Executive Privilege

Biden declined to withhold documents from the National Archive regarding the January 6th insurrection, blocking Trump’s attempt to claim executive privilege. The House Select Committee on the January 6 Attack requested a wide range of information from the National Archives on August 25th, including all documents and communications from Trump, his children and their spouses, and numerous White House aides.

The Archives identified a set of documents responsive to the committee’s request that it sent to Trump for review, as required by law. Trump tried to shield about half of the first set from the committee, promising to “take all necessary and appropriate steps to defend the Office of the Presidency.”

White House counsel Dana Remus told the Archives on Friday that the White House is overruling Trump’s executive privilege claim:

After my consultations with the Office of Legal Counsel at the Department of Justice, President Biden has determined than an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the Documents…

These are unique and extraordinary circumstances…Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities. The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.

If Trump wishes to contest the matter, he will need to file a lawsuit.

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41 subpoenas

Four former Trump aides reportedly plan to defy subpoenas issued by the House Select Committee, setting up a legal showdown. According to Politico, Trump himself directed former White House chief of staff Mark Meadows, deputy chief of staff Dan Scavino, strategist Steve Bannon, and defense department aide Kash Patel not to cooperate with the subpoenas. However, the Select Committee revealed Friday that Meadows and Patel “are, so far, engaging with” the panel.

• Trump has assembled a team of lawyers to claim executive privilege protects the information sought by the committee. Steve Bannon, for instance, explicitly cited Trump’s claim as his reason not to comply. However, the Biden Justice Department declined to assert executive privilege on Trump’s behalf in previous instances. The likely result is a legal fight over the subpoenas, which may still reach Trump’s desired result: delaying the committee’s final report until after the midterms, when it will likely have less of an impact.
• After reportedly hiding from server processors, Dan Scavino was finally served with the subpoena yesterday.
• Select Committee Chairman Bennie Thompson (D-MS) vowed to issue criminal referrals to witnesses who refuse to cooperate, adding that the panel will “pursue [compliance] in court.” Ultimately, it will be up to the Justice Department to aggressively back up the committee in the hopes of avoiding drawn-out litigation.

The Select Committee issued subpoenas to “Stop the Steal” rally organizers Ali Alexander and Nathan Martin on Thursday, seeking documents by Oct. 21 and testimony by Oct. 29. The letters sent the the pair read in part (pdf):

According to documents provided to the Select Committee, a purported organization named “One Nation Under God” submitted a permit application on or about December 21, 2020, to the United States Capitol Police (“USCP”) for a rally to be held on the U.S. Capitol Grounds in Washington, D.C., on January 6, 2021, concerning “the election fraud in the swing states.” Your phone number and email address were listed among the contact information for “One Nation Under God,” and the listed mailing address is the same address provided on the personal website of Ali Alexander…soliciting donations to be mailed to him…

After the January 6th attack on the U.S. Capitol, Mr. Alexander released a statement acknowledging that [Stop the Steal] had obtained the rally permit “for our ‘One Nation Under God’ event.” …Mr. Alexander reportedly spoke at a rally on January 5, 2021…and led the crowd in a chant of “victory, or death.”

A week earlier, the Select Committee also subpoenaed the organizers of the “Women for Trump” rally that preceded the insurrection. Subjects include founders Amy and Kylie Kremer and individuals that appear on permit paperwork like Trump alumni Caroline Wren, Katrina Pierson, and former chief of staff Mick Mulvaney’s niece, Maggie Mulvaney.

• Amy and Kylie Kremer: Amy played a key role in the Tea Party movement and chaired one of the first super PACs to support Trump’s 2016 presidential run. In 2019, Amy and her daughter Kylie founded Women for America First, leading protests against Trump’s first impeachment and Covid lockdowns. The group then helped organize the Jan. 6 rally and encouraged supporters to “caravan” to D.C. for the event.
• Caroline Wren previously served as a deputy to Don Jr.’s girlfriend, Kimberly Guilfoyle, at Trump’s 2020 fundraising committee. Text messages reviewed by ProPublica showed that Wren played “an extensive role in managing operations” for the Jan. 6 rally. Wren was listed as a “VIP Advisor” on the permit for the event.
• Maggie Mulvaney—in addition to being the niece of Mick Mulvaney—served as a Trump campaign aide. Since Jan. 3, 2021, she has been working as a senior adviser to Rep. Carol Miller (R-WV). She was listed as a “VIP Lead” on Jan. 6 permits.
• Like Kremer, Katrina Pierson also played a role in the Tea Party movement, including campaigning for Sen. Ted Cruz. She was the spokesperson for Trump’s 2016 campaign and worked as a senior adviser for his 2020 campaign. Pierson served as a liaison between the White House and Jan. 6 rally organizers, even speaking at the event.
• Cynthia Chafian is the founder of the Eighty Percent Coalition, one of the groups that organized the Jan. 5th and 6th rallies, and submitted the first permit application on behalf of Kremer’s Women for America First. The Coalition’s website on Jan. 5 read: “It’s time for every person who loves America, who cherishes their freedom, the Constitution, keeping elected officials accountable, and preserving everyone’s rights to stand unified. The march for Trump continues and WE MUST stand TOGETHER and FIGHT FOR AMERICA!!!”
• The five other individuals subpoenaed include: Justin Caporale, listed as project manager on permit paperwork; Tim Unes, stage manager on permit paperwork; Megan Powers, operations manager on permit paperwork; Hannah Salem, operations manager on permit paperwork; and Lyndon Brentnall, on-site supervisor on permit paperwork.

According to ABC News, “a majority” of the 11 subjects “have engaged in active conversations with the committee,” indicating they likely intend to comply with the investigation.

The Jan. 6 Committee has already conducted closed-door interviews with key players in Trump’s coup. While we don’t know the names of every interviewee, Politico reported that former Deputy Attorney General Richard Donoghue sat for a deposition last Friday. Donoghue took detailed notes during the period after the election, documenting Trump’s attempts to take over the Justice Department and pressure officials to overturn the election results.

• For instance, during a December meeting with Trump, Donoghue noted that Trump urged the DOJ to “just say the election was corrupt + leave the rest to me and the R[epublican] Congressmen.”

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Senate Judiciary Report

Meanwhile, the Senate Judiciary Committee Democrats released their report on Trump’s coup, called “Subverting Justice: How the Former President and His Allies Pressured DOJ to Overturn the 2020 Election.” The document (PDF) builds on information already released by the House Oversight Committee, adding important details and interviews with key players.

We already covered the House’s findings, which can be read here. For this post, we’ll just summarize the new information:

Former acting attorney general Rosen and his deputy Richard Donoghue met with DOJ lawyer Jeffrey Clark—Trump’s choice to replace Rosen—to “reinforce that Clark should stop meeting with Trump.”

On December 28, 2020, Clark emailed Rosen and Donoghue a draft letter addressed to the Georgia Governor, General Assembly Speaker, and Senate President Pro Tempore. The letter was titled “Georgia Proof of Concept” and Clark suggested replicating it in “each relevant state.” The letter would have informed state officials that DOJ had “taken notice” of election irregularities in their state and recommended calling a special legislative session to evaluate these irregularities, determine who “won the most legal votes,” and consider appointing a new slate of Electors…

Clark acknowledged that he had been briefed by the DNI, who confirmed that there was no evidence of ballot or data tampering. He continued to press debunked allegations of election fraud in Georgia, however, insisting that DOJ should send his proposed letter.

Donoghue recalled that the meeting “became very heated” as he made clear that Clark’s conduct was unacceptable. He told us:

[Donoghue:] I reminded [Clark] that I was his boss, that he was apparently continuing to violate the White House contact policy, that that letter was never going out while we were in charge of the Department. And I sort of orally reprimanded him on a number of points, including reaching out to witnesses, and [said] “Who told you to conduct investigations and interview witnesses,” and things like that. I was getting very heated. And then he turned to Acting AG Rosen, and he said, “Well, the President has offered me the position of Acting Attorney General. I told him I would let him know my decision on Monday. I need to think about that a little bit More.”

Rosen told us that at some point during this discussion, Clark indicated that if Rosen would reconsider his refusal to sign Clark’s proposed letter—and send it to the Georgia legislature under Rosen’s name—Clark might turn down the President’s offer to install him in Rosen’s place. Rosen again refused to send the letter.195 According to Rosen:

[Questioner:] So Jeff Clark framed it as a choice he was giving you, to essentially either go along with the letter that you had previously rejected and sign it under your own name, or he will presumably take the President up on his offer to be installed in your place. Is that how you understood it?

[Rosen:] Close to that. That he was saying that having done some due diligence as he requested, that he wasn’t satisfied that Rich Donoghue and I were on this, but that he still wasn’t sure what his answer would be on it. And he raised another thing that he might point to, that he might be able to say no [to the President], is if – that letter, if I reversed my position on the letter, which I was unwilling to do.

The report includes new information about Rep. Scott Perry’s (R-PA) role in Trump’s coup, recommending that the Select Committee further investigate his role:

U.S. Representative Scott Perry of Pennsylvania’s 10th Congressional District, who led the objection to counting Pennsylvania’s electoral votes on the House floor in the hours immediately following the January 6 insurrection. Perry has acknowledged introducing Clark to Trump, and documents and testimony confirm that he directly communicated with Donoghue about his false Pennsylvania election fraud claims…

Trump asked Donoghue to provide his cell phone number so Trump could have elected officials with relevant information call him. Congressman Perry called Donoghue later the same day [Dec. 27]. At the time, Perry had been amplifying—both publicly and behind the scenes—Trump’s false claims that the 2020 election was stolen… Perry led efforts to block the certification of Pennsylvania’s Electoral College votes—speaking against certification on the House floor even after the January 6 insurrection.

Perry told Donoghue that Trump had asked him to call and that DOJ hadn’t done its job with respect to the elections. Perry added something to the effect of, “I think Jeff Clark is great. I like that guy a lot. He’s the kind of guy who could really get in there and do something about this.” Perry did not explain how he knew Clark and Donoghue did not ask.84 At the end of the call, Perry indicated that he had information about “things going on in Pennsylvania,” including the claim that there were 205,000 more votes than voters. Donoghue responded that Perry could send him information about Pennsylvania but that DOJ had not seen fraud on a scale that would have changed the outcome there.