Jan. 6 texts, data deleted from Secret Service, Pentagon phones lead to accusations of cover-up

Tom LoBianco

·Reporter

Sat, August 6, 2022 at 1:00 PM

In this article:

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  Donald Trump

  45th President of the United States
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  Mike Pence

  48th Vice President of the United States

Evidence of all the information erased, wiped, deleted and otherwise obscured by members of former President Donald Trump’s administration in the days, weeks and months after the riot that unfolded at the U.S. Capitol on Jan. 6, 2021, is now apparently under scrutiny by the House select committee hearings investigating the failed insurrection.

Text messages and other data were wiped from the phones of Secret Service agents, despite Congressional and government watchdog requests to keep evidence from that day. Senior Pentagon officials involved in responding to the attack had their government-issued phones “wiped” as part of what the Pentagon called a standard process for departing employees. Top aides, including former acting secretary of Homeland Security Chad Wolf and former acting deputy secretary Ken Cuccinelli, had their electronics wiped in the same process.

A video of then-President Donald Trump speaking is shown at a hearing last month of the House select committee investigating the Jan. 6 attack on the U.S. Capitol. (J. Scott Applewhite/AP)

“The same mindset that would seek sweeping pardons is likely the same that would engage in a cover-up,” said Ryan Goodman, a former Defense Department lawyer who chronicled multiple deletions surrounding the Jan. 6 attack. “All of the data points currently align with a cover-up as the most likely explanation.”

The House committee is continuing to probe for more evidence related to the Jan. 6 insurrection, including seeking deleted texts, to add to the hours of witness testimony, reams of documents and immersive graphic displays already presented at the hearings. Staff for the panel declined to comment for this story.

Trump aides and advisers have denied any wrongdoing.

But the apparent attempt at obfuscating the evidence has been impossible to ignore. When the Jan. 6 committee hosted its “season finale” last month, it focused on the “187 minutes” — the more than three hours that elapsed after Trump finished his speech to supporters on the Ellipse near the White House and then finally called off the rioters.

This exhibit from video released by the House select committee shows security video with Secret Service radio traffic audio in the background discussing the evacuation of Vice President Mike Pence on Jan. 6, 2021. (House select committee via AP)

White House call logs and the president’s daily diary for much of that stretch of time were empty, and Trump’s photographer at the White House was told “no photographs” during that period as he sat glued to Fox News watching the riot unfold. But, as the committee detailed, Trump was on the phone extensively with Rudy Giuliani, one of his lawyers at the time, and was even lobbying senators, as they were being evacuated, to try to overturn his election loss.

Investigators have been able to use documents from various court cases and even public interviews to fill in gaps in the timeline of that day. But breakthroughs sometimes seem to have been almost accidental.

Anonymous testimony as seen on video during the House select committee hearing on July 21. (House TV via Reuters video)

One of the greatest caches of information came from former Trump chief of staff Mark Meadows before he stopped cooperating with investigators. And that doesn’t account for the papers he burned in the White House after meeting with one of the top lawmakers who helped coordinate the insurrection, Rep. Scott Perry, R-Penn.

This week, a unexpected trove of information came to light during the defamation trial of longtime conspiracy theorist and Jan. 6 coordinator Alex Jones, when it was revealed that Jones’s lawyers accidentally sent two years of text messages from his cellphone to Mark Bankston, a lawyer representing the parents of a boy killed in the Sandy Hook school shooting in Newtown, Conn. Bankston said the Jan. 6 committee had requested the messages and related documents.

 

When free speech becomes criminal incitement: Trump and Jan. 6

By Ken Paulson

New York Daily News

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Aug 01, 2022 at 5:00 am

US President Donald Trump speaks to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC. - Thousands of Trump supporters, fueled by his spurious claims of voter fraud, are flooding the nation's capital protesting the expected certification of Joe Biden's White House victory by the US Congress. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images) (MANDEL NGAN/AFP via Getty Images)

Love him or hate him, all should acknowledge that Donald Trump is a master of free speech. His unvarnished and unpretentious speaking style, along with his distinctive cadence, propelled him all the way to the White House. If Ronald Reagan was the Great Communicator, Trump is the Extraordinary Agitator. He gets your attention.

It’s remarkable, then, that none of his off-the-cuff, often improvised speech has ever exposed him to criminal liability — until, perhaps, now. Revelations from the House Committee investigating the Jan. 6 attack on the Capitol and disclosures from the investigation into efforts to overturn the Georgia presidential vote suggest that Trump’s words may finally have crossed the line into criminal conduct.

To be clear, that’s not easy to do in a country founded on freedom. The First Amendment properly gives us extraordinary latitude to say all kinds of inflammatory things, particularly when directed toward public officials.

Want to shout, “Our governor deserves to be dragged out of his office and hanged”? That would be fine with everyone except the governor. Or maybe you’re feeling really ambitious and declare, “Our only path to real justice is to take up arms and stage a revolution!” That too is permitted under the First Amendment.

What’s not protected? In 1969, the U.S. Supreme Court concluded that a call for violence or mob action can only be punished if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In other words, did you try to get people so worked up that they would try to commit violent acts almost immediately?

Which brings us back to Trump on Jan. 6. Put in proper context, what sounded like just hype and hyperbole more than 18 months ago now looks like something altogether different. From his invitation to followers to join him for a “wild” Jan. 6 rally to his call to “fight like hell” to his not-at-all-spontaneous exhortation to march on the Capitol, Trump’s words suggest a planned escalation.

We learned in the hearings that Trump was aware his supporters were heavily armed and unwilling to risk going through event security, but he didn’t hesitate to unleash them on Congress. Even after he saw the violent outcome on Fox News, he egged on the crowd with a tweet about his vice president lacking the “courage to do what was necessary,” further endangering Mike Pence.

More potential liability lies in Georgia. After Trump lost the state in the presidential election, he called the state’s secretary of state, Brad Raffensperger, suggested that the official could be prosecuted for not throwing out the results, and said, “I just want to find 11,780 votes, which is one more than we have because we won the state.”

“Find” the votes? As in, “Look around, you may have missed a box” or “Mr. Bank Teller, I hope to find $100,000 in my satchel when I leave your establishment”?

There are times when Trump’s outbursts seem to be improvisational theater, lashing out at handy targets and pressuring others to bend to his will. But given revelations about fake electors and talk of seizing voting machines, how much of Trump’s loose talk was actually strategic?

The Bill of Rights is an astounding document that has set this nation apart from all others. In 1791, the first generation of Americans made promises that have largely gone unbroken in the intervening 231 years.

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The First Amendment essentially said we could say or write anything at any time without fear of prosecution. The Second Amendment promised the right to bear arms. While both guarantees are controversial, they are also undeniably powerful.

Those liberties give way, though, when we use them to commit crimes. You may have a right to purchase a weapon, but there’s no protection for using it to hold up a store. You have a right to say what you’d like, but there’s no protection for using it to defraud or threaten someone, or to incite a riot.

In 2016, Trump famously bragged about the loyalty of his base, saying, “I could stand in the middle of Fifth Ave. and shoot somebody and I wouldn’t lose voters.” It proved to be a remarkably prescient statement, though it overlooked the likely legal consequences of shooting someone in the streets of Manhattan.

Trump has been similarly dismissive of any consequences for his post-election statements. The conversation with Raffensperger was “perfect,” he has said.

Prosecutors will have to decide whether to charge the former president with crimes. It’s Trump’s unique place in history that provides him some protection. After all, we don’t make a practice of prosecuting past presidents, particularly for their speech.

Then again, past presidents haven’t made a practice of trying to overturn elections.

‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan

Previously undisclosed communications among Trump campaign aides and outside advisers provide new insight into their efforts to overturn the election in the weeks leading to Jan. 6.

One Arizona Republican involved in the effort to reverse the election outcome advocated keeping a key element of the strategy quiet “so we can try to ‘surprise’ the Dems and media with it” on Jan. 6, 2021.Credit...Ash Ponders for The New York Times

By Maggie Haberman and Luke Broadwater
July 26, 2022Updated 2:15 p.m. ET

Previously undisclosed emails provide an inside look at the increasingly desperate and often slapdash efforts by advisers to President Donald J. Trump to reverse his election defeat in the weeks before the Jan. 6 attack, including acknowledgments that a key element of their plan was of dubious legality and lived up to its billing as “fake.”

The dozens of emails among people connected to the Trump campaign, outside advisers and close associates of Mr. Trump show a particular focus on assembling lists of people who would claim — with no basis — to be Electoral College electors on his behalf in battleground states that he had lost.

In emails reviewed by The New York Times and authenticated by people who had worked with the Trump campaign at the time, one lawyer involved in the detailed discussions repeatedly used the word “fake” to refer to the so-called electors, who were intended to provide Vice President Mike Pence and Mr. Trump’s allies in Congress a rationale for derailing the congressional process of certifying the outcome. And lawyers working on the proposal made clear they knew that the pro-Trump electors they were putting forward might not hold up to legal scrutiny.

“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” Jack Wilenchik, a Phoenix-based lawyer who helped organize the pro-Trump electors in Arizona, wrote in a Dec. 8, 2020, email to Boris Epshteyn, a strategic adviser for the Trump campaign.

In a follow-up email, Mr. Wilenchik wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes,” adding a smiley face emoji.

The emails provide new details of how a wing of the Trump campaign worked with outside lawyers and advisers to organize the elector plan and pursue a range of other options, often with little thought to their practicality. One email showed that many of Mr. Trump’s top advisers were informed of problems naming Trump electors in Michigan — a state he had lost — because pandemic rules had closed the state Capitol building where the so-called electors had to gather.

The emails show that participants in the discussions reported details of their activities to Rudolph W. Giuliani, Mr. Trump’s personal lawyer, and in at least one case to Mark Meadows, the White House chief of staff. Around the same time, according to the House committee investigating Jan. 6, Mr. Meadows emailed another campaign adviser saying, “We just need to have someone coordinating the electors for states.”


Many of the emails went to Mr. Epshteyn, who was acting as a coordinator for people inside and outside the Trump campaign and the White House and remains a close aide to Mr. Trump.

Mr. Epshteyn, the emails show, was a regular point of contact for John Eastman, the lawyer whose plan for derailing congressional certification of the Electoral College result on Jan. 6, 2021, was embraced by Mr. Trump.

Mr. Epshteyn not only fielded and passed along to Mr. Giuliani the detailed proposal for Jan. 6 prepared by Mr. Eastman, he also handled questions about how to pay Mr. Eastman and made the arrangements for him to visit the White House on Jan. 4, 2021, the emails show.

That was the day of the Oval Office meeting in which Mr. Trump and Mr. Eastman unsuccessfully pressured Mr. Pence to adopt the plan — an exchange witnessed by Mr. Pence’s two top aides, Marc Short and Greg Jacob, both of whom testified last week to the federal grand jury investigating the assault on the Capitol and what led to it.

The emails highlight how much of the legwork of finding ways to challenge Mr. Trump’s losses in the battleground states was done by Mike Roman, director of Election Day operations for Mr. Trump’s campaign.

Mr. Epshteyn and Mr. Roman, the emails show, coordinated with others who played roles in advising Mr. Trump. Among them were the lawyers Jenna Ellis and Bruce Marks; Gary Michael Brown, who served as the deputy director of Election Day operations for Mr. Trump’s campaign; and Christina Bobb, who at the time worked for One America News Network and now works with Mr. Trump’s PAC.

The emails were apparently not shared with lawyers in the White House Counsel’s Office, who advised that the “fake electors” plan was not legally sound, or other lawyers on the campaign.

Some of the participants also expressed approval in the emails for keeping some of their activities out of the public eye.

For instance, after Mr. Trump hosted Pennsylvania state legislators at the White House in late November to discuss reversing the election outcome, Mr. Epshteyn celebrated when news of the meeting didn’t quickly leak. “The WH meeting hasn’t been made public, which is both shocking and great,” he wrote to Ms. Ellis.
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Jenna Ellis, at left, Rudolph W. Giuliani and Boris Epshteyn, at right, were involved in the coordinated effort to overturn the 2020 election result. Credit...Jonathan Ernst/Reuters


On Dec. 8, 2020, Mr. Wilenchik wrote that Kelli Ward, one of the Republicans in Arizona participating in the fake electors plan, recommended trying “to keep it under wraps until Congress counts the vote Jan. 6th (so we can try to ‘surprise’ the Dems and media with it) — I tend to agree with her.”

Mr. Epshteyn, Mr. Wilenchik, Mr. Roman, Mr. Eastman, Ms. Bobb and James Troupis, another lawyer involved in the plan, either declined to comment or did not respond to emails or calls seeking comment.

Mr. Marks, in an email, disputed that there was anything inappropriate or improper at work.

“I do not believe there was anything ‘fake’ or illegal about the alternate slates of delegates, and particularly Pennsylvania,” he said. “There was a history of alternate slates from Hawaii in 1960. Nothing was secret about this — they were provided to the National Archives, as I understand the procedure, and then it was up to Congress to decide what to do.”

Mr. Marks added: “I had no involvement with Professor Eastman’s advice regarding the vice president’s role, which I only learned about after the fact, and do not support.”

The House committee investigating the Jan. 6 attack on the Capitol has produced evidence that Mr. Trump was aware of the electors plan. Ronna McDaniel, the chairwoman of the Republican National Committee, said in a deposition to the panel that Mr. Trump had called her and put Mr. Eastman on the phone “to talk about the importance of the R.N.C. helping the campaign gather these contingent electors.”

The panel has also heard testimony from Mr. Jacob, who was Mr. Pence’s counsel in the White House, that Mr. Eastman admitted in the Jan. 4 Oval Office meeting — with Mr. Trump present — that his plan to have Mr. Pence obstruct the electoral certification violated the Electoral Count Act.

There’s more than enough evidence to charge Trump with seditious conspiracy

By Jim Zirin

New York Daily News

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Jul 26, 2022 at 5:00 am

Attorney General Merrick Garland and former President Donald Trump (Getty Images)

Former federal prosecutor Harry Litman, writing in the Los Angeles Times, suggests that there is a “gap” between the Jan. 6 evidence developed by the special House committee and a case of seditious conspiracy that will stand up in a court of law.

He argues that Attorney General Merrick Garland “would not take the unprecedented step of prosecuting a former president” unless a Trump satrap like Rudy Giuliani, Mark Meadows or Steve Bannon turned state’s evidence and were willing to testify that Trump was in on cooking up the whole plot.

Absent such testimony, Litman concludes, Garland will not indict Trump.

Seditious conspiracy is defined in the law as an unlawful agreement among and between two or more people to “oppose by force” the government’s authority or agreeing “by force to prevent, hinder or delay the execution of any law of the United States…” What happened on Jan. 6 fits the definition neatly. The conspirators don’t need to succeed in their plot. The essence of the crime is the agreement, and it can be punished by up to 20 years in jail.

Litman concedes that it is theoretically possible to prove seditious conspiracy beyond a reasonable doubt based on the circumstantial evidence. The object of the conspiracy was to create a situation where, despite the vote, Trump would remain in power, and the means to accomplish the objective was the use of force. But Litman is confident that circumstantial evidence will not be enough to indict a former president, even if such evidence would be sufficient to convict you and me. Rubbish!

Conspiracies are rarely proved by direct evidence because conspirators plot their crimes in secret, not in the open. A conspiratorial agreement is not typically reduced to writing. It is inferred from acts, declarations and conduct. Initial determination that there is sufficient evidence of membership in the conspiracy is for the judge. A federal judge has already held in another case that “more likely than not” Trump engaged in criminal acts on Jan. 6.

Thus far, there is evidence that Trump knew that the insurrectionists were armed; that he summoned them to Washington; that his tweet of invitation said that Jan. 6 “will be wild”; that Rudy Giuliani told the mob: “Let’s have trial by combat”; and that Bannon, with whom Trump spoke twice a day, predicted “all hell is going to break loose tomorrow.” :

 [Former President Trump spoke on the phone with his former White House adviser and political strategist Stephen Bannon at least twice the day before the Capitol attack, the select committee revealed on Tuesday.

After the first call on the morning of Jan. 5, 2021, which lasted 11 minutes, according to White House call logs, Bannon went on a right-wing talk show and predicted the next day would be eventful.

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“All hell is going to break loose tomorrow,” Bannon said in a clip of his appearance that was played during Tuesday’s hearing. “It’s all converging, and now we’re on, as they say, the point of attack.” THE HILL ]

Lawyers understand that the statements of Giuliani and Bannon are “declarations in furtherance of the conspiracy” binding on Trump as though he had made the statements himself.

Some have suggested that Garland’s opportunity to investigate and indict Trump will peter out in the coming months. Trump has signaled he will announce for president in September, and it would smack of a political vendetta to have an attorney general appointed by Biden, who may also run, prosecute his political opponent. But Garland said emphatically just the other day that “No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution and any other factors which prevent us from investigating anyone — anyone — who is criminally responsible for an attempt to undo a democratic election.”

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Such redoubtable legal authorities as Harvard Law Prof. Laurence Tribe and Nancy Gertner, a former federal judge and now also a Harvard Law professor, have said that Garland will and should indict Trump for a number of crimes including seditious conspiracy. As it happens, Tribe was Garland’s law professor.

“If Merrick Garland is awake, I think he is, if he’s as smart as I think he was as a student,” Tribe said, “he’s got to be about to indict.” Gertner said Trump should be indicted, stating that his fingerprints are on several plots including the insurrection.

Not all of Harvard Law School is in agreement. Prof. Jack Goldsmith, formerly an assistant attorney general office of legal counsel in the George W. Bush administration wrote in a recent New York Times op-ed that it’s a bad idea to indict Trump even if the evidence is there.

He notes that Justice Department charging guidelines require that “the national interest would be served by prosecuting.” Goldsmith insists that Trump’s trial would prevent national reconciliation, would be a “cataclysmic event from which the nation would not soon recover,” and says the ultimate resolution ought to be left to the next administration — which may be Republican, and which may even be headed by Trump.

But Goldsmith’s arguments about the national interest would apply with the same force if Trump murdered someone on Fifth Ave., which Trump bragged he could do with impunity.

So, according to Goldsmith, even if Garland does indict Trump, Trump may escape the hangman as he has so many times in the past. The next president could pardon him. The next attorney general may drop the case. Or, imagining the unthinkable, Trump may get to pardon himself.

Zirin is a former federal prosecutor in the Southern District of New York.