefly discussed. The Court evaluated Charles Evers’s speech in the context of the boycott, during which he said to several hundred people, referring to boycott violators, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” 458 U.S. at 902. In another speech Evers warned that “the Sheriff could not sleep with boycott violators at night,” an implicit threat to Black persons that retaliation for shopping at white establishments could come at any moment without the protection of law enforcement. Id. The Court held that the “emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg.” Id. at 928. The court acknowledged that Evers had used “strong language” and observed that if his “language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that lawful conduct.” Id. However, “[w]hen such appeals do not incite lawless action, they must be regarded as protected speech.” Id. The Court also said that “[ i]f there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence.” Id. at 929. But because there was no evidence that “Evers authorized, ratified, or directly threatened acts of violence,” his words could not be used for such purpose. Id. The Court therefore vacated the damages award against Evers.

The Supreme Court has not had occasion to apply the Brandenburg test in the 40 years since Claiborne Hardware. Scholars have given it attention, but few federal appellate court decisions have applied it. The parties have not cited any D.C. Circuit case applying Brandenburg, and the court has not found one.29 One treatise has distilled Brandenburg into a three-part test, requiring proof that “(1) the speaker subjectively intended incitement; (2) in context, the words used were likely to produce imminent, lawless action; and (3) the words used by the speaker objectively encouraged and urged and provoked imminent action.” 5 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20.15(d), Westlaw (database updated May 2021). An en banc panel of the Sixth Circuit articulated a similar three-part test:

The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends the speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.


Bible Believers v. Wayne County, 805 F.3d 228, 246 (6th Cir. 2015) (en banc). The court does not take a position on whether defining Brandenburg’s standard as a three-part test is useful, or even accurate.30 The key to the Brandenburg exception is incitement: whether the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447.

In making that evaluation, both the words spoken and the context in which they are spoken matter. The Supreme Court said as much in Young v. American Mini Theaters:

The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which speech occurs, but also on exactly what the speaker had to say.


427 U.S. 50, 66 (1976). Similarly, the Court in FCC v. Pacifica Foundation observed that the

classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States[:] . . . “[T]he character of every act depends upon the circumstances in which it is done . . . . The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic . . . .”


438 U.S. 726, 744 (1978) (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)).

Bearing the foregoing principles in mind, the court turns to evaluate President Trump’s speech under Brandenburg.

c. President Trump’s speech

Plaintiffs do not contend that President Trump’s words prior to the January 6 Rally Speech (almost entirely through tweets) meets the Brandenburg incitement exception. They focus on the Rally Speech, so the court does, too, starting with a summary of what he said.31

The President spoke for 75 minutes. He spun a narrative in which he told those present that the election was “rigged” and “stolen,” and not just from him, but from them. He told attendees at the start that “our election victory” had been taken away, “we won this election,” and “[w]e didn’t lose.” He urged on the crowd, “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved. . . . We will not take it anymore . . . . [W]e will ‘stop the steal.’” He said that elections in “Third World Countries” are “more honest” than the election that had just taken place. The President said all of this within the first few minutes of his remarks.

He then told the crowd what had to happen for them to “win” the election. “[ I]f Mike Pence does the right thing, we win the election.” “All Mike Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people.” And he warned what would happen if the Vice President did not act: “[W]e’re stuck with a president who lost the election by a lot, and we have to live with that for four more years. We’re not going to let that happen.”

The President identified who was to blame for the “stolen” and “rigged” election: “radical left Democrats,” “weak Republicans,” “the fake news,” and “Big tech,” among others. He specifically identified those who he thought were the “weak Republicans” who would bear responsibility for a lost election: then–Senate Majority Leader McConnell, Representative Elizabeth Cheney, and Governor Brian Kemp (calling him “one of the dumbest governors in the United States”). He accused the media of “suppressing thought” and “suppress[ ing] speech” and said it “was the enemy of the people. It’s the biggest problem we have in this country.” He told the crowd,

[W]e’re going to have to fight much harder, and Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is time for Congress to confront this egregious assault on our democracy.


It was at this point that the President first said anything about a march to the Capitol. He said,

[A]fter this, we’re going to walk down—and I’ll be there with you— we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. And we’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.


He then said, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated,” and he added that “everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.”

Moments later, he focused the crowd’s attention on the Certification. Referring to the Capitol, he said,

[W]e see a very important event though, because right over there, right there, we see the event going to take place. . . . We’re going to see whether or not we have great and courageous leaders or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity, they’ll be ashamed. And you know what? If they do the wrong thing, we should never ever forget that they did. Never forget. We should never ever forget.


The President continued, telling the crowd repeatedly that the election had been stolen. “We’ve amassed overwhelming evidence about a fake election,” he said to them. Changes in election procedure at the state level had “paved the way for fraud on a scale never seen before.” He then recited a litany of false claims about the ways in which the election had been stolen in Pennsylvania (e.g., over 200,000 more ballots cast than voters), Wisconsin (e.g., postal service workers were told to backdate 100,000 ballots), Georgia (e.g., election officials pulled “boxes . . . and suitcases of ballots out from under a table”), Arizona (e.g., 36,000 ballots were cast by noncitizens), Nevada (e.g., more than 42,000 double votes), and Michigan (e.g., thousands and thousands of ballots were improperly backdated). In the midst of reciting these examples of fraud, the President regularly alluded to what the Vice President had to do. He told rally-goers that, if Mike Pence failed to act, “You will have an illegitimate president, that’s what you’ll have. And we can’t let that happen.” He said, “I’m not hearing good stories” about the Vice President. And he again told those assembled that the election was a fraud: “this is the most fraudulent thing anybody’s—This is a criminal enterprise. This is a criminal enterprise.” And, he said that when fraud occurs “it breaks up everything, doesn’t it? What you catch somebody in a fraud, you’re allowed to go by very different rules. So I hope Mike has the courage to do what he has to do.”

In the final moments of his speech, the President spoke about the country’s future. He said he had to be “careful” in saying he was confident in our nation’s future: “If we allow this group of people to illegally take over our country, because it’s illegal when the votes are illegal, when the way they got there is illegal, when the States that vote are given false and fraudulent information.” He also warned that, because of a potential change in administration, “the [ immigrant] caravans are forming again. They want to come in again and rip off our country. Can’t let it happen.”

Finally, the President told them he suspected impropriety on election night itself: “Something’s wrong here. Something’s really wrong. Can’t have happened.” And then he said: “And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Moments later, he concluded and told those assembled:

So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.


d. Brandenburg applied to the January 6 Rally Speech

The President’s words on January 6th did not explicitly encourage the imminent use of violence or lawless action, but that is not dispositive. In Hess, the Supreme Court recognized that words can implicitly encourage violence or lawlessness. In reversing Hess’s conviction, the Court held that there was “no evidence or rational inference from the import of the language” intended to produce, or likely to produce, imminent disorder. 414 U.S. at 109 (emphasis added). By considering the “import of the language,” and the “rational inferences” the words produce, the Court signaled that there is no safe haven under Brandenburg for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion. Federal appellate courts have understood the Brandenburg exception to reach implicit encouragement of violent acts. See, e.g., Bible Believers, 805 F.3d at 246 (inquiring as the first element whether “the speech explicitly or implicitly encouraged the use of violence or lawless action”).

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.

The “import” of the President’s words must be viewed within the broader context in which the Speech was made and against the Speech as a whole. Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption. Some of his supporters’ beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, the President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action. President Trump and his advisors “actively monitored” pro-Trump websites and social media. Thompson Compl. ¶ 66. These forums lit up in response to the rally announcement. Some supporters explicitly called for violence on January 6th (e.g., calling for “massing hangings and firing squads”). Others took direct aim at the Certification itself (e.g., stating that people in the Capitol should “leave in one of two ways: dead or certifying Trump the rightful winner”) or at law enforcement (“Cops don’t have ‘standing’ if they are laying on the ground in a pool of their own blood.”). Thompson Compl. ¶¶ 56–63; Swalwell Compl. ¶ 89; Blassingame Compl. ¶¶ 33–34. These violent posts were discussed “by media outlets regularly viewed by President Trump, including Fox News.” Thompson Compl. ¶ 66. The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Id. Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.

Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen,” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede,” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that “weak politicians” had failed to help the President.

So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory. These words did not “amount[] to nothing more than illegal action at some indefinite future time.” Hess, 414 U.S. at 108. President Trump’s words were, as Justice Douglas termed it, “speech . . . brigaded with action.” Brandenburg, 395 U.S. at 456 (Douglas, J., concurring). They were plausibly “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” Hess, 414 U.S. at 108–09.

In his motions, President Trump largely avoids any real scrutiny of the actual words he spoke or the context in which they were spoken. His tack entails essentially three arguments. First, citing Justice Stevens’s dissent in Morse v. Frederick, 551 U.S. 393, 442–43 (2007), he contends that Plaintiffs’ attempt to fit President Trump’s speech in the Brandenburg box improperly relies on how its listeners interpreted the speech rather than his actual words. See Blassingame Trump Mot. at 25 (citing Morse, 551 U.S. at 442–43 (Stevens, J., dissenting) (observing that the distinction between advocacy and incitement “could not depend on how” others understood speech; to hold otherwise would leave “‘the speaker . . . wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning’” (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)))). The court has no quarrel with the proposition that an incitement-speech inquiry cannot turn on the subjective reaction of the listener. See Nwanguma v. Trump, 903 F.3d 604, 613 (6th Cir. 2018) (“It is the words used by the speaker that must be the focus of the incitement inquiry, not how they may be heard by a listener.”).32 In conducting the inquiry above the court assiduously avoided relying on any allegations that Plaintiffs made about any person’s reaction to the President’s January 6 Rally Speech. (And, Plaintiffs did make such allegations. See, e.g., Thompson Compl. ¶¶ 88, 122; Blassingame Compl. ¶¶ 61, 93.) The court’s conclusion rests on the words spoken and their context, including the audience to whom the President spoke and when he spoke to them.

Next, the President focuses on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers “to peacefully and patriotically make your voices heard.” Blassingame Trump Mot. at 25. Those words are a factor favoring the President. See Nwanguma, 903 F.3d at 611–12 (holding that the allegation that candidate Trump’s repetition of the words “get ’em out of here,” directed at protesters attending a campaign rally, were inciting words was “undercut[]” by the accompanying words “don’t hurt ’em”). That is why the court recited those words in summarizing his Speech. But the President’s passing reference to “peaceful[] and patriotic[]” protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to “fight like hell” immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression.

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. . . . Remember this day forever!”

-- Donald Trump, Tweet, 6:00 p.m., January 6, 2020


When the President tweeted an invitation to the January 6 Rally, pro-Trump message boards and social media lit up with some supporters expressing a willingness to act violently, if needed. Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.” Even the President’s counsel conceded that an invitation to commit a tort and the acceptance to do so would establish a civil conspiracy....

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


Finally, President Trump plays a game of what-aboutism, citing fiery speeches from Democratic legislators, including Plaintiff Waters, which he says likewise would not be protected speech if the court were to find, as it has, that the President’s is not. Thompson Trump Reply at 8, 11–13. The court does not find such comparators useful. Each case must be evaluated on its own merits, as the court has done above. If the President’s larger point is that a speaker only in the rarest of circumstances should be held liable for political speech, the court agrees. Cf. Bible Believers, 805 F.3d at 244 (observing in a case involving religious expression that “[ i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot”). That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg’s imminence requirement is stringent, and so finding the President’s words here inciting will not lower the already high bar protecting political speech.33

* * *

The nineteenth century English philosopher John Stuart Mill was a fierce advocate of free speech. But Mill understood that not all speech should be protected. In his work On Liberty, Mill wrote, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” JOHN STUART MILL, ON LIBERTY 100 (London, John W. Parker & Son, 2d ed. 1859). As an example Mill offered the following:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.


Id. at 100–01. President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost. The Speech plausibly was, as Mill put it, a “positive instigation of a mischievous act.” Dismissal of Plaintiffs’ claims on First Amendment grounds is not warranted.

e. Giuliani and Trump Jr.

As the court already has said, it finds that Giuliani’s and Trump Jr.’s words spoken before and on January 6th are protected expression. None of their words, explicitly or implicitly, rose to the level of a call for imminent use of violence or lawless action. That is true even of Giuliani saying, “Let’s have trial by combat.” That statement was made in the context of his assertion that the election was rife with criminal fraud, and that he was “willing to stake “[his] reputation,” and the President would too, “on the fact we’re going to find criminality.” But Giuliani never said anything about where or when the “trial by combat” would occur. Giuliani’s statement is therefore, at most, “advocacy of illegal action at some indefinite future time.” Hess, 414 U.S. at 108. The “trial by combat” line is surely provocative, but it is not unprotected speech. See Claiborne Hardware, 458 U.S. at 928 (holding that where “spontaneous and emotional appeals for unity and action in a common cause . . . . do not incite lawless action, they must be regarded as protected speech”).

Accordingly, the court dismisses all federal and District of Columbia–law claims brought by Swalwell and the Bass Plaintiffs against Giuliani and Trump Jr.

f. Oath Keepers

The Oath Keepers also contend that the § 1985(1) claim against them must be dismissed because their alleged acts were protected speech, assembly, and petitioning. Thompson Oath Keepers Mot. at 27–28. The court quickly dispenses with this argument. “The First Amendment does not protect violence.” Claiborne Hardware, 458 U.S. at 916. The Oath Keepers are alleged to have acted violently by breaching the Capitol building, “with the rest of the riotous mob,” wearing “paramilitary equipment, helmets, reinforced vests and clothing with Oath Keepers paraphernalia, moving in a regimented manner as members of the military are trained.” Thompson Compl. ¶ 126. Such actions, if true, are not entitled to First Amendment protection.

The court also notes that, if the court were to dismiss the § 1985(1) claim against the Oath Keepers for failing to overcome a First Amendment defense, Plaintiffs could easily cure any deficiency through amendment. “The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). The court can take judicial notice that ten members of the Oath Keepers, including its leader Stewart Rhodes, have been charged with seditious conspiracy. See Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 144 n.2 (D.D.C. 2011) (“The Court may take judicial notice of public records like docket sheets and other court documents.”); Indictment, United States v. Rhodes, No. 22-cr-15 (APM) (D.D.C.), ECF No. 1. There is no First Amendment protection for such alleged conduct.

F. District of Columbia–law claims

What remains to address are President Trump’s motions to dismiss the District of Columbia–law claims asserted by Swalwell and the Blassingame Plaintiffs. (Recall, the Bass Plaintiffs advance only a single federal claim under § 1985(1).) The court considers these arguments solely as to President Trump because the court already has dismissed those claims brought by Swalwell against Giuliani and Trump Jr. on First Amendment grounds. The court takes up the District of Columbia–law claims in the order in which they appear in Swalwell’s Complaint, followed by any unique claims asserted by the Blassingame Plaintiffs. The court will note in the header when the claims overlap.

1. Negligence Per Se Based on Violation of District of Columbia Criminal Statutes (Swalwell Counts 3 and 4 and Blassingame Counts 4 and 5)

Swalwell and the Blassingame Plaintiffs advance two similar claims, which Swalwell styles as “Negligence Per Se” and the Blassingame Plaintiffs style as “Violation of Public Safety Statute.” Swalwell Compl. at 50–51; Blassingame Compl. at 40–41. The court understands these claims to advance a theory under District of Columbia law that violations of criminal statutes can create civil liability. See Marusa v. District of Columbia, 484 F.2d 828, 834 (D.C. Cir. 1973) (setting forth “guidelines for determining whether violation of a criminal statute can create civil liability”). The court will refer to these as Plaintiffs’ “negligence per se” claims.34 Here, Swalwell and the Blassingame Plaintiffs seek to predicate liability on alleged violations of D.C. Code § 22- 1322, which prohibits inciting of a riot, and D.C. Code § 22-1321, which prohibits acts of disorderly conduct.

At oral argument, the court expressed skepticism that the negligence per se counts state claims under District of Columbia law. See Hr’g Tr., at 180–90. But the court’s skepticism is nowhere matched by an argument in President Trump’s motions to dismiss. The court has searched in vain for a contention that these claims must be dismissed because a violation of the referenced criminal statutes fails to state a cause of action. The President’s motions do not address this theory of liability generally or Plaintiffs’ negligence per se claims specifically, let alone advance the concerns the court raised during oral argument. See Swalwell Trump Motion at 32–37; Blassingame Trump Motion at 33–41. The closest the President’s brief comes to addressing these claims is when he argues that President Trump owed no duty to Swalwell, see Swalwell Trump Mot. at 33–34, but that argument is not made in the context of negligence per se law.35 The President briefly addresses the anti-riot and disorderly conduct laws, but his argument is that those statutes do not reach political speech. Blassingame Trump Mot. at 33. But the court already has held that the President’s January 6 Rally Speech was not protected expression.

Ultimately, notwithstanding the court’s expressed doubts about the validity of the negligence per se claims, it is not the court’s job to raise arguments that a party has not. Accordingly, the negligence per se counts survive the motions to dismiss.

2. District of Columbia Anti-Bias Statute (Swalwell Count 5)

Swalwell also puts forth a claim under the District of Columbia anti-bias statute, D.C. Code § 22-3704. That statute provides a civil cause of action for, as relevant here, “any person who incurs injury to his or her person or property as a result of an intentional act that demonstrates an accused’s prejudice based on the actual or perceived . . . political affiliation of a victim of the subject designated act,” “[ i]rrespective of any criminal prosecution or result of a criminal prosecution.” The statute defines “designated act” to mean a “criminal act, including . . . assault . . . and . . . inciting . . . assault.” D.C. Code § 22-3701(2). Swalwell alleges that President Trump committed these crimes and that they were “motivated by [Swalwell’s] political affiliation as a political opponent of Donald Trump.” Swalwell Compl. ¶ 210.

The court expressed doubt at oral argument that prejudice based on “affiliation as a political opponent of Donald Trump” qualifies as “political affiliation” for purposes of the District of Columbia anti-bias law.
See Hr’g Tr., 190–91. The term “affiliation” is undefined in the statute; its ordinary meaning is “the state of belonging to a particular religious or political group.” Affiliation, MERRIAM-WEBSTER’S DICTIONARY, https://www.merriam-webster.com/dictionary /affiliation (last visited Feb. 10, 2022). Opposing the President of the United States would not seem to fit that definition. But President Trump does not make this argument. See Swalwell Trump Mot. at 35–36. So, the court declines to dismiss on that ground.

President Trump advances two other arguments. First, he contends that Swalwell’s anti-bias claim fails “for all the reasons discussed elsewhere, especially since, incredibly, he alleges the use of political language he finds offensive gives rise not only to a cause of action but an actual crime.” Id. To the extent the court already has rejected arguments made “elsewhere,” it rejects them here, again. As for President Trump’s contention that offensive political language cannot give rise to an anti-bias cause of action, that mischaracterizes what the statute says and what Swalwell pleads. The statute does not make political speech a crime or actionable. Rather, it provides a cause of action for the victim of a crime that is motivated by bias. Here, Swalwell alleges that he was the victim of a criminal assault or incitement of an assault that was motivated by his “political affiliation.” Swalwell Compl. ¶¶ 209–214.36 The claim therefore cannot be dismissed on the ground that the statute makes offensive political speech unlawful.

Second, President Trump argues that the statute only allows for recovery for injury to an individual’s “person or property,” D.C. Code § 22-3704, and that Swalwell only seeks recovery “for psychological or emotional harm,” which is “fatal to his bias claim.” Id. at 35–36. But that argument goes nowhere because the anti-bias law expressly permits recovery of “[a]ctual or nominal damages for economic or non-economic loss, including damages for emotional distress.” D.C. Code § 22-3704(a)(2).37 Swalwell therefore can proceed with his claim under the District of Columbia anti-bias law.

3. Intentional and Negligent Infliction of Emotional Distress (Swalwell Counts 6 and 7)

Swalwell asserts a claim of intentional infliction of emotional distress (IIED) and an additional claim of negligence infliction of emotional distress (NIED). To state a claim for IIED, a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013). To state a claim for NIED, a plaintiff must plead that (1) the defendant acted negligently, (2) the plaintiff suffered either a physical impact or was within the ‘zone of danger’ of the defendant’s actions, and (3) the plaintiff suffered emotional distress that was “serious and verifiable.” Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) (quoting Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991)).38 President Trump argues that Swalwell’s pleading falls short on the first and third elements on both claims. Swalwell Trump Mot. at 36–37. The court agrees as to the third element of both claims.

“Severe emotional distress” for purposes of a IIED claim is a high bar. It “requires a showing beyond mere ‘mental anguish and stress’ and must be ‘of so acute a nature that harmful physical consequences are likely to result.’” Competitive Enterprise v. Mann, 150 A.3d 1213, 1261 (D.C. 2016). “Serious and verifiable” distress for an NIED claim is a lower bar, but it must manifest in some concrete way, such as “by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991) (emphasis omitted). Swalwell’s pleading meets neither of these standards. His pleading is largely conclusory. Swalwell Compl. ¶ 223 (alleging that “Defendants’ actions caused severe emotional distress”); id. ¶ 226 (alleging that “plaintiff suffered severe emotional distress”). Swalwell does, however, describe his thoughts and emotions when he was in the House chamber, heard rioters pounding on the door and smashing glass to enter, and saw Capitol police draw their weapons and barricade the entrances. Id. ¶ 224. He states that, during these events, he texted his wife, “I love you very much. And our babies.” Id. ¶ 225. The court does not minimize the trauma and shock Swalwell felt on January 6th, but his pleading simply does not meet the high bar for either an IIED or NIED claim. Those counts will be dismissed.

Before moving to the next claim, the court notes that the Blassingame Plaintiffs also brought an IIED claim (Count 3). They have voluntarily dismissed that claim. Blassingame Pls.’ Opp’n at 32 n.12. That count will be dismissed without prejudice.

4. Aiding and Abetting Common Law Assault (Swalwell Count 8 and Blassingame Count 2)

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-and-abetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

President Trump urges the court to scrutinize Plaintiffs’ aiding-and-abetting theory under the five factors set forth in the Restatement (Second) of Torts § 876(b), as cited in Halberstam. Blassingame Trump Mot. at 36–37. The five Restatement factors are (1) the nature of the act encouraged, (2) the amount and kind of assistance given, (3) the defendant’s absence or presence at the time of the tort, (4) his relation to the tortious actor, and (5) the defendant’s state of mind. The Halberstam court also considered as an additional, sixth factor the duration of the assistance provided. Halberstam, 705 F.2d at 484. Evaluating Plaintiffs’ theory under these six factors only supports the plausibility of President Trump’s liability as an aider and abettor.

Nature of the act encouraged. The nature of the act here—violent and lawless conduct at the Capitol incited by President Trump’s Rally Speech—supports a finding that President Trump “substantial[ly]” contributed to the underlying tort. Halberstam, 705 F.2d at 484. President Trump contends that this factor favors him because he admonished the crowd to “be peaceful, well before any violence was conducted by anyone listening to the speech,” thus attenuating the “temporal connection” between his words and the tortious act. Blassingame Trump Mot. at 36. But that contention ignores the President’s later words encouraging the crowd, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” occurring only moments before he sent rally-goers on a march to the Capitol (“So let’s walk down Pennsylvania Avenue”).

Amount and kind of assistance given. The court in Halberstam observed that this was a “significant factor,” using as an illustration a case in which the aider and abettor through his words had “sparked” the action. 705 F.2d at 484. That is precisely what is alleged to have happened here. President Trump resists this view, arguing he “was not even present at the time of the conduct, nor did he provide any equipment, information, or any other kind of assistance.” Blassingame Trump Mot. at 37–38. This, however, ignores Plaintiffs’ theory, which the court has found plausible, that the President’s words at the rally sparked what followed.

Presence at the time of the tort. For the reasons already discussed, the fact President Trump was not at the Capitol itself does not allow him to avoid potential aiding-and-abetting liability. See Halberstam, 705 F.2d at 484 (noting that presence is not a requirement); id. at 488 (finding liability even though the defendant was not present at the time of the assisted act).

Relation to the tortfeasor.

Halberstam says that an aider and abettor’s “position of authority len[ds] greater force to his power of suggestion.” Id. at 484. The application of that factor here requires little discussion. The President nevertheless pushes back, asserting that because the tortfeasors were not known to the President, this factor cuts in his favor. Blassingame Trump Mot. at 37. Leaving aside that Plaintiffs have pleaded that the President did know about organized militia groups, Halberstam makes clear that the aider and abettor need not have a personal relationship with the tortfeasor to be in a position of authority. Halberstam, 705 F.2d at 484 (citing Cobb v. Indian Springs, Inc., 522 S.W.2d 383 (Ark. 1975) (finding aiding-and-abetting liability where a security guard urged a young driver with a new car to give the car a high-speed test run that injured a bystander)).

State of mind.

 As to this factor, the court has found that Plaintiffs have plausibly alleged that the President was of one mind with organized groups and others to participate in violent and unlawful acts to impede the Certification. Thus, this factor is supported by more than, as the President contends, his alleged pleasure in watching news coverage of the events as they unfolded at the Capitol building. Blassingame Trump Mot. at 37.

Duration of the assistance provided.

 The Halberstam court considered an additional, sixth factor, the duration of the assistance provided. This factor also weighs against President Trump. True, the Rally Speech itself was relatively short in duration, but the invitation for the Rally came two weeks earlier. The duration is longer still if the court considers his tweets prior to that invitation. Importantly, even President Trump admits that his “sporadic tweets and speeches” present a “stronger argument” for “conspiracy” liability. Id. at 37–38. That duration also supports aiding-and-abetting liability.

Accordingly, the court holds that Swalwell and the Blassingame Plaintiffs have stated a claim for common law assault based on an aiding-and-abetting theory of liability.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Feb 19, 2022 10:04 am

Part 6 of 6

5. Negligence (Swalwell Count 9)

The last of Swalwell’s claims is negligence. Swalwell alleges that “[ i]n directing a crowd of thousands to march on the Capitol—particularly considering their violence-laden commands— the Defendants owed a duty of care to the Plaintiff and to everyone in the Capitol to exercise reasonable care in directing the mob’s actions.” Swalwell Compl. ¶ 255. He further contends that President Trump breached that duty by, among other things, urging rally-goers to “fight like hell.” Id. ¶ 257. Thus, under Swalwell’s negligence claim, the President’s lack of care with his words caused others to riot, resulting in his injuries. Importantly, such a theory is analytically distinct from the theory that underlies Swalwell’s § 1985(1) and aiding-and-abetting theories, which rest on the President’s intentional use of words to encourage violence or lawlessness. See Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 916 (D.C. Cir. 2015) (observing that “intent and negligence are regarded as mutually exclusive grounds for liability” (alterations omitted) (quoting District of Columbia v. Chinn, 839 A.2d 701, 706 (D.C. 2003))).

When, as here, a plaintiff seeks to hold a defendant liable for negligence for injuries resulting from intervening criminal acts, “heightened foreseeability factors directly into the duty analysis because a defendant is only liable for the intervening criminal acts of another if the criminal act is so foreseeable that a duty arises to guard against it.” Bd. of Trustees of Univ. of D.C. v. DiSalvo, 974 A.2d 868, 871 (D.C. 2009) (internal quotation marks omitted). The crux of heightened foreseeability is a showing of the defendant’s “increased awareness of the danger of a particular criminal act.” Id. at 872 (emphasis added). “It is not sufficient to establish a general possibility that the crime would occur, because . . . the mere possibility of crime is easily envisioned and heightened foreseeability requires more precision.” Id. at 872–73. Such precision involves, “if not awareness of the precise risk, close similarity in nature or temporal and spatial proximity to the crime at issue.” Id. at 874. Thus, for example, in DiSalvo, the D.C. Court of Appeals said that, to establish a duty, the plaintiff “had to establish that [the university] had an increased awareness of the risk of a violent, armed assault in the parking garage.” Id. at 872. Similarly, in Sigmund v. Starwood Urban Retail VI, LLC, to establish a duty, the D.C. Circuit demanded proof of similar crimes in a case in which the plaintiff was injured by a pipe bomb in his building’s garage. 617 F.3d 512, 516 (D.C. Cir. 2010).

Accordingly, to establish that President Trump had a duty to Swalwell to take care of the words he used in the Rally Speech, Swalwell must plead facts establishing that the President had an increased awareness of a risk of a violent assault at the Capitol. Not surprisingly, he does not meet this demanding standard. He therefore cannot advance a theory of negligence liability based on the theory that the President’s lack of care in selecting his words caused his injuries. His only viable theory is to show that President Trump acted intentionally, which he has sufficiently pleaded.

• Trump assured supporters at the "Save America" rally Wednesday that he would join them on a march to the Capitol.
• He encouraged them to "show strength" and head to the Capitol, where Congress was in the process of certifying President-elect Joe Biden's victory.
• He then returned to the White House by car.
• Soon after, the assembled protesters grew violent, and broke into the Capitol building, with the president watching on TV.


[url=x]-- Trump said he would walk with protesters to the Capitol, but drove off in his motorcade before the march devolved into a violent attack, by Mia Jankowicz, Business Insider, Jan 7, 2021, 5:35 AM[/url]


6. The Blassingame Plaintiffs’ Additional “Claims”

The Blassingame Plaintiffs advance three counts not asserted by Swalwell: (1) directing assault and battery (Count 1); (2) punitive damages (Count 6); and (3) civil conspiracy (Count 8). As to the first of these unique “claims,” the court does not understand the difference, in this case, between “directing” an assault and aiding and abetting one. They seem one and the same. Nevertheless, the court will not dismiss Count 1; Plaintiffs may be able to clarify and refine this claim through discovery. Count 6—punitive damages—is not a freestanding claim, but a type of damages, so it is dismissed, without prejudice to seeking such damages, if liability is established and if appropriate. And, Count 8—civil conspiracy—is “not independently actionable” under District of Columbia law; rather, it is a “means for establishing vicarious liability.” See Halberstam, 705 F.2d at 479. Count 8 is therefore dismissed, without prejudice to seeking to use civil conspiracy as a theory of vicarious liability.

G. Brooks’s Motion for Westfall Act Certification

At long last, the court arrives at the final matter before it: Brooks’s request for certification under the Westfall Act. Under that Act, if the Attorney General certifies that a federal employee “was acting within the scope of his office or employment at the time of the incident out of which [a] claim arose,” the employee shall be dismissed from the action and the United States substituted as the defendant. 28 U.S.C. § 2679(d)(1). Such certification and substitution do not, however, extend to an action brought against an employee for a “violation of a statute of the United States under which such action against an individual is otherwise authorized.” Id. § 2679(b)(2)(B). In this matter, the Attorney General refused to certify that Brooks was acting within the scope of his office, i.e., in his legislative capacity, when he gave his speech at the January 6 Rally. U.S. Resp. to Brooks at 1. The congressman nevertheless asks the court to make the requisite certification as to Swalwell’s tort claims. 28 U.S.C. § 2679(d)(3) (authorizing courts to certify a defendant-employee’s acts as within the scope of office or employment).

The court need not grapple with this issue. A dispute over certification under the Westfall Act does not appear to be a question regarding the court’s subject matter jurisdiction, so the court is not required to consider it before the merits. The court instead invites Brooks to file a motion to dismiss for failure to state a claim. The court is prepared to grant such motion for the same reasons it dismisses all claims against Giuliani and Trump Jr.: Brooks’s remarks on January 6th were political speech protected by the First Amendment for which he cannot be subject to liability.

IV. CONCLUSION AND ORDER

For the foregoing reasons, the court holds as follows with respect to each of the three actions:

Thompson v. Trump. Giuliani’s motion to dismiss is granted and the motions to dismiss of President Trump, the Oath Keepers, and Tarrio are denied.

Swalwell v. Trump. The motions to dismiss of Trump Jr. and Giuliani are granted as to all claims. The motion to dismiss as to President Trump is denied as to:

(1) the § 1985(1) claim (Count 1)

(2) the negligence per se claims (Counts 3 and 4)

(3) violation of the District of Columbia’s anti-bias law (Count 5), and

(4) aiding and abetting assault (Count 8)

and granted as to:

(5) the § 1986 claim (Count 2)

(6) intentional infliction of emotional distress (Count 6)

(7) negligent infliction of emotional (Count 7) distress, and

(8) negligence (Count 9).

The court defers ruling on Brooks’s Westfall Act certification petition and instead invites him to file a motion to dismiss, which the court will grant.

Blassingame v. Trump. President Trump’s motion to dismiss is denied as to:

(1) the § 1985(1) claim (Count 7)

(2) directing/aiding and abetting assault (Counts 1 and 2)

(3) violations of public safety statutes (i.e, negligence per se) (Counts 4 and 5) and granted as to:

(4) intentional infliction of emotional distress (Count 3)

(5) punitive damages (Count 6)

(6) civil conspiracy in violation of common law (Count 8).

Dated: February 18, 2022

Amit P. Mehta
United States District Court Judge

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Notes:

1 President Reagan said on that day:
 
To a few of us here today, this is a solemn and most momentous occasion; and  yet, in the history of our Nation, it is a commonplace occurrence. The orderly  transfer of authority as called for in the Constitution routinely takes place as it has  for almost two centuries and few of us stop to think how unique we really are. In  the eyes of many in the world, this every-4-year ceremony we accept as normal is  nothing less than a miracle.

 
President Ronald W. Reagan, First Inaugural Address (Jan. 20, 1981), https://www.reaganfoundation  .org/media/128614/inaguration.pdf (last visited Feb. 17, 2022).
 
2 Subsequent citations to filings from these three dockets omit the case name and number. Context and/or the title of  the filing should make clear to which docket a particular filing belongs.
 
3 As discussed later, these Complaints make different allegations about the timing of these shouts and chants.
 
4 The plaintiffs are Representatives Karen R. Bass, Stephen I. Cohen, Veronica Escobar, Pramila Jayapal, Henry C.  Johnson, Jr., Marcia C. Kaptur, Barbara J. Lee, Jerrold Nadler, Maxine Waters, and Bonnie M. Watson Coleman.

5 President Trump raises another contention under the rubric of Article III standing but misclassifies it. He insists that  Swalwell and the Bass Plaintiffs cannot bring suit under § 1985(1) because such a claim “is only available to specific  federal officials,” which does not include members of Congress. Thompson Trump Mot. at 16. Therefore, he says,  “Plaintiffs are not of a class of individuals who have standing to bring a claim under § 1985(1).” Id. at 18 (emphasis  added). This type of argument is commonly referred to as “statutory standing.” See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014). The Supreme Court has made clear, however, that a question  of statutory standing does not implicate the court’s subject matter jurisdiction, that is, the court’s power to hear a case.  See id. Rather, a dispute as to statutory standing simply requires a court to determine whether a plaintiff “has a cause  of action under the statute.” Id. at 128. It is therefore an argument properly addressed pursuant to Federal Rule of  Civil Procedure 12(b)(6), not Rule 12(b)(1). The court thus takes up President Trump’s statutory standing argument  below in the section addressing whether Swalwell and the Bass Plaintiffs have stated a claim under § 1985(1).
 
6 Although President Trump does not contest the Blassingame Plaintiffs’ standing except for a cursory mention in the  one-page motion to which he attaches his memorandum, Def. Trump’s Mot. to Dismiss, ECF No. 10; see generally  Blassingame Trump Mot., the court nevertheless addresses it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (stating that federal courts have an “independent obligation to determine whether subject-matter jurisdiction exists,  even in the absence of a challenge from any party”).
 
7 Certain Plaintiffs seek injunctive relief in addition to damages. See Swalwell Compl. at 64; Thompson Compl. at 62.  The standing inquiry for injunctive relief is different, as it requires a plaintiff to establish a likelihood of future harm.  In re Navy Chaplaincy, 697 F.3d at 1178 (“It is sufficient that plaintiffs have demonstrated a ‘likelihood of injury that  rises above the level of unadorned speculation—that is, a realistic danger that [they] will suffer future harm.” (internal  quotation marks omitted)). Plaintiffs have not plausibly pleaded at this stage any likelihood of future injury.
 
8 It is understandable why the Oath Keepers interpreted the Bass Plaintiffs’ claimed injury to include an impairment  of their official duties. Their Complaint states that “each of the Plaintiffs named above was hindered and impeded in  the discharge of his or her official duties and suffered the deprivation of the right to be free from intimidation and  threats in the discharge of his or her official duties, as explicitly protected under the Ku Klux Klan Act.” Thompson  Compl. ¶ 265. That certainly sounds like an institutional injury. In any event, the Bass Plaintiffs have expressly  disavowed such a theory of standing. Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss, ECF  No. 29, at 20 (“Plaintiffs, however, are not seeking damages for an impaired ability to certify the results of the  election.”).
 
9 Clinton v. Jones also involved a claim of defamation that arose while President Clinton was in office. The claim  was that “persons authorized to speak for the President publicly branded [the plaintiff] a liar by denying that the  incident had occurred.” 520 U.S. at 685. The question of immunity as to the defamation claim was not before the  Court, though it did observe in passing that the defamation claim “may involve conduct within the outer perimeter of  the President’s official responsibilities.” Id. at 686 & n.3.
 
10 The Court also made clear in Clinton, and later in Vance v. Trump, that the “dominant concern” for crafting broad  immunity in Fitzgerald “was not mere distraction but the distortion of the Executive’s ‘decisionmaking process’ with  respect to official acts that would stem from ‘worry as to the possibility of damages.’” Vance, 140 S. Ct. at 2426  (quoting Clinton, 520 U.S. at 694 n.19). President Trump alludes to a “distraction” rationale in his papers, see  Thompson Trump Mot. at 9, but he does not seriously advocate for it, recognizing instead that the “distortion” rationale  is the predominant reason for affording a President absolute immunity from civil suit for official acts.
 
11 The below summary is pulled, some of it verbatim, from Judge Friedrich’s decision in United States v. Sandlin,  No. 21-cr-88 (DLF), 2021 WL 5865006, at *4 (D.D.C. Dec. 10, 2021).
 
12 To be clear, the court does not mean to say that there is no conceivable circumstance in which the President would  have a role in faithfully executing the laws pertaining to the Certification of the Electoral College. The court’s holding  is limited to President Trump’s contention that his mere exhortation to carry out Certification duties in a particular  way falls within the Take Care Clause.
 
13 This observation was made as part of the Supreme Court’s rejection of the “distraction” theory as justifying absolute  immunity:
 
 There is, no doubt, some truth to Learned Hand’s comment that a lawsuit should  be “dread[ed] . . . beyond almost anything else short of sickness and death.” We  recognize that a President, like any other official or private citizen, may become  distracted or preoccupied by pending litigation. Presidents and other officials face  a variety of demands on their time, however, some private, some political, and  some as a result of official duty. While such distractions may be vexing to those  subjected to them, they do not ordinarily implicate constitutional separation-of-powers concerns.

 
Clinton, 520 U.S. at 705 n.40 (citation omitted).
 
14 At oral argument and in a post-hearing filing, Plaintiffs proposed that the court could rely on an Office of Legal  Counsel Opinion from 1982, Payment of Expenses Associated with Travel by the President and Vice President,  6 Op. O.L.C. 214 (1982), to distinguish between a President’s official duties and campaign activities. See Hr’g Tr.  33; Pls.’ Notice of Suppl. Authority, ECF No. 59 (on Thompson docket). That Opinion adopts a “reasonable  connection” to “official purposes” test to differentiate the two capacities. 6 Op. O.L.C. at 216. The court is skeptical  that a test rooted in statutory and administrative rules on spending of appropriations can define the scope of a  constitutional immunity.
 
15 That said, the court would be remiss in not pointing out that there is at least some historical support for Plaintiffs’  position. In Fitzgerald, the Court found persuasive Justice Story’s analysis on presidential immunity. 457 U.S. at  749 (quoting 3 J. STORY, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES § 1563, at 418–19 (1st ed.  1833)). Justice Story also commented on the open question of “whether, under the constitution, any acts are  impeachable, except such, as are committed under colour of office.” 2 Commentaries § 799. In other words, does the  constitutional remedy of impeachment extend to official acts only, or can it be based on unofficial conduct? In  addressing this issue, Justice Story did not formulate a firm opinion, but he did make the following observation:
 
In the argument upon Blount’s impeachment, it was pressed with great  earnestness, that there is not a syllable in the constitution, which confines  impeachments to official acts, and it is against the plainest dictates of common  sense, that such restraint should be imposed upon it. Suppose a judge should  countenance, or aid insurgents in a meditated conspiracy or insurrection against  the government. This is not a judicial act; and yet it ought certainly to be  impeachable.

 
Id. § 802 (emphasis added). Justice Story’s mention of “Blount’s impeachment” refers to the impeachment of Senator  William Blount of Tennessee in 1797, who stood accused of conspiring with British officials and others in a plot to  establish British control over the Spanish-controlled territories of Louisiana and the Floridas. The House impeached  Blount, but the Senate ultimately dismissed the charges because Blount had already been expelled and the Senate  concluded it no longer had jurisdiction over him. See Impeachment Trial of Senator William Blount, 1799, U.S.  SENATE, https://www.senate.gov/about/powers-pro ... ent-blount htm (last visited Feb.  8, 2022). This tidbit of history does lend some credence to the notion that a high government official who “aid[s]  insurgents in a meditated conspiracy or insurrection against the government” is not acting in an official capacity.
 
16 If Swalwell contends that President Trump is liable under § 1986 because he himself is an alleged coconspirator  and had the power to stop the conspiracy, the court is dubious that § 1986 can sustain such a construction. If accepted,  it would mean that any coconspirator of a § 1985 conspiracy with some degree of authority is likewise liable under  § 1986. The court is skeptical that Congress intended such an interpretation. In any event, Swalwell does not  specifically articulate a reading of § 1986 that would rest on the President’s failure to act before the rally-goers stormed  the Capitol. See Swalwell Compl. ¶ 90.
 
17 In his Blassingame motion, President Trump makes a further argument. He contends that the Impeachment  Judgment Clause’s use of the word “Indictment” to start the series “Indictment, Trial, Judgment and Punishment,  according to Law” underscores that “an individual convicted is only potentially liable for follow on criminal charges  brought by the government rather than a civil suit on the same issues.” Blassingame Trump Mot. at 21 (emphasis  added). The court already has rejected the contention that the Impeachment Judgment Clause implicitly forecloses  further action against an acquitted individual. President Trump does not, however, make the alternative argument  that, even if an acquitted official can be subject to some judicial process, the word “Indictment” implies that such  process can only be criminal and not civil in nature. See id. at 21–22. The court therefore does not address that  contention.
 
18 President Trump does not advance these first two arguments against the Blassingame Plaintiffs, and because  statutory standing is not jurisdictional, see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,  125–28 (2014), the court treats them as forfeited as to the Blassingame Plaintiffs.
 
19 According to a Westlaw search, the Supreme Court has cited various editions of Bouvier’s Law Dictionary over  50 times, most recently in 2019 in Peter v. NantKwest, Inc., 140 S. Ct. 365, 372 (2019).
 
20 The Bass Plaintiffs also convincingly cite legislative history to buttress their argument that members of Congress  are within the reach of § 1985(1). Thompson Pls.’ Opp’n at 22–27. The court need not recite that legislative history  here because the meaning of the words found in § 1985(1) plainly encompasses members of Congress.

21 President Trump does cite a law review article for the proposition that “in common law, an office of trust or profit  referred exclusively to those in the employ in the executive, judiciary, or the church,” and did not include legislators.  Thompson Trump Mot. at 17–18 (citing Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the  Disqualification Clause Doesn’t (Always) Disqualify, 32 QUINNIPIAC L. REV. 209, 278–79 (2014)). But this is just  another argument to tie § 1985(1)’s terms to similar words in the Constitution. The cited law review article was  reviewing the historical underpinning of the Impeachment Clause, which states that “Judgment in Cases of  Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office  of honor, Trust or Profit under the United States.” Art. I, § 3, cl. 7 (emphasis added); see also Cassady, supra, at 277  (“This interpretation—that legislators are not officers who hold offices of ‘honor, Trust or Profit’—is buttressed by  the text, history, and structure of the Constitution.”). But for the reasons already discussed, the meaning of the terms  in § 1985(1) is not bound by the meaning of similar terms in the Constitution.
 
22 The Blassingame Plaintiffs do not allege that the conspiracy’s purpose was to prevent them from discharging their  duties, but they do allege that they were injured as a result of the conspiracy to disrupt the Certification of the Electoral  College vote. Blassingame Compl. ¶ 226.
 
23 In this section, the court does not include citations to the Complaints to support these facts to avoid cluttering up  the text. There is no dispute that the Complaints make these allegations.
 
24 A full transcript of the President’s remarks can be found on the Thompson docket. Def. Oath Keepers’ Mot. for  Leave to File Am., Suppl. Ex. in Supp. of the Oath Keepers’ Mot. to Dismiss, ECF No. 57, Ex. 2, ECF No. 57-2.
 
25 There is a conflict between two Complaints as to when these shouts and chants took place. According to the Bass  Plaintiffs, the chants to lay siege to the Capitol took place during the President’s speech and shouts to fight for the  President took place after he concluded speaking. Thompson Compl. ¶ 88. The Blassingame Plaintiffs say just the  opposite. Their version is that the chants regarding the Capitol took place after the President concluded his remarks  and the shouts to fight for him occurred during his speech. Blassingame Compl. ¶ 61. The court does not attempt to  resolve that factual conflict here.
 
26 With respect to the President’s post–Rally Speech conduct, the court for present purposes considers only those acts  that plausibly were undertaken in his unofficial capacity. Circuit precedent suggests that immunized action (or  inaction) cannot be considered. See Banneker Ventures, 798 F.3d at 1145 (instructing trial court on remand to  “evaluate whether the actions that it concludes would not be immunized, taken together, state a claim against Graham  for tortious interference or civil conspiracy” (emphasis added)).
 
27 Swalwell also includes in his Complaint a photograph of Trump Jr. from May 2019 that purports to show him  wearing a t-shirt bearing the symbol of a militia group known as the Three Percenters. Swalwell Compl. ¶ 96. The  Three Percenters are among the groups alleged to have stormed the Capitol. But this effort to tie Trump Jr. to the  alleged conspiracy is tenuous, at best.
 
28 Numerous states passed criminal syndicalism laws in the early part of the 20th century “with the purpose of making  it illegal for individuals or groups to advocate radical political and economic changes by criminal or violent means.”  Dale Mineshima-Lowe, Criminal Syndicalism Laws, THE FIRST AMENDMENT ENCYCLOPEDIA, https://www.mtsu.edu  /first-amendment/article/942/criminal-syndicalism-laws (last visited Feb. 8, 2022).
 
29 The D.C. Circuit addressed Brandenburg in National Organization for Women v. Operation Rescue, but in the  context of evaluating the terms of an injunction, not applied to any particular speech. 37 F.3d 646, 657 (D.C. Cir.  1994).
 
30 The Rotunda and Nowak treatise’s three-factor test has been called into question insofar as it requires inquiry into  whether the speaker “objectively encouraged and urged and provoked imminent action.” The Sixth Circuit has  declined to wholly embrace such an “objective” element, except insofar as the Brandenburg inquiry must focus on  “the words used by the speaker . . . , not how they may be heard by a listener.” Nwanguma v. Trump, 903 F.3d 604,  613 (6th Cir. 2018).
 
31 The court has considered the Rally Speech in its entirety. See supra note 24. The recitation below summarizes  those remarks as they were made chronologically, and it omits citations for ease of reading.
 
32 The court takes no position on whether the subjective reaction of a listener might have some relevance to the inquiry.
 
33 President Trump additionally has argued that, if the court were to hold that he could be potentially liable under  § 1985(1) for his speech, such an interpretation would raise overbreadth and void-for-vagueness concerns. Thompson  Trump Mot. at 21–22. But such challenges make little sense, as the President cannot seriously contend that § 1985(1)  either sweeps in too much protected speech (an overbreadth challenge) or does not provide fair notice of what it  prohibits (void for vagueness). In any event, the President does not develop either argument, devoting only a half-page to them. See id. The court therefore declines to address them any more than it has. See United States v. Zannino,  895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a possible argument in the most skeletal way,  leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”).
 
34 The court recognizes that calling these claims “negligence per se” is a bit of a misnomer because both depend on  knowing and willful violations of the criminal law. Nevertheless, District of Columbia law does recognize that  violations of certain types of criminal statutes may give rise to civil liability under the rubric of “negligence per se” if  the statute is intended to promote safety. See McCracken v. Walls-Kaufman, 717 A.2d 346, 354 (D.C. 1998).
 
35 District of Columbia law seems to recognize that a qualifying public-safety criminal statute itself may create a duty,  in some cases to the public at large. See, e.g., Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268, 1275 (D.C.  1987) (holding that violation of statute that imposes criminal sanctions on tavern keepers for serving intoxicated  patrons created a duty extending to the general public).
 
36 In his reply brief, President Trump recharacterizes Swalwell’s anti-bias claim as alleging that because the President  committed “all of the other torts” alleged in the Complaint and “because he committed these torts with prejudice,  President Trump is liable under § 22-3704.” Reply in Supp. of Defs. Trump & Trump Jr.’s Mot. to Dismiss, ECF No.  44 [hereinafter Swalwell Trump Reply], at 29. But that is not what Swalwell has alleged, nor what the statute permits  as a ground for recovery. The “designated act” must be “a criminal act,” not a mere tort, D.C. Code § 22-3701(2),  and Swalwell accuses the President of predicate criminal, not tortious, acts, Swalwell Compl. ¶¶ 213–214.
 
37 In the penultimate line of his reply brief, President Trump asserts: “Even still, calling someone a radical left  Democrat does not amount to prejudice.” Swalwell Trump Reply at 29. This seems to be an argument challenging  the sufficiency of Swalwell’s pleading of the element of prejudice. Because it is raised for the first time in the reply  brief in a single, unadorned sentence, the court declines to consider it.
 
38 The District of Columbia Court of Appeals has moved away from the physical “zone of danger” requirement for  some NIED claims, but that exception is limited to cases in which the defendant had a relationship with the plaintiff,  or had undertaken obligations to the plaintiff, of a nature that necessarily implicates the plaintiff’s well-being.  See Sibley v. St. Albans Sch., 134 A.3d 789, 798 (D.C. 2016). That line of cases obviously is not implicated here.
 
39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a  recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes  too late, and the court declines to consider it.
 
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Feb 19, 2022 10:06 am

The never-before-told backstory of Pence's Jan. 6 argument: Former judge J. Michael Luttig shares the story of the run-up to the insurrection, and why he thinks it’s time to reform the Electoral Count Act.
by Politico Staff
02/18/2022 05:00 AM EST

For most of his life, J. Michael Luttig has operated behind the scenes at the top of the conservative legal world. He started his career as a young aide at the U.S. Supreme Court, worked as an attorney in the Reagan White House, clerked for Judge Antonin Scalia before he was a legal icon, helped guide the appointment of two other Supreme Court justices and was appointed to a federal judgeship by former President George H.W. Bush.

During Luttig’s time on the bench, one of his clerks was a young attorney named John Eastman. In recent months, Eastman’s name has become inextricably tied to the legal advice he offered to then-President Donald Trump in December 2020 and January 2021: In a now-infamous legal memo, Eastman argued that then-Vice President Mike Pence had the ability to discard certified electoral votes from contested states — a notion that has been roundly debunked, but which Trump’s closest allies clung to (and which helped to inspire some of his supporters to storm the Capitol in rage).

That story is, by now, well known. But there’s another part of the story — one that hasn’t been told until now.

Today, in his first in-depth interview on the topic, Luttig shares the story of those days before the insurrection, when he was unknowingly enlisted to help Pence reject Trump’s efforts on Jan. 6.

For “Playbook Deep Dive,” Ryan Lizza talks with Luttig about his advice to Pence then, what needs to be done to rewrite the Electoral Count Act now and why he’s choosing this moment to make his legal commentary loud, clear and very public — in panel discussions and op-eds in publications like The New York Times. A transcribed excerpt from that conversation is below, edited for length and readability.

J. Michael Luttig: I was first called by the vice president’s outside counsel, Richard Cullen, on the evening of Jan. 4. We now know that that was after the fateful Oval Office meeting that day between the president and vice president, where John Eastman made the argument that the vice president could overturn the election unilaterally as presiding officer.

Ryan Lizza: And you know John Eastman?

Luttig: John Eastman was one of my clerks — over 25 years ago — and Richard Cullen is one of my closest friends in all of life. And we had been, at that point, talking seemingly every day — if not multiple times a day — throughout the entire Trump administration because, of course, our close friend, Bill Barr, was attorney general.

So he called me. I was having dinner. No big deal: this is like your best friend calling. He called the night of the 4th and says, “Hey, Judge, what do you know about John Eastman?” And I said, “He was a clerk of mine 30 years ago.” He says, “Well, what else do you know?” I said, “I don’t know. John’s an academic, he’s a professor, he’s a constitutional scholar — and he’s a brilliant constitutional scholar.”

Lizza: This is sort of shocking to hear you say this, considering the way that most people have been introduced to John Eastman.

Luttig: Well, read everything that was written about him before, you know, Jan. 6.

Lizza: So that’s interesting: the person who was the architect of the attempted coup, essentially — I think it’s fair to use that language — was actually a well-respected legal mind with sound views of the Constitution and not some legal quack.

Luttig: That’s correct: The farthest thing from it. So Richard said, “Well, you don’t know, do you?” And I said, “Know what?” He said, “John’s advising the president and the vice president that the vice president has this authority [to reject electoral votes] on January 6” — two days hence. And I said, “Wow, no, I did not know that. Well, look, you can tell the vice president that I said that he has no such authority at all. And Richard said he knows that, I said OK, and we hung up.

So I told my wife about the call, and I said, “Wow. This is big.” I got up the next morning — I get up about 4:45 — and I’m having my coffee, and Richard calls — which is not unusual. But the call was unusual. He said, “Judge, can you help the vice president?” And I said, “Sure, what does he need?”

He said, “Well, we don’t know what he needs.” And I said, “What do you mean you don’t know what he needs? Then why are you calling me?” He said, “Look, this is serious.” I said, “OK, I understand. What do you want?” He’s talking with Marc Short and the vice president. And he says, “We need to do something publicly, get your voice out to the country.”

At that point, I said, “Oh my gosh, Richard, I don’t even have a job, much less an official one. I have no platform from which to speak.” I’m out here in Colorado at 6 in the morning. I don’t even have a fax machine. I said, “I really don’t even have a thought.” And he said, “This is urgent.” I said, “I understand.” He said, “I’ll call you back in five minutes.” So we hung up, and I sat there, finished my coffee — just racking my brain.

Just try to put yourself in my position. I had not a clue [what to say].

So he calls me back in five minutes: “You got anything yet?” And I said, “No, I don’t, Richard.” He says, “I’ll call you back in 10 minutes.” So he calls back in 10 minutes, and I said, “Richard, honest to goodness, I have no earthly idea what I can do.” And he says, “I’ll call you back in 10 more minutes, but we’ve got to move.” He called back in 10 minutes, and I said, “Alright, I opened a Twitter account a couple of weeks ago, but I don’t know how to use it.” He said, “Perfect.” And I said, “I told you: I don’t know how to use it.” He said, “Figure it out and get this done.” So I called my tech son who works for Peter Thiel, and I said, “How do I tweet something more than 180 characters long?

Lizza: Wait a second. You’re in the position here where the vice president is being pressured by the president of the United States to overturn the results of the election. And you’re the go-to legal mind who’s respected among Republicans that the vice president is looking to to essentially stop a coup. Do I have that right?

Luttig: To answer the question you’re asking: I understood the gravity of the moment and the momentous task that I was being asked to help the vice president with. I had been following all of this very closely in the days leading up to it. It was then — and may forever be — one of the most significant moments in American history. I’m a cut up, but I’m deadly serious when the time comes, and that day, I was as serious as I can possibly be.

Lizza: But first, you’ve got to learn how to tweet.

Luttig: So my son … well, first off, he says, “Dad, I don’t have time for this. You’ve got to learn this stuff on your own. … I’m busy.” To which I said something like, “Just tell me right now how to get this done, or I’ll cut you out of the will.”

The only thing I knew how to do was type out in prose all I wanted to say. Well, that was like 10 tweets [long]. So I go down to my office, and I open up the [Twitter] instructions on my laptop and I copy and paste what I’ve written on my iPhone into my laptop into a Word document, and then I set about to divide it up into 180-character tweets. I read it and reread it multiple times and then, I take a deep breath and I hit “tweet.”

Almost immediately, reporters started calling me: “Judge, what are you doing?” And I say, “What do you mean?” And they said, “You didn’t just tweet what you just tweeted for no reason.” And … I said, “If I tweeted this for a reason, I would not be at liberty to tell you.” Minutes later, The New York Times ran the tweet…

Lizza: And more importantly, the vice president cited your legal analysis on Jan. 6 in his famous letter explaining what his responsibilities and authorities were that day.

Luttig: Yes, that might be the greatest honor of my life. But it came to my attention in the least auspicious way. I got two back-to-back emails on [January] 6th from two of my clerks — both of them to the effect of: “Judge, we know what you’re doing.” And I said, “Guys, I don’t know what you’re talking about.” They said, “The vice president is on his way to the Capitol, and he cited you in his letter to the nation.” And they sent me a copy of it.

That’s the first time that I ever knew what was to happen with the tweet from the day before. No one had ever told me that. I had no idea. And they obviously didn’t want and didn’t intend to tell me — and that’s fine; it’s none of my business. I was floored to read that and honored.

Lizza: That was a total surprise? In the most important moment of Vice President Pence’s life, that letter justifying that no, he cannot overturn the results; his role as simply ministerial — that was a total surprise to you that he cited your legal analysis as the justification for his view?

Luttig: Complete, utter surprise. And the vice president called me the next morning to thank me.

Lizza: Can you tell us a little bit about that conversation?

Luttig: He was the most gracious person in the world. I was at a UPS Store in Vail, Colorado, standing outside freezing, and my wife was sending a package. A call came [on my phone] as spam. I never answer spam calls, but I had nothing else to do. So I answered it. I said nothing for seemingly 15 seconds. And then a voice said, “Is this Judge Luttig?” And I was startled and said “Yes, it is.” And the voice said, “Please hold for the vice president.”

I scurried out to the car so I’d have some privacy. The vice president got on: “Judge, this is Mike Pence.” And I said to the vice president that it was the highest honor of my life that he had asked me and I will be grateful to him for the remainder of my life.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Feb 22, 2022 2:33 am

Part 1 of 2

‘Like a Ghost’ in the White House: The Last Days of the Trump Presidency
In the aftermath of the Capitol riot, Trump’s White House became an insular refuge for a self-absorbed leader detached from the people who had rejected him.

by Anita Kumar, Gabby Orr and Meredith McGraw
01/20/2021 04:30 AM EST
Photos by Cheriss May for Politico Magazine

After careful consideration, the court concludes that, on the facts alleged, absolute immunity does not shield President Trump from suit, except as to Swalwell’s § 1986 failure-to-act claim....

The court’s discussion naturally begins with the Supreme Court’s decision in Nixon v. Fitzgerald. In that case, a former federal employee sued President Richard Nixon and various Executive Branch officials for damages arising from his termination from employment....After the D.C. Circuit declined to dismiss the case on the ground of absolute presidential immunity, the Supreme Court took up the question of the “scope of immunity available to a President of the United States.”

The Court held that President Nixon enjoyed absolute immunity from the plaintiff’s suit: “[W]e hold that petitioner, as former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.” ... Central to the Court’s determination was the “unique position in the constitutional scheme” that the President occupies. The Court observed that, “as the chief constitutional officer of the Executive Branch,” the President is “entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity.”... For a President, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”...Indeed, because the President must concern himself with “matters likely to ‘arouse the most intense feelings,’” “there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office.”...“Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”...

The Supreme Court contemplated that, at least, there might be some actions by a President that would fall outside the outer perimeter of his official responsibilities and expose him to a civil suit....

“With respect to acts taken in his ‘public character’—that is, official acts—the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.”...

[T]he court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency. Plaintiffs’ allegations against President Trump accuse him of doing just that: devoting his last weeks in office to continuing his term as President of the United States through the Electoral College vote and certification process, even though he did not prevail in the general election.

Among his first alleged acts following the general election were tweets criticizing state officials for not doing enough to enable him to prevail in their states. Swalwell Compl. ¶ 36 (criticizing the governors of Arizona and Georgia and saying, “If they were with us, we would have already won both”). The President also directly contacted local election officials and state legislators in Michigan, Pennsylvania, and Georgia to allegedly pressure them to overturn their election results. Id. ¶¶ 37–54. These efforts included urging local Michigan officials to reverse their certification of election results, id. ¶ 38, and saying to Georgia’s Secretary of State, “I just want to find 11,780 votes, which is one more than we have,” id. ¶ 53. He would later call that Georgia state official an “enemy of the people.” Thompson Compl. ¶ 47. President Trump also filed multiple lawsuits in jurisdictions in which he did not prevail. Id. ¶ 36. Those suits plainly were directed at securing incumbency. They, like his tweets and direct outreach to state election officials, were not official acts.

The same is true with respect to his tweets regarding rallies that occurred in Washington, D.C., in November and December 2020. Those tweets did not advocate any policy changes or legislation. Rather, they expressly stated or implied that the rallies would help him remain President. Blassingame Compl. ¶¶ 23, 25, 26 (tweeted photo of rally captioned “We will WIN!”); id. ¶ 27 (tweet stating “WE HAVE JUST BEGUN TO FIGHT!!!”).

That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”

Nor did planning for the January 6 Rally involve official duties. Those acts took place largely through President Trump’s campaign organization. In mid-December, the campaign used campaign funds to pay Event Strategies, Inc., the company that would secure the permit for the January 6 Rally. Blassingame Compl. ¶ 31. The campaign’s Director of Finance was listed as the “VIP Lead” for the rally, Swalwell Compl. ¶ 97, and a “top Trump campaign fundraiser oversaw the logistics, budgeting, funding and messaging” for the rally, Thompson Compl. ¶ 68. The Trump campaign and various related entities paid more than $3.5 million to assist in organizing. Blassingame Compl. ¶ 39. President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”). Organizing the January 6 Rally involved no presidential function.

And then there is the January 6 Rally Speech itself.
The court has considered it in its entirety, analyzing it beyond the words quoted in the Complaints. The court will go into greater detail about the Speech later in this opinion. For present purposes it suffices to say that while the Speech did touch on matters of public concern (namely President Trump’s pledge to work on election laws in a second term), the main thrust of the Speech was not focused on policy or legislation. It was to complain about perceived cases of election fraud that led President-elect Biden to win more votes in closely contested states, to urge members of Congress to object to certain state certifications, and to exhort the Vice President to return those certifications to those states to be recertified. Much like the tweets leading up to the January 6 Rally, the words spoken by the President—without delving into the motivation behind them—reflect an electoral purpose, not speech in furtherance of any official duty.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


Highlights:

During his last days in the White House, Donald Trump spent a lot of time thinking about the one and only election he ever lost, plotting every way he could to try to change the results.

He thought about when to leave Washington. He thought about what he should do when he gets to Florida. He thought about whether to pardon his family, even himself.

These are the things that consumed him as he roamed around the increasingly empty White House.

In the last days of Trump’s presidency, the things that preoccupied Trump were not the things that preoccupied other Americans. He was not preoccupied with the deadly riot he had incited, that left Capitol Hill terrorized, that had led to his second impeachment. He was not preoccupied with the coronavirus pandemic that killed 400,000 Americans, infected millions more, decimated the economy and is still raging across the United States....

His last days were quiet.
He insisted he was working. “President Trump will work from early in the morning until late in the evening … ” his public schedule said each day. But he wasn’t really working. He was disappearing.

He was a man, a leader, a president almost unrecognizable to those who had watched him over the past four years. Diminished. Adrift, Sullen. Nearly 50 current and former Trump aides and Republican allies describe Trump's final days in office as a countdown to oblivion—with the energy of a once-chaotic West Wing draining away while signs heralding the coming of his replacement appeared outside their windows.

In the last days, the man who had imposed himself so relentlessly on the public—whose all-hours tweetstorms and rants troubled our sleep and harried our days—faded from view into a gloomy purgatory of his own design.

He’s “like a ghost” in his own White House, said a White House official.

In the last days, he was president but not quite present.


JANUARY 6...

In the Oval Office that morning, Trump pushed Mike Pence to use his position overseeing the certification of the Electoral College results later that afternoon to block Biden’s victory....

Now, the man who was his most unquestioningly faithful servant was finally telling him no.

Trump was livid. In retribution, he instructed chief of staff Mark Meadows and John McEntee, one of Trump’s most trusted aides, to ban Pence’s chief of staff from the White House complex....

Two hours later, Trump carried his simmering rage at Pence’s refusal to the “Stop the Steal” rally he had arranged at the Ellipse, just south of the White House. “You’ll never take back our country with weakness,” Trump told thousands of his supporters. “You have to show strength, and you have to be strong.” Then he urged them to march to the Capitol.

They did.
Hundreds of protesters clad in MAGA gear burst through a security perimeter—injuring U.S. Capitol Police officers in the process—and poured into the halls of Congress. They broke windows, scaled walls, emptied fire extinguishers and stalked outnumbered police. They prowled through the House and Senate chambers, stopped to pose for selfies, and left a trail of ransacked offices and graffiti.

Trump watched it unfold on television in the private dining room off the Oval Office, seemingly oblivious to the dangers of an armed mob loose inside the halls of the Capitol. Others around him understood the implications and tried to persuade their boss to act—and act responsibly....

Trump took quickly to Twitter, too — before his staff could urge him to alter his message. But instead of urging rioters to stop, he blasted Pence for blocking Biden’s victory. A few minutes later, he tweeted his support of the Capitol Police and asked rioters to “stay peaceful.”

They didn’t.
And the injuries and the death toll climbed. Protester Ashli Babbitt was shot as she was trying to go through the shattered window of a door leading to the Speaker’s Lobby. Capitol Police Officer Daniel Hodges was crushed in a door. Lawmakers cowered under desks and behind chairs, frantically calling everyone they could think of — the secretary of Defense, the attorney general, the Army secretary — to get more police to the Capitol.

Former New Jersey Gov. Chris Christie repeatedly tried to get in touch with Trump. House Minority Kevin McCarthy, one of the president’s closest allies, called Trump and “begged” Trump to put out a stronger statement. Kellyanne Conway, a former aide who remains close to the president, called the White House after the D.C. mayor’s office asked her help getting Trump to call up the National Guard.

Inside the White House, there was paralysis
.... Several aides, including Trump's daughter and senior adviser, Ivanka Trump, urged the president to say more.... Instead, at 4:17 p.m., Trump released a video. “Go home,” he told the rioters before reassuring them that “We love you.”...

“The first video out in the Rose Garden was never going to be a good idea because it was a continuation of the rally,” a former White House aide said. “It’s almost as if he was still in rally mode.”...

Trump, still fuming about Pence’s decision not to interfere with the certification, never called his vice president.... it would be days before the two men spoke directly....

Trump tweeted again: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
An hour later, Twitter slapped his account with a temporary suspension....

With the smell of tear gas still lingering in the corridors, Trump’s lawyer, Rudy Giuliani phoned newly elected Republican senator Tommy Tuberville and left a long message that managed not to mention any of the day’s drama but rather urged him to “slow down” the certification....

Trump’s concession, such as it was, came in the middle of the night, exactly two months after he had first refused to accept that he had lost the election.

At 3:45 a.m., Congress, having summoned its collective rage at the rioters and the man who had dispatched them, confirmed Biden would be America's 46th president. With the vote, any remaining hope Trump had that he might cling to power for another term vanished....

[A] defeated Trump did what had been unthinkable just days earlier and publicly acknowledged that a new administration would be coming into office....

"Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th."...


JANUARY 7...

Dawn broke with the first of a series of resignations. About 7 a.m., his former chief of staff Mick Mulvaney, who had been serving as a special envoy to Northern Ireland, publicly announced his departure. ”I can’t do it. I can’t stay,” he said. By the end of the day, at least a dozen Trump officials had said versions of the same—ranging from Cabinet secretaries and national security experts to senior agency appointees. Other staffers opted to work remotely to stay far away from the West Wing, or not to work at all.

“This has all been part of a big f--king show ... That’s what is so infuriating about the whole thing,” said a national GOP strategist who worked to elect Trump. “He knows he lost. He’s a showman. And that showmanship had unintended consequences.”...

For the increasingly isolated president, the pile-on didn’t stop with the steady stream of resignations. When the deaths of five people during the riots were confirmed—including Capitol Police officer Brian Sicknick—the right-leaning editorial board at the Wall Street Journal, a Rupert Murdoch-owned newspaper, called for Congress to impeach and remove Trump if he declined to “take personal responsibility and resign.”

The stinging indictment by a newspaper Trump had read religiously for decades was more upsetting to him than the flood of administration officials springing for the exits, according to one senior administration official. That was the point Trump began seriously discussing with aides what more he could say to spare himself further humiliation.
Kushner and others suggested a televised address from the Oval Office, but the president didn’t like that idea....

At around 7:30 that evening, Trump released a video through the White House, more straightforwardly conceding the election and asking “healing and reconciliation” for the nation. He never uttered Biden’s name....

JANUARY 8...

As White House aides trickled into work with their morning coffee, the president fired off a morning tweet from his restored Twitter account: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future.” But the rest of Washington was still grappling with the aftermath of the Capitol siege and debating whether another 12 days of Trump was just too much of a risk to the country.

The president watched the outrage spiral before him on television. Former Republican allies—ranging from Christie to Pennsylvania Sen. Pat Toomey—called for his removal or impeachment. House Speaker Nancy Pelosi was seeking assurance from the Pentagon that Trump couldn’t abruptly order a nuclear strike. Dozens of corporations announced a freeze on campaign donations to GOP lawmakers who had met Trump’s request to block certification of the election. There were reports Cabinet members were contemplating invoking the 25th Amendment to put Pence in charge....

Trump announced via Twitter that he would definitely not attend Biden’s inauguration...

Alaska Sen. Lisa Murkowski, a moderate member of the Senate GOP Conference, had called for Trump’s resignation hours earlier,
and Pelosi was beginning to warm to the idea of a rapid no-frills impeachment.

“If the president does not leave office imminently and willingly,” Pelosi wrote in a letter to fellow Democrats, “the Congress will proceed with our action.”...

Around 8:30 p.m., @realdonaldtrump went dark on Twitter and the archive of some 55,000 tweets the president had sent during his time in office — statements that had ignited intraparty wars, alerted U.S. officials to major policy changes, blown up congressional negotiations and publicly informed staffers they had been fired — disappeared from the social media site. Trump’s worst fear had become a reality: He was permanently banned from his preferred communication platform....

The president raged at Big Tech and he railed at his aides — Why hadn’t they seen this coming? — as they hunted for an alternative platform where he could quickly rebuild his following....

“We can finally sleep in peace,” remarked one former Trump aide....

JANUARY 9....

Trump... hunker[ed] down at the White House...

Trump remained cloistered at the White House, pacing back and forth between the residence and the Oval Office, reading the New York Times (“House Prepares Article of Impeachment” was the banner headline) and watching television....


Some aides had quit in protest and others had already left for other jobs as the administration wound down. Hope Hicks, one of Trump’s closest advisers, hadn’t worked out of the White House in weeks and was scheduled to officially depart in just a few days....

White House counsel Pat Cipollone had led his defense during his first impeachment but Cipollone was considering resigning following the president’s efforts to overturn the election, particularly his pressure on Pence. As a result, Trump’s inner circle had shrunk to just a handful of loyalists who had been with him since the start — McEntee, Scavino, the director of social media, and senior policy adviser Stephen Miller, the architect of Trump’s contentious immigration policies....

“He has surrounded himself with people who only tell him what he wants to hear and it’s a dangerous place to have the president of the United States be in with 10 days to go,” a senior administration official said....

Meadows, who many blamed for feeding Trump’s belief that he won the election, was in and out of the office, trying to plan his post-White House life. Other staffers, who were obligated to keep on top of official business even though Trump had grown disinterested, tried to limit their time with him in the Oval Office to avoid hearing his endless harangues about the stolen election.

“I think people spent a lot less time with him to be honest,” a former senior administration official said.

‘I’m not sure a lot of people are calling him’

Trump spent the day watching TV. He had Fox News on... he made more calls than usual — not, as one former Trump aide said, “to more people” but rather, “the same people over and over again.”...

“I think he has more availability and he’s more anxious and wants to talk to people who are loyal and support him still.”...

“He’s getting on the phone, he’s calling people and you know he’s not doing the work of the presidency,” a Trump friend said.

There was one person Trump was not calling: his vice president. Four days after Trump had slammed Pence for his lack of courage, four days after Pence began receiving death threats, the president had yet to reach out....

But what was on Trump’s mind was the PGA's decision to cut ties with him
— an embarrassing development the golf-obsessed president had awoken to that morning. Overnight, board members of the PGA had voted to cancel Trump’s Bedminster, N.J. golf club as the site for its 2022 championship. He was angrier about this loss of prestige than the riot....

To take his mind off the ballooning impact of the riot, Trump and his aides organized a series of private award ceremonies to keep him busy.
On the day after the riot, he had gone ahead with a ceremony to bestow the Presidential Medal of Freedom on two former professional golfers. Now, he planned to give the same recognition to Ohio Rep. Jim Jordan, who had been one of the president’s fiercest defenders during the investigation into Russian election interference and who was one of 147 House Republicans to vote against certification of Biden’s 306-232 electoral college victory the previous week....

Hours after the event concluded, around 7 p.m., Trump finally summoned Pence to the Oval Office....

[T]he vice president awkwardly danced around the subject and focused instead on ways he could shift attention back to their policy achievements during the next nine days....

[T]he partnership was effectively over.
Pence isn’t even expected to seek Trump’s endorsement if he launches a White House bid in 2024....

JANUARY 12...

Just after 10 a.m., moments after staffers were spotted carrying packing boxes into the White House, the president strode out of the Oval Office and into public view for the first time since the riot....

“It’s really a continuation of the greatest witch hunt in the history of politics,” he said of the looming impeachment. “It’s ridiculous. It’s absolutely ridiculous.”

Two minutes later, he boarded the helicopter, bound for a daylong trip to Alamo, Texas, on the Mexican border.
He and Graham, who flew with him on Air Force One, had planned to tout the construction of 452 miles of a 30-foot steel wall...

In the air, Trump urged Graham to persuade other GOP senators to oppose impeachment...

On the way home, Trump made calls to senators, including Tim Scott, a Republican ally from South Carolina. He talked about election reform and the transition. Later that day, Scott came out against Trump’s removal....


It was almost as if he had lost his love of combat when he lost the social media whip he had long used to enforce loyalty...

Trump spent most of the day watching the House debate on TV from the White House residence and the private dining area off the Oval Office....

At 2 p.m., Trump released a one-paragraph statement that didn’t mention impeachment. “In light of reports of more demonstrations, I urge that there must be NO violence, NO lawbreaking and NO vandalism of any kind.
That is not what I stand for, and it is not what America stands for. I call on ALL Americans to help ease tensions and calm tempers.”

The disconnect between the historic drama playing out in Congress and the make-believe reality of normal life inside the White House was never clearer than during an East Room ceremony that afternoon. As one member of Congress after another rose in the House to decry Trump’s grievously antidemocratic behavior, the president gave awards to country singers Toby Keith and Ricky Skaggs — both supporters of Trump — and former Associated Press photographer Nick Ut, whose iconic image of a crying Vietnamese girl fleeing naked from a napalm attack had stoked Americans’ disgust with the Vietnam War....

That evening, Trump’s aides, including political director Brian Jack, briefed Trump on the 10 Republicans, one by one, who had voted that afternoon for impeachment. The president focused his ire on Cheney and vowed to retaliate.

“He’s now keenly focused on those 10,” a White House official said.

In one of his final policy acts, Trump sent Congress a sweeping package of proposed spending cuts, including billions of dollars for a global health and vaccine distribution program involved in the Covid fight. There was no chance lawmakers would ever push through his plan, but it was perhaps the closest thing to official work Trump had attempted lately.
Despite the daily boilerplate scheduling guidance from the communications staff — “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings” — everyone at the White House knew he was fixated on the election and now impeachment.

“There was a feeling of a traffic jam and more and more initiatives that were piling up and that’s frustrating for everybody,” a former senior administration official said. “You still need the president’s signature for things requiring executive authority.”

Instead, Trump handed off some things to Pence.
It was the vice president who traveled to FEMA headquarters for a briefing on inauguration security — his first public event since the Capitol riot....

Trump had expected to award the Presidential Medal of Freedom to Bill Belichick, but it was canceled after the New England Patriots head coach, a longtime friend of Trump’s, said he would not accept it. That left nothing official on Trump’s schedule for the day.

“The government’s continuing to operate and run, and the president would weigh in on substantive policy decisions, but luckily a large majority of those have already been done,” a senior administration official said.

But as problems persisted with statewide Covid-19 vaccine rollouts and the U.S. death count crept closer to 400,000, Trump didn’t appear to weigh in — publicly or privately. Nor did he seem interested when the Labor Department released new data showing the first net decline in U.S. employment since the spring and staggering job losses across the food and beverage and hospitality industries. One top economic official who continued to work out of the White House said it had been two weeks since he last saw the president....


JANUARY 15...

Trump was forced to spend much of the day going through the motions of saying goodbye to departing staffers, smiling in group photos with employees from a seemingly never-ending list of offices—intergovernmental affairs, management and budget, legislative affairs, social secretary.

Behind closed doors, Trump awarded the Legion of Merit (a rarely bestowed honor given to a foreign leader) to Mohammed VI, the king of Morocco. (The country’s ambassador accepted the award.) The king had recently agreed to resume diplomatic ties with Israel, helping to reshape the landscape of the Middle East and North Africa....

The White House was so uncharacteristically quiet after years of nonstop activity that the brief visit of one of Trumps’ biggest supporters, Mike Lindell, CEO of the pillow manufacturing company MyPillow Inc. (which offers $45 discounts when using the promo code “QAnon”) caused a stir.

Lindell had come to brief the president and Cipollone on material he had found on the internet — ”footprints of the machine fraud,” he called it — that showed that “Joe Biden lost. Seventy-nine million votes for Donald Trump. Sixty-eight million for Joe Biden.”...

That’s when photographers captured a close-up of his notes that appeared to suggest “martial law” might be necessary to save the country.

“Insurrection Act now as a result of the assault on the … martial law if necessary upon the first hint of any … ” his notes read.


JANUARY 16...

The “My Pillow Guy” on Friday was followed on Saturday by the guy once known as “My Rudy” when Trump met with his one-time personal attorney, Giuliani.

Giuliani told ABC News that he was working on Trump's defense for his impeachment trial...

Just days earlier, Trump had grown annoyed with Giuliani, refusing to take his calls or pay his bills....

JANUARY 17...

Inside the White House, the president and his closest advisers spent the day thinking about forgiveness.

Trump had long made pardons a signature performance of his presidency, doling them out to political allies and people nominated by celebrities. He liked that the Constitution gave him the exclusive power to grant them. And he was determined to use it fully before he left office.

He met Kushner and Ivanka Trump and Cipollone to review a list of pardon requests that have been coming in from friends and allies on behalf of themselves and others who have grown anxious....

Trump had issued two rounds of pre-Christmas pardons and commutations, including for three former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and four security contractors convicted for massacring Iraqi civilians in 2008. He wanted to issue one more batch — perhaps 100 or more —by Tuesday....

Trump had spent weeks considering giving preemptive pardons to as many as 20 close associates and family members, including his children...


JANUARY 18...

On his final Monday in office, he didn’t golf. He didn’t visit the MLK memorial. He worked to shore up his legacy.

Trump recorded a 20-minute video in the Blue Room of the White House to be released the next day, touting his accomplishments. “We did what we came here to do,” he said....

JANUARY 19...

He settled on departing the morning of Inauguration Day. He wanted to go before the actual ceremony so that he didn’t have to ask the new president to use the plane, and he wanted to be sure it would still be designated as Air Force One for the trip....

[S]taff went about making arrangements for a farewell that would resemble an official state visit — perhaps with a red carpet, color guard, military band and 21-gun salute. He wanted to do it at Joint Base Andrews in Maryland....

Somehow several banished employees were invited, including former top White House adviser John Bolton and Omarosa Manigault Newman, who both turned their relentless criticism of Trump into tell-all books. They suspected it was a sign the White House was desperate for people to attend. “He’s a disgrace,” said Manigault Newman, who said she received multiple invitations....

-- ‘Like a Ghost’ in the White House: The Last Days of the Trump Presidency
In the aftermath of the Capitol riot, Trump’s White House became an insular refuge for a self-absorbed leader detached from the people who had rejected him, by Anita Kumar, Gabby Orr and Meredith McGraw


During his last days in the White House, Donald Trump spent a lot of time thinking about the one and only election he ever lost, plotting every way he could to try to change the results.

He thought about when to leave Washington. He thought about what he should do when he gets to Florida. He thought about whether to pardon his family, even himself.

These are the things that consumed him as he roamed around the increasingly empty White House.

In the last days of Trump’s presidency, the things that preoccupied Trump were not the things that preoccupied other Americans. He was not preoccupied with the deadly riot he had incited, that left Capitol Hill terrorized, that had led to his second impeachment. He was not preoccupied with the coronavirus pandemic that killed 400,000 Americans, infected millions more, decimated the economy and is still raging across the United States.


The last days that Trump lived in the White House began officially when Congress voted, in the middle of the night—with broken glass in the marble hallways and gas masks scattered in safe rooms—to certify the election results that Trump still refused to accept. It ends when he flies to his namesake resort in South Florida Wednesday without ever uttering a word to Joe Biden.

In the last days of his presidency, stripped of his social media bullhorn, the president’s shouting—mostly about the betrayal of those in his own party who blocked him from altering the election and tried to remove him from office—could be heard only by the few remaining staff too loyal or too afraid to ignore him.

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Top: The White House on January 19.

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Bottom: Final preparations for the Biden-Harris inauguration.

His last days were quiet. He insisted he was working. “President Trump will work from early in the morning until late in the evening … ” his public schedule said each day. But he wasn’t really working. He was disappearing.

He was a man, a leader, a president almost unrecognizable to those who had watched him over the past four years. Diminished. Adrift, Sullen. Nearly 50 current and former Trump aides and Republican allies describe Trump's final days in office as a countdown to oblivion—with the energy of a once-chaotic West Wing draining away while signs heralding the coming of his replacement appeared outside their windows.

In the last days, the man who had imposed himself so relentlessly on the public—whose all-hours tweetstorms and rants troubled our sleep and harried our days—faded from view into a gloomy purgatory of his own design.


Image
A White House Marine sentry stands outside the West Wing door of the White House on Thursday, January 14.

He’s “like a ghost” in his own White House, said a White House official.

In the last days, he was president but not quite present.


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WEDNESDAY, JANUARY 6
‘He was still in rally mode’


The day that would ultimately come to define the Trump White House began with a demand for loyalty.

In the Oval Office that morning, Trump pushed Mike Pence to use his position overseeing the certification of the Electoral College results later that afternoon to block Biden’s victory. Trump had been promoting this illegal gambit for days, but Pence had said nothing publicly. Finally, to his face, Pence told the president the Constitution wouldn’t allow it and he wouldn’t attempt it.

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Top: Senate Majority Leader Mitch McConnell and Vice President Mike Pence walk through the rotunda headed to the House chamber at the U.S. Capitol on January 6.

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Bottom left: Senator Ted Cruz walks to the House chamber ahead of the certification vote.

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Bottom right: U.S. Senate staff carry boxes containing state Electoral College votes at the U.S. Capitol on January 6.

The day had already started badly for Trump. Just after midnight, Georgia Sen. Kelly Loeffler had lost her reelection bid, and it looked like the second Republican senator in the state, David Perdue, would soon follow, handing control of the chamber to Democrats. Members of his party were already blaming Trump and his campaign to discredit the state’s voting system—and the Republicans who oversaw it—for the historic defeats. Now, the man who was his most unquestioningly faithful servant was finally telling him no.

Trump was livid. In retribution, he instructed chief of staff Mark Meadows and John McEntee, one of Trump’s most trusted aides, to ban Pence’s chief of staff from the White House complex.
They never did.

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realdonaldtrump
The Trump White House Archived
JOIN PRESIDENT DONALD J. TRUMP AT THE SAVE AMERICA MARCH
WEDNESDAY, JANUARY 6, 2021
WASHINGTON, DC
THE ELLIPSE
DOORS OPEN AT 7:00 AM
realdonaldtrump
I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11 AM Eastern. Arrive early -- doors open at 7AM Eastern. BIG CROWDS!


Two hours later, Trump carried his simmering rage at Pence’s refusal to the “Stop the Steal” rally he had arranged at the Ellipse, just south of the White House. “You’ll never take back our country with weakness,” Trump told thousands of his supporters. “You have to show strength, and you have to be strong.” Then he urged them to march to the Capitol.

They did. Hundreds of protesters clad in MAGA gear burst through a security perimeter—injuring U.S. Capitol Police officers in the process—and poured into the halls of Congress. They broke windows, scaled walls, emptied fire extinguishers and stalked outnumbered police. They prowled through the House and Senate chambers, stopped to pose for selfies, and left a trail of ransacked offices and graffiti.


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The January 6 “Stop the Steal” rally at the Ellipse, just south of the White House.

Trump watched it unfold on television in the private dining room off the Oval Office, seemingly oblivious to the dangers of an armed mob loose inside the halls of the Capitol. Others around him understood the implications and tried to persuade their boss to act—and act responsibly.

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Donald Trump Jr.
@DonaldJTrumpJr
This is wrong and not who we are. Be peaceful and use your 1st Amendment rights, but don't start acting like the other side. We have a country to save and this doesn't help anyone.
ELIJAH @ElijahSchaffer
BREAKING: Trump supporters have breached the Capitol building, tearing down 4 layers of security fencing and are attempting to occupy the building -- fighting federal police who are overrun
This is the craziest thing I've ever seen in my life. Thousands, police can't stop them
12:17 PM Jan 6, 2021


His son Don Jr. who had addressed the crowd earlier, condemned the rioters on Twitter shortly after 2 p.m. Trump took quickly to Twitter, too — before his staff could urge him to alter his message. But instead of urging rioters to stop, he blasted Pence for blocking Biden’s victory. A few minutes later, he tweeted his support of the Capitol Police and asked rioters to “stay peaceful.”

They didn’t. And the injuries and the death toll climbed. Protester Ashli Babbitt was shot as she was trying to go through the shattered window of a door leading to the Speaker’s Lobby. Capitol Police Officer Daniel Hodges was crushed in a door. Lawmakers cowered under desks and behind chairs, frantically calling everyone they could think of — the secretary of Defense, the attorney general, the Army secretary — to get more police to the Capitol.

Former New Jersey Gov. Chris Christie repeatedly tried to get in touch with Trump. House Minority Kevin McCarthy, one of the president’s closest allies, called Trump and “begged” Trump to put out a stronger statement. Kellyanne Conway, a former aide who remains close to the president, called the White House after the D.C. mayor’s office asked her help getting Trump to call up the National Guard.

Inside the White House, there was paralysis
. Trump’s son-in-law and de facto chief of staff Jared Kushner was flying back from the Middle East. Several aides, including Trump's daughter and senior adviser, Ivanka Trump, urged the president to say more. Press secretary Kayleigh McEnany considered whether to hold a briefing but didn’t. Instead, at 4:17 p.m., Trump released a video. “Go home,” he told the rioters before reassuring them that “We love you.” The outrage at Trump grew as the televised scenes of mayhem continued.

“The first video out in the Rose Garden was never going to be a good idea because it was a continuation of the rally,” a former White House aide said. “It’s almost as if he was still in rally mode.”

Trump and Chris Miller, the acting secretary of Defense, had spoken in previous days about the upcoming protests. The Pentagon should do whatever it needed, Trump told Miller. Still, there was a crucial 30-minute delay after D.C. asked for the National Guard.

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Top: The "Stop the Steal" rally in Washington.

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Bottom left: A sign honoring former U.S. Representative John Lewis (D-GA) lays ripped on the floor inside the U.S. Capitol after a mob of Trump supporters was cleared from the building on January 6.

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Bottom right: An officer stands by splintered wood from a door that was broken during the Capitol riot.

Trump, still fuming about Pence’s decision not to interfere with the certification, never called his vice president. Pence had been forced to hide with his family in the Capitol while rioters chanted that they wanted to hang him. Later, Trump expressed frustration to Meadows and other aides that Pence had gotten credit for deploying the National Guard and coordinating with other government officials on the overall response, but it would be days before the two men spoke directly.

Then, even as authorities struggled to regain control of the Capitol and the city imposed a 6 p.m. curfew, Trump tweeted again: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” An hour later, Twitter slapped his account with a temporary suspension.

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People wait inside a cafeteria on Capitol Hill after police cleared a mob of Trump supporters on January 6.

With the smell of tear gas still lingering in the corridors, Trump’s lawyer, Rudy Giuliani phoned newly elected Republican senator Tommy Tuberville and left a long message that managed not to mention any of the day’s drama but rather urged him to “slow down” the certification. Tuberville never got the message, though, because Giuliani had dialed the wrong senator.

Once they emerged from their safe rooms, most senators, led by the implacably stern-faced Pence, weren’t in the mood for delays.

“Enough is enough,” Sen. Lindsey Graham, Trump’s closest ally in the chamber, said when lawmakers returned to the Senate floor.

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THURSDAY, JANUARY 7
‘He finally realized the trouble he was facing’


Trump’s concession, such as it was, came in the middle of the night, exactly two months after he had first refused to accept that he had lost the election.

At 3:45 a.m., Congress, having summoned its collective rage at the rioters and the man who had dispatched them, confirmed Biden would be America's 46th president. With the vote, any remaining hope Trump had that he might cling to power for another term vanished.


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The U.S. Capitol on January 7.

At the urging of Kushner and an increasingly diminished team of advisers, who shuttled between the executive residence and Oval Office to consult with the president, a defeated Trump did what had been unthinkable just days earlier and publicly acknowledged that a new administration would be coming into office.

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Dan Scavino Jr.
@DanScavino
Statement by President Donald J. Trump on the Electoral Certification:
"Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th. I have always said we would continue our ...
1:49 AM Jan 7, 2021 from Washington, DC


He couldn’t resist prefacing his peace offering with yet another lie. “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” Just minutes after the vote, at 3:49 a.m., the statement was posted to the Twitter account of aide Dan Scavino, who, unlike Trump, still had access to social media.

Dawn broke with the first of a series of resignations. About 7 a.m., his former chief of staff Mick Mulvaney, who had been serving as a special envoy to Northern Ireland, publicly announced his departure. ”I can’t do it. I can’t stay,” he said. By the end of the day, at least a dozen Trump officials had said versions of the same—ranging from Cabinet secretaries and national security experts to senior agency appointees. Other staffers opted to work remotely to stay far away from the West Wing, or not to work at all.

“This has all been part of a big f--king show ... That’s what is so infuriating about the whole thing,” said a national GOP strategist who worked to elect Trump. “He knows he lost. He’s a showman. And that showmanship had unintended consequences.”


Some cited their disgust with the president’s rhetoric on the day of the Capitol riot, while others had simply reached their limit following Trump’s election-fraud charade and stunning betrayal of Pence. Still for others, it was Trump's passive-aggressive statement about the presidential transition that finalized their decision. “It should have been said in December,” said a former Trump aide, matter-of-factly.

Staffers had long considered that Thursday would be an important date internally: The day they could finally — and publicly — acknowledge the election was over and move on. But the riots prevented them from being able to say goodbye as they expected.

For the increasingly isolated president, the pile-on didn’t stop with the steady stream of resignations. When the deaths of five people during the riots were confirmed—including Capitol Police officer Brian Sicknick—the right-leaning editorial board at the Wall Street Journal, a Rupert Murdoch-owned newspaper, called for Congress to impeach and remove Trump if he declined to “take personal responsibility and resign.”

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After he posted a tweet that continued to dispute the election results, Republican allies urged Trump to go with a more conciliatory message. He posted a video urging "healing" later on January 6. | White House video

The stinging indictment by a newspaper Trump had read religiously for decades was more upsetting to him than the flood of administration officials springing for the exits, according to one senior administration official. That was the point Trump began seriously discussing with aides what more he could say to spare himself further humiliation. Kushner and others suggested a televised address from the Oval Office, but the president didn’t like that idea. Several allies gently prodded him to publicly apologize to Pence, despite his notorious refusal to show contrition.

“You would think the news that five people died in a riot of your own making would scare you straight, but no, it was when one of his favorite media outlets turned on him that he finally realized the trouble he was facing,” said a Republican close to the White House.

Other Republican allies urged Trump to attempt a do-over with a more conciliatory and straightforward message. Realizing the treacherous legal waters he had waded into, Trump agreed. At around 7:30 that evening, Trump released a video through the White House, more straightforwardly conceding the election and asking “healing and reconciliation” for the nation. He never uttered Biden’s name. In many ways, it was the speech that most members of Trump’s inner circle, including his wife and Kushner, had wanted him to make in the days after Biden was declared president-elect by the bulk of Washington.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Feb 22, 2022 4:30 am

Part 2 of 2

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FRIDAY, JANUARY 8
‘He can’t believe that. He thinks it’s un-American.’


As White House aides trickled into work with their morning coffee, the president fired off a morning tweet from his restored Twitter account: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future.” But the rest of Washington was still grappling with the aftermath of the Capitol siege and debating whether another 12 days of Trump was just too much of a risk to the country.

The president watched the outrage spiral before him on television.
Former Republican allies—ranging from Christie to Pennsylvania Sen. Pat Toomey—called for his removal or impeachment. House Speaker Nancy Pelosi was seeking assurance from the Pentagon that Trump couldn’t abruptly order a nuclear strike. Dozens of corporations announced a freeze on campaign donations to GOP lawmakers who had met Trump’s request to block certification of the election. There were reports Cabinet members were contemplating invoking the 25th Amendment to put Pence in charge.
Trump complained to aides that the intensity of the blowback was unfair.

"I think the problem is that he has weathered every storm for five years ... and now I don’t think he truly appreciates the extent of the line,” said a former administration official. “I think he’s so used to people being like, ‘Oh, don’t worry about it.’”

It didn’t help Trump’s mood that Pence, whom Trump had been avoiding since their last conversation Wednesday morning, was being treated like the actual commander in chief by Democrats and Republicans alike. Nor was Trump happy that the vice president had so far declined to tamp down any of the calls for removal or reject pleas that he persuade Trump to resign. That just seemed to fuel the rumors that Pence might actually be considering either option.

“He’s reading these things that everyone is saying that Pence is the good guy and I think he’s like, ‘F--k,’” said a former senior administration official.


And in another departure from his vice president’s attempts to foster a peaceful transition, Trump announced via Twitter that he would definitely not attend Biden’s inauguration, leaving Pence and his wife, Karen, to represent the outgoing administration at the Jan. 20 ceremonies.

Sullen and lonely, Trump turned to an old ally who just 48 hours earlier had declared he was fed up with the president’s antics. “Trump and I, we had a hell of a journey,” Sen. Lindsey Graham had said the night of the riot before announcing: “Count me out.” Now, without any explanation from Graham, they were working side by side again. Graham is known to circle the most powerful politician. Still, White House aides were skeptical when he stopped by after renouncing Trump just days before.

Trump and Graham spent hours Friday plotting ways for the president to shift the attention back to his legacy of conservative policy accomplishments and away from Washington during the final countdown to Biden’s inauguration. They agreed to visit the southwestern border, where Trump could return to one of the issues that got him elected in the first place—the promise of a border wall.

But legacy polishing could do only so much to stem the anger. The president’s aides felt the White House should also respond to mounting calls for his impeachment by House Democrats and even some Republicans. Alaska Sen. Lisa Murkowski, a moderate member of the Senate GOP Conference, had called for Trump’s resignation hours earlier, and Pelosi was beginning to warm to the idea of a rapid no-frills impeachment.

“If the president does not leave office imminently and willingly,” Pelosi wrote in a letter to fellow Democrats, “the Congress will proceed with our action.”

Led by Kushner and Scavino, West Wing officials began debating whether Trump should comment on threats of a second impeachment, and if so, what he should say. In the end, they decided to keep Trump out of it. They devised a statement that blamed Trump’s opponents for their partisanship and they had deputy press secretary Judd Deere deliver it: “A politically motivated impeachment against a president, who has done a great job, with 12 days remaining in his term will only serve to further divide our great country.”

But there was one more crisis awaiting Trump.

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Profile
@realDonaldTrump
Account suspended
Twitter suspends accounts which violate the Twitter Rules

On Friday, January 8, Twitter suspended Trump's account. | Twitter screenshot

Around 8:30 p.m., @realdonaldtrump went dark on Twitter and the archive of some 55,000 tweets the president had sent during his time in office — statements that had ignited intraparty wars, alerted U.S. officials to major policy changes, blown up congressional negotiations and publicly informed staffers they had been fired — disappeared from the social media site. Trump’s worst fear had become a reality: He was permanently banned from his preferred communication platform.

Unlike his response to the riots, Trump’s fury at the Twitter ban was immediate and unequivocal.

“He can’t believe that. He thinks it’s un-American,” said a person close to the president.

The president raged at Big Tech and he railed at his aides — Why hadn’t they seen this coming? — as they hunted for an alternative platform where he could quickly rebuild his following. Gab, a social network that had become a preferred method for communicating among the alt-right, was briefly considered before Kushner shut down the suggestion. Parler, another Twitter lookalike that already had a strong conservative user base, was widely discussed. But it was eventually tossed aside, too, after Apple threatened to ban it from its app store and aides realized Parler was likely headed for more trouble.

Current and former Trump aides began texting each other. Some were surprised that Twitter had finally done it. Others breathed a sigh of relief.

“We can finally sleep in peace,” remarked one former Trump aide.

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SATURDAY, JANUARY 9
‘People ... only tell him what he wants to hear’


Trump had planned to spend that weekend at Camp David, the sprawling, secluded presidential retreat in Maryland he had largely avoided for four years in favor of his own namesake resorts.

But on Thursday, as calls for his removal grew, Trump canceled the trip, choosing to hunker down at the White House instead. He even skipped his regular trip to his golf club in suburban Virginia despite the clear, sunny weather.

Trump remained cloistered at the White House, pacing back and forth between the residence and the Oval Office, reading the New York Times (“House Prepares Article of Impeachment” was the banner headline) and watching television.

Inside the White House, the number of aides this particular weekend was fewer than normal because of the raging coronavirus and a hangover from the holidays. Some aides had quit in protest and others had already left for other jobs as the administration wound down. Hope Hicks, one of Trump’s closest advisers, hadn’t worked out of the White House in weeks and was scheduled to officially depart in just a few days.

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As calls for his removal grew in the days after the Capitol riot, Trump hunkered down in the White House.

Trump openly distrusted some of the aides who remained, even those he had relied on during prior crises. White House counsel Pat Cipollone had led his defense during his first impeachment but Cipollone was considering resigning following the president’s efforts to overturn the election, particularly his pressure on Pence. As a result, Trump’s inner circle had shrunk to just a handful of loyalists who had been with him since the start — McEntee, Scavino, the director of social media, and senior policy adviser Stephen Miller, the architect of Trump’s contentious immigration policies. White House trade adviser Peter Navarro all but abandoned his day job to peddle the widely discredited theory that Trump won the election, writing a report on election fraud and giving TV interviews.

“He has surrounded himself with people who only tell him what he wants to hear and it’s a dangerous place to have the president of the United States be in with 10 days to go,” a senior administration official said.

“They don’t run around and say, ‘Oh, he won the election’ but they don’t tell him, ‘No you didn’t’ and that’s because they told him he was going to win in a landslide,” said a person close to the president.

Kushner, as always, was in charge, steering Trump’s inconsistent and tone-deaf response to the riot, but this time he and Ivanka Trump tried to keep their distance too as they looked to protect their political viability. After Ivanka Trump took to Twitter to urge protesters to stop the violence at the Capitol, she quickly deleted her tweet after she was criticized for calling the protesters “American patriots.”

Meadows, who many blamed for feeding Trump’s belief that he won the election, was in and out of the office, trying to plan his post-White House life. Other staffers, who were obligated to keep on top of official business even though Trump had grown disinterested, tried to limit their time with him in the Oval Office to avoid hearing his endless harangues about the stolen election.

“I think people spent a lot less time with him to be honest,” a former senior administration official said.


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SUNDAY, JANUARY 10
‘I’m not sure a lot of people are calling him’


Trump spent the day watching TV. He had Fox News on even though he hadn’t forgiven the network for its role in calling the battleground state of Arizona for Biden. And still unable to vent on Twitter, he made more calls than usual — not, as one former Trump aide said, “to more people” but rather, “the same people over and over again.”

“Part of it, to be honest, is I’m not sure a lot of people are calling him,” said a Republican close to the president. “I think he has more availability and he’s more anxious and wants to talk to people who are loyal and support him still.”

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After the riot, press secretary Kayleigh McEnany considered whether to hold a briefing but didn’t.

The people who bore the brunt of Trump’s calls were former senior campaign aides, Jason Miller and Steve Cortes; former campaign press secretary Hogan Gidley; Newsmax CEO Chris Ruddy and Bernie Marcus, a billionaire who co-founded the home improvement retail giant Home Depot.

They tried to cheer him up by talking about his legacy, including a record number of judges, the speedy coronavirus vaccine and an increase in U.S. manufacturing. And they strategized a possible path forward — appointing a special counsel to investigate Biden’s son Hunter; campaigning for the 2022 midterms; granting pardons before he leaves office; taking a victory tour around the country.

A couple months ago, he even began calling up Steve Bannon, his rumpled former chief strategist who was fired in 2017, strategizing ways to overturn the election. Trump had once declared Bannon had “lost his mind” after he gave an interview to a liberal magazine undercutting Trump’s position on North Korea. His possible return to the president’s inner circle seemed improbable, but Bannon reemerged over the summer when Trump floated the idea of bringing the former Breitbart chief back into the fold of the campaign. It never happened—but only because Kushner put a stop to it.

“He’s getting on the phone, he’s calling people and you know he’s not doing the work of the presidency,” a Trump friend said.

There was one person Trump was not calling: his vice president. Four days after Trump had slammed Pence for his lack of courage, four days after Pence began receiving death threats, the president had yet to reach out.


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MONDAY, JANUARY 11
‘What you would expect from the Trump family during a moment of national grief’


It was now all but certain that Trump would become the only president to be impeached twice. Pelosi was preparing the House for a swift midweek vote, while Majority Leader Mitch McConnell was privately wrestling with the timeline for Trump’s anticipated Senate trial.

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After the January 6 riot at the Capitol, board members of the PGA voted to cancel Trump’s Bedminster, N.J. golf club as the site for its 2022 championship. The rejection made Trump confront the possibility that his life as an ex-president might be every bit as isolated, and his businesses might suffer. Above, the Trump International Hotel is pictured in Washington.

But what was on Trump’s mind was the PGA's decision to cut ties with him — an embarrassing development the golf-obsessed president had awoken to that morning. Overnight, board members of the PGA had voted to cancel Trump’s Bedminster, N.J. golf club as the site for its 2022 championship. He was angrier about this loss of prestige than the riot. The rejection by a famously cautious sports body forced Trump to confront the deepening reality that his life as an ex-president might be every bit as isolated as his final days in office.

Personal victimization was a theme at both ends of the White House that morning.

Trump’s wife, Melania, had kept to herself in the aftermath of the Capitol siege — working behind the scenes to prepare for the first family’s move to Palm Beach. Her chief of staff, Stephanie Grisham, a trusted aide who had been with the Trumps since the 2016 campaign, had resigned in protest the night of the attack and her absence was felt first thing Monday morning when the first lady decided to release a statement about the insurrection her husband helped provoke. “I am disappointed and disheartened with what happened last week,” Melania Trump said. But she didn’t stop there. She scolded unidentified perpetrators of “salacious gossip, unwarranted personal attacks, and false misleading accusations on me,” in an apparent reference to rumors percolating within the administration and press corps that she and the president were unlikely to remain together once Trump left office and reports that she had been overseeing a photo shoot for a post-presidency book while the Capitol riot was unfolding.

Outside critics mocked the first lady’s self-absorbed message. Some of the vice president’s aides noted that her typo-ridden statement had misspelled the name of one of those killed.

“It was just exactly what you would expect from the Trump family during a moment of national grief,” said one White House official.

To take his mind off the ballooning impact of the riot, Trump and his aides organized a series of private award ceremonies to keep him busy. On the day after the riot, he had gone ahead with a ceremony to bestow the Presidential Medal of Freedom on two former professional golfers. Now, he planned to give the same recognition to Ohio Rep. Jim Jordan, who had been one of the president’s fiercest defenders during the investigation into Russian election interference and who was one of 147 House Republicans to vote against certification of Biden’s 306-232 electoral college victory the previous week.

Normally, such events would be open to the media, but Trump’s aides kept the cameras away, part of an effort to shield Trump from a prying White House press corps and avoid another controversy of his own making. Hours after the event concluded, around 7 p.m., Trump finally summoned Pence to the Oval Office.

For nearly an hour, the two men struggled to sort through the events of the prior week and map out a plan for the remaining days of their administration. Not wanting to bring up the president’s remarkable betrayal or the insults he had hurled at Pence from the stage of his “Stop the Steal” rally, the vice president awkwardly danced around the subject and focused instead on ways he could shift attention back to their policy achievements during the next nine days. He also informed the president that he and the second lady intended to attend Biden’s inauguration.

By the end of the meeting, there was a tacit understanding that after four years of weathering numerous controversies together, the partnership was effectively over. Pence isn’t even expected to seek Trump’s endorsement if he launches a White House bid in 2024.

“I think people feel sorry and bad for [Pence],” a former White House official said. “I do feel bad about the way he was treated by the president.”

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The National Guard troops stand by office buildings on Capitol Hill in Washington.

As most of the president’s aides were settling in for dinner that evening, House Democrats announced they had lined up enough votes to impeach Trump a second time. Immediately, Republicans began speculating on when the House would vote on impeachment and just how many in the GOP might break with Trump.

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TUESDAY, JANUARY 12
‘These guys aren't afraid of him anymore’


Just after 10 a.m., moments after staffers were spotted carrying packing boxes into the White House, the president strode out of the Oval Office and into public view for the first time since the riot. He stopped briefly to speak to reporters as the helicopter rotors of Marine One thrummed in the background.

“It’s really a continuation of the greatest witch hunt in the history of politics,” he said of the looming impeachment. “It’s ridiculous. It’s absolutely ridiculous.”

Two minutes later, he boarded the helicopter, bound for a daylong trip to Alamo, Texas, on the Mexican border. He and Graham, who flew with him on Air Force One, had planned to tout the construction of 452 miles of a 30-foot steel wall
, much of it merely a sturdier replacement of what was already there.

“I think everyone had an eyebrow raised with Lindsey Graham,” a White House official said. “On Friday he said, ‘I’m done with Trump, I’m over Trump,’ and then the next thing you know he’s on Air Force One.”

Graham wasn’t just interested in helping Trump look good. He wanted Trump to highlight the reduced numbers of immigrants at the border so Republicans could use the issue against Democrats in the 2022 elections after what he expected would be a new surge of immigrants crossing from Central America, in part because of Trump’s departure.

Some thought it was a bad idea in the midst of an impeachment fight. “He’s facing the most potential liability he’s ever had while in office and his chief of staff should have put his foot down and said, ‘Mr. President, you are going to stay in the White House and you are not going to say anything until we sort this all out,” said a Republican close to the White House.

But Graham’s view won out. “Graham also told him that this would ... show he was the only president who was able to solve the border issue,” according to a person familiar with Department of Homeland Security preparations for the trip.

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After the riot, Trump and Senator Lindsey Graham discussed how they could shift the attention back to his policy accomplishments. They agreed to visit the southwestern border, where Trump could draw attention to the border wall, the promise of which helped elect him in 2016. | White House handouts

In the air, Trump urged Graham to persuade other GOP senators to oppose impeachment, telling him about a new poll released by former Trump campaign pollster John McLaughlin. The poll, which came at the request of Trump adviser Jason Miller, showed that 8 in 10 Trump voters and 76 percent of Republicans said they would be less likely to support a GOP incumbent in the future if they supported impeaching Trump a second time.

Supporters lined the route of the motorcade. At the wall, Trump used a Sharpie to autograph a plaque on a piece of newly constructed border wall. The plaque included the name of the acting secretary of Homeland Security who just the day before had resigned, citing “recent events” in his letter.

On the way home, Trump made calls to senators, including Tim Scott, a Republican ally from South Carolina. He talked about election reform and the transition. Later that day, Scott came out against Trump’s removal.

But as he traveled home, news broke that his Republican firewall was starting to crack. Rep. Liz Cheney, the third-ranking Republican in the House, announced she would support impeachment. And the New York Times reported that McConnell thought Trump’s actions qualified him for conviction. Trump and McConnell had not spoken since Dec. 15 when the Senate majority leader announced Biden was, in fact, the president-elect.

“These guys aren't afraid of him anymore,” a Trump friend said of Republicans. “He thinks they are but they aren't.”

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WEDNESDAY, JANUARY 13
‘The videos ... were 24 hours and a week too late’


On the morning of the day Trump was impeached for an unprecedented second time, the president’s team did something the president himself hadn’t been doing much of — fighting back. It was almost as if he had lost his love of combat when he lost the social media whip he had long used to enforce loyalty — or at least silence — among Republicans. His team circulated results of the poll showing Republican voters not only opposed removing Trump from office but were less likely to support GOP incumbents who crossed the president.

It didn’t have the desired effect. Even McCarthy, one of his biggest allies in the House who had maintained absolute GOP opposition to the first impeachment, said on the House floor that Trump “bears responsibility” for the Capitol attack and told his members to vote their conscience.

Trump spent most of the day watching the House debate on TV from the White House residence and the private dining area off the Oval Office. Allies had been pushing him to give a public statement, anything to stave off an expected flood of Republican defections. But the president didn’t want people to think he was afraid of being removed from office. “He didn’t want to legitimize it any further,” an aide said.

At 2 p.m., Trump released a one-paragraph statement that didn’t mention impeachment. “In light of reports of more demonstrations, I urge that there must be NO violence, NO lawbreaking and NO vandalism of any kind. That is not what I stand for, and it is not what America stands for. I call on ALL Americans to help ease tensions and calm tempers.”

The disconnect between the historic drama playing out in Congress and the make-believe reality of normal life inside the White House was never clearer than during an East Room ceremony that afternoon. As one member of Congress after another rose in the House to decry Trump’s grievously antidemocratic behavior, the president gave awards to country singers Toby Keith and Ricky Skaggs — both supporters of Trump — and former Associated Press photographer Nick Ut, whose iconic image of a crying Vietnamese girl fleeing naked from a napalm attack had stoked Americans’ disgust with the Vietnam War.


Outside the White House, photographers captured Navarro, the trade adviser, carrying a large, framed photograph of one of Trump’s meetings with Chinese President Xi Jinping.

At 4:26 p.m., when the House voted, Trump was back in the Oval Office. He was not surprised by the vote, but he was surprised at the numbers — there were fewer Republican defections than aides had warned him there might be.

Then McConnell sent a letter to Republican colleagues that afternoon, indicating he could vote for conviction. He said he intended “to listen to the legal arguments when they are presented to the Senate.” That Trump could actually be convicted in the Senate became suddenly more plausible.

At 6:30 p.m., shortly after Pelosi signed the article of impeachment, Trump released a lengthy video statement — written by Stephen Miller, Scavino and attorneys, including Cipollone. Delivered in his flat Teleprompter voice, the statement didn’t mention the historic rebuke of his behavior, but it did, for the first time, unequivocally urge his supporters to shun political violence. It was something Kushner had been pushing for a couple days.

There were “strong feelings that we needed to do everything possible to make it very very clear that anyone who in any way was affiliated with our movement should not contemplate any violent behavior in any way or they’re out of the movement,” a senior administration official said.

It came too late for some Trump allies.

“The videos the president put out were great and the messaging was on point but they were 24 hours and a week too late,” a former White House aide said. “He should have said immediately, ‘Go home.’”

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seanmspicer
The Trump White House Archived
Today the President presented the National Medal of Arts to five individuals: singers Toby Keith and Ricky Skaggs, opera and theater star Mary Costa, longtime director of the National Gallery of Art Pearl Powell III and wartime photojournalist Nick Ut


That evening, Trump’s aides, including political director Brian Jack, briefed Trump on the 10 Republicans, one by one, who had voted that afternoon for impeachment. The president focused his ire on Cheney and vowed to retaliate.

“He’s now keenly focused on those 10,” a White House official said.


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THURSDAY, JANUARY 14
‘President Trump will work from early in the morning … ’


In one of his final policy acts, Trump sent Congress a sweeping package of proposed spending cuts, including billions of dollars for a global health and vaccine distribution program involved in the Covid fight. There was no chance lawmakers would ever push through his plan, but it was perhaps the closest thing to official work Trump had attempted lately. Despite the daily boilerplate scheduling guidance from the communications staff — “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings” — everyone at the White House knew he was fixated on the election and now impeachment.

“There was a feeling of a traffic jam and more and more initiatives that were piling up and that’s frustrating for everybody,” a former senior administration official said. “You still need the president’s signature for things requiring executive authority.”

Instead, Trump handed off some things to Pence.
It was the vice president who traveled to FEMA headquarters for a briefing on inauguration security — his first public event since the Capitol riot.
It was a mask-clad Pence who gave the White House phone operators challenge coins and framed letters of appreciation. It was Pence who went to the Capitol to thank the National Guardsmen protecting the building. He told them he hoped for “a safe inauguration and a swearing-in of a new president and vice president.” And it was Pence who called Kamala Harris to congratulate her and belatedly offer his assistance during the last days of the transition. It was the first call between the two. (Trump has never called Biden.)

Trump had expected to award the Presidential Medal of Freedom to Bill Belichick, but it was canceled after the New England Patriots head coach, a longtime friend of Trump’s, said he would not accept it. That left nothing official on Trump’s schedule for the day.

“The government’s continuing to operate and run, and the president would weigh in on substantive policy decisions, but luckily a large majority of those have already been done,” a senior administration official said.


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White House staffers move their belongings out of the building in the days before Biden's inauguration.

But as problems persisted with statewide Covid-19 vaccine rollouts and the U.S. death count crept closer to 400,000, Trump didn’t appear to weigh in — publicly or privately. Nor did he seem interested when the Labor Department released new data showing the first net decline in U.S. employment since the spring and staggering job losses across the food and beverage and hospitality industries. One top economic official who continued to work out of the White House said it had been two weeks since he last saw the president.

At some point during the day, Mark Meadows’ wife, Debbie, was seen packing a stuffed pheasant into the trunk of a car.

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FRIDAY, JANUARY 15
‘Insurrection Act now as a result of the assault … ’


Trump was forced to spend much of the day going through the motions of saying goodbye to departing staffers, smiling in group photos with employees from a seemingly never-ending list of offices—intergovernmental affairs, management and budget, legislative affairs, social secretary.

Behind closed doors, Trump awarded the Legion of Merit (a rarely bestowed honor given to a foreign leader) to Mohammed VI, the king of Morocco.
(The country’s ambassador accepted the award.) The king had recently agreed to resume diplomatic ties with Israel, helping to reshape the landscape of the Middle East and North Africa. Trump has told allies that he will travel to the region next month to tout his legacy there.

Inside the White House, moving boxes were scattered around the West Wing and the walls that once featured enlarged photographs of the Trumps were bare. Outside the White House, large moving trucks had pulled up. Across the street, workers hung Biden/Harris signs and bunting ahead of the inauguration.

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Jabin Botsford
@jabinbotsford
@MyPillowUSA CEO Michael Lindell shows off his notes before going into the West Wing at the White House on Friday, Jan 15, 2021 in Washington DC.
2:00 PM Jan 15, 2021 from Washington, D.C.


The White House was so uncharacteristically quiet after years of nonstop activity that the brief visit of one of Trumps’ biggest supporters, Mike Lindell, CEO of the pillow manufacturing company MyPillow Inc. (which offers $45 discounts when using the promo code “QAnon”) caused a stir.

Lindell had come to brief the president and Cipollone on material he had found on the internet — ”footprints of the machine fraud,” he called it — that showed that “Joe Biden lost. Seventy-nine million votes for Donald Trump. Sixty-eight million for Joe Biden.”
This was big stuff, Lindell later told Rightside Broadcasting. But he was disappointed by the reception he got from Trump. “I said, ‘This is real. It shows the number of votes flipped.’ And [the president] looks at it and he goes, ‘It’s like we all knew that, right?’”

Lindell was told he had to wait to see Trump’s lawyers, so he stepped outside the White House to make a call. That’s when photographers captured a close-up of his notes that appeared to suggest “martial law” might be necessary to save the country.

“Insurrection Act now as a result of the assault on the … martial law if necessary upon the first hint of any … ” his notes read.
Lindell said he was just dropping off the memo for an attorney. “People ask me all the time.”

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SATURDAY JANUARY 16
Rudy Giuliani, for the defense ... maybe


The “My Pillow Guy” on Friday was followed on Saturday by the guy once known as “My Rudy” when Trump met with his one-time personal attorney, Giuliani.

Giuliani told ABC News that he was working on Trump's defense for his impeachment trial.
He planned to argue the president did not incite the riots because the allegations of voter fraud in November were true, though he said there are other opinions on what argument to make.

But by Sunday, Giuliani, who led the president's efforts to overturn the election, told ABC News he would not be part of Trump's legal team because he is a witness. Giuliani himself has been accused of inciting the Capitol riots when he urged the crowd at the Stop the Steal rally to engage in "trial by combat.”

Just days earlier, Trump had grown annoyed with Giuliani, refusing to take his calls or pay his bills. It remains unclear whether Trump is ready to hire him again.

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SUNDAY, JANUARY 17
‘It would require him admitting guilt’


The capital was a maze of steel fences and checkpoints. Thousands of National Guardsmen patrolled nearly deserted streets blocked by dump trucks and concrete barriers. Federal officials warned that armed groups might attack state capitals. Wanted lists of rioters circulated and reports of arrests seemed to keep coming as neighbors and family members called the FBI to identify people they had seen in videos and photos on social media.

Inside the White House, the president and his closest advisers spent the day thinking about forgiveness.

Trump had long made pardons a signature performance of his presidency, doling them out to political allies and people nominated by celebrities. He liked that the Constitution gave him the exclusive power to grant them. And he was determined to use it fully before he left office.


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Members of the National Guard secure blocked streets in preparation for Biden's presidential inauguration near the White House in Washington on Friday, January 15.

He met Kushner and Ivanka Trump and Cipollone to review a list of pardon requests that have been coming in from friends and allies on behalf of themselves and others who have grown anxious.

Outsiders, including David Safavian, a former Republican lawyer who was pardoned by Trump last year, and Brett Tolman, a former federal prosecutor turned lobbyist, had been advising the White House. On Dec. 30, Tolman posted — but later deleted — information on what type of person the administration wanted to pardon. “Good news friends — I finally learned what type of individual DOJ and the White House Counsel’s Office will support for clemency: individuals who have not committed a crime and are not incarcerated.”

Trump had issued two rounds of pre-Christmas pardons and commutations, including for three former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and four security contractors convicted for massacring Iraqi civilians in 2008. He wanted to issue one more batch — perhaps 100 or more —by Tuesday. But he wanted to make sure he gave out fewer than the 176 Bill Clinton issued on his last day in office.

Trump had spent weeks considering giving preemptive pardons to as many as 20 close associates and family members, including his children, Don Trump Jr., Eric Trump and Ivanka Trump, Giuliani, Bannon, maybe even himself. There was real concern that he could be charged for his role in the Capitol riot. In some respects, a self-pardon would have been a classically Trumpian act, never before attempted and constitutionally questionable. But such a move, he and his advisers knew, would come with a kind of public relations taint — not to mention dangerous future legal implications — that could do more harm than good to a legacy already in jeopardy.

“It would require him admitting guilt and that’s not something he does."

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MONDAY JANUARY 18
‘We did what we came here to do’


On Martin Luther King Jr. Day in 2018, amid a firestorm for calling African nations “shithole countries,” Trump golfed at one of his clubs in Florida. In 2019, during a government shutdown, Trump and Pence made a brief appearance at the Martin Luther King Jr. Memorial. In 2020, just after the House impeached him the first time, Trump and Pence again visited the memorial before the president left for a quick trip to Davos, Switzerland, to attend the World Economic Forum.

On his final Monday in office, he didn’t golf. He didn’t visit the MLK memorial. He worked to shore up his legacy.

Trump recorded a 20-minute video in the Blue Room of the White House to be released the next day, touting his accomplishments. “We did what we came here to do,” he said.
And he portrayed himself, somewhat implausibly, as someone who brought the country together instead of tore the country apart.

“Our agenda was not about right or left, it wasn’t about Republican or Democrat, but about the good of a nation, and that means the whole nation,” he said.

But on the same day, Trump’s 1776 commission, formed to fight the academic left’s view of history, released a report that some historians chided for excusing slavery.

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TUESDAY JANUARY 19
One last parade


Even though he never publicly admitted he lost the election, Trump knew he was leaving the White House. But he couldn’t decide when he should go.

Despite speculation that he would leave for Mar-a-Lago weeks in advance — just after the election or at the holidays — he never did. Trump admired the trappings of the presidency too much to leave the White House that early. Instead, Trump had discussed with aides leaving on Jan. 19 or the morning Biden was sworn into office. He settled on departing the morning of Inauguration Day. He wanted to go before the actual ceremony so that he didn’t have to ask the new president to use the plane, and he wanted to be sure it would still be designated as Air Force One for the trip.

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Final preparations in Washington ahead of Biden's inauguration. At bottom, the inauguration bandstand and decorations can be seen from the window of the James S. Brady Press Briefing Room of the White House.

It was never publicly announced, but staff went about making arrangements for a farewell that would resemble an official state visit — perhaps with a red carpet, color guard, military band and 21-gun salute. He wanted to do it at Joint Base Andrews in Maryland. It would be the kind of pomp and circumstance that was one of the few things Trump loved about the presidency, only organized for the proverbial audience of one.

His team sent out invitations to supporters and donors Sunday. It didn’t actually indicate Trump was leaving the White House but does allow them to bring up to five friends to a ceremony “featuring President Donald J. Trump.” Somehow several banished employees were invited, including former top White House adviser John Bolton and Omarosa Manigault Newman, who both turned their relentless criticism of Trump into tell-all books. They suspected it was a sign the White House was desperate for people to attend. “He’s a disgrace,” said Manigault Newman, who said she received multiple invitations.

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Certainly, many in the Washington establishment seemed ready for him to go. On the floor of the Senate, McConnell offered a blunt assessment of Trump’s culpability for the Jan. 6 insurrection. “The mob was fed lies,” he said. “They were provoked by the president and other powerful people. And they tried to stop a specific proceeding of the first branch of the federal government which they did not like. But we pressed on.”

Months ago, after the election, when he knew it wouldn’t go his way, Trump schemed about counterprogramming Biden’s big moment by announcing on Inauguration Day that he would run in 2024. His aides convinced him that would be premature. So in the final days, Trump continued to pester his allies for ideas about what he should do during the actual inauguration when the nation’s eyes would be trained on someone else. Should he hold a campaign rally? Maybe do a call with a foreign leader? Just go golf?

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The White House pictured on January 19.

Nothing was certain except the plan for Trump to land in Florida at 11 a.m. Wednesday, an hour before Biden would place his hand on the Bible on the Capitol terrace.

Still president — for a few minutes, at least — but not present.

Andrew Desiderio, Josh Gerstein, Jasmine Hilton, Daniel Lippman, Lara Seligman, Sam Stein, Ben White and Melanie Zanona contributed to this report.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Mon Feb 28, 2022 11:32 pm

When did the Jan. 6 rally become a march to the Capitol?
by Philip Bump
National correspondent
The Washington Post
February 10, 2021

Washington (CNN) Trump campaign officials, led by Rudy Giuliani, oversaw efforts in December 2020 to put forward illegitimate electors from seven states that Trump lost, according to three sources with direct knowledge of the scheme....

Trump hoped Republican legislators from the seven battleground states would replace Biden's authentic electors with the rogue GOP slate, and that Pence would seat those electors during the joint session of Congress on January 6....

The documents from Georgia, Arizona, Michigan, Wisconsin and Nevada explicitly stated, falsely, that the GOP electors were the rightful electors, representing 59 electoral votes.

-- Trump campaign officials, led by Rudy Giuliani, oversaw fake electors plot in 7 states
by Marshall Cohen, Zachary Cohen and Dan Merica, CNN, Updated 9:58 PM ET, Thu January 20, 2022


So here’s the scenario we propose:

1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).

2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.

3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.


-- Six-point-plan to unconstitutionally overture the election results ("Eastman Memo", by John Eastman


And then the footage later that night of some of these same protesters – they had a shot of them back at the Willard Hotel smoking cigars and having a good laugh. First of all, if you’re not familiar with the Willard Hotel, it’s maybe the most expensive hotel to stay in in D.C. It’s right across from the White House. Right across from Lafayette Park. It’s right there on the corner on 16th street where it dead ends at Lafayette Park, and there’s the White House right there. And they are sitting there in the – I don’t know if they have a cigar bar or a lounge, or whatever, and they’re smoking cigars, and having a great laugh! Wow!

-- Michael Moore: The Terrorist Attack Is NOT Over. Rumble with Michael Moore podcast, EP. 153, Premiered Jan 9, 2021


[Robert Costa, The Washington Post, National Political Reporter] Let's step back for a second. With all these partisan shots happening, coming across the bow, from the Republicans and others, what really matters with this Bannon subpoena is not only the power of Congress potentially being diminished if Bannon doesn't end up testifying under oath, but we're not going to have the full story. The Willard Hotel is mentioned by Representative Cheney in her remarks yesterday. January 5th is the day that Trump and his allies push democracy to the brink, coordinating from, just steps from the White House, in a hotel suite, Rudy Giuliani, Jason Miller, Steve Bannon, talking by phone with the President who is pressuring Pence over at the White House, talking to lawmakers, coordinating the message with Conservative allies, this was the day, the eve of the insurrection, to try to make it all happen, to put it in motion. And Bannon, in our reporting, is in that room. And what this Committee clearly wants to figure out under oath is what was being said specifically by Trump to this war room at the Willard, what was being done when they issued a statement in Pence's name late at night saying Pence agreed with the move to push the election to the House, even though Pence did not. There are so many looming questions about why what happens on the 6th gets put into motion. And if you want to answer that, you have to really know what exactly was said by the people at the Willard Hotel and to the President of the United States sitting across the street.

-- Claire McCaskill: Contempt Vote Will Test Whether Congress Has Any Power, by Nicolle Wallace, MSNBC, Oct 20, 2021


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.


-- 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


Trump appointee Charles Herbster says Sen. Tommy Tuberville met with the Trump family, then-RAGA [Republican Attorneys General Association] director and top Trump adviser on Jan. 5 at the Trump International Hotel.

Charles Herbster originally posted on Jan. 5 that the meeting took place at the White House and included Rudy Guiliani that evening, but the next morning he edited his post to say it happened at Trump’s hotel, and he removed Guiliani from the post altogether....


The night before the deadly attack on the U.S. Capitol, Alabama Republican Senator Tommy Tuberville and the then-director of the Republican Attorneys General Association met with then-President Donald Trump’s sons and close advisers, according to a social media post by a Nebraska Republican who at the time was a Trump administration appointee....

Among the attendees, according to Herbster’s post, were Tuberville, former RAGA director Adam Piper, Donald Trump Jr....

RAGA’s [Republican Attorneys General Association] dark-money fundraising arm, the Rule of Law Defense Fund, led by Alabama Attorney General Steve Marshall, paid for robocalls directing people to the March to Save America and rally, which took place just before the Capitol attack....

RLDF [Rule of Law Defense Fund] was listed as a participating organization for the Jan. 6 “March to Save America” on the march’s website. The website is now down, but archived versions show RLDF as a participating group. Prior to the protest, RLDF [Rule of Law Defense Fund] sent out robocalls detailing when and where citizens should meet for the Jan. 6 rally, which was first reported by the watchdog investigative journalism group Documented.

“I’m calling for the Rule of Law Defense Fund with an important message,” the robocall stated, according to Documented. “The march to save America is tomorrow in Washington D.C. at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m. At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal. We are hoping patriots like you will join us to continue to fight to protect the integrity of our elections. For more information, visit MarchtoSaveAmerica.com. This call is paid for and authorized by the Rule of Law Defense Fund, 202-796-5838.”

-- Trump appointee says Tuberville met with Trump family, advisers on eve of Capitol attack: Tuberville, through a spokeswoman, said he did not attend the meeting with Trump on the eve of the deadly attack, by Eddie Burkhalter, Alabama Political Reporter, January 26, 2021


iii. Giuliani

The court reaches a different conclusion as to Giuliani. There is little doubt that Plaintiffs have adequately pleaded that Giuliani was involved in a conspiracy to “engage[] in a months-long misinformation campaign to convince Trump’s supporters that the election had been illegally stolen.” Thompson Pls.’ Opp’n at 42. But, as the court stated earlier, such a conspiracy does not violate § 1985(1). What Plaintiffs must plausibly establish is that Giuliani conspired to prevent Congress from discharging its duties on January 6th by force, intimidation, or threat. There, they fall short.

In addition to his pre–January 6th actions—which alone do not establish Giuliani as a § 1985(1) conspirator—Plaintiffs point to two of Giuliani’s acts that occurred on January 6th: (1) his rally speech, in which he said, “So, let’s have trial by combat” and “We’re going to fight to the very end to make sure that doesn’t happen,” and (2) a phone call that he made to members of Congress, urging them to delay the Certification. Thompson Pls.’ Opp’n at 42–43. These allegations, individually and taken together, do not “nudge[]” Plaintiffs’ § 1985(1) claim against Giuliani “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

As to his rally remarks, the court believes Giuliani’s words are not enough to make him part of a § 1985(1) conspiracy. Critically, Giuliani uttered no words that resembled a call to action. “Trial by combat” was not accompanied by a direction to do anything. And, given the speaker, those words were not likely to move the crowd to act. There is no allegation that anyone took Giuliani’s words as permission to enter the Capitol. And there are no allegations that Giuliani at any time before January 6th uttered words advocating or inspiring violence. Indeed, as discussed further below, the court holds that Giuliani’s rally remarks are constitutionally protected speech. Nor is Giuliani alleged to have been involved in rally planning or known that the President would direct the crowd to march to the Capitol. And he did not express solidarity with the rally-goers after some violently assaulted police and forced their way into the Capitol. Giuliani’s words at the rally are not sufficiently additive to make him a § 1985(1) coconspirator.

Neither are his phone calls to lawmakers on January 6th after the Capitol was breached. There is some conflict among Plaintiffs on this allegation. The Bass Plaintiffs allege that such calls were made “while the insurrection was ongoing.” Thompson Compl. ¶ 138. The Blassingame Plaintiffs, on the other hand, say that two such calls occurred at 7:00 p.m., after law enforcement had cleared the Capitol. Blassingame Compl. ¶ 128. Whatever the timing of those calls, they at most establish Giuliani as an opportunist, not someone who shared in the same general conspiratorial objective as others before the violence at the Capitol occurred. Though Giuliani unquestionably was a central figure in the President’s efforts to sow doubt and mistrust in the election’s outcome, the court cannot say, based on the facts alleged, that he plausibly shared the common conspiratorial goal of violently disrupting the Certification.

iv. Trump Jr.

The court reaches the same conclusion as to Trump Jr. The allegations against him are even thinner than those against Giuliani. Before January 6th, he sent false and misleading tweets about the election and publicly criticized officials who did not support his father. He also spoke at the rally, during which he repeated false claims about election fraud and theft. He also warned Republicans who failed to back the President, “we’re coming for you, and we’re gonna have a good time doing it.” As discussed below, the court believes these words to be protected speech. That is all Plaintiffs have attributed to Trump Jr.27 He is not alleged to have participated in rally planning, known that the President would direct a march to the Capitol, or expressed support for the rioters and their actions. The allegations against Trump Jr. are insufficient to make him a coconspirator in a plan to disrupt Congress from performing its duties.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


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There were fundamentally two reasons that a violent mob stormed the U.S. Capitol on Jan. 6.

The first was that thousands of people had come to Washington because President Donald Trump had encouraged them to be there that day both by repeatedly — and falsely — claiming that the 2020 presidential election had been stolen and by explicitly telling his supporters to be in Washington on that particular date.

The second was that there were enough people at the Capitol that afternoon to overwhelm the Capitol Police who were protecting the building and force their way inside. Had two dozen people shown up Jan. 6 to protest the counting of electoral votes in the presidential election, there’s no violence and the police officer and four others who died that day would likely still be alive.

While presenting their case that Trump incited the day’s violence at the former president’s impeachment trial on Wednesday, House impeachment manager Del. Stacey Plaskett (D-Virgin Islands) raised an intriguing point. At some point, the decision was made to direct attendees at the rally outside of the White House toward the Capitol that day, ensuring a critical mass of people that might not otherwise have been there. Why? When did that particular decision emerge?

A review of the available evidence and prior reporting indicates how that plan was developed — but not necessarily who made it.

The crowd had just been at the Ellipse attending a “Save America” rally, where President Trump spoke. At the end of his remarks, he told rally-goers, “we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” The President then directed the thousands gathered to march to the Capitol—an idea he [President Trump] had come up with himself....

[Dustin Stockton] There were several things, like we saw warning signs along the way with Trump, right? And frankly we made some excuses for him, and excuses for why, you know, maybe Michael Cohen, or Stephanie Winston Wolkoff, or some of these other people that we knew and liked, right, had run into trouble with it. But uh, for us, when He [Trump] directed people to the Capitol at the 6th, what we revealed to the Committee is that there was an internal conflict that was ongoing inside the organizer groups about what the program, and what the day on January 6th should look like. And we kind of lost that battle, and we didn't realize we lost that battle until President Trump told people to walk down to the Capitol. And we had put several events in D.C. together before. We knew the kind of logistics it took to do that safely: the Marshals, the Security, the Stage, the Sound -- all the things you have to do to be able to safely manage a crowd of that size, and we knew that wasn't in place. And we knew that the people that they had asked to lead, that they were not people who should ever be associated with something as solemn as the White House. And so for us, it was devastating. Like, it was very deflating. And it's one of those like "snap-to-reality" moments where you look back over all the previous warning signs that you've ignored, and you have to challenge yourself on....

[Chris Hayes] There's a key factual claim you're making here, which I just want to follow up on, because I think it's key, and then I want to come back around to one more thing, and then I will let you guys go on with your evening. So the key factual claim here, which I think is fascinating, is essentially an internal debate that emerges among the organizers about what happens after the Ellipse... What you're saying is there was a group that wanted to mobilize that huge crowd, and basically kind of send them off towards the Capitol ...

[Dustin Stockton] [Nods his head in agreement]

[Chris Hayes] ... without a permit, we should note, without Security ...

[Jennifer Lynn Lawrence] [Nods her head in agreement]

[Chris Hayes]... without any sort of checks for who would control the crowd, who would lead them, who would make sure things didn't get out of hand. And you were in the opposite faction that said, "We shouldn't do that." And the moment that you found out you lost that internal debate was the President of the United States saying literally to the riled-up crowd, "Now you're going to come with me down to the Capitol, so they can hear you how angry you are."
That's what you're saying, and what you're telling the Committee.

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[Jennifer Lynn Lawrence] Absolutely yes that is. And I mean, I'm quoted in Pro Publica, I don't know if I'm allowed to say on air what I actually said the moment that you know uh, He said it from the stage, but you can go look up that quote. But I mean, at this point, we didn't know. Our plan for that day was we were supposed to stay at the Ellipse all day. And we were being told that we could stay there 12 and 14 hours, until all the electors had been seated up at Capitol Hill. And you know it was portrayed to us that if the electors were seated for President Biden, that Trump would recognize those results. So he wanted the largest crowd ever -- this is what was portrayed to us, you know, at the Ellipse -- that if He had to give whatever his form of "Sayonara Speech" was, he wanted the biggest crowd there possible. And that was our plan. So the minute that we realized like, "Oh my god, you're marching those people. We have nothing in place. Like there's nothing" -- like, "What are you doing?" And it was so disheartening, and so deflating, and it is really not okay.

-- Jan. 6 Organizers: We ‘Lost The Battle’ When Trump Ordered March To Capitol, by Chris Hayes


Significantly, the rally was not permitted for a march from the Ellipse. Id. ¶ 90. The President and his campaign came up with the idea for a march to the Capitol....

Early in the speech he referenced a march to the Capitol and said he knew the crowd would be going there to “peacefully and patriotically” make their voices heard....

The Trump campaign and various related entities paid more than $3.5 million to assist in [the January 6 Rally] organizing. Blassingame Compl. ¶ 39. President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one....

Early in the speech he alluded to rally-goers marching to the Capitol building. The President told the assembled crowd that “Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is up to Congress to confront this egregious assault on our democracy.”...

The President’s call for a march to the Capitol was not, however, authorized. It was something that he and his campaign had devised. The Rally’s permit said: “This permit does not authorize a march from the Ellipse.”...

The President communicated directly with his supporters, inviting them to Washington, D.C., to a rally on January 6th, the day of the Certification, telling them it would be “wild.” He directly participated in the rally’s planning, and his campaign funded the rally with millions of dollars. At the rally itself, the President gave a rousing speech in which he repeated the false narrative of a stolen election. The crowd responded by chanting and screaming, “Storm the Capitol,” “Invade the Capitol,” “Take the Capitol right now,” and “Fight for Trump.” Still, the President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.” From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes....

When the President tweeted an invitation to the January 6 Rally, pro-Trump message boards and social media lit up with some supporters expressing a willingness to act violently, if needed. Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.” Even the President’s counsel conceded that an invitation to commit a tort and the acceptance to do so would establish a civil conspiracy....

And, following a 75-minute speech in which he blamed corrupt and weak politicians for the election loss, he called on them to march on the very place where Certification was taking place....

Nor is Giuliani alleged to have been involved in rally planning or known that the President would direct the crowd to march to the Capitol....

[Trump Jr.] is not alleged to have participated in rally planning, known that the President would direct a march to the Capitol, or expressed support for the rioters and their actions.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


Here’s what we know happened, starting the month prior.

December

On Dec. 19, five days after the electoral votes had been cast in all 50 states, Trump first drew the public’s attention to the day those votes would be counted.

There would be a “big protest in D.C. on January 6th,” he wrote on Twitter. “Be there, will be wild!”

The next day, someone registered the domain WildProtest.com, leveraging Trump’s tweet to promote an event that does not appear to have existed previously.
It appears to have been the brainchild of Ali Alexander, a far-right provocateur who was also the driving force behind StopTheSteal.com, a lucrative group leveraging Trump’s claims about voter fraud.

Image

The location of the “wild protest” moved slightly, but by Dec. 31 the protest still had the same general logistics: meeting just northeast of the Capitol at 10 a.m. for an hours-long rally with various right-wing speakers.

Jan. 1

Trump leaned into promoting the nebulously identified protest, tweeting repeated enticements for supporters to attend.

“The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th,” he wrote in one tweet. “Locational details to follow.”


Jan. 2

The next day, those details appeared to emerge. Amy Kremer of the group Women for America First announced that her group would be holding a rally at the Ellipse, just south of the White House.

Image
Amy Kremer
@Amy Kremer
We are excited to announce the site of our January 6th event will be The Ellipse in the President's Park, just steps from the White House!
Join us January 6th, doors will open at 7am & you'll want to get there early!
RSVP @ TrumpMarch.com!
#MarchForTrump #StopTheSteal
12:58 PM Jan 2, 2021


In an interview on One America News, her daughter Kylie Kremer was vague about whether Trump would make an appearance — though she strongly suggested he might.

Behind the scenes, the White House was likely already intimately involved.

“At the turn of the year,” the New York Times reported earlier this month, “Mr. Trump decided to join the rally himself, and the event effectively became a White House production, with several people close to the administration and the Trump campaign joining the team.”

Trump himself was actively involved in decision-making, according to the Times report: “The president discussed the speaking lineup, as well as the music to be played, according to a person with direct knowledge of the conversations.”

Jan. 3

The following day, Trump made clear that he would attend the Women for Trump rally.

“I will be there,” he tweeted, sharing a promotional tweet from Kylie Kremer. “Historic day!”


Trump’s involvement in the rally at the Ellipse meant booting some of the originally slated speakers. Dustin Stockton, a former Breitbart employee who was helping plan the event, helped find space for them at a rally the prior evening, which had been organized by a group called the 80 Percent Coalition.

The three discrete protests — Wild Protest, the one at the Ellipse and the one on Jan. 5 — became part of one coordinated event, renamed the March to Save America. (The domain MarchtoSaveAmerica.com was registered on Dec. 30.)

At some point on Jan. 3, the event’s website was updated to include an actual march. That morning, the event details simply identified that a rally would be held at the White House on the morning of Jan. 6.

Image

By that evening, a second event was added: “At 1:00 PM, we protest at US Capitol.”

Image

This same day, law enforcement officials were raising the alarm about the mass of people expected at the rally. As The Washington Post reported last month:

“In a 12-page report on Jan. 3, the intelligence unit of the congressional police force described how thousands of enraged protesters, egged on by Trump and flanked by white supremacists and extreme militia groups, were likely to stream into Washington armed for battle.”

The acting defense secretary met separately with Trump, who agreed that the D.C. National Guard should be activated.


Jan. 4

A permit issued by the National Park Service delineates what was expected at the event on the evening of Jan. 5, the rally that had originally been organized by the 80 Percent Coalition.

Five thousand people were expected to attend an all-day event. But, the permit notes, “there is no march associated with this permitted demonstration.”

Image
ADDITIONAL CONDITIONS
PUBLIC GATHERING PERMIT: #21-0274
ORGANIZATION'S NAME: RALLY TO REVIVAL
LOCATION: FREEDOM PLAZA
JANUARY 5, 2021 FROM 5:A.M. - 11:59 P.M.
EVENT OVERVIEW: Participants (5,000) will assemble at Freedom Plaza to conduct a first amendment rally demonstration on January 5, 2021 from 5:00 a.m. - 11:59 p.m.


One of the individuals identified as speaking at the rally is conspiracy theory peddler Alex Jones. According to reporting from the Wall Street Journal, Jones obtained a prominent speaking slot by donating $50,000 to the effort — and helped secure hundreds of thousands of dollars in additional funding from a prominent Republican donor.

Jan. 5

The Wild Protest website is updated with the three-part plan: the rally in Freedom Plaza that afternoon, the rally at the Ellipse the next morning and the rally at the Capitol early in the afternoon — right as Congress was convening to count the electoral votes.

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TRUMP WANTS TO SEE YOU IN DC
JAN 5, 1 PM: FREEDOM PLAZA
JAN 6, 9 AM: THE ELLIPSE, PRESIDENT'S PARK
JAN 6, 1PM: CAPITOL BLDG (NORTH EAST DR)
MARCHTOSAVEAMERICA.COM


That plan only implied a march. The final permit issued for the rally at the Ellipse, like that issued for the rally at Freedom Plaza, explicitly indicated that no march was authorized.

Image
PERMIT#21-0278 (AMENDED)
PERMITTEE: WOMEN FOR AMERICA FIRST
LOCATION: ELLIPSE, SOUTHWEST QUADRANT, AND SOUTHEAST QUADRANT; SOUND OF TREE LIGHTING SITE
DATE: JANUARY 2-8, 2021 (06:30 AM - 7:l30 PM)
Additional Conditions
A. This permit authorizes the use of the Ellipse southwest quadrant, west of the vista site line and south of the tree lighting site starting on Saturday, January 2 at 6:30 am until Wednesday, January 8, 2021 at 7:30 pm. This permit does not authorize a march from the Ellipse.


This was the point Plaskett focused on during the Senate impeachment trial on Wednesday.

“The permits stated in no uncertain terms that the march from the Ellipse was not permitted,” she said. “It was not until after President Trump and his team became involved in the planning that the march from the Ellipse to the Capitol came about — in direct contravention of the original permit.”

“This was not a coincidence,” she added.

That’s not quite right. The final permit says that no march is authorized — but it also includes an “activity overview” that mentions movement between the two sites.

“Some participants may leave,” it reads, “to attend rallies at the United States Capitol to hear the results of Congressional certification of the Electoral College count.”


Image
PERMIT #21-0278 (AMENDED)
PERMITTEE: WOMEN FOR AMERICA FIRST
LOCATION: ELLIPSE, SOUTHWEST QUADRANT, AND SOUTHEAST QUADRANT, SOUTH OF TREE LIGHTING SITE
DATE: JANUARY 2-8, 2021 (06:30 AM - 7:30 PM)
Activity Overview:
Women for America First will conduct a first amendment rally "March for Trump" to demand transparency and protect election integrity. The rally will feature speakers from Women for America First, Congressional Representatives, Roger Stone, Julio Gonzalez, Rudy Giuliani, Diamond and Silk. Women for America First will not conduct an organized march from the Ellipse at the conclusion of the rally. Some participants may leave to attend rallies at the United States Capitol to hear the results of Congressional certification of the Electoral College count.


This appears to be what the groups had planned: the Ellipse event with the Capitol event soon after.

One of the groups supporting the March to Save America was the Rule of Law Defense Fund, the policy arm of the Republican Attorneys General Association. In a robocall sent out on Jan. 5, which was obtained by the watchdog group Documented, it promoted the next day’s events — and a march.



“The March to Save America is tomorrow in Washington, D.C., at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m,” the message read. “At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal.”

Jan. 6

Speaking at noon on the day of the short-lived insurrection, Trump also announced a march.

“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated,” Trump said at the outset of his comments. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Near the end of his speech, after many people had already begun walking toward the Capitol, he made the same pitch.

“We’re going to walk down Pennsylvania Avenue,” he said, implying for the second time in his comments that he would go with them. “ … And we’re going to the Capitol, and we’re going to try and give … our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”

Stockton, the organizer who’d helped shuffle the speaking lineup once Trump was confirmed as a speaker, told the Times that he was surprised to learn a formal march had been added to the mix.

“Before the White House became involved,” the Times reported him saying, “the plan had been to stay at the Ellipse until the counting of state electoral slates was completed.”


It’s not clear why Stockton might have been surprised by the plan to transition from the Ellipse to the Capitol. Perhaps he wasn’t aware that the Wild Protest had been folded in. Perhaps he understood the transition as something less formal than a march.

But by 1 p.m. on Jan. 6, the mechanic behind the move didn’t really matter. Thousands of people were at or on their way to the Capitol, and within 90 minutes, hundreds would be inside.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Mar 01, 2022 4:56 am

Trump appointee says Tuberville met with Trump family, advisers on eve of Capitol attack
Tuberville, through a spokeswoman, said he did not attend the meeting with Trump on the eve of the deadly attack.

by Eddie Burkhalter
Alabama Political Reporter
January 26, 2021
LAST UPDATED ON JANUARY 27, 2021, AT 08:39 AM

Image
The entrance to the Trump International Hotel in Washington D.C. (VIA WIKIMEDIA COMMONS)

Here is the latest on the meeting among Trump allies on Jan. 5:

• Trump appointee Charles Herbster says Sen. Tommy Tuberville met with the Trump family, then-RAGA director and top Trump adviser on Jan. 5 at the Trump International Hotel.
• Photos and a separate social media post put Tuberville in Trump’s hotel on Jan. 5, despite Tuberville denying attending any meeting.
• Charles Herbster originally posted on Jan. 5 that the meeting took place at the White House and included Rudy Guiliani that evening, but the next morning he edited his post to say it happened at Trump’s hotel, and he removed Guiliani from the post altogether.
• David Bossie, former President Donald Trump’s deputy campaign manager, told APR that he didn’t attend the meeting in question, despite Herbster saying he was there.

Update: Sen. Tommy Tuberville, through a spokeswoman, denied attending the Jan. 5 meeting. Facebook and Instagram posts appear to tell a different story.

The night before the deadly attack on the U.S. Capitol, Alabama Republican Senator Tommy Tuberville and the then-director of the Republican Attorneys General Association met with then-President Donald Trump’s sons and close advisers, according to a social media post by a Nebraska Republican who at the time was a Trump administration appointee.



Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration, in a Facebook post at 8:33 p.m. on Jan. 5 said that he was standing “in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth.”

Tuberville, through a spokeswoman Tuesday, told APR that he did not attend a Jan. 5 meeting at the Trump International Hotel in Washington.

Among the attendees, according to Herbster’s post, were Tuberville, former RAGA director Adam Piper, Donald Trump Jr., Eric Trump, Trump’s former National Security Advisor Michael Flynn, adviser Peter Navarro, Trump’s 2016 campaign manager Corey Lewandowski and 2016 deputy campaign manager David Bossie.

RAGA’s [Republican Attorneys General Association] dark-money fundraising arm, the Rule of Law Defense Fund, led by Alabama Attorney General Steve Marshall, paid for robocalls directing people to the March to Save America and rally, which took place just before the Capitol attack.

[January 5, 2020]

One of the groups supporting the March to Save America was the Rule of Law Defense Fund, the policy arm of the Republican Attorneys General Association. In a robocall sent out on Jan. 5, which was obtained by the watchdog group Documented, it promoted the next day’s events — and a march.

“The March to Save America is tomorrow in Washington, D.C., at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m,” the message read. “At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal.”

-- When did the Jan. 6 rally become a march to the Capitol?, by Philip Bump, The Washington Post, February 10, 2021


Herbster attended the Jan. 6 rally, but said he left before the riot, according to the Omaha World-Herald. The newspaper also reported that Herbster “also met Tuesday in Trump’s private residence in his Washington, D.C., hotel with Trump’s sons, Donald Jr. and Eric, and other campaign advisers.”

“They discussed how to pressure more members of Congress to object to the Electoral College results that made Joe Biden the winner,” The Omaha World-Herald reported.


Flynn earlier on Jan. 5 spoke at a rally of pro-Trump supporters in support of Trump’s baseless claims of widespread election fraud.

“We stand at a crucible moment in United States history. This country is awake now,” Flynn told the crowd, according to numerous news outlets.

Congressman Mo Brooks, R-Alabama, spoke at the rally prior to the Capitol attack, telling the crowd: “Today is the day that American patriots start taking down names and kicking ass.” Right-wing political activist and an organizer of the Jan. 6 “Stop the Steal” rally, Ali Alexander, in videos posted on social media claimed that Brooks was involved in the planning of the rally that day, meant to pressure lawmakers inside the Capitol as they prepared to vote on certifying the Electoral College votes.

The Jan. 5 meeting, as discussed in the Facebook post, was first reported by journalist Seth Abramson on Tuesday. Abramson in his article states that it’s unclear if Trump himself attended the Jan. 5 meeting at his hotel.

“I’ve dedicated my life to promoting and preserving the American Dream. Tonight, as I look at our nation’s flag, I’m reminded of the battles and blood spilled to protect our way of life,” Herbster wrote in his post:

Charles W. Herbster is with Anna Cooper and 13 others.
January 5 at 9:33 PM

I've dedicated my life to promoting and preserving the American Dream. Tonight, as I look at our nation's flag, I'm reminded of the battles and blood spilled to protect our way of life.

For me, the white signifies purity and innocence; red, hardiness and valor; and the blue, especially today, signifies perseverance and justice. While so many have chosen the easy path, I will continue to fight for what is honest and true. Right now, I stand in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth:

U. S. Senator Tommy Tuberville, Alabama; Mr. Donald Trump, Jr.; Mr. Peter Navarro, Assistant to President Donald J. Trump, Director of Trade and Manufacturing Policy, and the National Defense Production Act Policy Coordinator; Mr. Eric Trump; Mr. Adam Piper, Executive Director Republican Attorney General Association; Mr. David Bossie, President and Chairman of Citizens United and Deputy Campaign Manager of the 2016 Donald J. Trump Presidential Campaign; Mr. Corey Lewandowski, Manager of the 2016 Donald J. Trump Presidential Campaign; and General Michael Flynn, 25th United States National Security Advisor.


These faithful servants of freedom need our prayers as well as the U.S. Congress. Tomorrow on Capitol Hill, they open sealed electoral voting certificates from each state. This joint session is the last official chance for our members of Congress to object to the widespread voter fraud that happened on November 3.

God Bless America.


Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration, in a Facebook post at 8:33 p.m. on Jan. 5 said that he was standing “in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth.”

In numerous photos posted to his Facebook page in the months prior to the Jan. 5 meeting, Herbster can be seen posing with Trump and Trump’s sons and close advisors.

APR sent questions to a Tuberville spokesperson asking whether the senator had attended a Jan. 5 meeting with Trump, Piper and others at his hotel, and if so, why was he called to the meeting and what was discussed. The Tuberville spokeswoman replied in an email: “the answers to your questions are No and Not Applicable.” Attempts to contact Herbster on Tuesday were unsuccessful.

As pro-Trump supporters, far-right groups and militia members were breaking into the U.S. Capitol on Jan. 6, Trump and his attorney Rudy Giuliani both mistakenly called Republican Sen. Mike Lee of Utah while trying to call Tuberville, according to multiple news accounts, a recording of a voicemail message by Giuliani left for Tuberville and statements by Lee.

[Rudy Giuliani] Senator Tuberville, or I should say Coach Tuberville, this is Rudy Giuliani, the President's lawyer. I'm calling you because I want to discuss with you how they're trying to rush this hearing, and how we need you, our republican friends, to try to just slow it down so we can get these legislators to get more information to you. And, uh, I know that they're reconvening at eight tonight. But the only strategy we can follow is to object to numerous states, and raise issues so that we get ourselves into tomorrow, ideally until the end of tomorrow. I know McConnell is doing everything he can to rush it, which is kind of a kick in the head, because it's one thing to oppose us, it's another thing not to give us a fair opportunity to contest it. He wants to try to get it down to three only, three states that we can contest, whether there are ten states that we can contest, not three. So if if you could object to every state, and along with a congressman get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators, who are very very close to pulling their votes, particularly after what McConnell did today, and it angered them because they have written letters asking that you guys adjourn and send them back the questionable ones, and they'll fix them up. So this phone number I'm available on all night, and it would be an honor to talk to you. Thank you.

-- Giuliani Voicemail from January 6, 2021


In the recorded voicemail message mistakenly left on Lee’s phone, first reported by The Dispatch, Giuliani asks Tuberville to stall the counting of electoral votes.

“I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you,” Giuliani said in a voicemail.

Piper resigned as director of RAGA [Republican Attorneys General Association] on Jan. 12 following much public scrutiny over robocalls paid for by the Rule of Law Defense Fund ["RLDF"].

“Every decision Adam made on behalf of RLDF [Rule of Law Defense Fund was with the best of intentions and with the organization’s best interests in mind,” Marshall said in a statement at the time.
“Adam leaves a void that will be difficult to replace, but we wish Adam well as he pursues other opportunities that will allow him to spend more time with his family.”

Marshall has not publicly said why Piper resigned. Attempts to reach Piper for comment Tuesday were not successful.

RLDF [Rule of Law Defense Fund] was listed as a participating organization for the Jan. 6 “March to Save America” on the march’s website. The website is now down, but archived versions show RLDF as a participating group. Prior to the protest, RLDF [Rule of Law Defense Fund] sent out robocalls detailing when and where citizens should meet for the Jan. 6 rally, which was first reported by the watchdog investigative journalism group Documented.

“I’m calling for the Rule of Law Defense Fund with an important message,” the robocall stated, according to Documented. “The march to save America is tomorrow in Washington D.C. at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m. At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal. We are hoping patriots like you will join us to continue to fight to protect the integrity of our elections. For more information, visit MarchtoSaveAmerica.com. This call is paid for and authorized by the Rule of Law Defense Fund, 202-796-5838.”

“Serving Republican attorneys general has been the honor of a lifetime and honestly a dream job,” Piper said in a statement on his resignation, according to the Associated Press.

In a statement to APR on Jan. 7, after APR’s story on the matter had published earlier that day, Piper said neither RAGA nor RLDF was involved with the planning of the rally and seemed to place the blame on staff.

“The Republican Attorneys General Association and Rule of Law Defense Fund had no involvement in the planning, sponsoring, or the organization of yesterday’s rally,” Piper said in the statement at the time. “No Republican AG authorized the staff’s decision to amplify a colleague speaking at the rally. Organizationally and individually, we strongly condemn and disavow the events which occurred. Yesterday was a dark day in American history and those involved in the violence and destruction of property must be prosecuted and held accountable.”

Marshall, in a statement to APR on Jan. 8, blamed unnamed RLDF staff and said he was not aware of his organization’s involvement:


“I was unaware of unauthorized decisions made by RLDF staff with regard to this week’s rally. Despite currently transitioning into my role as the newly elected chairman of RLDF, it is unacceptable that I was neither consulted about nor informed of those decisions. I have directed an internal review of this matter. As I said yesterday, I condemn, in the strongest possible terms, the actions of those who attempted to storm the U.S. Capitol, a place where passionate but peaceful protestors had gathered and lawmakers debated inside. Our country is built upon the foundation of the rule of law. American democracy guarantees the right of peaceful protest. Those who chose to engage in violence and anarchy should and will be held accountable under the law.”


Marshall, speaking to The Montgomery Advertiser on Jan. 12, after a press conference on human trafficking and before Piper’s resignation was announced, said the internal review was ongoing. Asked by the Advertiser whether he felt Trump bore any responsibility for the violence at the Capitol on Wednesday, and for comment on Trump’s potential impeachment, Marshall declined to comment.

“I didn’t see anything about the rally,” Marshall said, according to the newspaper. “I don’t know anything about his remarks.”

APR’s questions to Marshall’s office Tuesday about the status of Marshall’s investigation into the matter, and whether he has learned of Piper’s possible attendance at that Jan. 5 meeting, weren’t immediately answered.

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

AG’s office refuses to reveal Marshall’s whereabouts before or after Jan. 6: AG Steve Marshall’s office denied APR’s request for his calendar during the lead up to, and after, the Jan. 6 attack.
by Eddie Burkhalter
Published July 20, 2021
LAST UPDATED ON JULY 20, 2021, AT 07:23 PM

Image
Alabama Attorney General Steve Marshall speaks during a press conference on COVID-19 with Gov. Kay Ivey in April 2020. (VIA GOVERNOR'S OFFICE)

Alabama Attorney General Steve Marshall won’t say where he was on the days leading up to and following the deadly Jan. 6 attack on the U.S. Capitol.

Marshall leads the Republican Attorneys General Association’s dark-money nonprofit Rule of Law Defense Fund, which paid for robocalls detailing when and where citizens should meet.

Then-Republican Attorneys General Association director Adam Piper attended a Jan. 5 meeting at the Trump International Hotel in Washington D.C., along with Sen. Tommy Tuberville, R-Alabama; Donald Trump Jr.; Eric Trump; Trump’s former National Security Advisor Michael Flynn; adviser Peter Navarro; Trump’s 2016 campaign manager Corey Lewandowski; and 2016 deputy campaign manager David Bossie, according to Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration.

“They discussed how to pressure more members of Congress to object to the Electoral College results that made Joe Biden the winner,” Herbster told The Omaha World-Herald about that Jan. 5 meeting.


It’s unclear whether Marshall had any meetings with Trump, or Trump aides, in the days leading up to the failed insurrection. APR in a records request asked for Marshall’s scheduling records and calendars between Dec. 26, 2020, and Jan. 19.

“Consistent with long-standing policy, this Office has determined that disclosure of these records may pose a security risk and are therefore privileged. I regret that I am unable to honor your request at this time,” wrote Marshall in a letter, which was also signed by Ben Baxley, chief of the opinions division in Marshall’s office.


APR asked Mike Lewis, a spokesman with Marshall’s office, in a message how disclosing where Marshall had been several months ago could be considered a security concern, but Lewis hadn’t responded as of Tuesday morning.

APR wasn’t the first to request such records for Marshall. Daniel Tait, research and communication manager for the Energy and Policy Institute, in February asked Marshall’s office for his scheduling records from Dec. 26, 2020, through Jan. 12.

“I requested records because EPI was reporting and researching on the Rule of Law Defense Fund, utilities, and members of Congress who had voted to overturn the election,” Tait told APR on Saturday. “Alabama Power had donated to RLDF in 2019 and since Marshall was the chairman, I wanted to know who had his ear leading up to the events of Jan. 6.”

Tait received the same response, denying his request, and shared the letter on Twitter.

Piper resigned as director of the Republican Attorneys General Association on Jan. 12 following public scrutiny over those robocalls paid for by Marshall’s Rule of Law Defense Fund.

Marshall in a statement to APR on Jan. 8 said he was unaware staff at group were involved in the Jan. 6 rally and that he’d ordered an “internal review” of the matter. Several months later it was unclear whether Marshall’s internal review had been completed.

Tuberville through a spokesperson told APR he didn’t attend a Jan. 5 meeting with Trump’s sons and top aides, but after photos surfaced of Tuberville in the hotel that day, Tuberville later said he attended a Republican fundraiser at the hotel on Jan. 5.

In the weeks leading up to Jan. 6, Marshall made numerous public statements alleging fraudulent votes and calling into question the outcome of the 2020 presidential election.

“We obviously have concerns about some of the issues, specifically of irregularities and fraud in other places,” Marshall told Newsmax on Nov. 13.
Marshall was speaking about his decision to add Alabama to a list of states challenging mail-in ballots in Pennsylvania.

“To the extent that Americans can have a belief and a trust in the election results on Election Day then it’s hard to have faith in those leaders that will take over,” Marshall said on The Lars Larson Show on Nov. 16. Marshall went on to say that there was a possibility that the courts could throw out enough Pennsylvania ballots to flip that state to former President Donald Trump.

Marshall on Nov. 20 spoke to another talk radio host about the Pennsylvania ballot challenge and said “when they change the rules midstream and we still don’t know the results, the people of America have a reason to question the validity and the authority of what’s taken place through this recent election.”

Marshall on Dec. 9, 2020, announced Alabama would join a Texas lawsuit asking the United States Supreme Court to overturn election results in four states, which the Supreme Court rejected.

Marshall joined several other Republican attorneys general at a meeting with Trump at the White House on Dec. 9.

“The lunch with the attorneys general in the Cabinet Room, which was closed to the media, came a day after Republican attorneys general from 17 states filed a friend-of-the-court brief supporting the Texas lawsuit,” NBC News reported.

Marshall on Dec. 11 tweeted a photo of himself standing alongside Trump in the White House.

“One of the things we hope, with 17 of our colleagues coming together is that the court understands the significant importance of this,” Marshall said Fox News’ “Fox and Friends” morning show on Dec. 10. “All we’ve asked is that only legal ballots be counted. Texas has presented a very compelling argument that compels the court to take this case moving forward, and we’re to support the fact that this needs to be considered.”


“As we have seen nationally, those seeking to undermine the integrity of our elections remain with passionate energy,” Marshall said during the Alabama Electoral College ceremony.

Marshall’s official Twitter and Facebook accounts show no posts from Dec. 31 until Jan. 6, when he tweeted a statement on the Jan. 6 attack on the U.S. Capitol.

“I condemn, in the strongest possible terms, the actions of those who today attempted to storm the Capitol, a place where passionate but peaceful protestors had gathered and lawmakers debated inside,” Marshall said in the statement.

There has been no evidence of widespread voter fraud in the 2020 presidential election, according to Trump’s own former Attorney General William Barr, U.S. election officials and numerous failed lawsuits alleging any number of election misdeeds. Trump and his allies still claim without proof, massive voter fraud.

Numerous Republican Attorneys General Association staffers resigned in the wake of the robocall matter, and after the association appointed as director Pete Bisbee, a man whom one outgoing staffer said was responsible for approving the robocalls.

On Monday the first person convicted of a felony connected with entering the U.S. Capitol on Jan. 6, Paul Hodgkins of Florida, was sentenced to eight months in prison.

Russell Dean Alford of Hokes Bluff was arrested in March, becoming the seventh Alabamian charged in connection with the U.S. Capitol attack that left five dead, including Capitol Police officer Brian Sicknick.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Mar 02, 2022 2:27 am

Trump said he would walk with protesters to the Capitol, but drove off in his motorcade before the march devolved into a violent attack
by Mia Jankowicz
Business Insider
Jan 7, 2021, 5:35 AM

5. Negligence (Swalwell Count 9)

The last of Swalwell’s claims is negligence. Swalwell alleges that “[ i]n directing a crowd of thousands to march on the Capitol—particularly considering their violence-laden commands— the Defendants owed a duty of care to the Plaintiff and to everyone in the Capitol to exercise reasonable care in directing the mob’s actions.” Swalwell Compl. ¶ 255. He further contends that President Trump breached that duty by, among other things, urging rally-goers to “fight like hell.” Id. ¶ 257. Thus, under Swalwell’s negligence claim, the President’s lack of care with his words caused others to riot, resulting in his injuries. Importantly, such a theory is analytically distinct from the theory that underlies Swalwell’s § 1985(1) and aiding-and-abetting theories, which rest on the President’s intentional use of words to encourage violence or lawlessness. See Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 916 (D.C. Cir. 2015) (observing that “intent and negligence are regarded as mutually exclusive grounds for liability” (alterations omitted) (quoting District of Columbia v. Chinn, 839 A.2d 701, 706 (D.C. 2003))).

When, as here, a plaintiff seeks to hold a defendant liable for negligence for injuries resulting from intervening criminal acts, “heightened foreseeability factors directly into the duty analysis because a defendant is only liable for the intervening criminal acts of another if the criminal act is so foreseeable that a duty arises to guard against it.” Bd. of Trustees of Univ. of D.C. v. DiSalvo, 974 A.2d 868, 871 (D.C. 2009) (internal quotation marks omitted). The crux of heightened foreseeability is a showing of the defendant’s “increased awareness of the danger of a particular criminal act.” Id. at 872 (emphasis added). “It is not sufficient to establish a general possibility that the crime would occur, because . . . the mere possibility of crime is easily envisioned and heightened foreseeability requires more precision.” Id. at 872–73. Such precision involves, “if not awareness of the precise risk, close similarity in nature or temporal and spatial proximity to the crime at issue.” Id. at 874. Thus, for example, in DiSalvo, the D.C. Court of Appeals said that, to establish a duty, the plaintiff “had to establish that [the university] had an increased awareness of the risk of a violent, armed assault in the parking garage.” Id. at 872. Similarly, in Sigmund v. Starwood Urban Retail VI, LLC, to establish a duty, the D.C. Circuit demanded proof of similar crimes in a case in which the plaintiff was injured by a pipe bomb in his building’s garage. 617 F.3d 512, 516 (D.C. Cir. 2010).

Accordingly, to establish that President Trump had a duty to Swalwell to take care of the words he used in the Rally Speech, Swalwell must plead facts establishing that the President had an increased awareness of a risk of a violent assault at the Capitol. Not surprisingly, he does not meet this demanding standard. He therefore cannot advance a theory of negligence liability based on the theory that the President’s lack of care in selecting his words caused his injuries.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


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President Donald Trump at a rally to contest the certification of the 2020 presidential election results on January 6, 2021. Jim Bourg/Reuters

• Trump assured supporters at the "Save America" rally Wednesday that he would join them on a march to the Capitol.
• He encouraged them to "show strength" and head to the Capitol, where Congress was in the process of certifying President-elect Joe Biden's victory.
• He then returned to the White House by car.
• Soon after, the assembled protesters grew violent, and broke into the Capitol building, with the president watching on TV.


President Donald Trump encouraged protesters to march on the Capitol on Wednesday with the assurance that he would join them — but instead drove away in his motorcade.

He spoke to supporters at the "Save America" rally in Washington DC, organized in protest at the certification of President-elect Joe Biden's election victory.

While Trump-loyalist members of Congress debated a postponement of the certification in the Capitol, Trump himself fired up his crowd.

"Now it is up to Congress to confront this egregious assault on our democracy," he said. "And after this, we're going to walk down — and I'll be there with you — we're going to walk down ... to the Capitol and we're going to cheer on our brave senators and congressmen and women."

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Daily Caller
@DailyCaller
President Trump says that following his speech, he will lead his supporters in a march to the Capitol building to "cheer on our brave senators and congressmen and women."
10:24 AM Jan 6, 2021


Trump spoke from behind bulletproof glass, according to Bloomberg reporter Josh Wingrove.

The president's pledge to join the marchers was greeted with cheers. However, according to the press pool report sent following the rally, he actually went back to the White House in his motorcade.

Eugene Daniels
@EugeneDaniels2
Per the pool report: President Trump's motorcade just made it back to the White House despite him telling his supporters he was going to walk to the Capitol with them.
11:43 AM Jan 6, 2021


He then watched the ensuing violence unfold on cable news, as Insider's Charles Davis and Lauren Frias reported.

In his speech, Trump urged his followers to "fight like hell" to overturn the election he lost.

"You'll never take back our country with weakness," he said. "You have to show strength and you have to be strong."

Trump later changed tack, asking supporters to respect law enforcement and go home.

However, he continued to push the false narrative of a stolen election and praised the rioters as "great patriots" in a post that Twitter later deleted.

The White House did not immediately respond to Insider's request for comment.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Mar 02, 2022 2:45 am

One (1) year after Jan. 6, House lawmakers tell of trauma, grief and resilience
They spoke with ABC News Congressional Correspondent Rachel Scott.
by Rachel Scott, Mariam Khan, and Benjamin Siegel
ABC News
January 6, 2022, 3:06 AM

3. Intentional and Negligent Infliction of Emotional Distress (Swalwell Counts 6 and 7)

Swalwell asserts a claim of intentional infliction of emotional distress (IIED) and an additional claim of negligence infliction of emotional distress (NIED). To state a claim for IIED, a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013). To state a claim for NIED, a plaintiff must plead that (1) the defendant acted negligently, (2) the plaintiff suffered either a physical impact or was within the ‘zone of danger’ of the defendant’s actions, and (3) the plaintiff suffered emotional distress that was “serious and verifiable.” Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) (quoting Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991)).38 President Trump argues that Swalwell’s pleading falls short on the first and third elements on both claims. Swalwell Trump Mot. at 36–37. The court agrees as to the third element of both claims.

“Severe emotional distress” for purposes of a IIED claim is a high bar. It “requires a showing beyond mere ‘mental anguish and stress’ and must be ‘of so acute a nature that harmful physical consequences are likely to result.’”
Competitive Enterprise v. Mann, 150 A.3d 1213, 1261 (D.C. 2016). “Serious and verifiable” distress for an NIED claim is a lower bar, but it must manifest in some concrete way, such as “by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991) (emphasis omitted). Swalwell’s pleading meets neither of these standards. His pleading is largely conclusory. Swalwell Compl. ¶ 223 (alleging that “Defendants’ actions caused severe emotional distress”); id. ¶ 226 (alleging that “plaintiff suffered severe emotional distress”). Swalwell does, however, describe his thoughts and emotions when he was in the House chamber, heard rioters pounding on the door and smashing glass to enter, and saw Capitol police draw their weapons and barricade the entrances. Id. ¶ 224. He states that, during these events, he texted his wife, “I love you very much. And our babies.” Id. ¶ 225. The court does not minimize the trauma and shock Swalwell felt on January 6th, but his pleading simply does not meet the high bar for either an IIED or NIED claim. Those counts will be dismissed.

Before moving to the next claim, the court notes that the Blassingame Plaintiffs also brought an IIED claim (Count 3). They have voluntarily dismissed that claim. Blassingame Pls.’ Opp’n at 32 n.12. That count will be dismissed without prejudice.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


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Survivors of Jan. 6 riot open up about their trauma and healing 1 year later. ABC News congressional correspondent Rachel Scott speaks with lawmakers and staffers who were both witnesses and victims to the deadly insurrection. Drew Angerer/Getty Images, FILE

One year after the violent attack on Capitol Hill by a mob seeking to overturn the 2020 presidential election results, many House lawmakers are still struggling to wrap their heads around the brutality of that day.

"It's really hard to believe it because it still feels like it was just yesterday. All of the memories feel just as fresh and raw. The enormity of what we faced – our lives, our democracy, the fragility of all of that, it’s still hard to process," Rep. Pramila Jayapal, a Democrat from Washington state, told ABC News during a sit-down interview in late December.

The chaos and violence unfolded over the course of a few hours on that fateful day. But for many who were there, including lawmakers, legislative aides, members of the press, and Capitol Police officers -- the trauma still lingers.

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Drew Angerer/Getty Images, FILE. A member of the U.S. Capitol police rushes Rep. Dan Meuser out of the House Chamber as protesters try to enter the House Chamber during a joint session of Congress in Washington, Jan. 06, 2021.

ABC News sat down for an in-depth interview with several House Democrats who were in the gallery of the House chamber last year on January 6, 2021. They experienced firsthand the terror as rioters attempted to breach the chamber.

"I never thought I would be in the Capitol of the United States of America and be attacked by other Americans," Rep. Mikie Sherrill, D-N.J., told ABC News.

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PHOTO: Tear gas is fired at supporters of President Trump who stormed the United States Capitol building in Washington, Jan. 6, 2021. The Washington Post via Getty Images, FILE

The images and sounds of that day are unforgettable: the gunfire, shattered glass, a noose at the foot of the Capitol’s sprawling green lawn.

Trump supporters -- brandishing flags, poles, and other makeshift weapons, storming the venerated building, an American symbol of democracy.


On Jan. 6, ABC News Live will provide all-day coverage of events marking one year since the attack on the U.S. Capitol and the continuing fallout for American democracy.

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PHOTO: People are seen in the House gallery wearing emergency gas masks as rioters try to break into the House chamber at the U.S. Capitol, Jan. 6, 2021, in Washington. Andrew Harnik/AP

The group of lawmakers, trapped above the House chamber in the gallery, were at one point instructed to reach for gas masks stored under their seats.

"Initially for me it was just, how do you get out? I wasn't even thinking fear. I mean, we didn't even know how to open the gas masks in the gallery," Rep. Lisa Blunt Rochester, D-Del., said.

Rep. Blunt Rochester said she knelt in prayer as the violence erupted just outside the chamber, which she said evoked a flood of emotions and imagery.

"When we prayed, that made me feel back to the word: faith. Like all in that balcony, in that gallery, I could just feel every ancestor. I could feel slavery, Jim Crow, everything, all of the bad things that have to wake you up to what the reality is," Blunt Rochester said.

Rep. Jason Crow, a former U.S. Army Ranger, took cover as his military training and instincts kicked in.

"I will admit that I still harbor feelings of anger and resentment," Crow, a Democrat from Colorado, said. "I never thought that I would be thrust back into that mindset again. But for a brief moment there, I snapped back in to that 'Jason Crow, Army Ranger' mindset and was preparing myself to potentially have to take life again, to protect us and get out. And that wasn't a great place to be in."

Jayapal admitted she has struggled to return to the place of such sorrow. She has not returned to the gallery where she was seated in the chamber that day.

"I think about it all the time. And every time I get an alert on my phone … I feel my heart starting to race a little bit more, more anxiety. I haven’t gone back to the gallery since that day. I haven’t. That night they told us to go back to the same place that we had been, and I was like, I'm not going back," Jayapal said.

"It was traumatic. It was returning to a place of trauma," Jayapal added.


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PHOTO: Supporters of President Trump storm the United States Capitol building on Jan. 6, 2021. The Washington Post via Getty Images, FILE

Supporters of President Trump storm the United States Capitol building on Jan. 6, 2021.
The group of Democrats together in the gallery that day by chance, now bonded forever by the trauma.

"Nobody can go through an experience like that experience trauma, not having some impact," Crow said. "And getting help is not a sign of weakness. It's a sign of strength."

They have stayed in touch using a group text message to communicate their thoughts and feelings, and also holding group therapy sessions with a psychologist.


"It's been a blessing in a way, far beyond January 6. I know as a group, it’s made us more resolute, more compassionate, and stronger," Rep. Dean Phillips, D-Minn., said.

Phillips still has the gas mask he used one year ago.

"To bear witness," Phillips explained. "This is going to go with me wherever I end up as long as I am here in this job, on Earth, because this moment is seared into my memory and it’s my responsibility."


Lawmakers have said one of the most challenging aspects of their jobs following the riot is figuring out a way to work with some of their Republican colleagues who voted to overturn the presidential election results and downplay the violence and terror of that day.

"I’d say some of those colleagues of ours who want to pretend that it never happened. Here you had this incredibly vitriolic, traumatic experience and yet we serve with folks who want to pretend it was a tourist visit. And that's tough, that's a tough pill to swallow," Crow said.

The insurrection has only deepened the fraught partisan divides, eroding trust between members who were caught in the crosshairs of the violence.

Freshman Republican Troy Nehls came face to face with the mob and condemned the violent acts.

"The center doors started to shake violently … And then the glass shattered … I saw a young man and he was looking at me and I was looking at him and. And he said, 'You're from Texas, you should be with us,' … And I told him, this was un-American what you're doing,” Nehls told ABC News in an interview.

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PHOTO: Pro-Trump protesters face a line of police officers after breaking through barriers onto the grounds of the Capitol Building, Jan. 6, 2021. Jon Cherry/Getty Images, FILE

Hours later, when lawmakers returned to the chamber to certify the election results, he was one of 147 Republicans who voted against it.

One year later, the feelings are still raw.

The pandemic, together with reverberations from the Capitol riot, have led more people on Capitol Hill to seek help.

In 2021, the Congressional Office of Employee Assistance handled 12,200 interactions with employees, managers, and members of the Hill - including 5,600 counseling sessions.

That's roughly four times the number of interactions the office handles in a given year, pre-pandemic.

The office has also conducted 40 trauma support briefings, according to a spokesman for the office.

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PHOTO: A flash bang is fired at supporters of President Trump who stormed the United States Capitol building on Jan. 6, 2021. The Washington Post via Getty Images, FILE

Many who were on the Capitol that day are still shaken by the attack, struggling to cope with the trauma.

"I personally haven't gone through anything as traumatic as that – that has been my most traumatic experience," Leah Han, who works in House Speaker Nancy Pelosi’s office, told ABC News in an interview.


Leah Han, and her colleague Nathaniel Holmes, who also works in Pelosi’s office, were just steps from the House Chamber on Jan. 6 when the riot erupted.

"I never really dealt with anxiety before, but I now have anxiety," Holmes told ABC News.

"We started hearing people in the building. It was no longer just these chanting and shouts from outside. You could hear people in the hallways … It just seemed as if someone's capable of breaking in the Capitol building, what else are they capable of?" he said.

Pelosi staff members grabbed what they could and raced to the closest conference room, barricading themselves inside – no members of Pelosi’s security detail in sight.

Han said she struggles when imagining what could have happened had they not had a secure place to hide.

"I've thought about that a lot. What would they have done if they had found us? Were they going to kill us? Were they going to torture us? Were they going to rape me? I don't know. I just don't know. You were thinking about everything, all the possibilities. I mean, I couldn't help but try to prepare myself," Han said.


Han and Holmes said they starkly remember the mob pounding at the conference room door as rioters desperately searched for the speaker.

"Where are you, Nancy? Nancy, where are you? Oh, Nancy,” the rioters chanted as they rummaged through nearby offices.

Pelosi’s staff, including Holmes and Han, hid under a table inside the conference room where they were barricaded.

"I thought I was going to die. I mean, I just remember I kept thinking, 'This can't be happening. This can’t be happening to me,'" Holmes said.

Holmes said he still can’t "unhear" the sound of the rioters pounding on the door.

While the initial shock of the attack has worn off, an unanticipated grief remains that even time can’t seem to shake.


Yet, despite the trauma, they are resilient.

"I don’t think we can be the same. We are a collection, our building is a collection of all the things that happened to us, in us, and so … courage begets courage," Jayapal said.

"I don't know if I can ever be the same, but it doesn't necessarily have to always be defined by that," Holmes said. "I hope it's not defined by that … I don't know if it'll be the same, but hopefully it can be better."

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For many Capitol Hill staffers, the trauma of Jan. 6 has never left: Toxic work environment affects not just members but their aides too
by Brad Korten
Rollcall.com
Posted January 6, 2022 at 6:00am

Let me first preface this by stating that I don’t speak for all congressional staffers. I am one of thousands of hard-working individuals who serve members of Congress and the Capitol daily. Yet I chose to write this piece to provide my perspective of how things have been in Congress one year after the Jan. 6 insurrection. In my over six years of working for Congress, nothing truly compares to the abnormality of this past year.

On Jan. 6th, 2021, I was working from my apartment in the Navy Yard neighborhood of Washington, approximately a mile away from the Capitol. Many congressional staffers were working from home due to the ongoing threat of COVID-19, but some were on the Hill to assist their bosses during the certification of the Electoral College vote. Four of my colleagues were in the office that day, as well as friends who worked for other members across the Capitol complex. As the violent mob attacked the Capitol, I watched on TV — in fear for my co-workers, my boss and my friends. I frankly didn’t know what to do and spent most of that afternoon calling and texting people to see if they were OK. I felt helpless to see the place where I work, the building that represents our nation’s democracy, invaded and destroyed by people spoon-fed lies by the outgoing president and his allies.

Jan. 6 was just the start of what became a very frustrating time to be a congressional staffer. Following the attack, the Capitol transformed from a freely accessible public building into a military base, as thousands of National Guard troops set up a perimeter and fortified the complex. At one point, there were more National Guard troops at the Capitol than soldiers in Afghanistan. These troops patrolled the grounds of the Capitol for the next four months. To me, the militarization of my workplace was heartbreaking to see. Before, constituents and advocates would walk the halls; now, it was armed troops.

Many of my friends and colleagues experienced trauma from that day, especially nonwhite staffers. Having a mostly white mob trying to “stop the steal” and “take their country back” was the accumulation of roughly five years of racist and toxic politics that came from the previous president’s actions. It was already hard for staffers of color to work on the Hill, but for many, this was the final straw. Over the following months, many left their jobs. People who pursued a path of public service wanting to serve their country and help make a difference were forced to leave due to an increasingly difficult working environment.

Even when the fences came down and the troops left, the insurrection still hovered over the Capitol. It wasn’t made easier knowing that some members of Congress continued to push the false conspiracy theories of the last presidential election, or even downplayed the seriousness of the attack itself. Dozens of people were seriously injured that day, and some were killed in the name of a lie. The mental scars are still felt by many who work here, made worse by some members’ hostile attacks on their fellow colleagues. The racist, xenophobic and hateful actions that have been reported this past year impacted not only the targeted members, but the staffers who work for them as well.


I remain hopeful that things can get better. I want to do my part to make a more positive environment for my fellow colleagues, but I fear that the toxicity that has plagued our workplace will only continue. I share my thoughts as one of many congressional staffers who do the work we do for the love of our country and for democracy.

Please consider that Congress is not just the elected members, but the staffers and others who don’t serve a political function but who work to ensure the smooth, everyday operation of our democracy. We will continue to do our jobs for the constituents we serve, but we too need support and a safe and healthy work environment.

Brad Korten is a senior policy adviser to a Democratic member of the House and has worked in Congress for the past six years.

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Can images from Jan. 6 insurrection traumatize your child?
by Kristi King | kking@wtop.com
wtopnews.com
January 3, 2022, 9:10 AM

As the anniversary of the Jan. 6 attack on the U.S. Capitol arrives, some experts say children exposed to those events may react with what doctors call secondary trauma.

“If a child has experienced any type of trauma, or remembers the events of Jan. 6, either by witnessing them on TV or hearing about them consistently, there can be a reaction — or a secondary trauma that takes place,”
said Dr. Asha Patton-Smith, a child and adolescent psychiatrist with Kaiser Permanente in Northern Virginia.

“As a parent, it’s important to be aware of that and to look for signs and symptoms of concern,” she said.

Trauma is a complicated condition to diagnose, but common symptoms can include anger, fear, guilt, anxiety, depression, issues with concentration and withdrawal from other people. Physical signs of trauma include muscle tension, headaches, chest pain and fatigue, not being able to sleep and nightmares.

“I think that, as we get closer to the event, there’ll be more talk about the event. And parents do need to check in with their kids to make sure they’re not being re-traumatized … or if these emotional events are triggering previous traumas in their life,” she said.

Last year after the insurrection, Patton-Smith said she observed frustration, anger, even confusion in some of her adolescent patients.

Something she says came up a lot with younger kids was fear: “Will this happen again? Will it be OK? Am I OK? Someone comes into my house, what’s going to happen?”

Patton-Smith said parents need to understand that a sense of safety is what is most important for children, because trauma robs that feeling of safety and makes people feel isolated.

Because children are like sponges, actively absorbing and trying to process what they see, Patton-Smith said parents may need to limit news and social media that could increase exposure to potentially disturbing content.

She also says it’s vital to talk to children about the things they are seeing.


“It really is important for a parent, if they’re talking about the events that happened on Jan. 6 — or any type of event — they talk about it very openly and in a non-biased, nonjudgmental way.”

She recommends parents instead ask younger children about their emotions and feelings.

“Not a judgment, not sharing as a parent what you feel, but just being very open and listening,” Patton-Smith said.

She says it’s also important to listen to older kids in a non-judgmental way, “so you can get a sense of where they are, which may be different from how you were looking at an event.”

Parents who have concerns about what their children may be experiencing shouldn’t hesitate to reach out for help.

“As always, talk to your child’s school counselor, any mental health professional at the school, obviously your child’s pediatrician or primary care provider and, if needed, a mental health professional,” Patton-Smith said.

For more advice on ways to deal with trauma and other mental health issues for kids, Patton-Smith recommends HealthyChildren.org, a parenting website sponsored by the American Academy of Pediatrics.

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Trump’s Favorite Part of Jan. 6 Is Laughing at the Trauma: The former president’s callousness toward his real and perceived enemies is standard fare for Trump, who frequently revels in their pain and misfortune in public and in private.
by Asawin Suebsaeng, Senior Political Reporter
Will Sommer, Politics Reporter
Updated Jan. 06, 2022 9:20AM ET / Published Jan. 06, 2022 4:57AM ET

There are a number of things that make Donald Trump happy when he thinks of Jan. 6, and the long-term consequences of the riot. But it’s the anguish and trauma that has really sparked his joy.

In the full year since the deadly, Trump-inspired assault on the U.S. Capitol, several lawmakers, police officers, and reporters who were there have publicly opened up about the lingering distress they still feel stemming from the anti-democratic violence and body count of the day.

According to three people with direct knowledge of the matter, the twice-impeached former president has noticed the emotional accounts, particularly that from Democratic congresswoman Alexandria Ocasio-Cortez. Some he has found annoying. Others, however, have become targets of mockery and casual hilarity for him.

In several conversations with close allies over the past 12 months, Trump has repeatedly made fun of the idea that certain legislators, police, or journalists were traumatized by the violent events of the day, according to these sources. There are moments when the ex-president has speculated that his critics are “faking” their trauma and anxiety, for attention. Other times, he’s done poor, whining impersonations of perceived enemy lawmakers crying about the riot.


“I know your pain. I know you’re hurt,... We love you. You’re very special.”

-- President Donald Trump, Tweet, January 6, 2020


Trump’s callousness toward his real and perceived enemies, no matter the level of trauma inflicted, is standard fare for Trump: a man who built much of his political legacy and appeal by demagoguing and viciously smearing those who speak out against him. For example, despite his frequent claims about “backing the blue,” Trump privately referred to some of the police officers who were at the Capitol that day as “pussies, The Daily Beast previously reported.

He spent the past year hardening and broadening his lies about that day. Through press releases, rallies and interviews with allies, he’s excused and lionized the violent rioters, called for further election and voting-rights crackdowns across the nation, and in doing so cemented far-right Jan. 6 revisionism and “the Big Lie” as pillars of modern conservative orthodoxy.

And both in policy and in messaging, virtually every corner of the American right that matters has been willing to go along with it.

For a few hours after rioters stormed the Capitol on Jan. 6 last year, it looked like at least a segment of the Republican Party just might turn away from then-President Trump. A handful of Republicans in the Senate reversed their plans to vote against certifying Joe Biden’s win, though 147 Republican lawmakers in both chambers still voted against certification. Several top Trump officials, including two Cabinet secretaries, resigned from the administration in the wake of the riot.

“Yesterday was the worst day for the Republican Party since Lincoln’s assassination,” Joe Grogan, who had served as Trump’s top White House domestic policy adviser, told The Daily Beast the day after the attack in Washington, D.C. “It was a disgrace and a tragedy…[Trump] had plenty of opportunities to off-ramp before this.”

A year later, though, Trump’s hold on the party is almost as strong as it was when he was president. His social media access is gone, but Republican lawmakers still live in fear of Trump endorsing a primary challenger.

Reps. Adam Kinzinger (IL) and Liz Cheney (WY), the two Republican members of Congress most vocally opposed to Trump, are unlikely to have futures in the Trump-controlled party. Kinzinger announced his retirement in October, while Cheney faces a Trump-backed challenger in her primary.

And many of those who spoke out in the immediate aftermath have either reversed course, like House Minority Leader “My Kevin” McCarthy, or stopped talking about the events all together.

For instance, when asked about his feelings about the one-year anniversary of the riot, Grogan simply declined to comment further on the topic. His comments from a year ago became wildly out of step with where the mainstream GOP had landed right around the time President Biden was inaugurated.

If anything, with the passage of a calendar year, the Republican Party has only gotten more extreme. The Jan. 6 defendants have been recast in right-wing media as political prisoners. QAnon, the conspiracy theory that animated many of the rioters, has made new inroads into the GOP. In May, Allen West, then the head of the Texas Republican Party, joined Rep. Louie Gohmert (R-TX) at a QAnon conference in Dallas. Appearing at the same event, former three-star general and Trump national security adviser Michael Flynn endorsed the idea of a Myanmar-style coup taking place in the United States.

Right-wing media outlets have spent the past year laying the groundwork for a contradictory counter-narrative about Jan. 6. Their storyline at once portrays the riot as a nonviolent tourist march through the Capitol and a nefarious plot hatched by the FBI and left-wing antifascists to embarrass Trump that day by committing violence in his name. At Fox News, the center of the conservative media, primetime host Tucker Carlson steamrolled past internal objections to air a faux-documentary suggesting the riot was a false flag carried out by the forces of the “deep state.”

Furthermore, Republican consultants and longtime party strategists—many of whom claimed a sense of (short-lived) squeamishness on the day of the historic, bloody riot—feel emboldened by what they see as general disinterest from much of the public in the January 6 committee’s investigations, especially headed into the critical 2022 midterm elections.

Republicans’ post-riot efforts to minimize the violence and causes of the Jan. 6 attack has helped create a partisan divide over how it’s viewed. In a Washington Post-University of Maryland poll taken in mid-December, 92 percent of Democrats and 57 percent of independents polled said Trump deserved a significant amount of responsibility for the riot, while just 27 percent of Republicans felt the same. Republicans are also more willing to ignore the violence committed during the riot, with 26 percent of Republicans polled describing the rioters as “mostly violent,” in comparison to 78 percent of Democrats and 55 percent of independents who said the same.

Jan. 6 also didn’t inspire Republicans to ditch false claims about the 2020 election. Figures like MyPillow CEO Mike Lindell and Trumpist lawyer Sidney Powell have become stars among the party’s grassroots for carrying on the “Big Lie” even after the insurrection. Trump supporters flock to events around the country where Lindell, Powell, and their compatriots speak about their plans to overturn the election. Elected Republicans at the state level, meanwhile, have seized on false claims about Biden’s win to pass laws restricting voting and win over conservative activists by carrying out bogus ballot audits.

Over the past year, Trump has grown so emboldened by the undying support of conservative voters, right-wing media, and GOP heavy-hitters that he’s already started planning for a second term, whether he gets one or not.

Earlier this year, according to two people familiar with the situation, the former president began asking friends and golfing buddies who they thought he should choose for senior administration posts and cabinet positions, should he re-ascend to 1600 Pennsylvania Ave after the 2024 election.

Some of the potential choices that have floated around Trump’s brain are particularly Trump-y. One of the possible picks he asked some confidants about last year is former Fox Business star Lou Dobbs, another Trumpist dead-ender who has for years acted as a top informal adviser. The two sources said that Trump has pondered aloud putting “Lou” in his cabinet, should he get the opportunity.

Thanks to the Republican Party’s continued protection and promotion of Trump, and the party’s sustained efforts to whitewash Jan. 6, he might just get the chance.

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Rep. Pressley’s Statement on Anniversary of January 6th Insurrection
by Congresswoman Ayanna Pressley
January 6, 2022

“We must remain uncomfortable with what happened that day and the trauma it caused. We cannot grow complacent, and we must move with the urgency this moment demands.”


BOSTON, MA – Today, Congresswoman Ayanna Pressley (MA-07) issued the following statement on the anniversary of the January 6th insurrection.

“One year ago, the nation watched in absolute horror as a violent, white supremacist mob—incited by Donald Trump and Republican lawmakers’ hateful rhetoric and dangerous lies—attacked our seat of government. The attack was a blatant attempt to silence the will of the people, particularly the record number of Black and brown voters who made their voices heard in the 2020 election. Today, one thing remains painfully clear: white supremacy continues to threaten our democracy, our communities and everyone who calls America home.

“The January 6th insurrection was traumatic for everyone involved, from custodial and food service workers, journalists, Capitol police officers, to Congressional staff and members of Congress alike. As a Black woman in America—to experience the ancestral trauma of a violent white supremacist mob seizing the building, brandishing Confederate flags and erecting a noose on the capitol grounds was all too familiar—and tragically, the threat remains today. The same white supremacist threat fuels efforts by our Republican colleagues—many of whom supported and incited this attempted coup—to continue spewing lies and misinformation about the 2020 election results. It fuels the coordinated assault on our sacred right to vote. None of this is by happenstance.

“In this moment, we do not have the luxury of simply turning the page on this ugly and painful chapter in our nation’s history. To heal our collective trauma, to protect our communities, defend our democracy and ensure an attack like this never happens again, there must be accountability.
I am grateful for the work done by Chairman Thompson and the January 6th Committee. The American people deserve to know exactly what happened that day and the Biden Administration must use the full weight of the presidency to investigate, prosecute and hold everyone involved accountable—including those in the previous Administration and sitting Members of Congress. And we must abolish the Jim Crow filibuster and pass meaningful voting rights legislation to protect our democracy and keep power in the hands of the people.

“Our work to root out white supremacy in all of its forms, safeguard our democracy, and protect the wellbeing of our communities is far from finished. We must remain uncomfortable with what happened that day and the trauma it caused. We cannot grow complacent and we must move with the urgency this moment demands.”

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

Congressman Dan Kildee full interview discussing video captured during Capitol riot
Feb 11, 2021
WXYZ-TV Detroit | Channel 7

Michigan Congressman Dan Kildee (D-Flint), was one of many politicians trapped inside of the U.S. Capitol building during the insurrection on Jan. 6. He captured jarring video of the riot, which was used during the impeachment trial.



did you see that video when the vice
president was ushered out had you seen
that
no i hadn't seen any of the video that
came from the security cameras that was
actually the first time any of it was
shown
and uh to be candid
i watched a lot of the video coverage
right after the attack like
for the first couple of days after it
but
since then i've been avoiding it a
little bit only because
you know just to be honest and i think
it's good to be um you know i've i've
been dealing with a lot of post
traumatic stress as a result of all of
this
and just watching that video triggers a
lot of anxiety and i've got a lot of
work to do
and i'm working through that i'm you
know dealing with somebody a
professional
a mental health professional to help me
through it because
you know the experience that those of us
that were in the gallery had that
41 minutes that we were left behind
when it was clear that you know we were
pretty close to being in real danger
that um
that's a you know that's an experience
that is really hard to get through
you know what i i cannot tell you that i
understand what you went through that
day
but you know what at one time i was on a
flight
where they thought there was fire in the
engine and i literally thought we were
going down so i was
afraid that i was going to die yeah and
it took me
it took me literally four years before i
would even get on another plane so
you know it was so frightening not
really and i'm not saying this is
how you feel but um i was more concerned
about my kids being without me
you know and so many things go through
your mind i have no idea what was going
through your mind for 41 minutes i could
i could only
you know imagine yeah well it was a
similar thing i
was just you know when i was laying
there on the floor in the gallery
protecting myself from these
from this mob that clearly was intent
uh on killing us you know i i called my
wife
i asked her to call my mom
to make sure to let our kids know you
know that i was okay even though i knew
i wasn't
i wanted you know for some reason i
wanted to tell them look i'm all right
i'm safe i'm in a safe spot
even though that safe place was behind a
two-foot wall
separating me from this mob
that you know had clearly its intent
to get a hold of us and to kill as many
of us as they could
and in the greater likelihood is that
they would have succeeded
if it weren't for some very courageous
capital police officers who like most
police officers do the right thing
you know i i'm very critical of the
capitol police leadership
who have had all sorts of problems
regarding you know
race and culture and all sorts of issues
that i think
clearly had been uh a problem
but those capital police officers saved
my life and
i'll i talk to those folks every day and
i'll be forever grateful for them
i bet i bet um tell me this
congressman what what video did you take
were you able to pull out your own
phone and take a little bit of video
explain to me what you
what you have i did um i shot a couple
of
you know segments of video when i was
sheltering and it was this almost
instinctive thing
to capture this moment partly because
this was like two things going on at
once partly because i knew it was a
moment of history
that was important and it was important
to have an accurate record of it i want
to get that record but also
i didn't know you know what was going to
happen to me
and i wanted that video to be there
so the one little snippet of video that
i
that i captured that was used in the
trial
today includes the moment where the
capitol police officer
fired the shot that killed one of the
mob
in so my video captures
the sound of the gunshot and
a very candid reaction on my part
to that sound of that gunshot i used
language that my mom would probably not
approve of
maybe except in this instance
and it's also true that that moment
was a critical moment because if that
officer had not taken that courageous
action
uh that mob would have gotten in to the
gallery
into the to the uh house floor and
the fate of those of us that were
trapped there
uh would have been much worse than it is
wow so when that shot went
off what did the mob do at that point
could you tell
they backed up enough
such that a tactical unit then could
move in to support
the capitol police that are there it was
that tactical unit that was actually
able
to seal off a hallway a back hallway
behind
where um several members of congress and
i
were taking cover and it was through
that back hallway that they were able to
secure for about a minute
that we were able to escape wow i didn't
know that
i didn't know that wow yeah it was a
tough it was a tough
uh thing you know watching the trial
i mean i'm sort of in between committee
hearings and having the trial on so i
haven't been able to watch it as closely
as i'd like but
watching it uh even this evening um
i want to see it but i will tell you
it's not the easiest thing to watch
it brings up a lot of a lot of stress a
lot of anxiety
let me ask you a question so when you
escaped at what point were you and i i
don't know what you did but i would
imagine that
you were almost ready to break down in
tears but at what point did you feel
um that you could breathe a sigh of
relief at least that you knew you
wouldn't be killed
it was a it was a few hours because when
we
were able to escape we actually were
able to escape to an area
that the rest of the members of congress
had already gotten to
and it's a safe room that i can't
describe
because i don't want to uh explain where
it is it kind of
would defeat the purpose but there's a
there's some space that's there
that is able to be sealed off that i was
able to get to
that we stayed in for about four and a
half hours
it was after that
period when we were able to return to
the capitol
to finish the job then it kind of all
hit me
you know i think that's true of all of
us not just me but it kind of hit
us what was going on but
there was another wave of it and it's
because we were in the middle of all
this
we didn't see what was going on outside
i mean i was there
in the gallery in the chamber of the
house
preparing to lead the defense of the
michigan electoral vote
which was going to be challenged so i
wasn't paying i mean i was getting
you know text messages and updates on my
phone about the security
of the capital but we didn't have all
that images i wasn't watching the
television
and so in the in the hours that followed
the attack being able to actually see
what was going on
and then especially to be able to see
the mob that was on the other side of
the
door that our you know officers were
protecting us from
i had no idea how many people it was i
mean i i thought maybe
by the sound of it it was a few dozen
people there might have been a thousand
people
so the the the reaction that i had at
that point
was oh my god we were we were in
bad trouble much worse than i thought we
were
even when i was taking cover i knew i
was in trouble but i didn't know it was
that bad
until i saw the video so
you know i don't want to get real
political here however
when you think about this impeachment
trial and you think about
the big divide and you think about
especially after seeing that video play
today and
knowing that people were literally
within
58 steps of reaching
members of congress and yet some people
i don't know find it in their heart not
to convict or not to think that this
is an impeachable offense um what's your
reaction to that
it frightens me because it tells me the
extent to which
people are willing to go to ignore
the lessons of history because what we
saw this president
do president trump and those who have
enabled him is the same thing that we as
a nation have been fighting against in
other parts of the world for the entire
history of this country
this was an attempt to use mob rule
and thuggery and an authoritarian
approach to undo a democratic election
in order for somebody in power to remain
in power
we've been fighting against this for the
entire history of our country
and so it frightens me that there are
some people who are so
focused on their own interests their own
political interests their own
team and this is really not democrats
and republicans this is
trump and everyone else because a lot of
republicans feel the same way i do
the idea that they would be so obsessed
by their loyalty to
one dude as senator sass would stay
would say that ought to scare everyone
and it says to me that we have failed as
a country
in educating our population on the
basics of history
and of civics because anybody who has
studied either of those subjects would
see this for what it is
a really dangerous um a really dangerous
departure
from the principles that this country is
founded upon
so uh one last question or a couple of
last questions
um so i already know you don't
so you don't really feel safe yet
no not at all no because what the
what the president has unleashed
president trump of course
uh and continues to you know in in any
way he can to support it's this idea
that this election was stolen
which is just malarkey i mean anybody
who's studied any of this knows
that that's just a preposterous notion
but there are people out there who
believe it
and who believe that their obligation is
to attack
those who they think have taken
something from them
and so even though the initial attack is
over
the u.s capitol is still an armed camp
and
many of us have had to take pretty
significant security measures just to
protect ourselves
wherever we are and yeah this is
this is not good this is not good for
our country
uh so where do you i mean i don't know
like uh i'm trying to get i want you to
have the final word
um like is there any hope you know
for michigan residents listening to you
like is there a hopeful word that you
can give tonight
or yeah there's hope because
you know at the end of the day as
difficult as it was we prevailed
we finished the job that night it was
five in the morning when we finished
four o'clock in the morning i guess
when we actually certified the election
and even though it was less than a
majority of republicans
more than 70 republicans rejected
what the president then president trump
was trying to get them to do
and they voted to uphold the election
and in the senate it was an even bigger
number
what's frightening of course is that
there are still people who don't believe
that and see those people
as traitors now but i think if we want
to take some
some solace from all of this it's that
there were
republican members of congress
who had courage and were willing to
stand up for the constitution
and they deserve
you know more than more than i think
anyone they deserve
a real a real gratitude
uh from all of us you know and these are
people that i have big disagreements
with on other issues but when you get
right down to the most fundamental
question
are we going to uphold the constitution
um you know there were at least in our
case in michigan four of the michigan
republicans who stood up and did the
right thing
and i'll always be grateful to them for
that
and then one last thing i heard someone
say today it might have been a historian
who said it doesn't matter whether he's
convicted or not
you still have to take the steps you
still have to go through with this
impeachment trial for it to be on
record no matter what it's going to do
the job that is necessary
is that true i agree with that 100
um you know i think it will be a
political and historical question
that many people will have to answer as
to how they voted on this
but the verdict will be established by
the
by the american people and by the long
view
of history and what's happening right
now with this trial
is that the facts are being placed
essentially on the permanent record
so i was grateful as painful as it is
that some of what i said and did was
introduced into that record today
to be a part of the long-term record
of what took place that will be you know
part of american history and hopefully a
lesson for the future
absolutely anything else you want to add
no not really i mean just just that you
know
i do want to say how grateful i am to
all the people who've reached out
and especially how grateful i am to the
vast majority of the people in law
enforcement
uh like those capitol police officers
who despite poor leadership
did the right thing and defended us yeah
well we're so glad you're still here and
that you weren't hurt
and uh that you can fight on for
michigan as you
you've been doing and i i see your
interviews on cnn and everywhere else so
you represent us well so so i appreciate
your service too
well thank you i appreciate that yes you
have a nice night
all right you too

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

Marjorie Taylor Greene And Boebert Heckling Biden Was ‘Disgusting’ Says Rep. Gomez
by Lawrence O'Donnell
Mar 2, 2022



California Democratic Rep. Jimmy Gomez, who has introduced a resolution to expel Marjorie Taylor Greene from Congress, joined MSNBC’s Lawrence O’Donnell to discuss the heckling she and Rep. Lauren Boebert did during the State of the Union. Rep. Gomez also discusses the ‘triggering’ feeling he had returning to the House gallery for the first time since the January 6 attack on the Capitol.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Mar 04, 2022 12:47 am

Part 1 of 9

Congressional Defendants' Brief in Opposition to Plaintiff's Privilege Assertions
John Eastman vs. Bennie G. Thompson, et al., Case No. 8:22-cv-00099-DOC-DFM
March 2, 2022

OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
5140 O’Neill House Office Building
Washington, D.C. 20515

SHER TREMONTE LLP
90 Broad Street, 23rd Floor
New York, New York 10004

ARNOLD & PORTER
601 Massachusetts Ave, NW
Washington, D.C. 20001

Counsel for the Congressional Defendants

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

JOHN C. EASTMAN
Plaintiff,
vs.
BENNIE G. THOMPSON, et al.,
Defendants.

Case No. 8:22-cv-00099-DOC-DFM
CONGRESSIONAL DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF’S PRIVILEGE ASSERTIONS

Date: March 8, 2022
Time: 9:00 a.m.
Location: Courtroom 9D

DEFENDANTS’ MEMORANDUM OF LAW

INTRODUCTION


The Select Committee is investigating the violent attack on our Capitol on January 6, 2021, and an effort by the former President of the United States to remain in office by obstructing Congress’ count of the electoral votes. Plaintiff John Eastman purports to have been the former President’s lawyer in connection with that effort. But Plaintiff’s role was not simply as an advisor; he spoke at the rally on the morning of January 6, spreading proven falsehoods to the tens of thousands of people attending that rally, and appears to have a broader role in many of the specific issues the Select Committee is investigating. The Select Committee requires a detailed understanding of all of Plaintiff’s activities in order to inform Congress’ legislative judgments and to help ensure that no President can threaten the peaceful transition of power ever again.

Plaintiff has already invoked his Fifth Amendment right against self-incrimination in response to 146 separate questions posed by the Select Committee.1 Now he is attempting to conceal a range of relevant documents behind claims of attorney-client privilege and work-product protection. Below, the Select Committee focuses on Plaintiff’s (and apparently Mr. Trump’s) claims for documents dated January 4-7, 2021, and respectfully urges the Court to reject every such claim.

First, to the extent attorney-client privilege applies in the context of a Congressional subpoena,2 “[a] party asserting [privilege] has the burden of establishing the relationship and the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal quotation omitted). Plaintiff here fails to carry his burden of establishing the existence of a legitimate attorney-client relationship with former President Donald Trump during the period at issue. And even if Plaintiff could make such a showing, many of the communications during this period included individuals outside of any attorney-client or confidential relationship—and Plaintiff has not demonstrated the necessary common interest arrangement with these third parties to preserve the privilege. And even if Plaintiff could establish an attorney-client relationship and some broad common interest agreement, Plaintiff chose to distribute these communications over an unprotected university server even after he was expressly admonished by the University President and reminded that he was not free to use University email and computers in support of a political candidate. Finally, Plaintiff admitted that President Trump authorized him to discuss their communications in public, apparently in an effort to establish some form of defense for President Trump’s conduct. Any privilege over these subjects was, therefore, waived.

Second, as to work product, Plaintiff falls far short of meeting his burden to establish that the documents are prepared by party, or a party’s representative, in anticipation of litigation. Even had Plaintiff met that burden, the work product doctrine provides nothing close to absolute protection from disclosure. Courts have already held that former President Trump’s interests in secrecy of certain materials ordinarily shielded by executive privilege are outweighed by the Select Committee’s interests. Trump v. Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *60 (D.C. Cir. Dec. 9, 2021), stay denied, 142 S. Ct. 680 (2022) (holding that any such privilege was overcome by the Select Committee’s “uniquely compelling need,” the sitting President’s judgment that release was in the country’s best interest, and the careful compromise negotiated between the two branches of government). Here, Mr. Trump’s (or Plaintiff’s) interests in protecting work product are outweighed by the Select Committee’s substantial need; the Select Committee cannot, without undue hardship, obtain their substantial equivalent by other means.

Third, Plaintiff’s documents should be reviewed in camera by this Court for application of the crime/fraud exception. The Court inquired about that exception, and the Select Committee has seriously considered that issue.3 Although the investigation is continuing and will provide substantial further relevant information, sufficient information already exists to justify in camera review and likely rejection of those privileges.

Finally, this Court should deny Plaintiff’s effort to shoehorn into this current briefing on privilege issues a motion to reconsider this Court’s prior constitutional holdings.

SUMMARY OF BACKGROUND4

Before the 2020 election even took place, President Trump and his supporters began to lay the groundwork to cast doubt on the results.5 On election night, Mr. Trump began falsely asserting, without basis, that he had prevailed and called on States to stop counting mail-in and absentee votes.6 In the six weeks that followed, President Trump’s legal team and his supporters took their allegations to the courts, ultimately litigating and losing more than 60 challenges to the election results in seven States.7 State Bars of both New York and Washington, D.C. suspended the law license of one of President Trump’s lead attorneys, Rudolph Giuliani. In re Rudolph W. Giuliani, 2021 Slip Op. 04086 (N.Y. 1st Dept. June 24, 2021) (explaining that Giuliani had “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer” and emphasizing that “[t]he seriousness of [Giuliani’s] uncontroverted misconduct cannot be overstated”); see also In re Rudolph W. Giuliani, Order, App. D.C., No. 21-BG-423 (July 7, 2021). Other counsel in litigation challenging the election have also faced sanctions. See King v. Whitmer, 20-cv-13134, 2021 WL 3771875, at *1 (E.D. Mich. 2021). (sanctioning Lin Wood, Sidney Powell, and seven others and explaining, “[i]t is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here”). On March 1, 2022, the State Bar of California’s Chief Trial Counsel announced an investigation into Plaintiff’s actions “following and in relation to the November 2020 presidential election.”8

As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office.9 At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making “stolen election” claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.

According to the President’s senior campaign advisor, soon after the election, a campaign data expert told the President “in pretty blunt terms” that he was going to lose.10 On November 12, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a public statement noting “unfounded claims and opportunities for misinformation” about the election, and affirming that “[t]here is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”11 The following month, Attorney General William Barr stated publicly that the “U.S. Justice Department ha[d] uncovered no evidence of widespread voter fraud that could change the outcome of the 2020 election,” a position he reiterated on December 21 when rejecting calls to appoint a special prosecutor to investigate election fraud.12 A senior advisor to the President’s campaign agreed with Barr’s analysis and said that to the President on multiple occasions.13

Evidence obtained by the Select Committee reveals that Acting Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue discussed allegations of voter fraud with President Trump on multiple occasions in December of 2020—and informed him, both as to specific allegations and more generally, that the President’s claims of massive fraud sufficient to overturn the election were not supported by the evidence.14 According to Rosen, at a December 15, 2020 meeting at the White House that included Rosen, Donoghue, Ken Cuccinelli (Department of Homeland Security), Pat Cipollone (White House Counsel), and Mark Meadows (White House Chief of Staff), participants told the President that “people are telling you things that are not right.”15 According to Donoghue, he personally informed the President on a December 27, 2020 phone call “in very clear terms” that the Department of Justice had done “dozens of investigations, hundreds of interviews,” had looked at “Georgia, Pennsylvania, Michigan, Nevada” and concluded that “the major allegations are not supported by the evidence developed.”16

The President nevertheless continued to insist falsely through January that he had “won the election in a landslide.” And despite being repeatedly told that his allegations of campaign fraud were false, the President continued to feature those same false allegations in ads seen by millions of Americans.17 (The Select Committee will address these issues in detail in hearings later this year.)

As the President and his associates propagated dangerous misinformation to the public, Plaintiff was a leader in a related effort to persuade state officials to alter their election results based on these same fraudulent claims.

President Trump, Plaintiff, and several other associates of the President reached out directly to state officials to communicate unsubstantiated allegations of election fraud and request that state legislatures disregard popular election results.18 On January 2, 2021, the President and Plaintiff convened a video conference with hundreds of state legislators from swing states won by candidate Biden.19 The Trump team reportedly urged the legislators to “decertify” the election results in their States.20 According to Michigan State Senator Ed McBroom, this call focused (without any valid legal or factual basis) on the purported power of state legislators to reject the rulings of federal and state courts and overturn already certified election results.21 That same day, President Trump spoke with Georgia Secretary of State Brad Raffensperger, pressing false and unsubstantiated claims of election fraud, and ultimately asking Raffensperger to “find 11,780 votes” for Trump in the State.22

President Trump also took steps that would have corrupted the Department of Justice; he offered the role of Acting Attorney General to another Justice Department political appointee, Jeffrey Clark, knowing that Mr. Clark was pressing to issue official letters to multiple state legislatures falsely alerting them that the election may have been stolen and urging them to reconsider certified election results.23 The Department’s senior leadership and President Trump’s White House Counsel threatened to resign if President Trump elevated Clark and fired those who were resisting Clark’s requests.24

Mr. Trump’s team also mounted an effort to obtain false election certificates purporting to demonstrate that the electors of seven States were committed to President Trump rather than President Biden. (The Select Committee has deposed several signers of these false certificates, and plans to interview others.) Michigan Republican Co-Chair, Meshawn Maddock publicly stated, for example, that she “fought to seat the electors” because “the Trump campaign asked us to do that.”25 The certificates included false statements that they were official.26

When the Electoral College met on December 14, 2020, and confirmed the certified results of the election, the results of the election should have been final. But Plaintiff advised President Trump to press an unconstitutional plan to disregard those results on January 6.27 The text of the Twelfth Amendment to the Constitution clearly describes Congress’s obligation to count certified electoral votes: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest Number of votes for President, shall be the President.” U.S. Const., amend. XII. Nothing in the Constitution permits Congress or the presiding officer (the President of the Senate, Michael R. Pence) to refuse to count certified electoral votes in this context, yet that is precisely what Plaintiff suggested. Plaintiff’s proposal was the subject of heated discussions in the White House in the days before January 6, including with the Vice President’s legal counsel and others who told Plaintiff that what he was proposing was illegal.28

This did not deter either Plaintiff or President Trump. Describing his own proposals in a now-public memorandum, Plaintiff characterized his proposed options as “BOLD, Certainly,” but necessary because “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage,” advising that “we’re no longer playing by Queensbury Rules.”29

Following this advice from Plaintiff—advice that Plaintiff admitted no member of the Supreme Court would accept30—President Trump repeatedly attempted to instruct, direct, or pressure the Vice President, in his capacity as President as of the Senate, to refuse to count the votes from six States. For example, on January 4, 2021, President Trump and Plaintiff met with Vice President Pence and his staff. In that meeting, according to one participant, Plaintiff tried to persuade the Vice President to take action on the electors.31 Again the next day, Plaintiff tried to persuade the Vice President and his staff that the Vice President should reject certain electors.32

The pressure continued on January 6. At 1:00 a.m., President Trump tweeted, “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”33 At 8:17 a.m., the President tweeted, “States want to correct their votes . . . All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” 34 Shortly after this tweet, President Trump placed a phone call to Vice President Pence.35 He later connected with the Vice President by phone around 11:20 a.m.36 General Keith Kellogg and others were with President Trump during that call, and General Kellogg described the pressure that Trump put on Pence:

Q: It’s also been reported that the President said to the Vice President that something to the effect of, “You don’t have the courage to make a hard decision.” And maybe not those exact words, but something like that. Do you remember anything like that?

A: Words—and I don’t remember exactly either, but something like that, yeah. Like you’re not tough enough to make the call.37


In his speech to the crowd and television crews that came to the capital on January 6, President Trump explicitly identified the advice given by Plaintiff Eastman when imploring Vice President Pence:

John [Eastman] is one of the most brilliant lawyers in the country and he looked at this, and he said what an absolute disgrace that this could be happening to our Constitution, and he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so because if Mike Pence does the right thing, we win the election. . . . And Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you.38


Vice President Pence had repeatedly made clear that he would not unilaterally reject electors or return them to the states.39 Nevertheless, just before President Trump spoke, Plaintiff falsely alleged widespread manipulation and fraud with voting machines, purportedly altering the election outcome, and then delivered this message to the crowd:

And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done.

And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.40


Shortly thereafter—with the assault on the United States Capitol already underway—Trump tweeted at 2:24 p.m., “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”41 The evidence obtained by the Select Committee indicates that President Trump was aware that the violent crowd had breached security and was assaulting the Capitol when Mr. Trump tweeted.42 The evidence will show that rioters reacted to this tweet, resulting in further violence at the Capitol.43 Indeed, rioters at the Capitol were shouting for the Vice President to be hanged.44 A minute after President Trump’s tweet, Plaintiff sent an email to Vice President Pence’s lawyer stating: “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 the American people can see for themselves what happened.”45

Later that evening, Plaintiff made a final plea to the Vice President’s lawyer: “I implore you to consider one more relatively minor violation [of the Electoral Count Act] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”46 Plaintiff knew what he was proposing would violate the law, but he nonetheless urged the Vice President to take those actions.

The Vice President rejected Plaintiff’s pleas that he violate the law, and has since indicated that what the President and Plaintiff were insisting he do was “Un-American.”47 Former Fourth Circuit Judge Michael Luttig—for whom Plaintiff had previously worked as a law clerk—described Plaintiff’s view of the Vice President’s authority as “incorrect at every turn.”48 Evidence obtained by the Select Committee to date indicates that President Trump’s White House Counsel confronted Plaintiff before the rally, and rejected Plaintiff’s advice to Mr. Trump. And Plaintiff admitted that not a single Justice of the Supreme Court would agree with his view that the Vice President could refuse to count certain electoral votes.49

As documents now available to the Select Committee demonstrate, Plaintiff used his Chapman University email account to email Greg Jacob, Counsel to the Vice President, on January 5 and 6 urging the Vice President to take illegal action and refuse to count electoral votes.50

* * *

The Select Committee’s investigation is continuing to gather evidence on the planning for the violent assault, communications between those who participated, and communications by the Trump team from the Willard war room and elsewhere. Various individuals planned for violence that day, including with the placement of pipe bombs, the accumulation of weaponry for potential use on January 6 across the river in Virginia, and the use of tactical gear and other weaponry.51 Evidence also indicates that the violent rioters who attacked police, breached the Capitol, and obstructed and impeded the electoral vote were provoked by President Trump’s fraudulent campaign to persuade the American people that the election was in fact stolen.52 Indeed, the President’s rhetoric persuaded thousands of Americans to travel to Washington for January 6, some of whom marched on the Capitol, breached security, and took other illegal actions. The Select Committee’s hearings will address those issues in detail.

Ultimately, President Trump issued a video and a tweet urging the rioters to leave the Capitol, stressing “[w]e love you, you’re very special. You’ve seen what happens, you see the way others are treated that are so bad and so evil. I know how you feel.”53 At 6:00 p.m., the President tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”54

The January 6 attack resulted in multiple deaths, physical harm to more than 140 law enforcement officers, and trauma among government employees, press, and Members of Congress. See H. Res. 503, Preamble. Law enforcement eventually cleared the rioters, and the electoral count successfully resumed at 8:06 p.m. in the Senate after a nearly six-hour delay.

PROCEDURAL HISTORY

In furtherance of its duty to investigate the facts, circumstances, and causes of the attack on January 6, the Select Committee has issued subpoenas to various government agencies, private companies, and numerous individuals, including Plaintiff and his former employer, Chapman University. In a cover letter accompanying the subpoena at issue here, Chairman Thompson explained that the Select Committee had “credible evidence” that Plaintiff knew about, and “may have participated in, attempts to encourage the Vice President of the United States to reject the electors from several states or, at the very least, to delay the electoral college results to give states more time to submit different slates of electors.” Nov. 8, 2021 Select Committee Cover Letter to Eastman at 1.55 Chairman Thompson noted that Plaintiff wrote “two memoranda offering several scenarios for the Vice President to potentially change the outcome of the 2020 Presidential election.” Id. Chairman Thompson also explained that Plaintiff had “participated in a briefing for nearly 300 state legislators from several states regarding purported election fraud,” “testified to Georgia state senators regarding alleged voter fraud and reportedly shared a paper that argued that the state legislature could reject election results and directly appoint electors,” was “at the Willard Hotel ‘war room’ with Steve Bannon and others on the days leading up to January 6 where the focus was on delaying or blocking the certification of the election,” and on January 6, “spoke at the rally at the White House Ellipse.” Id. at 2.

After Plaintiff refused to produce any documents responsive to a subpoena issued to him directly (which is not before this Court), and invoked the Fifth Amendment privilege against forced self-incrimination repeatedly during his deposition, the Select Committee issued a separate subpoena to Chapman for certain documents in its possession “attributable to Dr. John Eastman, that are related in any way to the 2020 election or the January 6, 2021 Joint Session of Congress.” Compl. Ex. B at 4, ECF No. 1-2. That subpoena requested documents from November 3, 2020 to January 20, 2021. Id. The deadline to produce the subpoenaed documents was January 21, 2022. Id. at 3.

The day before the subpoena’s deadline, Plaintiff initiated this action and sought to enjoin Chapman from producing responsive records. In his application for emergency injunctive relief, Plaintiff made broad assertions of attorney-client privilege without identifying individual communications to which these privileges applied. This Court granted Plaintiff’s request for a four-day ex parte temporary restraining order until the parties appeared for a January 24 hearing to discuss Plaintiff’s request for a temporary restraining order. See Civil Minutes, Jan. 20, 2022, ECF No. 12.

At the January 24 hearing, the parties agreed that Plaintiff would expeditiously produce a privilege log with particularized assertions of privilege. The Court denied Plaintiff’s application to maintain the temporary restraining order, rejected his First Amendment, Fourth Amendment, and Congressional authority claims, and ordered Plaintiff to produce all non-privileged, responsive documents to the Select Committee on a rolling basis. The Court also denied Plaintiff’s blanket attorney-client privilege and attorney work product protection claims with the proviso that Plaintiff retained the right to raise these claims as to specific documents during production. See Order, Jan. 25, 2020, ECF No. 43.

Although Plaintiff produced the requested logs, those logs failed to provide sufficient information to allow the Select Committee to assess the privilege assertions’ validity. After several efforts to secure adequate information from Plaintiff, Congressional Defendants asked this Court to establish a briefing schedule to address Plaintiff’s outstanding privilege assertions and the insufficiency of the information provided on his daily logs. See Notice, Feb. 11, 2022, ECF No. 101. This Court granted that request as to the privilege assertions on Plaintiff’s January 4-7 document logs and set a hearing to address these issues. See Civil Minutes, Feb. 14, 2022, ECF No. 104. At Congressional Defendants’ request, the Court also ordered Plaintiff to produce “evidence of all attorney-client and agent relationships asserted in the privilege log,” including “evidence documenting any attorney-client relationships that existed with his clients.” Id. The Court’s order did not address motions for reconsideration.

STANDARD OF REVIEW

“As with all evidentiary privileges, the burden of proving that the attorney-client privilege applies rests not with the party contesting the privilege, but with the party asserting it.” Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981) (citations omitted); United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). The same is true of the work product doctrine. United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995); Cameron v. City of El Segundo, No. 20-CV-04689, 2021 WL 3466324, at *12 (C.D. Cal. Apr. 30, 2021). “Evidentiary privileges in litigation” like those at issue here “are not favored.” Herbert v. Lando, 441 U.S. 153, 175 (1979).

“[A] party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal quotation omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), as amended on denial of reh’g (Mar. 13, 2002) (internal quotation omitted).

ARGUMENT

“[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Inherent in this investigative authority, Congress can compel production of documents and testimony through legislative subpoenas. It should now be beyond dispute that the Select Committee is operating properly with an appropriate legislative purpose. Order, Dkt. No. 43 at 10 (holding that “the issues surrounding the 2020 election and the January 6th attacks” are “clearly ‘subjects on which legislation could be had”); see also Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *6 (describing “Congress’s uniquely vital interest in studying the January 6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations).

I. Plaintiff Has Not Met His Burden to Establish Application of the Common Law Attorney-Client Privilege

A. Plaintiff Has Neither Met His Burden to Establish the Attorney-Client Relationship Nor Has He Sufficiently Established the Privileged Nature of the Communications


Plaintiff claims that “[t]he attorney-client relationship between Dr. Eastman and President Trump should be beyond dispute,” Br. at 11, and declares that he filed briefs on behalf of the Trump campaign in state litigation in December 2020. Pl.’s Ex. 1, Eastman Decl. ¶ 20. But Plaintiff does not even attempt in his declaration to claim attorney-client privilege over the relevant matters and the relevant time at issue here.

Over the past months, the Congressional Defendants repeatedly asked Plaintiff to disclose the engagement letters that show the identity of his client and the period of the representation. Ex. 1, Email Exchange Between Douglas Letter and Charles Burnham. Appended to his declaration, Plaintiff finally revealed what he purports is an engagement letter. That letter identifies the client as “Donald J. Trump for President, Inc.” Ex. A to Ex. 1 at 1. But—despite a clearly delineated signature page with lines for the client and attorney to sign—that letter is unsigned. Ex. A to Ex. 1 at 4. See In re W/B Assocs., 307 B.R. 476, 483 (Bankr. W.D. Pa. 2004), aff’d sub nom. Est. Partners, Ltd. v. Leckey, No. 04CV1404, 2005 WL 4659380 (W.D. Pa. Aug. 31, 2005), aff’d sub nom. In re W/B Assocs., 196 F. App’x 105 (3d Cir. 2006) (“An unsigned agreement, in and of itself, raises material questions as to its validity and applicability.”); Solis v. Taco Maker, Inc., No. 1:09-CV-3293, 2013 WL 4541912, at *5 (N.D. Ga. Aug. 27, 2013) (unsigned engagement letter insufficient to establish attorney client relationship).56 And Plaintiff provided no declaration from his client regarding the scope of his representation.

The lack of signatures is critical because the letter itself states that it becomes operative “[u]pon the proper signatures by all parties hereto.” Ex. A to Ex. 1 at 1. By the terms of the letter, therefore, the absence of signatures suggests the letter was not operative. Plaintiff’s declaration, moreover, does not authenticate this unsigned letter, nor does Plaintiff include the cover email by which the engagement letter was “transmitted.” Ex. 1, Eastman Decl. ¶ 23.57 Although Plaintiff had the burden to establish the elements of the privilege in his opening brief, this unsigned and unauthenticated engagement letter is insufficient to establish an attorney-client relationship during the period at issue (January 4 through 7) as to either President Trump the individual or President Trump’s campaign. Any belated effort to cure this defect in his reply by appending a signed engagement letter or the cover email to the letter should not be permitted. See U.S. ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”).

Nor can Plaintiff meet his burden by noting his involvement prior to the election in a so-called “Election Integrity Working Group.” Ex. 1, Eastman Decl. ¶ 25. No documentation accompanies this assertion, which in any event provides no indication that Plaintiff had a relevant attorney-client relationship during January 4 through January 7. “[T]he burden of establishing the existence of the relationship rests on the claimant of the privilege against disclosure. That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.” In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). Nor does Plaintiff provide any basis to conclude that the “Working Group” was providing legal advice at the client’s request.

Furthermore, 004722, 004723, 004744, 004745, 004766, 004767, and 004788 were received by various third parties, and Plaintiff fails to meet his burden to show that such disclosure did not destroy the privilege. “[V]oluntarily disclosing privileged documents to third parties will generally destroy the privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th Cir. 2012); see also Reiserer v. United States, 479 F.3d 1160, 1165 (9th Cir. 2007) (“there is no confidentiality where a third party . . . either receives or generates the documents”). “Because the attorney-client privilege applies only where the communication between attorney and client is confidential, there is no privilege protecting the documents the [Select Committee] seeks in the present action.” Reiserer, 479 F.3d at 1165.

“The mere presence of a third party at an attorney-client meeting does not necessarily destroy the privilege,” United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978) because “[t]he attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice,” Richey, 632 F.3d at 566. But “a shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within this [common interest] exception.” In re Pac. Pictures Corp., 679 F.3d at 1129. To invoke the common interest exception, “the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement—whether written or unwritten.” Id. Moreover, “[a] person who is not represented by a lawyer and who is not himself or herself a lawyer cannot participate in a common-interest arrangement.” Restatement (Third) of the Law Governing Lawyers § 76 (2000); In re Teleglobe Commc’ns Corp., 493 F.3d 345, 365 (3d Cir. 2007), as amended (Oct. 12, 2007) (common interest privilege “only applies when clients are represented by separate counsel”).58

Plaintiff makes no effort to meet his burden of establishing that the third-party recipients of his emails were retained to assist Plaintiff in providing legal advice, nor does he even try to establish that Plaintiff and these parties had “some form of agreement” to pursue a joint legal strategy. In re Pac. Pictures Corp., 679 F.3d at 1129. This Court instructed Plaintiff to “file with the Court and the Select Committee evidence of all attorney-client and agent relationships asserted in the privilege log.” Order, ECF No. 104. ¶ 2. Plaintiff did not identify a single common interest agreement. Plaintiff’s self-serving assertion of a common interest “on information and belief” and conclusory claims about a general common interest—as opposed to an actual agreement—do not satisfy his burden to show that these third parties were brought within the ambit of the privilege such that inclusion of these third parties did not destroy any privilege. Br. 17- 21; see also, e.g., Sony Computer Ent. Am., Inc. v. Great Am. Ins. Co., 229 F.R.D. 632, 634 (N.D. Cal. 2005) (“Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved under [the relevant privilege statute].”); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991) (voluntary disclosure to third party waives attorney-client privilege even if third party agrees not to further disclose communication).59

Ninth Circuit precedent is clear: “A party claiming the privilege must identify specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted.” Martin, 278 F.3d at 1000. Plaintiff’s privilege log and brief instead summarily label a multitude of documents as privileged without properly identifying a client, establishing the advice as legal (as opposed to political or strategic), or showing that the third parties included on the communication were agents of the client. Such “[ b]lanket assertions [of privilege] are ‘extremely disfavored.’” Id. (quoting Clarke v. Am. Com. Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992)). Accordingly, Plaintiff’s attorney-client claims must be rejected.

In addition, to the extent that the Court finds that Plaintiff was providing advice on political or campaign strategy rather than law, the communications are not privileged, because “advice on political, strategic, or policy issues . . . would not be shielded from disclosure by the attorney-client privilege.” In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998); Md. Restorative Just. Initiative v. Hogan, No. 16-01021, 2017 WL 4280779, at *3 (D. Md. Sept. 27, 2017) (“A claim of attorney-client privilege is only legitimate where the client has sought the giving of legal, not political, advice.”).

B. Plaintiff Cannot Invoke Attorney-Client Privilege Over Documents on Chapman’s Server60

“Confidentiality is an aspect of a communication that must be shown to exist to bring the communication within the attorney-client communication privilege. When the confidentiality element is not shown to exist, the assertion of the attorney-client privilege to safeguard a communication from disclosure, is improper.” Long v. Marubeni Am. Corp., No. 05CIV.639, 2006 WL 2998671, at *3 (S.D.N.Y. Oct. 19, 2006) (use of employer email or internet not privileged when policy disclaimed any right to personal privacy and company retained right to monitor data flowing through its systems).

As the Supreme Court explained, an employee’s expectation of privacy “may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987). In the context of email communication over an employer’s email system, “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” Doe 1 v. George Washington Univ., 480 F. Supp. 3d 224, 226 (D.D.C. 2020), reconsideration denied, — F. Supp. 3d —, 2021 WL 5416631 (D.D.C. Nov. 19, 2021) (quoting Convertino v. U.S. Dep’t of Just., 674 F. Supp. 2d 97, 110 (D.D.C. 2009)); see also In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 258 (Bankr. S.D.N.Y. 2005).

Courts confronting the issue have applied four factors: “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?” George Washington Univ., 480 F. Supp. 3d at 226 (quoting In re Asia Glob. Crossing, Ltd., 322 B.R. at 257). These factors point to the conclusion that any intent Plaintiff may have had to communicate confidentially over the Chapman server was not objectively reasonable.

Chapman’s Computer and Network Policy directly undermines any purported expectation of confidentiality. That policy is clear: “Users should not expect privacy in the contents of University-owned computers or e-mail messages.” Policies and Procedures: Computer and Network Acceptable Use Policy, Chapman University, https://perma.cc/7ZUA-ZALN (last visited Mar. 2, 2022) (emphasis added).

The policy also expressly bans personal use on its network and computing systems. Id. (all university computing and network systems and services are a “University-owned resource and business tool to be used only by authorized persons for educational purposes or to carry out the legitimate business of the University”). And through its policy, Chapman reserves “the right to retrieve the contents of University-owned computers and e-mail messages for legitimate reasons.” Id.

Chapman’s policy is notable in that, in response to the known risks to privilege posed by university email policies, many other universities have in the past decade developed policies that are more protective of user privacy.61 The use of “bare-bonesno- privacy policies” like Chapman’s, in which users are warned “that they do not have an expectation of privacy,” is followed by only a “small minority” of universities. Sisk & Halbur, supra at n.61, at 1297, 1301; Policies and Procedures: Computer and Network Acceptable Use Policy, Chapman University (“Users should not expect privacy in the contents of University-owned computers or e-mail messages”).

Plaintiff was notified of Chapman’s relatively stringent policy and can be presumed to be aware of the it. Plaintiff served on the Chapman faculty for over twenty years and was previously the Dean of Chapman’s law school. According to the University, whenever Plaintiff logged on to Chapman’s network during the relevant period he received a “splash screen” message stating: “Use of this computer system constitutes your consent that your activities on, or information you store in, any part of the system is subject to monitoring and recording by Chapman University or its agents, consistent with the Computer and Acceptable Use Policy without further notice.” Decl. of Janine DuMontelle ¶ 6, ECF No. 17-1.

Moreover, in reference to Plaintiff’s representation of President Trump in Supreme Court litigation, Chapman’s President publicly emphasized the university’s “clear policies in place regarding outside activity,” explaining that “acting privately, Chapman faculty and staff are not free to use Chapman University’s email address, physical address or telephone number in connection with the support of a political candidate.” Dawn Bonker, President Struppa’s Message on Supreme Court Case, Chapman University (Dec. 10, 2020), https://perma.cc/3CTG-4DBN.

At this Court’s hearing on January 15, Chapman’s counsel emphasized that President Trump “was not a clinic client, nor would he have been eligible to be a clinic client of Chapman,” that Plaintiff’s representation of the President was “improper” and “unauthorized,” and that Plaintiff’s use of his Chapman account for such representation was like “having contraband on our system.” Hearing Tr. Re: Pl.’s App. for TRO at 29.

Putting all of this together, Plaintiff certainly had no legitimate expectation of confidentiality during the dates at issue here—January 4-7, 2021—nearly one month after the University President’s public statement.

Plaintiff insists that this Court should disregard Chapman’s policy because Plaintiff is a professor, not a student. The information provided by the university to this Court provides no indication that this makes any difference. To the contrary, less than a month before the period at issue here, Chapman’s President admonished Plaintiff’s use of the Chapman server and email address for the very purpose used here, and was crystal clear that the policy applied to “faculty and staff.” See Bonker, supra (emphasis added).

Plaintiff’s reliance on Convertino v. U.S. Dep’t of Just. is misplaced. Convertino, like the cases the Congressional Defendants cite above, holds that “for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable.” 674 F. Supp. 2d at 110. “Because his expectations were reasonable,” the District Court for the District of Columbia held in that situation that “[the official’s] private e-mails will remain protected by the attorney-client privilege.” Id. Here, by contrast, Plaintiff had no reasonable expectation that his documents would remain protected. Not only was the University’s policy clear, but any expectation of confidentiality was manifestly unreasonable following the admonishment by Chapman’s President. See Bonker, supra.

For the same reason, United States v. Long, 64 M.J. 57 (C.A.A.F. 2006) is inapposite. See Br. at 28 (relying on Long). Applying a clearly erroneous standard, the Court of Appeals for the Armed Forces concluded there that the lower court did not err in finding a subjective expectation of privacy because “the agency [had a] practice of recognizing the privacy interest of users in their e-mail.” Long, 64 M.J. at 63. By contrast, here, as we have highlighted, the University President (in specific reference to Plaintiff and his political work for President Trump) emphasized that Plaintiff and other faculty had staff had no privacy interest. This fact is also fatal to Plaintiff’s reliance on his prior practices violating Chapman’s policy. See Br. 29-30.

Likewise, Plaintiff’s suggestion that his unauthorized use of Chapman’s system is “irrelevant” because “[t]he privilege is held by the client,” Br. 30, makes little legal difference. As the Ninth Circuit has recognized, “[t]here are several instances in which an attorney’s behavior may waive the privilege, even without an explicit act by the client.” In re Pac. Pictures Corp., 679 F.3d at 1130. Plaintiff’s decision to continue using a server and email account in an unauthorized way after being specifically admonished by the University President against doing so is precisely such an instance where, as the attorney, Plaintiff’s actions defeated application of the privilege.

C. President Trump Waived Privilege By Expressly Asking for Disclosure to Third Parties

“[A] fundamental prerequisite to assertion of the privilege” is “confidentiality both at the time of the communication and maintained since.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). “Voluntary disclosure of privileged communications constitutes waiver of the privilege for all other communications on the same subject.” Richey, 632 F.3d at 566 (citation omitted); see also United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020).

Plaintiff has stated publicly that President Trump authorized Plaintiff’s discussion of advice relating to the election and the events leading up to January 6. Two memoranda that Plaintiff wrote outlining how former Vice President Pence could overturn the results of the Presidential election are already in the public domain and have been provided to the media, and discussed, by Plaintiff.62

Plaintiff discussed the advice in his legal memo at length on a podcast, noting that Plaintiff himself provided the memorandum to author Bob Woodward, and saying at the outset that Mr. Trump had “authorized” him “to talk about these things.”63 Plaintiff has also made extensive public remarks regarding the events of January 6 and his advice to President Trump on numerous other occasions.64 These “[v]oluntary disclosure[s] . . . constitute[] waiver of the privilege for all other communications on the same subject” of the events surrounding the January 6, 2021 joint session of Congress. United States v. Richey, 632 F.3d at 566.

Plaintiff asserts that “[t]he statements about President Trump attributed to Dr. Eastman by the defendants make no reference to privilege,” Br. 24, but nowhere does he cite authority that waiver must make explicit reference to privilege. And, undermining Plaintiff’s representation, Plaintiff indeed recognized the privileged nature of attorneyclient relationships. On May 5, 2021, Plaintiff appeared on the Peter Boyles Show and stated that “I would normally not talk about a private conversation I have with a client, but I have express authorization from my client, the President of the United States at the time, to describe what occurred—to truthfully describe what occurred in that conversation.”65

Plaintiff states the unremarkable proposition that “[c]ourts have long recognized that disclosure of privileged information on a particular subject does not necessarily imply a complete waiver of the privilege.” Br. 25.66 But no one here has asserted a “complete waiver of the privilege.” At issue is former President Trump’s waiver of the subject matter of issues the events of January 6 and Plaintiff’s advice about the effort to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act.

Plaintiff insists that this statement does not waive privilege because his “statements in the very same interview that the conversation in question occurred in the presence of three non-clients in addition to the President.” Br. 24. Waiver, however, does not attach to individual “conversations;” instead, it applies to “all other communications on the same subject.” Richey, 632 F.3d at 566 (emphasis added and citation omitted). President Trump—presumably for strategic and political gain—approved of Plaintiff’s public disclosures of his advice on the subject of the effort to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act. He cannot now come back and reclaim privilege over communications “on the same subject.” Richey, 632 F.3d at 566. Neither former President Trump nor Plaintiff can use attorney-client privilege “both as a sword and a shield.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (citation omitted); In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301-02 (Fed. Cir. 2006).

II. The Documents Sought from Chapman Are Not Protected by the Common Law Attorney Work-Product Doctrine

“The work-product doctrine is a qualified privilege that protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” Sanmina Corp., 968 F.3d at 1119 (internal quotation marks and citation omitted). To qualify for work-product protection, documents must: “(1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party’s representative.” Richey, 632 F.3d at 567 (internal quotation marks and citation omitted).

“The party claiming work product immunity has the burden of proving the applicability of the doctrine.” Verizon California Inc. v. Ronald A. Katz Tech. Licensing, L.P., 266 F. Supp. 2d 1144, 1147 (C.D. Cal. 2003) (citations omitted). The work product doctrine does not protect against disclosure if the party seeking the discovery “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(ii). Plaintiff fails both steps of the test. First, he fails to satisfy his burden to invoke the work product doctrine because he cannot show that the disputed materials were prepared in anticipation of litigation (as opposed to political purposes). Second, Plaintiff fails to undercut the Select Committee’s substantial need for the documents.
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