Government officials believe about 800 rioters entered the U.S. Capitol building on January 6. About 300 people have been charged and the government expects to charge at least 100 more, according to a recent filing. Is that good enough? Is that enough for deterrence? Ken White and Josh Barro talk about that, the timeline of evidence collection and charges, and the effort to bring a conspiracy case against the Oathkeepers.
Plus, Ken and Josh discuss Jane Mayer’s profile of Manhattan District Attorney Cyrus Vance in The New Yorker and the investigation timeline might match up with his remaining time in office, and more.
Read the full transcript below
Josh Barro: This is Josh Barro, host of KCRW's Left, Right & Center. You're listening to All The Presidents' Lawyers, the podcast about the legal problems of presidents and their associates. All presidents have legal problems, though some have more legal problems than others. My co-host is Ken White. Ken is a criminal defense attorney and former federal prosecutor and he writes the Popehat Report newsletter on Substack. Hello, Ken.
Ken White: Hello, Josh.
Josh Barro: So BuzzFeed News has an article out this week about how there are hundreds of people who rioted in the Capitol building on January 6, who may never be charged. And now I'd note this math is pretty back of the envelope. The government officials believe that there are about 800 people who illegally entered the Capitol building on January 6. They've charged more than 300 and they say they expect to charge at least 100 more. But of course, we don't know exactly how many people entered the building. We also don't know exactly how many more people are going to be identified, charged and found. Still, this seems like a reasonable assumption that there will be a substantial number of people who the government will not catch who were there.
But I guess my first question is: Isn't this a pretty good hit rate? It already looks like they're well on pace to charge more than half the people who entered the building. Most crimes never get charged, never get punished, and this seems like a ratio that should do a lot to deter crime. A lot of these rioters are behaving like they believed that there was 0% chance that they would ever be criminally charged for what they did that day. They were taking selfies and posting them to social media. And in fact, what their understanding is changed to be is that if you do this, there's a more than 50% chance that you're going to be facing criminal charges. It seems like that would deter unrest and quite possibly has already been deterring unrest.
Ken White: Yeah, I think it's quite a good hit rate and I find the BuzzFeed article a little mystifying. Particularly when you look at the quality of the investigation charges being brought, which you can see by reading the affidavits in support of the complaints against many of these people. They've got genuine evidence, whether it's videotape or admissions or interviews or eyewitness accounts. They have genuine evidence against these people and that really distinguishes it from what you often see in sort of mass arrest-type scenarios at protests and things like that, when huge numbers of people get swept up, when often people who were just in the same crowd as people doing bad things get swept up, and when the quality of the evidence against them is extremely suspect, you know, you really have one or two cops purporting to be able to identify dozens of people, all dressed similarly, as having done something or not done something. So I think that actually the quality of the cases here and the number is unusually strong and aggressive in terms of [the] government’s case.
Josh Barro: Should more people have been detained on the day of the riot? Only about three dozen people were actually arrested on January 6 for their activities on January 6, and one criticism that you hear is basically there are people who could have been caught then who got away and will now never be arrested. And I'm wondering: Would we, in fact, be seeing more prosecutions if there had been more detentions on that day? To your point, those arrests would have been done without the benefit of all the evidence that the subsequent arrests are getting, because people would have been picked up on the Capitol grounds, not on the basis of documentary evidence that they had posted on social media. But I guess the flip side of that is that if these people had been posting during their riot day in the Capitol, you could have arrested them then and then presumably, the government could have put together that evidentiary case beyond just the probable cause that caused them to be arrested in the first place, but actually would give them a strong position for the prosecution.
Ken White: Well, sure, I mean, in part, it's kind of an angels dancing on the head of a pain question, because it seems pretty clear that they did not have the people there they needed to do mass arrests. They did not have the troops online that would have been necessary to do such a thing. But had they had those people, the large-scale arrests might have solved the problem of some people getting away but they would not have solved the problem of how difficult it is to do a significant mass-arrest case on a federal level very quickly. They would have been very rushed to do probable cause statements to support charging people. A lot of people probably would have gotten released after being initially arrested. I guess they would have been identified, but it's unlikely they would have been charged at first, until they've been able to develop specific individualized evidence about them. And I'm not sure it would have made a big difference in who they ultimately decided to charge and go forward against. They're not publicizing exactly what rubric they're using to decide who gets charged, but they clearly have one and I think it has to do something with the quality of the evidence and the nature of what they're doing that they can prove. It appears that they deliberately may not be charging every single person simply for being part of the crowd that went into the Capitol building.
Josh Barro: Yeah, I'm wondering how much of the evidence that prosecutors are using now would never have existed if there had been mass arrests at the Capitol. I mean, "zip tie guy," for example, Eric Munchel, part of how he was identified and charged had to do with an interaction that he had at his hotel that evening after he was on the Capitol grounds, engaging in the activities that he did. Now, on the other hand, there was extensive photo evidence of what Munchel had been doing in the Capitol, so maybe if you had arrested him then, you would have uncovered that on social media, then you wouldn't have needed any of his subsequent statements. I guess, to your point, this is an academic question, because if you if the police had the presence that they would have needed on the Capitol grounds, in order to make all those arrests on January 6, they presumably would have also had the presence they needed to stop so many people from breaching the Capitol building in the first place.
Ken White: Well, exactly.
Josh Barro: Another thing that BuzzFeed story notes is that some people sought to destroy evidence. They had social media posts up and then they took those down after they saw that the people were getting arrested. I'm wondering about the extent to which that's likely to hamper these prosecutions. Now, obviously, sometimes when you try to delete something from the internet, it doesn't truly go away and we've seen that in some of these cases. The other thing is that even if you take down your own selfies from the riot, this was a crowded place where lots of people were posting to social media, and it's likely that you ended up in other people's pictures. But I'm sure all things being equal, the government would rather have all those posts than not have them. Is this a significant barrier to some of these prosecutions, do you think?
Ken White: I haven't seen an indication that it is and frankly, destroying evidence like that is frequently very useful consciousness of guilt evidence that you would use to help hit any of the intent requirements that are in the charges that you want to bring. It makes them look like they know they did something wrong and they're trying to conceal it. And as you said, often things we think are deleted can be put back together, items that we think we've destroyed, or, in one case, buried in the yard get found, and I really haven't seen an indication that that type of activity has really helped anyone escape charges that they might otherwise face.
Josh Barro: We also got a filing last Friday from the Department of Justice as the DOJ moves toward trying to bring a conspiracy case against members of the Oathkeepers, which is a right-wing extremist group, some of whose members were involved in these riots in the Capitol. The Washington Post goes into this and describes some of the difficulties the government will have in actually establishing what it needs for this conspiracy case. I assume that these conspiracy prosecutions are significantly more complicated and resource intensive than merely trying to prove that somebody illegally entered the Capitol, smashed a window, stole a lectern, that sort of thing?
Ken White: Well, sure, if you've got someone on video doing something, and that's pretty easy. But if you're trying to prove that somebody who wasn't present joined an agreement to do a particular illegal thing, and you're having to put that together by communications and inferences from things that happened, it does tend to be a lot more complicated. Although, frankly, the federal conspiracy statute is pretty straightforward. All you have to prove is that two or more people entered into an agreement to do a specific federal crime, and that somebody did at least one overt act towards that crime. So it's not that big of a lift, but it does get more complicated the further away you get from people who are actually on the scene doing things.
Josh Barro: This is an interesting policy question, though, right? One of the key objectives of all these prosecutions is to get people not to do this again. And so if you have people who are just sort of members of a crowd, who are angry about what they perceive to be this election having been stolen or they're loyal to Donald Trump or that sort of thing, merely showing that you're likely to be arrested and tried is probably good enough to deter a lot of those people from doing this sort of thing again. But when you have an organized group like the Oathkeepers, I mean, this has been an issue for the government for decades, right? How to deal with, you know, extremist and militia groups and stop them from engaging in violent anti-government activity, and so it seems like that bar in terms of what you need to do to deter that sort of activity would be significantly higher.
Ken White: It would, but on the other hand, I think you have to pay attention to the benefits that federal prosecution of some of the Oathkeepers gives the government in terms of intel. They're going to find out more about them, they're certainly going to flip some of them to find out more about the organization and how it works, and if they succeed in convicting them, then they're going to disable at least some of them, at least for a while, in terms of the impact of felony and being on supervised release and that type of thing. So I agree with you that dedicated people who are into the cause may not be as deterred. I think a lot of these people are not that dedicated and I think they are going to be deterred and the government's going to get a lot of useful information about how the Oathkeepers works.
Josh Barro: As [the government is] trying to build this conspiracy case and maybe, as you note, reach some people who were not physically present at the Capitol on the day of the riot, the government is seeking to delay the prosecutions [of some of the people who have already been charged who are associated with the Oathkeepers], and some of them are objecting to that. What do you make of those proceedings?
Ken White: It's not unusual. Federal prosecutions are governed by the Speedy Trial Act, which normally requires that your trial start within 70 days. However, there are a host of exceptions that can be brought to bear to allow the trial to go later than that. And that's why you see typically federal cases, particularly complex ones, not going to trial for a year or more. So the government is simply invoking some of those typical exceptions and asking the judge to apply them to justify a delay in the trial date. Often these are done by stipulation where the parties agree, sometimes one party or the other is asking for it and the other side objects and the judge makes the call. I think here that judges are going to tend to be keyed in to the fact that this is a historically unusual circumstance, that the volume of cases is vast and overwhelming, and that some of the Speedy Trial Act exceptions would seem to be applicable. So I suspect the judge is going to go ahead and give them what they want, which is some amount of delay.
Josh Barro: There are two rioters who have now been arrested for assaulting Officer Brian Sicknick, who died subsequent to the riot. They were arrested for assaulting him with bear spray, not for assaulting him with a fire extinguisher, as had initially been reported had happened to him. It's now not clear that he was ever assaulted with a fire extinguisher and indeed, we don't know yet exactly why Officer Sicknick died. How does the fact that he died affect the prosecution of these of these two people? Presumably even if the government can't show that they caused Officer Sicknick's death, I assume that you are in a worse position as a defendant if the police officer that you assaulted then subsequently died?
Ken White: Sure. So yes, they're not charged with anything that requires the government to prove that they caused his death. And in fact, it's likely that his death would be kept out of any trial precisely because they can't prove the causal link and it would be extremely inflammatory. However, what they may do is convict them of the assault, and then at sentencing, attempt to establish that he died as a result in order to get the maximum sentence out of it that they can. The sentencing guidelines with assaults and other violent crimes have provisions taking into account whether someone was seriously injured or died that can dramatically escalate the sentence up to the statutory maximum course. And so I think what the government may do if they can't prove it beyond a reasonable doubt to convict them, they may try to prove it at sentencing, which is a lower standard. But of course, we don't know yet even if the government thinks that they caused his death. As you pointed out, there's been so much false and misleading information about this whole situation, as is often the case about these events, and I think we have to wait to see what they're able to prove.
Josh Barro: Finally on the Capitol riots for this week: L. Brent Bozell IV has also been arrested for actions during the riot. He's the son of L. Brent Bozell III, who is a prominent conservative activist who has run the Media Research Center for a long time. One thing that was interesting to me about his arrest is that one thing he's been accused of doing is moving a camera in the Senate gallery so that he would point and face the ground of the balcony area instead of pointing into the Senate chamber, and so that meant that some people who might have been caught on camera doing things in the Senate chamber were not. I just find that interesting because so many people were in this building, broadcasting what they and their fellow rioters were up to on the day of the riot, and so it looks like … this was one rioter realizing, 'Hey, maybe it's better that this not end up on television.' And yet, he was also there wearing a sweatshirt from the school that his children attend so it doesn't look like even he had the presence of mind to try to keep himself anonymous … but I guess that's also evidence of consciousness of guilt?
Ken White: Very much so. Doing something with the camera is exactly what you do if you knew you were doing something wrong and that could get you into trouble. So that's going to be strong evidence that he knew he shouldn't be doing what he was doing. Yes, I understand the kids' private school is not appreciative and they've gotten a lot of comments. I tend to try to stick to just embarrassing my kids at parent-teacher conferences. This is a little out there in terms of doing things, but to each their own, I guess.
Josh Barro: Let's take a break and when we come back, we'll talk about Manhattan District Attorney Cyrus Vance and what he might be up to. You're listening to All The Presidents' Lawyers.
This is Josh Barro, and I'm back with attorney Ken White on All The Presidents' Lawyers. Last month, Manhattan District Attorney Cyrus Vance won his long-running legal battle to get access to the president's financial records from his accountants at Mazars LLP. And as we've noted on this show, people talk about this as Vance obtaining the president's tax returns, but it's actually considerably broader than that. It's likely that fans already had obtained the president's tax returns from government tax authorities but the records from an accounting firm would give him much more than just the final returns. It would give him drafts, it would give him communications between the accountants and their client. And that could be really important for establishing elements of certain tax crimes, because often you have to show not only that somebody failed to pay taxes that they ought to have, you have to show that they understood that what they were doing was illegal, and you might not be able to tell that just from the tax return itself.
Ken, there's this piece by Jane Mayer in the New Yorker that's really sort of pumping up the Vance investigation and basically saying ... it's really sped up in the last few weeks and he's really honing in on what the president and his companies might have done and they're looking at CFO Allen Weisselberg from the Trump Organization and maybe trying to flip him to get to the president. And I'm just wondering what you make of this story, because I found it … a little sensationalistic. Like, it opens up by speculating that the the hard drive that contains the financial records from Mazars LLP, that we don't know where it is, but people familiar with the office say it's probably in this chamber at the Lewis Lefkowitz state office building in downtown Manhattan, where it's protected by a double set of metal doors so that nobody could use radio frequencies to interfere with what's on the hard drive at all. It feels a little movie-like to me.
Ken White: Yeah, I was imagining after reading that passage Eric Trump, rappelling down from the ceiling like Tom Cruise in "Mission Impossible," trying to reach the hard drive to swipe it. Yeah, it is a little overdramatic. A lot of what's being dramatized here is fairly typical white collar investigation and certainly there's a lot of movement, but all that movement doesn't necessarily guarantee a destination that's going to be that interesting. Yes, they're doing a lot of interviews with our friend, Michael Cohen. Yes, they're clearly investigating some of the higher-up accounting people in the Trump Organization who might be ripe to be flipped and to give up interesting information. But these are things that investigators do and as we saw with Robert Mueller, it doesn't always wind up yielding anything that's actionable, that can be prosecuted. So while I think there's all this excitement out there that this is the guy who's gonna do it for us [and] who's going to charge Trump, I'm a little skeptical and I'm wondering whether or not it's also very plausible that this is just someone doing due diligence ... look, we're going to take our best look, our best shot, if there's anything there, we'll do it, and if we decide after our best shot, there's not, then we won't. That could very well be plausibly the story as well.
Josh Barro: One thing that Mayer says is that the investigative phase of this case will likely be complete before Vance leaves office. Vance will leave office at the end of this year. He's not seeking reelection. Is that something that we can really infer from the outside that they'll definitely reach a decision or that they're very likely to reach a decision about whether to prosecute within the next nine months?
Ken White: I would take it with a grain of salt. These things take a long time and it seems as if Vance's only really revved it up after Trump left office. Typical white collar investigations can take years, although here, I'm sure they're dealing with a lot of statute of limitations problems that are going to cause them to want to do things sooner rather than later. So then no, I would not assume it's going to be closed out within a year. Just as Robert Mueller's investigations took years, it would not surprise me to see this one take years.
Josh Barro: One thing we've talked about is that district attorneys generally move faster and are less cautious than US attorneys. Is the Manhattan DA a special case? Are they more like a federal prosecutorial office?
Ken White: They are somewhat more like a federal prosecutorial office and that's in part because of the attention that what they do tends to draw and their attitude. They have their run of bigger cases that sort of trained them to do things in a more federal way. So unlike, say, the DA in Georgia, where we've been talking about similar possibilities of prosecutions, I would expect the Manhattan DA to be a little on the slower side.
Josh Barro: One thing that Mayer reports, as we've seen in other places, that the Vance investigation, which started with the hush payments to Stormy Daniels and the Michael Cohen issue, has shifted to be a broader examination of Trump and his business's financial practices, and particularly whether they misrepresented the value of assets in the course of their business. And so the reason why this might matter is that if you mislead a bank or an insurance company or something about how much your assets are worth, they might give you business they otherwise would not. And so usually, I guess what you'd be trying to do here is show that people made different representations in different places about asset values and I assume you'd want to show that Donald Trump personally was aware that they were doing that and approved them doing that. And one thing I just wonder is: Can that even surmount the intent bar here? Because Donald Trump's relationship to the truth is so slim. Couldn't he claim that he meant it when he said the property value was low and he also meant that what he said the property value was high? That at the time that he made each of those statements, he believed them completely, and that that would make it difficult to prove that he knowingly made a false statement?
Ken White: Well, that would be a very Trump-like defense, and this is the guy who famously said in a deposition that his net worth really varied day-to-day based in part about how he felt about himself. So I think that it would be a defense they would use. Whether or not a jury would buy it or agree to apply it is another question. You can have a defense, that is absolutely correct under the law, but if a jury doesn't like it and doesn't want to apply it, you're out of luck. So I think that it's an unappealing defense in a way but on the other hand, I think it's a strong defense if they don't have any good evidence that goes specifically to him knowing that what was being done was wrong. So if they don't have a top person flipped who's gonna say, 'I explained to him that this would be untrue, and we shouldn't do it,' or if we don't have communications with him or anything like that and we're just asking the jury to infer that he must have known this is wrong, then I think it's a good defense.
Josh Barro: In terms of the question of the extent to which this investigation has gotten beefed up, CNBC reports that Vance has now sought his eighth interview with former Trump attorney Michael Cohen. People familiar told that to CNBC. First of all, I think we can assume that leaks about how central Michael Cohen is to this investigation are probably coming from the Michael Cohen side rather than from the Cy Vance side?
Ken White: I think that's true. He's got to have something to talk about on his podcast.
Josh Barro: Is that indicative of anything? If you keep going back to the same witness, I assume that's a sign that you have new and different questions to ask the witness, so maybe that means that your scope keeps expanding?
Ken White: Well, Michael Cohen is not somebody with whom you'd have a short conversation about Trump. He was very embedded in the Trump Organization for many years and knew a whole lot of detail, so a full debrief, particularly if they're asking him to look at documents and comment on them, very easily could take eight sessions. And you tend not to make it an all day session, you tend to break it up into smaller chunks because people get stupid after a few hours and stop making sense and stop telling the truth and stop remembering things. So it doesn't surprise me that much that someone who has had as much contact with Trump as Michael Cohen did might need to visit that many times. I mean, I've had clients who had far less important and detailed information and it took three or four times to get it all out of them. So it's not a big surprise.
Josh Barro: There have been a number of reports, including Jane Mayer's report in the New Yorker, that this investigation is increasingly focusing on Allen Weisselberg, the Trump Organization CFO, and also his two sons, one of whom runs Donald Trump's ice rink in Central Park and the other one works for a bank that has been a key lender to Donald Trump. As I noted, a lot of these [reports] discussed the implication that the prosecutors are trying to flip them in order to get information about Donald Trump. Is that a good assumption? Is it possible that Weisselberg is just directly a target of this investigation, rather than being someone they hope to flip?
Ken White: I think it's absolutely possible that it's all about Weisselberg and not about Trump. That's the thing about these wide-ranging investigations into organizations: They tend to generate new spin-offs and things that you didn't know about before. Some of the things that are being talked about here, like, you know, a son getting a Park Avenue apartment for free and things like that, are exactly the types of things that they would normally investigate. So it could be part of the broader Trump investigation and calculated to try to flip somebody, but it's equally plausible that it could just be his own stuff.
Josh Barro: I mean, it sort of reminds me of the investigations into S.A.C. Capital, the big hedge fund where a bunch of employees at various times ended up being prosecuted and sometimes convicted for insider trading, but they never got Steven Cohen. If you're the head of an organization where there are people who are engaging in illegal activity, they still need to show that you had some sort of personal knowledge of that, which I imagine, could be very challenging in a lot of circumstances.
Ken White: Particularly when you have people who don't email or don't write things down or are not recorded as often as you'd like, and you have to rely on people's characterizations of conversations.
Josh Barro: Donald Trump has two new lawyers who are dealing with this investigation: Alan Futerfas and Marc Mukasey. Obviously, the former president has cycled in and out of a lot of attorneys. Do you make anything out of these hirings?
Ken White: They're competent, they're experienced, they're the type of people you'd want to defend this type of thing, and they're both from smaller firms or boutique firms, which is notable simply because the president's having more problems getting big firms to be associated with him, given what happened during his crazy election litigation and the very bad publicity that got some firms, and his tendency to draw attorneys onto possibly criminal calls with secretaries of state and things like that. So I think he may be having to resort to people at boutique firms because the big firms are leery of it but I would actually say, speaking as someone from a boutique firm, that it's probably a good choice. They're going to be more nimble, they're going to be more independent. They don't have to worry about what they're doing, pissing off the other partners and they can play it (if they want to) more the way Trump wants to play it.
Josh Barro: Finally, Joyce White Vance has an op-ed in the Washington Post about the various civil cases that have been brought against the president and these run the gamut. You have [Congressman] Eric Swalwell's lawsuit, suing him for instigating the riot at the Capitol building. You have his niece, Mary Trump, suing him over a claim that he defrauded her out of some portion of her inheritance. You have the lawsuit that we haven't talked about in quite a while by four John and Jane Does accusing the Trump family of fraudulently, inducing them into a multi-level marketing scheme in which they lost money. And so she's basically saying that these [cases] are likely to do a lot to bring information to light — that you can take the Fifth Amendment in a civil case but that doesn't stop the case from moving against you so people are sometimes discouraged from that. It's also information. If we see that they take the fifth, there will be discovery in these cases from which information may become public. Prosecutors may also seek to delay some of these cases out of concern that they will interfere with criminal cases and that tells us something about what prosecutors are looking at criminally. Do you buy this broad thesis that this is going to be an avenue through which we learn a lot about the president and his troubles over the next … year, year and a half?
Ken White: I don't know about a lot, but I think we will learn things because civil discovery is very different than discovery in criminal cases. You're going to have a lot of very creative lawyers out there looking for ways to gather this information. You get to do depositions, which you don't get to do in criminal cases, and force people into decisions of whether or not they're going to take the fifth. You get to force them to answer questions or interrogatories and things like that. You get to kind of a quality and nature of evidence that you don't tend to in a criminal investigation, at least not publicly. That said, civil discovery is famous for how much of it is about obstructing answers and not answering and fighting not to answer, and that's certainly been Trump's legal strategy on everything else and I assume it will continue to be. ... I think he's going to have less success in that than he did before when he was president. The same issues don't apply and ... judges in civil cases are less prone to put up with that type of delay and skullduggery. So yeah, I don't know if you're gonna find a whole bunch of smoking guns, but I think we'll get some decent information out of it, but it's gonna be a fight getting every piece.
Josh Barro: One thing she says specifically about the Mary Trump case is that it could bring a full-on inquiry into the Trump family finances. Obviously, we've been focused on these investigations by the New York attorney general, by the Manhattan district attorney. This could be another way that a bunch of information about the Trump family's financial practices comes to light. Now, my recollection when we talked about this case some while ago is that you thought it was not likely to get to that stage, that basically when you enter into an agreement of the sort that Mary Trump did with her relatives about the terms of her inheritance, typically you have some clause in the agreement that basically says, you know, everything I have relied on in this agreement is contained within the agreement, and that makes it very difficult to go back later and say, 'Well, there was this other information that I did not have that I would not have entered into this agreement if I had known.'
Ken White: Yes, it's called the integration clause, Josh, and basically its purpose is to say, 'I'm in this and I'm taking the risk of this deal, and I'm not relying on anything else and I'm not going to come back later and say, Oh, you didn't tell me this, you didn't tell me that.' And it's designed to stop buyer's remorse, basically, for everyone who ever decided down the road they didn't like a settlement from going back and suing over it, claiming it was fraudulently induced. So that's a barrier. It's not an insurmountable barrier but depending on how well the settlement was drafted and the exact nature of her claims, it may be a very hard barrier for her to overcome if she basically accepted things as they were at the time and in fact gave up the ability to make this argument.
Josh Barro: There is much more that we could talk about, but I think that's a good place to leave it this week. Ken White, thank you so much for speaking with me,
Ken White: Josh, thanks a lot.
Josh Barro: If you have questions, please send them to us. You can find us on Twitter @LRCKCRW. You can also leave us voicemail at 424-538-8888. All The Presidents' Lawyers is produced by Sara Fay and recorded and mixed by Kat Yore. Todd M. Simon composed our theme music. I'm Josh Barro. Thank you for joining us and Ken and I will be back next week with more All The Presidents' Lawyers.