The January 6 committee is seemingly moving toward recommending charges for Trump

“The House committee investigating the January 6, 2021, attack seems to be building toward a conclusion that former President Donald Trump broke the law, and developments in recent days have intensified questions about his potential criminal exposure.

On Tuesday, the Washington Post reported that White House records of Trump’s calls on the day of the attack, which had been turned over to the January 6 committee, had a gap of seven hours and 37 minutes in which no calls were listed. Speculation abounded from investigators and commentators that Trump used unofficial “burner phones” on that day to avoid leaving a paper trail with the federal government records. (Trump denied knowing what a burner phone is.)

Meanwhile, earlier in the week, a federal judge took stock of the January 6 committee’s argument that Trump had committed crimes connected to that day’s events — and found them persuasive. As part of a ruling in a civil lawsuit over whether Trump’s lawyer had to turn over some records to the committee, the judge wrote that Trump “more likely than not” committed both obstruction and conspiracy as he tried to impede Congress’s count of the electoral votes, and harshly condemned his actions. This is just one judge’s opinion, but it was a vote of confidence in the case the committee seems to be building.”

“Given that there are multiple reports about Trump making or receiving calls during this time span, it seems obvious the official records are incomplete. Trump may have used his aides’ phones to speak to others. But Woodward and Costa also report that the committee is investigating whether Trump deliberately used cheap “burner phones” that could be used temporarily and then disposed of, therefore avoiding an easily documentable paper trail.

Trump responded with a statement claiming he had “no idea what a burner phone is, to the best of my knowledge I have never even heard the term.”

But former national security adviser John Bolton told Costa he had heard Trump use the term “burner phones” several times and that Trump fully understood what they were used for. And Hunter Walker wrote for Rolling Stone back in November that some organizers of the pro-Trump rally in Washington, DC, on January 6 had obtained burner phones to contact Trump’s team and even members of the Trump family.”

Yes, Merrick Garland can prosecute Mark Meadows (and Peter Navarro, and Dan Scavino)

“The US House committee investigating the January 6, 2021, attack on the Capitol and the Trump White House’s role in it is charging ahead. But — thanks in part to the limited power of congressional inquiries — the success of their next steps depends on the Justice Department.

And at least right now, the committee appears to be losing faith in that department, and specifically in Attorney General Merrick Garland, who has thus far been reluctant to prosecute high-ranking Trump administration officials who’ve stonewalled the committee. Several members of the committee criticized Garland for failing to prosecute at least one former top Trump aide whom Congress voted to hold in contempt. In the words of Rep. Elaine Luria (D-VA), “Attorney General Garland, do your job so we can do ours.”

The committee also voted unanimously..to hold two former Trump White House aides in contempt of Congress. The former aides, trade adviser Peter Navarro and social media director Dan Scavino, both refused to comply with a subpoena seeking documents and testimony.

In the likely event that the full House agrees that the two men should be held in contempt, both could be fined and face up to a year of incarceration — though the decision whether to prosecute the two former White House aides will be made by the Justice Department and not by Congress.”

The debate dividing the January 6 committee

“The committee can’t actually file charges against anyone, but they can recommend that the Justice Department do so, with a criminal referral. The House has already approved four such referrals from the committee — of Steve Bannon, Mark Meadows, Dan Scavino, and Peter Navarro — for contempt of Congress. (All four aides refused to turn over some or all records to the committee.)

Panel leaders have been open that they’re assessing whether Trump violated the law, too, and they’ve argued he may have done so in court. Many anticipated that the committee would eventually put forward a referral for the former president.

But committee members like Rep. Zoe Lofgren (D-CA) downplayed the importance of such a move in these recent stories. “A referral doesn’t mean anything,” Lofgren told Politico.

In practical terms, Lofgren has a point. Once receiving a referral recommending charges against someone, the DOJ is under no obligation to follow through and charge them, and often the agency doesn’t.

Yet the question of whether Trump should be referred for prosecution does touch on broader questions of what exactly the committee is trying to achieve, and how Democrats (and Trump’s few Republican critics) are struggling to ensure the former president faces consequences for his attempted election theft.

Should the committee’s top priority be to make a maximal political splash, discrediting Trump in the eyes of the public? Or should they focus on trying to help a criminal indictment against Trump actually happen, and to make that case as strong as possible?

Is their audience the public, or is it Attorney General Merrick Garland?

And which strategy will best achieve those aims — if achieving them is even possible?”

The Sedition Indictment Against 11 Oath Keepers Describes a Plot That Was Pitifully Inept and Ineffectual

“The FBI has arrested more than 700 Donald Trump supporters who unlawfully entered the Capitol grounds or the Capitol itself that day, many of whom incriminated themselves by recording and/or livestreaming their activities. On the anniversary of the riot, The New York Times reported that “a little over 300” had been charged with petty crimes such as trespassing and disorderly conduct, while “more than 225 people” were “accused of attacking or interfering with the police” and “about 275” were charged with obstructing the congressional certification of President Joe Biden’s election.

Against this backdrop, last week’s indictment of 11 Oath Keepers stands out. It was the first time that any of the rioters had been charged with sedition—specifically, using force to “prevent, hinder, or delay the execution of any law of the United States.” The conspiracy described in the indictment is notably different from the spontaneous, heat-of-the-moment crimes committed by most of the people who stormed the Capitol. Unlike the riot as a whole, which looked more like a temper tantrum than an incipient coup, the “operation” mounted by the Oath Keepers was planned well in advance. Although it is the closest thing we have seen so far to an “insurrection” (the label that Democrats routinely apply to the riot), it was still half-baked and pitifully ineffectual.”

” The preparations for January 6 allegedly included gathering Oath Keepers from around the country; paramilitary training; “reconnaissance” of the Capitol area; multiple purchases of guns, ammunition, and firearm accessories; a stash of weapons at a hotel in Arlington; and a “quick reaction force” (QRF) that waited at the hotel, ready to act “if SHTF.” The indictment says “the QRF teams were prepared to rapidly transport firearms and other weapons into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power.””

“The Oath Keepers who went to the Capitol on January 6 evidently did not bring any firearms, although they did have “hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick,” and a German Shepherd named Warrior.”

“According to the indictment, however, Rhodes and other Oath Keepers celebrated the riot and talked about following it up with further acts of resistance. “Thousands of ticked off patriots spontaneously marched on the Capitol,” Rhodes said that night in a Signal group chat. “You ain’t seen nothing yet.” Between January 10 and January 14, the indictment says, Rhodes spent about $18,000 on firearm parts, accessories, and ammunition. But apparently nothing came of whatever Rhodes might have been planning. He was not arrested until.. a year after the spending spree described in the indictment.”

“On Election Day, Rhodes publicly advised Oath Keepers to “stock up on ammo” and prepare for a “full-on war in the streets” if Biden were declared the winner. A week later, Rhodes posted a “call to action” under the headline “WHAT WE THE PEOPLE MUST DO.” It described elements of the revolt against Milosevic, which included not only “peaceful protests” and “complete civil disobedience” but also “swarm[ing] the streets,” “confronting the opponents,” “storm[ing] the Parliament,” and “burn[ing] down fake state Television.”

In a December 23, 2020, message on the Oath Keepers website, Rhodes said “tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many of us will have our mission-critical gear stowed nearby just outside D.C.” He warned that he and likeminded patriots might have to “take to arms in defense of our God given liberty.”

So much for staying below the radar. Rhodes’ lack of discretion was not his only problem. It remains unclear exactly how he hoped to keep Trump in power.”

“The plan, evidently, was to “scare the shit” out of Congress with a show of force that would persuade legislators to reject electoral votes for Biden. But in the end, the Oath Keepers merely joined a riot that was already in progress, and the riot itself accomplished nothing but an interruption that delayed ratification of Biden’s victory until that night.”

“The sedition charges do not require that the defendants had any realistic hope of success. Assuming the allegations are true, Rhodes et al. did indeed conspire to use force to “prevent, hinder, or delay” the execution of Congress’ constitutional and statutory obligations to certify the election results. And in addition to the sedition counts, which are punishable by up to 20 years in prison, the defendants face various other charges, including conspiracy to obstruct an official proceeding, assault, destruction of government property, interference with law enforcement, and tampering with evidence (mainly by erasing incriminating data on their cellphones).

The Justice Department estimates that as many as 2,500 people may ultimately face charges in connection with the Capitol riot. Most of them will be more like Gonzalez, the “Capitol Doobie Smoker,” than Rhodes and his followers, who had ambitious but inept plans that ultimately amounted to little more than a sideshow in a much broader spasm of vandalism and violence that was itself utterly futile.”

How seditious conspiracy charges change the January 6 narrative

“the first seditious conspiracy charges in the investigation so far, and the first the Justice Department has brought in more than a decade. Seditious conspiracy isn’t the same as treason, but it’s also not terribly far off; as former federal prosecutor Laurence Tribe wrote for NBC News on Saturday, the “crime is, in effect, treason’s sibling.”
Specifically, seditious conspiracy occurs when two or more people work together to plan to overthrow the government or prevent the execution of its laws.

In the case against Rhodes and his alleged co-conspirators, the government presented evidence in the charging documents that shortly after the November 3, 2020, election, Rhodes told his followers, “Prepare your mind, body, and spirit” because, “We aren’t getting through this without a civil war.” In December, Rhodes promised a “bloody, massively bloody revolution” should a peaceful transfer of power occur, and in the lead-up to the Capitol riot purchased thousands of dollars’ worth of weapons, ammunition, and related tactical gear.

Other defendants in the case are alleged to have set up paramilitary training groups and created private Signal groups to discuss their operations, including procuring weapons and establishing a quick reaction force outside the DC area to bring in additional insurrectionists and weapons.”

We’re Misunderstanding What Caused Jan. 6

“A team of researchers found in a 2021 paper that an anti-establishment dimension would explain some of the more worrying extremes in American politics — things like support for conspiracy theories, endorsement of anti-expertise opinions and seeing politics as a battle between good and evil — better than the left-right dimension of our politics. One of those researchers, University of Miami political science professor Joseph Uscinski, found no difference in the prevalence of anti-establishment beliefs between Democrats and Republicans, using survey data collected in October 2020. What’s more, Uscinski found that anti-establishment ideologies better predicted belief in the conspiracies of QAnon and Trump’s claims of voter fraud than did left-right orientations.
What happened on Jan. 6 aimed to put a Republican president back in power — but Republican ideology might not be the best way to understand where the fear and anger on display at the Capitol came from.

So what do we lose if our polling and research analyses aren’t set up to see that?

Plenty, according to Wilson. Political parties benefit from stoking and promoting partisan polarization because it sparks more activism on their behalf. And an academia and a media that buy into that division as a primary explanation for American political violence risk creating the sort of false partisan polarization that leads us to believe the other side wants things they don’t really want.

But even more concerning is the fact that anti-establishment ideologies don’t vanish or become irrelevant when we don’t look at them. The beliefs are there, waiting for someone to pick up and use. A politician could come along and harness anti-establishment ideologues into his or her political caucus. That politician could then convince those Americans that they are the only trustworthy part of the political world. And that politician could convince Americans with an anti-establishment ideology to fight for him or her. You could argue this is exactly what Trump did, and the Republican Party has more politicians who have gone this route — but it’s an option open to either party. Ignoring anti-establishment ideologies means ignoring how political partisans might turn them into weapons, just as they did on the steps of the Capitol.”

The Big Lie’s Long Shadow

“The evolution of the Big Lie was the product of a vast catalog of politicians, pundits, true believers and benefactors financing and promoting claims of voter fraud and efforts to overturn the election. This includes lawyers like Lin Wood and Sidney Powell who filed pro-Trump lawsuits, Republican politicians who actively embraced the Big Lie like Georgia Rep. Jody Hice (whom Trump has endorsed in the race for Georgia secretary of state) and others who, while not embracing the Big Lie, refused to condemn it. It included political action committees and conservative groups that financed these efforts. And it included alt-right personalities like Steve Bannon and Mike Lindell, who have amassed huge audiences as they continue to promote the Big Lie.”

Was the Capitol Riot Really the Opening Battle of a Civil War?

“A study published last September in the Proceedings of the National Academy of Sciences challenges the notion that a substantial minority of Americans—more than two-fifths, according to some reports—condone political violence. The Dartmouth political scientist Sean

Westwood and his co-authors argue that “documented support for political violence is illusory, a product of ambiguous questions, conflated definitions, and disengaged respondents.”
Westwood et al. acknowledge that partisan animosity, a.k.a. “affective polarization,” has “increased significantly” during the last few decades. “While Americans are arguably no more ideologically polarized than in the recent past,” they say, “they hold more negative views toward the political opposition and more positive views toward members of their own party.” But at the same time, “evidence suggests that affective polarization is not related to and does not cause increases in support for political violence and is generally unrelated to political outcomes.” So what are we to make of claims that more than a third of Americans believe political violence is justified?

“Despite media attention,” Westwood et al. note, “political violence is rare, amounting to a little more than 1% of violent hate crimes in the United States.” They argue that “self-reported attitudes on political violence are biased upwards because of disengaged respondents, differing interpretations about questions relating to political violence, and personal dispositions towards violence that are unrelated to politics.”

Westwood et al. estimate that, “depending on how the question is asked, existing estimates of support for partisan violence are 30-900% too large.” In their study, “nearly all respondents support[ed] charging suspects who commit acts of political violence with a crime.” These findings, they say, “suggest that although recent acts of political violence dominate the news, they do not portend a new era of violent conflict.”

These conclusions are based on three surveys in which Westwood et al. presented respondents with specific scenarios involving different kinds of violence, varying in severity and motivation. “Ambiguous survey questions cause overestimates of support for violence,” they write. “Prior studies ask about general support for violence without offering context, leaving the respondent to infer what ‘violence’ means.” They also note that “prior work fails to distinguish between support for violence generally and support for political violence,” which “makes it seem like political violence is novel and unique.”

A third problem they identify is that “prior survey questions force respondents to select a response without providing a neutral midpoint or a ‘don’t know’ option,” which “causes disengaged respondents…to select an arbitrary or random response.” Since “current violence-support scales are coded such that four of five choices indicate acceptance of violence,” those arbitrary or random responses tend to “overstate support for violence.”

What happens when researchers try to address those weaknesses? In all three surveys that Westwood et al. conducted, “respondents overwhelmingly reject[ed] both political and non-political violence.” And while a substantial minority disagreed, that number was inflated by respondents who were classified as “disengaged” based on their failure to retain information from the brief scenarios they read.”

These Lawsuits Argue That Trump Conspired To Incite the Capitol Riot

“there is a big difference between reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in lawsuits filed by Rep. Eric Swalwell (D‒Calif.), other House Democrats, and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force, and intimidation to stop government officials from carrying out their duties.

To prove that claim, the plaintiffs must do more than show that Trump ginned up his supporters’ outrage with false election fraud claims, or even that he did so in circumstances where he should have known violence was likely. They have to show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Biden’s victory, a scheme in which Trump himself intentionally participated.

Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that “makes it a criminal offense to willfully incite or urge other persons to engage in a riot.” In addition to the requirement that the offense be committed “willfully,” prosecution for incitement is constrained by the First Amendment.”

Why DOJ is avoiding domestic terrorism sentences for Jan. 6 defendants

“In front of judges and in court filings, the Justice Department is engaged in a delicate rhetorical dance on the domestic terrorism issue. Seeking to satisfy a large swath of the public outraged by the Jan. 6 riot, prosecutors have declared that the event “certainly” qualifies as domestic terrorism. But they’ve kept their powder dry thus far on invoking the terrorism sentencing boost — potentially because its impact can be so severe.”

“Invoking the terrorism enhancement typically adds about 15 years in prison to a defendant’s recommended sentence, sets the minimum calculation at 17 and a half years, and also flips the person charged into the criminal-history category used for serial offenders.”