Published by The Lawfare Institute
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The first thing that struck me in reading the executive summary of the Jan. 6 select committee’s final report last month was footnote number 50. The text it supports in the main document is the following bald statement: “As the Committee’s hearings demonstrated, President Trump made a series of statements to White House staff and others during this time period indicating his understanding that he had lost” the 2020 election.
But wait a minute, I thought as I read this. I don’t recall from the hearings Trump’s making statements indicating that he acknowledged privately that he had lost. He had seemed to me, rather, quite delusionally confident of the fraud he was alleging. Willful blindness, definitely, but actual knowledge that he had lost? I didn’t remember that.
Yet there, in footnote 50, were four different references to transcripts that the committee claimed supported the sentence:
See, e.g., Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of General Mark A. Milley (Nov. 17, 2021), p. 121; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Alyssa Farah Griffin, (April 15, 2022), p. 62; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Sep. 14, 2022), p. 113; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Kellyanne Conway, (November 28, 2022), pp. 79-84.
One of them, with Kellyanne Conway, was even recent—having taken place after the hearings this summer.
I couldn’t look up the transcripts at the time because neither the full report nor the underlying material was available publicly yet. But in the weeks since, the committee has released both.
The release of the full report reveals that this remarkable claim exists only in the executive summary. The committee does not allege in the report itself that Trump acknowledged his loss in repeated conversations to staff. The underlying material, meanwhile, allows us to check up on this arresting statement allegedly made by President Trump.
So did he really admit privately he had lost? The answer, as I’ll explain, is yes-ish. But the evidence isn’t all that strong, which explains why the committee did not focus on this in its hearings or in the body of the report itself. Only one of the transcripts cited clearly supports the claim. Two sort of do, but it’s a matter of interpretation. And one—at least in my view—really does not.
It is a very rare thing for a government body to show its work to the extent the Jan. 6 committee has done in its final report.
The select committee did not just release a narrative report. It also released a huge trove of material that underlies that report. That trove includes hundreds of deposition and interview transcripts and also untold numbers of documents. The notes also navigate the reader through a giant public record, consisting of court filings, newspaper articles, public statements, and, yes, a great many tweets. It’s hundreds of thousands of pages all told.
Normally, notes in an investigative report point to interviews the reader can’t access. They point to grand jury transcripts, internal memoranda of interviews, or other materials the reader cannot simply click on and search.
But the committee here has given not just its interpretation of events and not just the raw material from which it drew its judgments, but also thousands of connections between the two. Those connections are the report’s endnotes.
It’s a powerful model for future investigative bodies, one that allows anyone to check up on the committee’s interpretation of its evidence and one that offers pointers to journalists as to where to find the good stuff in the pile of material the committee has released.
Reading the notes carefully reveals a number of different themes.
Perhaps the most important is the significant exercise of power the committee’s work represents. A huge percentage of these notes point to interviews or depositions that were directly or impliedly compelled and to documents whose production was demanded by the committee.
Scanning the notes, one thing that jumps out at the reader is that this was not work that journalism could have done. It required the force of law behind it. It required coercion.
A great many people during the period of the committee’s work decried the refusal of a small number of people to comply with its demands for documents and testimony. The striking feature of the picture the notes paint, by contrast, is the degree to which many other witnesses did comply. So while the committee could not compel Mark Meadows’s testimony, it has pages and pages sourced to his assistant, Cassidy Hutchinson. While Vice President Mike Pence would not testify, the committee has endless pages sourced to two of his top aides. White House Counsel Pat Cipollone and his deputy, Patrick Philbin, have countless notes sourced to them. And there are any number of other White House, Trump campaign, and Justice Department officials cited over and over and over again. While there are specific areas in which the committee was blinded by non-cooperation, there actually aren’t many of them.
The vast majority of the notes are just citations, of course, but different notes actually serve a number of different purposes beyond simple citation.
One function is the evidentiary show of force, the apparent point of note 50 in the executive summary. The committee makes a statement, which it does not support in the text, but the reader then goes to the note to find multiple transcripts that allegedly back it up. In the case of note 50, the committee cites interviews with Gen. Mark Milley, Alyssa Farah Griffin, Cassidy Hutchinson, and Kellyanne Conway.
The thing about showing your work, however, is that one risks getting caught in little acts of exaggeration, and some of this testimony represents stronger evidence that Trump really acknowledged defeat than do other transcripts. Milley’s statement is the strongest individual piece of evidence; he recalls that at one meeting about “an overseas national security issue, ... I clearly remember the President saying to someone ... words to the effect of: Yeah, we lost, we need to let that issue go to the next guy. Meaning President Biden.”
But the other witnesses are weaker on this point. Hutchinson’s account is powerful, but it’s second-hand; she is reporting what Meadows told her that Trump had told him. In court, it would be entirely inadmissible hearsay.
And the other two stories are generally consistent with Trump expressing his shame that he could have lost to Biden—not an unambiguous acknowledgment that he did lose. For example, Griffin recounts: “I popped into the Oval just to, like, give the President the headlines and see how he was doing. And he was looking at the TV and he said, ‘Can you believe I lost to this effing guy?’”
And Conway said the following of a phone call the day after the election: “It was brief. I think that one is he can’t believe he lost to Joe Biden. And it’s both, knowing Donald Trump as I do, I believe the President was saying it literally and figuratively. Like, how in the world do you lose to a guy who didn’t come out of his basement and who all the Democrats didn’t even want, since they all ran against him? ... And then it was literal, that there’s no way I could have lost to him.”
Imagine you’re a prosecutor, thinking of bringing a case predicated in any way on Trump’s state of mind. You are unlikely to want to rely heavily on such ambiguous material. Prosecutors seem far more likely, in my view, to bank on the voluminous evidence the committee presents that Trump was repeatedly informed of his loss by his campaign, his White House staff, and his lawyers. That’s what the committee does in the body of the report. This note, if you follow the text to the transcripts themselves, shows why.
Another function the notes play is to give the committee the opportunity to make marginal comments on its own work. Sometimes it does so in relatively trivial ways.
You have to read note 708 of the executive summary to get the committee’s rather moving character assessment of Hutchinson.
“The Committee sat for dozens of hours with Hutchinson and concluded that she is brave and earnest, and understood the intense backlash that would inevitably result from those who were enlisted to defend President Trump’s behavior,” the committee writes apropos of virtually nothing.
The note ostensibly supports a line in the executive summary that mentions Hutchinson as one of a series of committee witnesses commendable for having bravely “provided important live testimony during the Committee’s hearings.”
But the note represents a particular pat on the back for Hutchinson combined with an almost parental concern for her safety—one the committee does not bother showing for its other heroes. “The thuggish behavior from President Trump’s team ... gave rise to many concerns about Hutchinson’s security, both in advance of and since her public testimony. ... Accordingly, the Committee attempted to take appropriate measures to help ensure her safety in advance of her testimony, including measures designed to minimize the risk of leaks that might put her safety at risk.” Those measures included holding a surprise, announced-at-the-last-minute hearing at which she could testify live to minimize the amount of time her name was public and she could be subject to pressure.
The committee also uses notes to bare its fangs at those whom it thinks are lying. Consider, for example, note 115 of Chapter 7 concerning Secret Service and White House officials who disputed Hutchinson’s account of Trump’s activity on Jan. 6 and the altercation she had heard about between Trump and the Secret Service over his desire to go to the Capitol.
“The Justice Department will have all of the relevant information and can make decisions about whether and how to proceed based upon this evidence,” the committee warns darkly in a note attached to the following text: “The Select Committee has great respect for the men and women of the Secret Service. That said, it is difficult to fully reconcile the accounts of several of the witnesses who provided information with what we heard from [Secret Service Agent Bobby] Engel and [Deputy Chief of Staff Tony] Ornato.”
Translation: Get a good criminal lawyer.
Perhaps the most important function of the notes is to raise issues that are not quite sufficiently baked to go in the main text of the report. The most important of these is note 205 of Chapter 4.
It is easy to miss, as it appears roughly halfway through the lengthy document, and has to be read in tandem with a series of other notes that appear both nearby and far away to deliver the full impact.
And yet this particular note helps explain why the committee was unable to unravel a key element of the postelection story—and the challenge that thus lies ahead for Special Counsel Jack Smith and the team working under him at the Justice Department if it wants to do so.
The note in question straddles pp. 417-418, and it deals with a lawyer who served ever-so-briefly at the Justice Department in the period surrounding the Jan. 6 insurrection—a man named Kenneth Klukowski.
In one of the more deflating passages in the main text of the report, the committee candidly admits that it was unable to discern whether the plot by Justice Department official Jeffrey Clark to depose the department’s leadership and intervene in the election was actually coordinated with Trump legal advisers like John Eastman or not.
Writes the committee, “the extent to which Clark directly coordinated his actions with the Trump Campaign and its outside advisors is unclear.”
The main reason it’s unclear is that Clark asserted his Fifth Amendment right not to answer questions, and other witnesses asserted privileges too. So while the committee was able to establish “that Clark and John Eastman were in communication throughout this period,” it was not able to establish that they were coordinating activity on a shared plan.
I say the passage is deflating because such a shared plan would be key to establishing the kind of broad-ranging conspiracy that many analysts—myself very much included—suspect was behind the insurrection of Jan. 6, 2021.
The committee delivers overpowering evidence of what it calls the “fake electors” plan, that is to say the plot to get people to cosplay as electors for Trump in various states and to get state legislators to legitimize them.
And it has convincing evidence of a plot by Clark to get the Justice Department to intervene in the election in several states—and to install himself as acting attorney general if need be to accomplish this.
It has powerful evidence as well that President Trump sat atop both of these plots. But while the plots proceeded according to a suspiciously similar legal theory, and while the committee developed evidence that the perpetrators were in touch, it was unable to show what seems obvious: that the two plots actually proceeded in coordination with one another.
Note 205, along with a few other endnotes, however, tell us more about what the committee couldn’t get, and the story they tell offers a window into what it will take for the Justice Department to crack open the nut the committee was unable to break. They lay out the precise reasons the committee could not close the circle and show how Eastman and Clark were working together—but also why the committee is nonetheless confident that they were doing so.
Clark’s key staffer at the Justice Department was this fellow Klukowski, who drafted the infamous Dec. 28 letter to Georgia state officials that Clark proposed to send but which his superiors at the department quashed. Klukowski had been at the Justice Department for only a very brief time. He had begun work on Dec. 15, 2020, and as a political appointee, his job would end on Jan. 20, 2021. Before he had gone to work for Clark, he had worked at the Office of Management and Budget and moonlighted as a volunteer lawyer on behalf of the Trump campaign in the period immediately before and after the election.
Note 205 in Chapter 4 reports that “[t]he Select Committee questioned, and sought documents from Klukowski about his interactions with Eastman and others related to the 2020 election and the January 6th joint session of Congress.” But Klukowski “objected to certain questions, and withheld a number of relevant communications, on the basis of attorney-client privilege, work product, or the First Amendment, including communications that he had with Eastman.”
The note cites an example: “on December 9th, before Klukowski joined the Department of Justice, he sent an email to Eastman with an attachment of draft talking points arguing that state legislators in states where Biden won could disregard the election results and appoint electors for Trump.” Those “talking points were circulated the same day” among a group of conservative activists and lawyers, including Eastman and White House Chief of Staff Mark Meadows. The note reports that “[d]uring his deposition with the Select Committee, Klukowski said that the document containing the talking points looked like a document he had drafted, but asserted attorney-client privilege when asked certain questions asked about the document.”
The note asserts that, even after Klukowski went to work at the Justice Department, the contacts continued: “an email sent to [Klukowski], Eastman, Rep. Louie Gohmert’s Chief of Staff, and others on December 28th with the subject line ‘VP Briefing on 1/6/21 Meeting’ and a message from Edward Corrigan that said, ‘I believe the VP and his staff would benefit greatly from a briefing by John and Ken’ but cautioned to ‘make sure we don’t overexpose Ken given his new position.’” Klukowski told the committee he didn’t participate in any such briefing, though the committee notes that “Eastman did.”
Other notes flesh out the story. Note 204, the one immediately preceding the recitation of Klukowski’s history, reports that the committee obtained phone records “showing five calls between John Eastman and Jeffrey Clark from Jan. 1, 2021, through Jan. 8, 2021.” And note 287 of the report’s executive summary recounts that there were direct phone contacts as well between Klukowski himself and Eastman: “The Committee has learned that their communications included at least four known calls between December 22, 2020, and January 2, 2021.”
You can see the committee’s frustration here. It has two streams of postelection misconduct—one involving fake electors and pressure on the vice president, the other involving shenanigans at the Justice Department. The perpetrators of these two streams are frequently in touch with each other during the relevant period of time. And they are making substantially overlapping arguments. And yet, the committee can’t breach claims of privilege and show they are actually working together—rather than, say, chatting about barbeque or vacation plans.
These privilege claims may well impede the Justice Department too. But they may not, at least not as absolutely as they impeded the committee on this point.
The department has certain tools available to it that the committee either could not or would not use. For example, the department can break through a Fifth Amendment privilege claim by immunizing witnesses if it needs to. What’s more, press reports indicate that Klukowski is cooperating with the Justice Department—though it’s not entirely clear what that means or if it’s true. In the context of his cooperation, Klukowski might manage to find ways without breaching privilege to shed light on Clark’s collusion with Eastman—particularly if he fears prosecution. The department, of course, also has the power to indict people and thereby put great pressure on them to cooperate, though that wouldn’t necessarily obviate all privilege concerns. And it also has the power as well to litigate privilege claims it believes are unmerited. The committee did this successfully with Eastman, convincing a federal judge that certain material was covered by the crime-fraud exception to the privilege, but it appears to have let Klukowski get away with his privilege claims—perhaps because it was working on such a tight deadline.
In other words, these notes don’t just identify the challenge that the committee faced; they also point to some of the tools the Justice Department might use to succeed where the committee failed.
Throughout his depositions, Klukowski presented himself as a careerist, who ended up at Justice at the tail end of the administration for purely professional reasons. In a comic aside, the committee goes out of its way in note 207 to out Klukowski for a little professional ruse he had going during this same time period.
Why go to the Justice Department for only a few weeks, committee investigators asked the lawyer? Klukowski said “he was ‘hopeful’ that he could ‘get as many medals on my chest as possible during that short period of time,’ and ‘given that it was going to cross the New Year’s dateline, [he] figured [his] resume would say Department of Justice 2020 and 2021.’” This would enable him to “get into an interview for future jobs before a future employer ‘would find out how few days in each of those calendar years we were actually talking about.’”
Sure, he had worked with the coup-plotters in his past life, which was only a few days earlier, and was still cc’ed on some emails, but he was shocked at their legal arguments, didn’t agree with them, and certainly wasn’t helping them. He just wanted to get some litigation experience in, put his head down, and do a few oral arguments.
The man’s trouble now is not that future employers may find out how few days he worked in those two years. It is that the committee has alleged that his service made up for in dishonor what it lacked in length—and clearly doesn’t believe him.
“Although Klukowski told the Select Committee that the Trump Campaign was his client before joining DOJ,” the committee complains in another note, “Klukowski nevertheless helped Clark draft the December 28th letter described in this Report that, if sent, would have encouraged one or more State legislatures to take actions that could have changed the outcome of the 2020 election.”
What’s more, the “Select Committee has concerns about whether Klukowski’s actions at DOJ, and his continued contacts with those working for, or to benefit, the Trump Campaign, may have presented a conflict of interest to the detriment of DOJ’s mission” and about “many of the ‘privilege’ claims Klukowski used to withhold information responsive to his subpoena, as well as concerns about some of his testimony, including his testimony about contacts with, among others John Eastman.”
The message these notes ultimately convey is a simple one: The committee has done what it can to connect the Eastman and Clark stories, but the Justice Department needs to do more if the public is to get to the truth.
More broadly, because of the degree to which the committee released its underlying material, the notes play a role unlike normal citations in a government report, forming a network of connective tissue between the committee’s interpretations and the massive record the committee has assembled. The committee has distilled from this material one possible construction of events—no doubt accurate in most respects but subject to reasonable question in any number of particulars and dead wrong on some matters. The notes allow readers to see how that version was put together, to test how well it was built, and to ask what alternative constructions are possible—and what additional conclusions we might draw.