So the House select committee investigating the days leading up to the January 6th riot at the US Capitol has now received about 700 documents that Trump fought up to the Supreme Court to keep buried at the National Archives. The Supreme Court declined Trump’s request, which I believe was the correct decision. I cannot fathom why anyone would argue against government transparency. If you railed about Hillary Clinton destroying her State Department correspondence, you should not turn around and defend Trump for this behavior. Unless you are down with people accurately labeling you a hypocrite.
Anyway, the contents of those documents are starting to trickle out, and there is no confusion as to why Trump wanted to keep them secret. They seem to show how far along Trump was in trying to follow crank attorney (has she been disbarred yet?) Sidney Powell’s absolutely insane and illegal-on-its-face advice. No one will ever be able to convince me that Trump is an even remotely intelligent person after seeing this stuff. Good grief, this is ugly.
I am going to quote from Politico here, but if you want to see the primary sources for yourself, just follow the link (they are posted there):
Among the records that Donald Trump’s lawyers tried to shield from Jan. 6 investigators are a draft executive order that would have directed the defense secretary to seize voting machines and a document titled “Remarks on National Healing.”
POLITICO has reviewed both documents. The text of the draft executive order is published here for the first time.
The executive order — which also would have appointed a special counsel to probe the 2020 election — was never issued. The remarks are a draft of a speech Trump gave the next day. Together, the two documents point to the wildly divergent perspectives of White House advisers and allies during Trump’s frenetic final weeks in office.
It’s not clear who wrote either document. But the draft executive order is dated Dec. 16, 2020, and is consistent with proposals that lawyer Sidney Powell made to the then-president. On Dec. 18, 2020, Powell, former Trump national security adviser Michael Flynn, former Trump administration lawyer Emily Newman, and former Overstock.com CEO Patrick Byrne met with Trump in the Oval Office.
In that meeting, Powell urged Trump to seize voting machines and to appoint her as a special counsel to investigate the election, according to Axios…
The order empowers the defense secretary to “seize, collect, retain and analyze all machines, equipment, electronically stored information, and material records required for retention under” a U.S. law that relates to preservation of election records. It also cites a lawsuit filed in 2017 against Georgia Secretary of State Brad Raffensperger.
Additionally, the draft order would have given the defense secretary 60 days to write an assessment of the 2020 election. That suggests it could have been a gambit to keep Trump in power until at least mid-February of 2021.
The full text of the never-issued executive order can be read here.
It opens by citing a host of presidential authorities to permit the steps that Trump would take, including the Constitution and Executive Order 12333, a well-known order governing the intelligence community. But the draft executive order also cites two classified documents: National Security Presidential Memoranda 13 and 21.
The existence of the first of those memoranda is publicly known, but the existence of the second has not been previously reported. NSPM 13 governs the Pentagon’s offensive cyber operations. According to a person with knowledge of the memoranda, 21 makes small adjustments to 13, and the two documents are viewed within the executive branch as a pair.
The fact that the draft executive order’s author knew about the existence of Memorandum 21 suggests that they had access to information about sensitive government secrets, the person told POLITICO.
The draft order also greenlit “the appointment of a Special Counsel to oversee this operation and institute all criminal and civil proceedings as appropriate based on the evidence collected and provided all resources necessary to carry out her duties consistent with federal laws and the Constitution.”
To bolster its provisions, the draft order cites “the forensic report of the Antrim County, Michigan voting machines.” That report was produced by Russ Ramsland, who confused precincts in Minnesota for those in Michigan, according to the Washington Post. Michigan’s secretary of state, meanwhile, released an exhaustive report rebutting election conspiracy theories and concluding that none of the “known anomalies” in Antrim County’s November 2020 election were the result of any security breach.
“This draft order represents not only an abuse of emergency powers, but a total misunderstanding of them,” said Liza Goitein, co-director of the liberty and national security program at the nonprofit Brennan Center for Justice.
“The order doesn’t even make the basic finding of an ‘unusual and extraordinary threat’ that would be necessary to trigger any action under [federal emergency powers law]. It’s the legal equivalent of a kid scrawling on the wall with crayons.”
It is totally possible that Trump simply received the draft executive order from Powell and filed it away with zero intention of ever acting upon it.
I am trying to imagine a scenario where this actually happened – where Trump ordered that all of the voting machines in the nation be seized and that his conspiracy theorist henchwoman be named “Special Counsel” to investigate what the “real” election results were. We possibly could have wrapped up 2020 with Trump being hauled out of the Oval Office by the military. The constitution kind of assumes that no one would try to pull shit like this. After all, this is the entire point of having Congress certify the election results – to have a check on executive power. Many MAGA folks inexplicably believe the Founding Fathers wanted a strongman in charge of the country, when they literally fought and died not to live under that governance structure.
Anyhow, the second document the Politico article includes seems to be a draft copy that speechwriters (or Ivanka, because it kind of sounds like her MBA-speak) prepared for Trump to deliver in the days following the riot. Trump gave a speech from the Oval Office that involved some similar passages, but this speech is completely different in tone and makes a lot of appeals as a good loser who has no reason to challenge election results. It’s kind of funny, but in the context of an investigation (or defense), pointless.
For those who are curious if these documents (what is known and unknown) could help make a seditious conspiracy charge against Trump, now a private citizen, here is some (superficial) background:
Seditious conspiracy is a crime in various jurisdictions of conspiring against the authority or legitimacy of the state. As a form of sedition, it has been described as a serious but lesser counterpart to treason, targeting activities that do not actually attack the state but are hostile to its authority…
In the United States, seditious conspiracy is codified at 18 U.S.C. § 2384:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined or imprisoned not more than 20 years, or both.
This law is the second to define the offense. It was enacted in 1861 after secessionists gained control of most slaveholding states, although the law was originally sought by Senator Stephen A. Douglas in response to John Brown‘s 1859 raid on a federal arsenal. A substantially similar offense appeared in the Sedition Act of 1798, which expired in 1801.
A lot of folks clutch their pearls about these statutes being used when they have not been used in a long time. After researching the operating philosophies of these extremist groups, however, I think they are absolutely appropriate. You want to start a civil war, you get tried under laws that originated during the civil war. You can’t find a better example of legislative intent than this one.
I don’t have knowledge of where the investigation is going, but it does not seem that difficult for someone to make a case that this is seditious conspiracy. They had a lot of documented conversations that did, in fact, amount to plans to overthrow the government. And if Trump’s team was in contact with groups like the Oath Keepers, then there you go.
I have been thinking about Sidney Powell et. al.’s claims that the military was in on “stopping the steal,” which were echoed throughout the Q Anon sphere in the months leading up to January 6th. She was all over Q Anon long before the election, appearing on Q Anon YouTube channels and whatnot, so it’s not like she can credibly claim she was not involved in the conspiracy sites. One of the reasons these folks may have genuinely believed this to be true is because groups like the Oath Keepers have so many members that were in the military.
Anyhow, I think Trump is fairly screwed. Probably the only thing that is going to keep him safe (from a legal standpoint) in all this is that if Biden starts World War III, the United States may have bigger fish to fry.