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Lawyers to argue Trump Capitol attack records
case in appeals court
Lawyers for
former president Donald Trump are heading to a federal appeals court today to
attempt once again to stop Congress from receiving call logs, drafts of
speeches and other documents related to the 6 January attack on the US Capitol
that was led by a pro-Trump mob.
A federal
judge had previously rejected Trump’s claim that he could exert executive
privilege, which Joe Biden had waived, allowing the National Archives and
Records Administration to turn over the records.
Judge Tanya
Chutkan rejected Trump’s claims that he could exert executive privilege
overriding Biden, saying, “Presidents are not kings, and Plaintiff is not
president.”
This comes
as the Guardian reports that hours before the attack, Trump made several calls
from the White House to top lieutenants at the Willard hotel to discuss ways to
stop the certification of Joe Biden’s election win from taking place.
Trump called aides hours before Capitol riot to
discuss how to stop Biden victory
Trump on the afternoon of 6 January. Multiple sources
described Trump’s involvement in the effort to subvert the election result.
Sources tell Guardian Trump pressed lieutenants at
Willard hotel in Washington about ways to delay certification of election
result
Hugo Lowell
in Washington
Tue 30 Nov
2021 13.36 GMT
https://www.theguardian.com/us-news/2021/nov/30/donald-trump-called-top-aides-capitol-riot-biden
Hours
before the deadly attack on the US Capitol this year, Donald Trump made several
calls from the White House to top lieutenants at the Willard hotel in
Washington and talked about ways to stop the certification of Joe Biden’s
election win from taking place on 6 January.
The former
president first told the lieutenants his vice-president, Mike Pence, was
reluctant to go along with the plan to commandeer his largely ceremonial role
at the joint session of Congress in a way that would allow Trump to retain the
presidency for a second term.
But as
Trump relayed to them the situation with Pence, he pressed his lieutenants
about how to stop Biden’s certification from taking place on 6 January, and
delay the certification process to get alternate slates of electors for Trump
sent to Congress.
The former
president’s remarks came as part of strategy discussions he had from the White
House with the lieutenants at the Willard – a team led by Trump lawyers Rudy
Giuliani, John Eastman, Boris Epshteyn and Trump strategist Steve Bannon –
about delaying the certification.
Multiple
sources, speaking to the Guardian on the condition of anonymity, described
Trump’s involvement in the effort to subvert the results of the 2020 election.
Trump’s
remarks reveal a direct line from the White House and the command center at the
Willard. The conversations also show Trump’s thoughts appear to be in line with
the motivations of the pro-Trump mob that carried out the Capitol attack and
halted Biden’s certification, until it was later ratified by Congress.
The former
president’s call to the Willard hotel about stopping Biden’s certification is
increasingly a central focus of the House select committee’s investigation into
the Capitol attack, as it raises the specter of a possible connection between
Trump and the insurrection.
Several Trump
lawyers at the Willard that night deny Trump sought to stop the certification
of Biden’s election win. They say they only considered delaying Biden’s
certification at the request of state legislators because of voter fraud.
The former
president made several calls to the lieutenants at the Willard the night before
6 January. He phoned the lawyers and the non-lawyers separately, as Giuliani
did not want non-lawyers to participate on legal calls and jeopardise
attorney-client privilege.
Trump’s
call to the lieutenants came a day after Eastman, a late addition to the Trump
legal team, outlined at a 4 January meeting at the White House how he thought
Pence could usurp his role in order to stop Biden’s certification from
happening at the joint session.
At the
meeting, which was held in the Oval Office and attended by Trump, Pence,
Pence’s chief of staff, Marc Short, and his legal counsel, Greg Jacob, Eastman
presented a memo that detailed how Pence could insert himself into the
certification and delay the process.
The memo
outlined several ways for Pence to commandeer his role at the joint session,
including throwing the election to the House, or adjourning the session to give
states time to send slates of electors for Trump on the basis of election fraud
– Eastman’s preference.
The then
acting attorney general, Jeff Rosen, and his predecessor, Bill Barr, who had
both been appointed by Trump, had already determined there was no evidence of
fraud sufficient to change the outcome of the 2020 election.
Eastman
told the Guardian last month that the memo only presented scenarios and was not
intended as advice. “The advice I gave the vice-president very explicitly was
that I did not think he had the authority simply to declare which electors to
count,” Eastman said.
Trump
seized on the memo – first reported by Washington Post journalists Bob Woodward
and Robert Costa in their book Peril – and pushed Pence to adopt the schemes,
which some of the other lieutenants at the Willard later told Trump were
legitimate ways to flip the election.
But Pence
resisted Trump’s entreaties, and told him in the Oval Office the next day that
Trump should count him out of whatever plans he had to subvert the results of
the 2020 election at the joint session, because he did not intend to take part.
Trump was
furious at Pence for refusing to do him a final favor when, in the critical
moment underpinning the effort to reinstall Trump as president, he phoned
lieutenants at the Willard sometime between the late evening on 5 January and
the early hours of 6 January.
From the
White House, Trump made several calls to lieutenants, including Giuliani,
Eastman, Epshteyn and Bannon, who were huddled in suites complete with espresso
machines and Cokes in a mini-fridge in the north-west corner of the hotel.
On the
calls, the former president first recounted what had transpired in the Oval
Office meeting with Pence, informing Bannon and the lawyers at the Willard that
his vice-president appeared ready to abandon him at the joint session in
several hours’ time.
The former
president is said to have enjoyed watching the insurrection unfold from the
dining room
“He’s
arrogant,” Trump, for instance, told Bannon of Pence – his own way of
communicating that Pence was unlikely to play ball – in an exchange reported in
Peril and confirmed by the Guardian.
But on at
least one of those calls, Trump also sought from the lawyers at the Willard
ways to stop the joint session to ensure Biden would not be certified as
president on 6 January, as part of a wider discussion about buying time to get
states to send Trump electors.
The
fallback that Trump and his lieutenants appeared to settle on was to cajole
Republican members of Congress to raise enough objections so that even without
Pence adjourning the joint session, the certification process would be delayed
for states to send Trump slates.
It was not
clear whether Trump discussed on the call about the prospect of stopping
Biden’s certification by any means if Pence refused to insert himself into the
process, but the former president is said to have enjoyed watching the
insurrection unfold from the dining room.
But the
fact that Trump considered ways to stop the joint session may help to explain
why he was so reluctant to call off the rioters and why the Republican senator
Ben Sasse told the conservative talkshow host Hugh Hewitt that he heard Trump
seemed “delighted” about the attack.
The lead
Trump lawyer at the Willard, Giuliani, appearing to follow that fallback plan,
called at least one Republican senator later that same evening, asking him to
help keep Congress adjourned and stall the joint session beyond 6 January.
In a
voicemail recorded at about 7pm on 6 January, and reported by the Dispatch,
Giuliani implored the Republican senator Tommy Tuberville to object to 10
states Biden won once Congress reconvened at 8pm, a process that would have
concluded 15 hours later, close to 7 January.
“The only
strategy we can follow is to object to numerous states and raise issues so that
we get ourselves into tomorrow – ideally until the end of tomorrow,” Giuliani
said.
Liz
Harrington, a spokesperson for Trump, disputed the account of Trump’s call
after publication. “This is totally false,” Harrington said, without giving
specifics. Giuliani did not respond to a request for comment. Eastman, Epshteyn
and Bannon declined to comment.
Trump made
several calls the day before the Capitol attack from both the White House
residence, his preferred place to work, as well as the West Wing, but it was
not certain from which location he phoned his top lieutenants at the Willard.
The White
House residence and its Yellow Oval Room – a Trump favorite – is significant
since communications there, including from a desk phone, are not automatically
memorialized in records sent to the National Archives after the end of an
administration.
But even if
Trump called his lieutenants from the West Wing, the select committee may not
be able to fully uncover the extent of his involvement in the events of 6
January, unless House investigators secure testimony from individuals with
knowledge of the calls.
That
difficulty arises since calls from the White House are not necessarily
recorded, and call detail records that the select committee is suing to pry
free from the National Archives over Trump’s objections about executive
privilege, only show the destination of the calls.
House
select committee investigators this month opened a new line of inquiry into
activities at the Willard hotel, just across the street from the White House,
issuing subpoenas to Eastman and the former New York police commissioner
Bernard Kerik, an assistant to Giuliani.
The
chairman of the select committee, Bennie Thompson, said in a statement that the
panel was pursuing the Trump officials at the Willard to uncover “every detail
about their efforts to overturn the election, including who they were talking
to in the White House and in Congress”.
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