Jan. 6 hearings: Day 7 examined Proud Boys, Oath Keepers efforts

At the last hearing, Cheney made waves by revealing that Trump World had been engaging in a suspect — and potentially criminal — practice: witness intimidation and/or tampering. One example she cited involved  reminding a witness that an unnamed person was “thinking about” them on the eve of their deposition and knew they would do what it took to stay within “the good graces” of Trump World.

And after we picked our jaws up from the floor, I and many other lawyers and legal journalists reflected that if true,  the examples Cheney provided could constitute a violation of 18 USC 1512(c), which can carry a penalty of up to 20 years in prison.

There has also been recent reporting, including from “The Rachel Maddow Show” and our blog about the Trump campaign paying for the legal fees of various Jan. 6 committee witnesses and how those payments could themselves constitute potential wrongdoing by the former president and his allies.

But as unsubtle as those overtures — at least some of which were directed to Cassidy Hutchinson — were, they don’t hold a candle to Cheney’s announcement today:

"After our last hearing, President Trump tried to call a witness in our investigation, a witness you have not yet seen in these hearings. That person declined to answer or respond to president trump’s call and instead alerted their lawyer to the call. Their lawyer alerted us, and this committee has supplied that information to the Department of Justice."

As Jessica Levinson and I have discussed, whether or not the committee having “supplied that information to the Department of Justice” constitutes an official criminal referral is unimportant. What matters is that Trump World’s campaign to influence witnesses only seems to be escalating — and now, the DOJ knows it. And if they have the will to further investigate these efforts, Merrick Garland and his deputy, Lisa Monaco, certainly know how.

One particularly powerful piece of testimony came from Stephen Ayres, who has pleaded guilty to disorderly conduct for breaching the Capitol on Jan. 6. He described himself as a “family man” and was not a committed militant or professional activist. He expressed regret for joining the mob and entering the Capitol, which eventually resulted in him losing his job and having to sell his house.

“It definitely changed my life, not for the good,” he testified.

Ayres said he’s skeptical that the election was stolen, since it would be difficult to keep such a conspiracy a secret, and because all the lawsuits alleging fraud never panned out. But in the run-up to Jan. 6, he was convinced — and enraged — that the election had been stolen, in large part because of Trump’s disinformation campaign and the right-wing social media environment he was immersed in. 

“It makes me mad because I was hanging on every word he was saying,” he said.

Ayres said that he felt as if he had “horse blinders on” when he was following Trump, and that it’s important to “step back and see what’s going on, before it’s too late.”

In contrast to most the testimony we’ve seen, Ayres provided a kind of everyman perspective on the events of that day — someone who wasn’t necessarily deeply committed to Trump’s authoritarian bid for power as much as he was truly convinced that the elected had been rigged and was inspired to take spontaneous action to counteract that. While Ayres’ apparently spontaneous involvement doesn’t absolve him of responsibility for his misconduct, his reflections humanized and shed light on how Trump abused his own base. 

Former Oath Keeper Jason Van Tatenhove knows what he’s talking about. And he says he “fears for the next election cycle.” 

Van Tatenhove was on the ground in previous militia-involved stand-offs, like the one at the Bundy Ranch, where Oath Keepers supported groups in armed confrontations against federal agents. And he believes America was “exceedingly lucky” that there wasn’t even more violence on Jan. 6.

Van Tatenhove had been previously asked by Oath Keepers leader Stewart Rhodes to create a deck of playing cards like those used by the U.S. military featuring wanted international terrorist group leaders. Van Tatenhove testified that if Trump is “elected again,” we’ll have “a president willing to whip up a civil war.” 

Listen to what this witness is saying: The Oath Keepers are a “dangerous” paramilitary militia. Listen, too, when he tells you what can happen if the former president becomes president again.

Maybe. All evidence indicates that Trump fully knew and understood that there was no basis for his claims that the election was stolen and knew and understood that he was ginning up an angry mob of conspiracy theorists to storm the election and try to overturn the election.  

Trump explicitly and implicitly told far right militia groups, the Proud Boys and the Oath Keepers, that they must do something to “stop the steal” of the election. 

The group of people who stormed the Capitol were sent there by Trump. Jason Van Tatenhove, a former spokesperson for the Oath Keepers, testified that we were essentially on the brink of a civil war. Capitol rioter Stephen Ayers testified that if Trump had told them to leave, they would have. Meaning Trump sent them there and could have sent them away. 

Let’s look at one of the applicable federal criminal code provisions. The law provides that “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 

The ball is now in Attorney General Merrick Garland’s court. 

Since last week, reporting on former White House Counsel Pat Cipollone’s closed-door testimony to the Jan. 6 committee has emphasized that no topics were per se off limits. Instead, Cipollone invoked privilege to protect his “direct conversations” with Trump.

In light of that context, Cipollone’s testimony about Trump’s Jan. 4 meeting with law professor and pro-Trump lawyer John Eastman; former Vice President Mike Pence; Pence’s counsel, Greg Jacob; and Pence’s chief of staff, Marc Short, is especially notable. Cipollone acknowledged he walked to that meeting and went “to the Oval Office with the idea of attending the meeting but ultimately did not attend.” But when pressed as to why, Cipollone said only, “The reasons are privileged.”

Had Cipollone simply decided on his own volition not to stay, there would be no basis to assert any privilege. Nor would he likely have any grounds to claim privilege based on conversations with other White House personnel, especially given that Jason Miller, who was not a White House aide at that time, has previously testified that Cipollone conveyed to Miller that he thought Eastman’s theories were wacky. 

Instead, it appears that Trump himself shut the White House counsel out of a meeting where most presidents would want the most qualified, thoughtful lawyers to advise them: a high-stakes debate over the constitutional duties of the vice president. Exactly why Trump did that is murky, but the optics of his removing Cipollone, elevating Eastman, and attempting to coerce Pence are clear — and terrible.

As Michael notes below, Trump’s officials and rally organizers knew that he was going to call for a march to the U.S. Capitol from the Ellipse — but decided to make it appear as a spontaneous decision to the public. And the committee has documented a remarkable paper trail proving it. A draft tweet from Trump himself — which was never sent — also indicated that this was the plan. But it wasn’t supposed to be a widely shared one. 

A Jan. 4 text message from a rally organizer to MyPillow CEO Mike Lindell told him confidentially that “POTUS is going to just call for it [the march] unexpectedly.” The organizer warned that if information got out about the march, “I will be in trouble with the National Park Service and all the agencies” and that they also wanted to keep the march secret because of an unspecified concern that “people” will “sabotage” the march plan. 

Trump’s decision to leave a public announcement until the last second is notable for a couple of reasons. It suggests a level of awareness or concern by Trump and his allies that the march might violate agreed-upon rules for demonstrating and/or change the way that security was arranged that day in and around the Capitol. Moreover, it’s possible that Trump and allies felt that that organizers could downplay culpability for a march that got out of hand by falsely claiming it was an entirely spontaneous enterprise.

In the wake of Jan. 6, there was a recurrent notion that the violence that engulfed the Capitol that day was a spontaneous outpouring. But today’s Jan. 6 committee hearing tells a very different story — that Trump’s supporters not only expected violence but embraced it. More important, today’s testimony showed Trump and those around him not only expected violence to occur — and were actively encouraging it.

In particular, Trump backers like Steve Bannon (who is about to go on trial for refusing to testify before Congress) predicted violence on his podcast — and did so soon after speaking with the president. Ali Alexander, who had close contact with Roger Stone and others close to Trump, texted that Trump was supposed to order supporters to the Capitol, noting “We shall see.”  The night before, at a rally on the evening of Jan. 5 not far from the White House, Alexander told a crowd of Trump supporters, “1776 is always an option. These degenerates in the deep state are going to give us what we want or we are going to shut it down.” Similar violent rhetoric was voiced by Stone, Alex Jones, and Mike Flynn. Those around Trump, who could hear the rally from the White House, said he was in “a very good mood” listening to what those at the rally were saying.

Katrina Pierson, a long-time Trump supporter and one of this most extreme and obstinate supporters, reached out to chief of staff Mark Meadows concerned that Jan. 6 would descend into violence. 

Even an anonymous Twitter employee testified to the committee that on Jan. 5 “when people are shooting each other tomorrow, I will try to rest in the knowledge that I tried.” 

The violence that took place was all part of the plan.

Stephen Ayres, who has pleaded guilty to charges in connection with the Jan. 6 attack, testified that he was simply following Trump's orders when he stormed the Capitol. He said he believed Trump when the president claimed the election was stolen, and that such claims made him "very upset."

Ayres' testimony showed the monumental influence Trump's social media presence has had on his supporters. He said he was "pretty hardcore" into Trump's online presence and that he hung "on every word" the president said and posted.

And the testimony highlighted the power of Trump's silence. The president didn't tweet that his supporters should leave the Capitol until hours after it was breached. Ayres testified that he would have left earlier if Trump had told them to do so.

When asked if he still believes the election was stolen, Ayres said, "not so much."

"I deleted social media," he added. "I started doing my own research."