A Coup By Any Other Name Still Smells Rotten To The Core
INSIDE: Jack Smith ... Donald Trump ... Kenneth Chesebro
This is a special edition of TPM’s Morning Memo: We’re all about Trump’s indictment for attempted couping.
You Lost, Motherf***er
The cruelest blow to Donald Trump in the Jan. 6 indictment comes in paragraph 1: “The Defendant lost the 2020 presidential election.”
It’s the singular predicate fact upon which everything else rests, and it was refreshing to see it stated with clarity and simplicity.
Even though it’s a talking indictment chock full of new details with a story to tell, it remains lean, restrained, well structured, and easy to understand. Partly that’s due to singling out Trump as the sole defendant. The charges are one count each of:
Conspiracy to Defraud the United States (18 U.S.C. § 371)
Conspiracy to Obstruct an Official Proceeding (18 U.S.C. § 1512(k))
Obstruction of, and Attempt to Obstruct, an Official Proceeding (18 U.S.C. §§ 1512(c)(2), 2)
Conspiracy Against Rights (18 U.S.C. § 241)
The six unnamed co-conspirators – none of whom have been indicted, as far as we know – are relatively easy to identify, with one exception:
Co-conspirator 1: Rudy Giuliani
Co-conspirator 2: John Eastman
Co-conspirator 3: Sidney Powell
Co-conspirator 4: Jeffrey Clark
Co-conspirator 5: Kenneth Chesebro
Co-conspirator 6: TBD
We have a pretty good idea who co-conspirator 6 is, and I would expect that to be reportable later today.
Where’s Mark Meadows?
Mark Meadows is not identified in the indictment as a co-conspirator, even though he appears multiple times in the indictment at the center of the coup plot. For those playing the ‘Is Mark Meadows cooperating or not?’ game, this is pretty strong evidence that Meadows has been cooperating with Special Counsel Jack Smith. It’s not definitive proof, but it’s strongly suggestive.
Are Any Of The Co-Conspirators Cooperating?
We can’t rule out that the unnamed co-conspirators are either cooperating or … at the the other end of the spectrum … have already been indicted under seal. But I would lean against either of those scenarios, given the structure of the indictment and the story it tells.
The more likely scenario is that some or all of them will be indicted separately from Trump, so that the focus in Trump’s trial remains on him and his actions. That approach also has the advantage of speeding up the proceedings against Trump, a significant consideration when time is of the essence.
What’s New In The Indictment?
If you followed the Jan. 6 committee’s work and have kept up with the reporting on the contours of Jack Smith’s Jan. 6 probe, then the indictment doesn’t change your understanding of the broad outlines of the scheme. Not surprising, in a way. So much of the coup attempt played out in public right before our eyes. We know what happened.
Still, Smith has some details, bits of evidence, and scenes that are new. A sampling:
TPM’s Josh Kovensky runs through 10 new juicy tidbits from the indictment.
Mike Pence kept contemporaneous notes?!?
TPM’s running live blog of the indictment.
The Quote Of The Indictment
A version of this quote (or a similar one) first appeared in a Washington Post story a month ago attributed to Jason Miller. It was high quality enough to merit inclusion in the indictment, though the “Senior Campaign Advisor” remains unnamed (emphasis mine):
When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.
–Senior advisor to the Trump 2020 campaign
The Big Chesebro
Co-conspirator 5 plays a very active alleged role in the conspiracy outlined by Special Counsel Jack Smith. While unnamed, all the identifying details point to attorney Kenneth Chesebro.
Pardon my pride, but TPM’s Josh Kovensky remains the only reporter – as far as I know – with whom Chesebro has spoken at length and on the record since Jan. 6. You can read that June 2022 profile here.
Last night, Josh compared his interviews with Chesebro to what the indictment alleges against him.
The Weird Role Of The White House Counsel
Books will be written on the extraordinary role and odd position that the White House counsel’s office found itself in during the Trump presidency, but none more awkward than when the occupant of the White House was directing a coup attempt. A few standout examples from the indictment:
Deputy White House counsel to Trump in December 2020: “[T]here is no world, there is no option in which you do not leave the White House [o]n January 20th.” The deputy White House counsel is not named in the indictment but at the time it was Patrick Philbin.
On the evening of Jan. 6, 2021, “the White House Counsel called [Trump] to ask him to withdraw any objections and allow the certification. [Trump] refused.” The White House counsel is not named in the indictment but at the time it was Pat Cipollone.
Trump “deliberately excluded his White House Counsel from the [Jan. 4] meeting because the White House Counsel previously had pushed back on [Trump’s] false claims of election fraud.”
The indictment makes it much more clear than it had been for me why Cipollone and Philbin declined to defend Trump at his second impeachment (unlike the first impeachment, where they did defend him). They had tried to stop his couping, they were fact witnesses to his couping, and they were too deeply compromised to represent him against the charges of couping.
Jeff Clark Allegedly Said The Quiet Part Out Loud
We’ll be coming back to this in the days and weeks ahead, but let’s mark it now so we don’t forget: We knew that the couping continued late into the evening of Jan. 6, even after the riot at the Capitol and been brought under control and Congress reconvened to complete the certification of the Electoral College vote. But the indictment puts more meat on that bone, and it is striking how much clearer it is now that the violence had created the exact kind of disruption that the coup plotters wanted to help delay the certification and buy them time to create more doubt in the minds of members of Congress so that the whole “mess” they created could get kicked back to state legislatures in key swing states. Stick a pin in this.
The judge randomly selected to oversee the Trump case is U.S. District Judge Tanya S. Chutkan, a Black woman appointed by President Obama who spent much of her career as a public defender but has a reputation for handing out stiffer-than-average sentences to Jan. 6 defendants. (Credit to the writers room for this redolent plot twist.)
The most notable of Chutkan’s contributions to the Jan. 6 accountability project was a 2021 decision against Trump who was trying to block the Jan. 6 committee from accessing his White House records. In ruling that Trump had no authority to overrule President Biden’s decision to waive executive privilege and turn over the materials to Congress, Chutkan memorably wrote: “Presidents are not kings, and Plaintiff is not President.”
How It All Came Down
A quick ticktock on the chain of event’s late yesterday afternoon:
4:41 p.m. ET: In a post on his own Truth Social, Trump says, “I hear that Deranged Jack Smith, in order to interfere with the Presidential Election of 2024, will be putting out yet another Fake Indictment of your favorite President, me, at 5:00 P.M.”
4:52 p.m. ET: A knowledgable reporter suggests news media had heard about a 5 p.m. ET press conference scheduled at Main Justice and called Trump World about it, leading to Trump’s post.
5:14 p.m. ET: A sealed indictment of an unnamed individual is presented to the magistrate judge in DC federal court by assistant U.S. Attorney Molly Gaston, who is affiliated with Jack Smith’s Jan. 6 investigation. “The grand jury foreperson connected to the Jan. 6 grand jury was in court when it was handed up,” noted Anna Bower, one of many reporters in the courtroom at the time.
5:30 p.m. ET: Prosecutors asked the court to keep the indictment sealed until 5:30 p.m. ET primarily for security and public safety reasons. Shortly thereafter, the Trump indictment was unsealed and available publicly online.
6:13 p.m. ET: Jack Smith makes brief remarks at Main Justice. He takes no questions:
Trump has been summoned to appear Thursday, Aug. 3 at 4 p.m. ET in federal court in DC for arraignment on his latest indictment.
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