I had to smile yesterday when the DOJ not only arrested and indicted the leader of the Oath Keepers and 10 other members, but on seditious conspiracy. Though the smile was not for that reason alone -- but also because it answered all the people crying out why-oh-why the Justice Department isn't investigating the insurrection. As I noted here a couple weeks ago, just because you don't know what the DOJ is doing doesn't mean they aren't doing anything. Indeed, no one knows what they are doing other than the DOJ itself. When people said it was unthinkable that the DOJ wasn't investigating anything, I would reply back, yes, it would be unthinkable...which is why there wasn't much reason to think it.
These arrests were huge. Not only for the specific arrests, but clearly -- since they had encrypted messages -- they’ve gotten lower-level Oath Keepers to flip (which has long been the assumption), because that’s how the DOJ works, going up the ladder. And with the potential sentences being up to 20 years in prison, which needless-to-say is exceedingly serious, hopefully now the DOJ will get this high-ranking Oath Keeper to flip, most-especially, but any of the the 10 other Oath Keepers, as well.
On the heels of our article this morning, here's an addendum to add a bit more perspective to it all.
There is a RawStory headline today that reads: "Mike Lindell says he has 'enough evidence' to put '300 million' Americans in jail for election fraud."
Fun Fact: there are 330 million people in the U.S. And only 158 million Americans voted in 2020.
I sort of like that this is the sinking ship that Alan Dershowitz has tied his anchor to.
So, Alan Dershowitz has announced he will defend Mr. MyPillow attempting to quash a subpoena for his phone records because Dershowitz says the subpoena is only because Lindell is asking questions. And no matter how much he himself might disagree with those questions as a “liberal Democrat” (yes, he made sure that get that in there, no doubt still hoping he’ll still get invited to a party on Martha’s Vineyard…) that is Mr. MyPillow’s First Amendment right.
Yes, seriously, that is the argument Alan Dershowitz is going to make in court. And he hopes to get the case heard and not thrown out on its ear without sanctions for wasting the court’s time? Hopefully, someone will explain to Mr. Dershowitz – since he apparently is unaware, which is odd because it was in all the news – that the subpoena is because the House Select Committee clearly thinks he might have information on the coup attempt…based on the fact he MET WITH TRUMP! And they want to find out who he talked to, in case he was perhaps a conduit for trying to overthrow the government.
Dershowitz says that even though he himself might not have any issue with the legitimacy of the election, they are legitimate questions under the First Amendment. It seems clear that “legitimate” is his word of the day. And while it’s probably a perfectly good word for a lawyer to use, I really wish he’d have chosen a different one, because it creates a problematic public perception. I think that to the public, when they hear a lawyer claim that his client asked a legitimate question about the legitimacy of the elections, it sounds very much like he’s saying the questions themselves are pertinent and have value, deserving answers. However, I suspect he’s only using the word “legitimate” in the courtroom-sense that they are “legal” under the First Amendment. That’s the word that I think would have been significantly better to use for making the point he intends, rather than looking like a loon, no matter how much he says he disagrees with the question. For the record, of course, almost any question is “legitimate” under the First Amendment. Including "Is the MyPillow so lumpy that it may be the worst pillow ever made?"
By the way, Dershowitz also says that there is "No question" the committee is going after Lindell only “because he's a Trump supporter”. No question?? None?! Ha, I look forward to the Committee’s attorney explaining to the court that, in fact, they have a great many questions for Mike Lindell, which is explicitly why they believe it’s important to get his records following his meetings with Trump.
But there’s one larger issue at hand when Alan Dershowitz says that in trying to explain why he was defending Mike Lindell. To be clear, if Mr. Dershowitz wants to try and defend this somehow as a First Amendment case, albeit what seems like a fast-losing one, given Lindell’s meetings with Trump and his subsequent actions putting on events with insurrectionists and filing lawsuits to help undermine the election, that’s fine. But when Dershowitz claims that the House Select Committee is going after Lindell for reasons that are only political, “because he is a Trump supporter,” then he is being profoundly divisive, playing into the strategy of Trump, Steve Bannon, Mo Brooks, Josh Hawley, Marjorie Taylor-Greene and the leading insurrectionists, and doing very real damage to the country.
One may ask if Alan Dershowitz has lost all respect he built up during his career and is now just seen as a crazy man trying to get on TV defending what has been described by many as a fascist administration? I’m not saying that’s the case – only that it’s a legitimate question under the First Amendment.
On this week’s Al Franken podcast, his guests are Dahlia Lithwick, senior editor of Slate who primarily writes about the law, and Sarah Stoesz, who is CEO of Planned Parenthood in the Upper Midwest. They talk with Al about Abortion -- Dahlia on SCOTUS, and Sarah about the reality on the ground. And the Future. As Al puts it, “Not pretty.”
I have had many exchanges with various friends about Merrick Garland, concerned that he’s not investigating those who planned the insurrection. While I felt their frustration completely, my response has always been that we have absolutely no idea what Merrick Garland and the DOJ is doing. Zero. The DOJ, when properly run, simply does not announce anything what it’s doing. Nothing. And while there often are hints, there not have to be. And while there is an exception where the DOJ can announce what they’re doing, the Attorney General is under no obligation to use the exception. So, there is no basis to say that the Justice Department “is not doing anything.”
My assumption has long been that, of course, the DOJ is investigating those at the top who planned the insurrection, that it’s near-impossible to think they aren’t – but because the person at the very top is the former president of the United States, Merrick Garland knows that if and when he does bring any indictments against either Trump or anyone in the inner circle, he has to be able to have an airtight case and prove it beyond even a scintilla of doubt. Because I think most juries in the United States, while living up to their oath to be open-minded and fair, would rather not convict the President of the United States, whoever he may be, and would look to find the slightest crack that allows them not to. And so, it would be irresponsible of him to ignore that larger reality that he is dealing with the president and his administration. He has to be rock solid, in every sense of the word.
I could be wrong about that. But it’s my sense of the situation here. And as someone noted on social media noted before his speech yesterday, it’s who Merrick Garland always has been. The person wrote –
“This is your reminder that Merrick Garland’s investigation of Timothy McVeigh, Terry Nichols and the Unabomber had zero leaks before indictments,100% convictions and no turnovers on appeal. Sometimes you have to have a little faith in the process.”
There's another factor to keep in mind, as well. Though the insurrection took place a year ago, Merrick Garland hasn't had the DOJ investigation it for a year. He wasn't confirmed until March. And it took him several months get through the DOJ mess that Trump left and get his team in place. So, he's basically been investigating for about half a year.
So, I was tuned in to watch Merrick Garland’s speech yesterday that he gave to members of his Department of Justice.
I won’t get into the entirety of the speech, since there were passages that meant the most, by bar. And I’ll just quote single short one. While he didn’t say anything specific about the planners of the insurrection (nor did I expect him to), what he did say – and very bluntly – was:
“The actions we have taken so far will not be our last. The Justice Department remains committed to holding all January 6 perpetrators at any level accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead. How long will the investigation last? As long as it takes for justice to be done.”
From this and other very-detailed, specific things he said have been done in their investigation and arrests – giving numbers on things like 715 arrests so far, 150 guilty pleas going through 300,000 tips and watching massive hours of video footage, along with noting cooperation agreements that have allowed attorney to trace evidence -- and saying flat out that violence against the government is not acceptable and from his tone (and, to be clear, he said a great deal more than just all this), it seemed that he was making very clear that he is investigating Trump and everyone in his circle who helped plan January 6, and that no one should think for a moment he isn't.
The takeaway I got from his speech is that as disappointed as some or many will be by him not being more specific (and he even acknowledged that in his speech), it seemed definitive to me (and to the MSNBC analysts I watched afterwards) that he was saying they are investigating everyone. Including the White House. But that there is still more information to get, some of which is even encrypted which they’re working on to be able to read.
Among those analysts, former federal prosecutor Barbara McQuaid pointed out that though Merrick Garland was ostensibly just giving a speech to members of the Department of Justice, by laying out meticulously how the DOJ works, he wasn’t telling the DOJ there in the audience how the process works since they all know, but rather he was speaking directly to the American public. She said that he was saying to the public, “We start small and build from there, and we are following the evidence to the highest level.” And former FBI official Chuck Rosenberg said that Garland was saying to people, “We’re on it, be patient, it’s working. It was a good speech, and it was exactly what I expected from the Attorney General.”
And it was what I expected, as well. I wish he said more. I wish he was blunt and specific. I wish he even announced new indictments for some of those at the top in Trump’s inner circle. But I didn’t expect it.
But I think he said a lot, without using those words. It is frustrating. I wish there was much more. But he made clear that he was investigating everyone – everyone – who was “criminally responsible for the assault on our democracy.”
Not just responsible, but criminally responsible." Including that one word should not be overlooked.
The investigation will just, unfortunately, take time. “As long as it takes for justice to be done.”
Later in the day, I heard from one of my wary friends who asked what I thought about Rachel Maddow and Joy Reid's sour reaction to Merrick Garland's speech, that they were so concerned by Garland not mentioning other events involved in the attempted coup that weren't directly related to events on January 6. He rightly said it would be so shocking, so unthinkable that Garland would ignore all that.
What I replied was I think it’s understandable to question what’s being done by the DOJ, but not reasonable to think the Department of Justice is ignoring an attempt to overthrow the government. That it would indeed be shocking, unthinkable that he’d walk away from that. So, since it’s unthinkable, I don’t think that. I think that when Merrick Garland said “The Justice Department remains committed to holding all January 6 perpetrators at any level accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead” – he meant it. And he knows that saying “January 6” does not merely mean only what happened on January 6 any more than saying “Watergate” only means the break-in. I think the phrase “January 6” now stands for what we refer to as the attempted coup in its entirety. I could be wrong, but that’s what I think.
And the only reason I wasn’t surprised by Rachel Maddow and Joy Reid’s "sour reaction" is because that’s been their attitude from the beginning, so unless Merrick Garland said what they wanted to hear – which wasn’t going to happen – they’d be sour. But I was bothered by their reaction. Especially because neither had the kind of guests on who were objective enough to properly analyze his speech. Rachel Maddow had Dan Goldman who I like but was on record having written a wary column beforehand (though last night said that while he couldn’t tell what Garland was investigating, it was a better speech than he expected and was hopeful) and Chuck Schumer. That’s it. And Joy Reid had two guests, as well: Elie Mystal, who has been repeatedly calling for the Trump Administration to be arrested and convicted for the past year, relentlessly outraged that they haven’t yet been, and also Al Franken. Mystal said what he always says – but Franken responded, “I disagree with you, Joy.” She sort of mumbled a reply and then quickly said, “Well, let’s look at this other part of his speech.” As I noted, earlier in the day right after the speech MSNBC had their team of legal analysts, and all were very supportive of the speech.
Again, I don’t know what the DOJ is doing. But no one does outside of the DOJ. But I think Merrick Garland gave a more pointed, blunt speech than people expected, considering how historically tight-lipped he is. And while it’s absolutely possible his investigation is limited in scope – I too think it would be shocking and unthinkable that he’d walk away from investigating the fullness of those he called “criminally responsible” who he said were “at any level.”
Also, it's clear the House Select Committee is investigating all the events leading up to January 6, and will be holding public hearings and issuing at least two reports on their findings. So, especially given what we already know they have, it would be...well, shocking and unthinkable for the Justice Department to not act once that is all very public. Especially since I'm sure they have all or most of the same information the the Select Committee has -- either from their own investigations or from it being shared with them by the committee.
And so, I think they are investigating. Certainly, I hope I'm right. Those are the reasons I think I am.
Today’s BobTheory about the Department of Justice.
I’m sure that the DOJ is investigating January 6. Since they investigate possible crimes as a basic part of their job, it’s hard to imagine them not, at the very least, looking into events about overthrowing the government. However, the Justice Department doesn’t talk publicly about ongoing investigations, and so it seems like they’re doing nothing.
I think, too, that the DOJ has almost as much information about January 6 as does the House Select Committee. Less in some areas, more in others. After all, given that investigating is what they do, and have been doing it much, much longer than the House Select Committee has, it only makes sense that they’d have collected a great deal.
I also wouldn’t be surprised if the House Select Committee has been sharing some of its information with the DOJ. They’re on the same side, and the House Select Committee knows that they don’t have prosecutorial powers.
As much as so many people want the DOJ to announce indictments, the department has totally different standards how they operate compared to the House Select Committee. The committee is just putting together a report, and so it can release all its findings. The DOJ, on the other hand, will only announce indictments if it believes it has enough evidence to prove a case and convict. Just having a lot of evidence isn’t enough for them.
I think, too, that Attorney General Merrick Garland is deeply wary about bringing indictments in ways that appear to be like the Biden Administration is going after the Trump people. However, I believe he is extremely happy for there being a House Select Committee – indeed, I wouldn’t be surprised if, as House Select Committee’s case builds, he may even prefer to wait for them to hold their public hearings and release SO MUCH damning information that bringing indictments will not only not seem political (to most people), but inevitable. That there will be SO much damning evidence in public that much of the country will be clamoring for indictments, to the extent that people on all sides will be wondering when indictments will come. And it’s then when the DOJ can bring indictments without seeming as political as might be the case earlier.
Finally, I don’t have the slightest idea if I’m right about this. I not only hope I’m right, but I think my reasons support that. But – I don’t know. So much of this goes back to the concept that the DOJ doesn’t talk about what they’re doing. So – I don’t know.
But I think this theory is at least reasonable.
On this week’s Al Franken podcast, he has one of his favorite guests, dating back to his show on Air America Radio, Dahlia Lithwick, who (among other things) writes about the Supreme Court as Slate’s expert. As Al writes about the episode, “Lithwick brings her depth and breadth of knowledge, plus her wit.”
After it initially occurred, I only followed the Kyle Rittenhouse story from the edges. A lot of reasons, though mainly the basics seem fairly clear to me, and any details to argue over would come out at the trial. (Arguing with people over things that nobody has any way of knowing always strikes me as an effort in futility.) As for that basic story, it’s an underage teenager who crossed state lines with an AR-47 and shot and killed two people and wounded a third.
Were there extenuating circumstances? I don’t know, that’ll come out at the trial. I suppose there could be, but given that he crossed state lines with an AR-47 and shot and killed two people and wounded a third I would have to wait for the trial to hear a new definition of “extenuating.” Well, yes, there was a protest that got out of control and he apparently felt his life was in danger. Yet even granting that, he’s still the one who went to that protest, crossing state lines with an AR-47 and shot and killed two people and wounded a third. And me, I generally think that someone with an AR-47 tends to pose more of a threat to the lives of others than other people do, as long as they don’t have AR-47s, too. But again, I don’t know the conditions or what actually was said or done, and so that’s what trials are for.
So, now we’re at the trail. And honestly, I’ve only followed it tangentially, since at this point outside opinions don’t matter much, and it’s the verdict that matters most. To me, most public trials are a little like awards shows, where you can spend hours of your life watching people talking as they build up to an announcement – or wait until it’s over and spend a minute scrolling down a list to see who won. Sometimes it’s worth watching the awards show because there’s a lot of good entertainment you haven’t seen before, and that’s how I feel about occasionally paying attention to some trials as they go on.
Also, in this particular trial, since I’ve read the stories about all the things he won’t allow the prosecution to say – like, for instance, that the people who the nice young innocent-until-proven guilty whippersnapper shot and killed are “victims” and other restrictions that weren’t forbidden to the defense – it would be a waste of time trying to follow the proceedings as a matter of…well, y’know, law. (I do wonder if, instead of “victims,” the prosecution could have referred to the people killed as “corpses”?)
So, I didn’t even watch the live coverage yesterday when young master Rittenhouse took the stand in his own defense. I completely understand that he might possibly be found legally “not guilty” of murdering the two people he shot and killed with the AR-47 he crossed state lines with. But since he did, in fact, kill the non-victims, which isn’t in dispute – only why he did, and if it was okay under the law, though likely not to the non-victims – I wasn’t interested in hearing him explain why it was okay. That’s for the jury to decide under the law once all the arguments were made. And as I said, I wasn’t paying attention to all the arguments, on both sides. So, listening to him take the stand would be subjecting myself to hearing a kid who crossed state lines with an AR-47 and shot and killed two people who aren’t victims and wounded a third non-victim justifying why that’s okay. And again, maybe under the law it will be found “okay,” for any number of reasons, including “If there are no victims, how can someone be guilty?!”
Driving home from an appointment in the morning, I did hear a bit of the trial on the radio. Maybe two minutes of Kyle Rittenhouse at first trying to avoid answering the question asked until finally acknowledging, yes, he knows he has no right to kill someone for a range of public actions he didn’t like even if they were illegal. I also heard him say that he feared for his life because he’d been kicked – which I didn’t know, and I can see that being scary, but then if someone was coming at me with an AR-47, I’d probably be even more scared and might try kicking them, too. Or running for my life. Anyway, then the prosecutor tried to impeach the witness using evidence the judge had apparently not allowed, and the judge cleared the courtroom and began to read the prosecutor the riot act. It seemed to me that the prosecutor might have inappropriately crossed the line, though I understood his explanation why he thought it was fair to ask – even if it might not have been fair to ask. I thought they each made good arguments, but the judge’s vote count for a lot more. I did, however, think the judge misunderstood the meaning of the word “brazen” when he yelled at the soft-spoken prosecutor for quietly offering his own interpretation of why he acted as he did.
I listened to all that for about four minutes, but eventually the weirdness exceeded my limit for the day, and I changed channels.
And later in the day, when I saw TV coverage of the day in court, I kept the sound off, even when the teenager seemed to be scrunching his face and heaving in sadness. Though I can’t be sure since, as out of control as he appeared, he admirably controlled the release of any tears. To be very honest – because I didn’t hear him – I have absolutely no idea if that was real sadness or not. I heard a lot of cynics dismiss it as theater. And maybe it was. But I can see if even the most racist white supremacist child was on the stand under those same conditions then the weight of it all would get to even them as they struggled not to weep. So, I truly don’t know – without the context and sound. It had the touches of reality – though also had, to my limited knowledge, a greater force of theatricality. (Which in some ways returns us to the whole “awards show” theme.
The only thing from that exchange which I could definitely say is that even if the sadness was real, as much as I feel bad for anyone feeling distraught over the overwhelming circumstances they find themselves in, I feel profoundly more deep sorrow for those who were killed and shot.
I saw a comment last night that said -- "Kyle Rittenhouse claims he went to provide 'medical support' that he was not qualified to give, while holding a gun that he was not legally allowed to carry, in a state where he did not live. It doesn’t add up."
That seems a fair point.
Yes, I'd agree that it doesn't appear to add up. Though, as I said, I haven't followed the story closely or the trial. But then, to me, even acknowledging all those personal qualifiers, nothing seemed to add up after he crossed state lines with an AR-47 and shot and killed two people and wounded a third.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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