EmptyWheel: JEFFREY CLARK: PHYSICS TAKES OVER THE INVESTIGATION NOW

[Ohio Joe]

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

https://www.emptywheel.net/2022/06/27/jeffrey-clark-physics-takes-over-the-investigation-now/

As always... I can't urge you enough to go read the whole thing yourself. It's a great deep dive on what it is going to take to crack the electronics gathered last week. These items were gathered for the DOJ case that is following the fake electors crime (as opposed to the investigation into the events leading up to and on 1/6... So many crimes). All of the investigations together are about the attempted coup, they are taking multiple roads of investigating so as to break out the crimes and tackle them in manageable chunks.

The good news is that they have the electronics and are at work now cracking them.

Now... The in-between news (some bad but has a good side). The bad part here is that they know a connection here goes from Clark to Meadows and Scott Perry but it is likely that Meadows and Perry deleted their texts as they knew an investigation was coming for them. Some of this they will be able to recover, some they won't and that can hamper (not kill, hamper) the fake elector crime... However, (and this is good news) once they can prove texts were deleted they have solid (hold up in court solid) evidence of obstruction for them both.

And... what many will consider terrible news... This is not going to move fast. While there may be more subpoenas and warrants served, there will be no arrests for months... A good chance nothing until past Christmas and maybe even months after. So... Yay... Plenty of time for the 'DOJ is doing nothing' posts to keep cropping up because there will be no headlines... Sheesh. Myself... I prefer a case that has evidence that will win in court rather than arrest that would be thrown out before it even got to trial.

one last thing... There is a section at the end of the article called 'BACKGROUND MATERIAL' that covers a lot of how evidence like this has been cracked and used in all of these various tfg and coup investigations so far. They are a spectacular deep dive but extremely helpful in understanding how cases are built to win.

[flying_wahini]

1. So nothing is going to happen until after the election is over.

Surprised?

[Ohio Joe]

2. Not in the fake electors crime, no...

Why is it important to happen before the election? Would you prefer they indicted now and the case was lost?

[Shipwack]

10. It's very important that things get wrapped up quickly, however...

If the Republicans take both the House and the Senate this November, as sure as God made green little apples they will shut down all investigations in January, when they take office. This means there is a deadline to get things done.

Also true, though, is if any of these cases are to create repercussions for the investigated, we have to be slow and methodical. To do this might take us beyond January 2023.

This frustrates a lot of people. But as we used to say when working with missiles,”In order to go fast, you gotta go slow.”

There are 4 possible scenarios:
1) Republicans are in control, we have a bad case, Trumpsters get away.

2) Republicans are in control, we have a good case, Trumpsters get away.

3) We remain in control, we have a poor case, Trumpsters get away.

4) We remain in control, we have a good case, Trumpsters get their comuppance.

As frustrating as it is, the only good outcome is if the investigators take their time, even though the train is bearing down on us.

[Moostache]

12. DOJ should move to a special prosecutor NOW and give that office wide latitude to go with the facts.

Take this out of the Congress and put it beyond the reach of the corrupt GOP cover-up artists now, or watch them suffocate the investigation in its crib in January.

1) Americans on the whole are fools, easily swayed by TV and Internet memes.
2) Americans on the whole are reactionaries to the economy on election day - whoever is in power on bad days is going to lose
3) The economy is realtively strong, but inflation makes it feel awful
4) Americans are notorious for voting with their 'gut'.

Given these headwinds and the usual disgruntlement of the electorate in a Presidental mid-term for the past 30+ years, there is every reason to believe that the GOP doomsday clock is counting down loudly right now. Getting the case of J6 out of Congressional reach is 100% imperative to having anything close to free elections beyond Nov. 2022.

[Ohio Joe]

13. I disagree...

I'll start with the idea that repugs take control of both houses... I've said it for months now, repugs are not going to take either house this year. Repugs should be running away with the mid-terms easily... And they are not... Not even close, they are fighting for their lives and losing.

Lets assume they did for a moment...

"If the Republicans take both the House and the Senate this November, as sure as God made green little apples they will shut down all investigations in January, when they take office. This means there is a deadline to get things done."

At best, they can shut down the 1/6 committee... That will have zero impact on what the DOJ is doing... And it is the DOJ that will be prosecuting. They cannot shut down or stop the DOJ.

Even shutting down the 1/6 committee will be pointless for them. The committee has been working as though the worst case scenario will happen so that they get the most 'bang for their buck'. That is why we are getting the hearings now and also why a preliminary report will be issued before they might get shut down. If the worst does not happen... They will continue. Bottom line though... The committee will have already accomplished what they wanted. Even under the repugs best case scenario... They will look to everyone like they are doing a coverup and only make things worse for themselves.

[Shipwack]

18. You make good points.

I don’t know how I let the fact that the Republicans don’t directly control the DOJ investigation get by me. However, could they effectively shut it down by putting in an appropriations bill that no money can go to investigating January 6th or other insurrection items? Sort of like how the Hyde amendment that gets put in.

I agree with you that the odds of both branches flipping is not as great as some would have you believe. But it is a long time, politically, between now and the November elections. Can outrage be maintained til then? Will something else come out of left field that the Democrats (probably unfairly) be criticized over?

[Ohio Joe]

19. Regarding your question on 'like Hyde'...

So... Hyde... It originally got in by a veto override in 1976. Ford veto'd a HEW budget because, as a whole, the budget was more than he wanted to spend but was overridden by both Dems and repugs who thought it was fine at the time (see here for the vote totals - https://www.govtrack.us/congress/votes/94-1976/h952 ). This was a mistake. Over the years, Hyde was modified a number of times either as compromise or through majority push.... Some made it a bit better, some a bit worse... It's still a lump of garbage IMO. The repugs can't just force it like that today, Dems won't go along at all and President Biden would not sign it. So... I don't see a way for that to happen.

I had to go look up info on Hyde to post this as I could not remember many things... I looked at these:

https://en.wikipedia.org/wiki/Hyde_Amendment

https://news.google.com/newspapers?id=jGdYAAAAIBAJ&sjid=COgDAAAAIBAJ&pg=6310%2C7338504

https://www.govtrack.us/congress/votes/94-1976/h952

Edit - arbage changed to garbage... I speel weel

[Shipwack]

20. Thank you for taking the time to research this! nt

[fightforfreedom]

3. Good post. I agree.

From the beginning I understood this investigating was going to take a long time because it is unprecedented. This is the largest, most sensitive investigation in our history.

You cannot really compare it to any other case in our history. Saying this or that should be happening by now, this person should have been charged by now, makes no sense.

[Fiendish Thingy]

4. Emptywheel is great as usual, however, I think it's possible DOJ May move sooner

Not on Clark necessarily, due to the encryption on his devices, but on at least some of the fake electors, as the very act of signing the fraudulent certificates is a crime.

Yes, I think we could see a flurry of subpeonas for them this fall, but I wouldn’t be shocked if one or more flips before the DOJ moves to indict the fraudulent electors en masse.

And I still think we may see some indictments for other crimes this fall (Giuliani, Eastman, Stone, Jones).

[Ohio Joe]

6. I agree completely...

I think the problem a lot of people will have is that none of the ring leaders will go down short term.

[BumRushDaShow]

7. Agree with Fiendish Thingy

mainly because this stuff is actually coming out of a grand jury and it's possible for indictments to be handed down much sooner. But what takes forever are the actual trials (for those who don't try to cop a plea deal). We have been seeing that with Bannon, who was indicted last November and has his trial scheduled for July, and his indictment was (so far) for a simple Contempt of Congress.

[Novara]

23. Right, but Bannon isn't likely to flip

I suspect a lot of the elector impostors are scared little nobodies who will flip to protect as much of their lives as they can. They don't fear direct retribution from the orange motherfucker and have way more to lose by not flipping than someone like Bannon does.

And who knows? Bannon may ultimately make a deal when he starts running out of time. Right now he's working the clock. If he exhausts all stalling techniques he may be more inclined to make a deal, especially if public sentiment continues in the direction it's now going.

I am probably reaching here, but wouldn't it be nice to have public sentiment turned so fully against any and all republicans by November that we have a Blue Tsunami? I think it's possible. The committee is doing an incredible job. If they can keep this up and drag it out all summer, this is a real possibility.

[BumRushDaShow]

31. Oh I know he won't

and he'll consider himself "a political prisoner" and fundraise off of it.

But my point was more about the "timing" of one event (an indictment) and then what will be a long wait for the next event (a trial), where in some of these cases currently under a grand jury investigation, the "indictments" might come before the election, but definitely not any trials (should it have to go that far).

[Novara]

32. You may have missed my point ...

... or I didn't state it very well.

Bannon is running out the clock and delaying as much as possible before he has to make a decision whether to flip. He can afford to do that. The elector impostors are little people who stand to lose a lot more by doing anything close to the same thing Bannon is doing, and they're more likely to flip, which means this might go a little quicker than some think. Flipping + cooperation = no trials + a quicker outcome.

[BumRushDaShow]

33. No I didn't miss your point at all and agree 100%!

I was explicitly addressing this from FT -

In the reply header -

Emptywheel is great as usual, however, I think it's possible DOJ May move sooner

and a part of the post!

And I still think we may see some indictments for other crimes this fall (Giuliani, Eastman, Stone, Jones).

And FT appeared to be replying to the OP's read out on Empty Wheel's expectation. I.e., -

And... what many will consider terrible news... This is not going to move fast. While there may be more subpoenas and warrants served, there will be no arrests for months...

I only brought up Bannon as he is a "known" character under indictment and we have the timing between that and his scheduled trial. And in his case, I am surprised there hasn't been any delays filed yet already (which is what often happens).

[niyad]

5. KNR

[Hortensis]

8. Really interesting, Ohio Joe. And impressive. I now know if anyone

I love is arrested by the feds, even though I know nothing about it, I may want to quickly gather all our old cell phones and smash them. In case ones holds a piece that could be used to reconstruct a deleted conspiratorial puzzle. (Then out of an abundance of anxiety (!), toss pieces out onto highway verges over a number of miles.)

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

[usonian]

11. There are always at least two participants in a conversation.

One or more may feel like sharing screenshots, passwords, etc.


And people like to "gab" juicy info they know.
So, information that was secret goes out.

[OMGWTF]

14. Wait! There are electronics-sniffing dogs? Whoa!

[Ohio Joe]

16. It's amazing... Seems there is no end to the greatness of our best friends...

https://www.democraticunderground.com/10181677346

[erronis]

29. I've never known anything a dog won't stick their nose in...

I'll also bet that handheld thingees also smell a lot like... hands.

[bucolic_frolic]

15. Good. We have abortion as an issue for 2022, and insurrection incarceration for 2024.

Win-win.

[Girard442]

17. Garland et al need to remind themselves that guilt must be established beyond...

...a reasonable doubt -- not beyond a subatomic particle of doubt in the known universe.

[emulatorloo]

21. Kick and Rec. Joe, I really appreciate that you have brought emptywheel's excellent work here to DU

[gab13by13]

22. Two points,

1. Why aren't Perry and Meadows being investigated? Is it because they are politicians or former politicians?

2. DOJ should not have to back off any investigations or indictments for people who are not on the ballot leading up to the election.

[Novara]

24. Who said they aren't being investigated?

[Ohio Joe]

25. Fair enough... Two replies...

"1. Why aren't Perry and Meadows being investigated? Is it because they are politicians or former politicians?"

Who says they are not? In fact, if you read the article they are, there is just not a need for their electronics right now (or this way):

All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

___________________________________________________________________________

"2. DOJ should not have to back off any investigations or indictments for people who are not on the ballot leading up to the election."

Not sure what that has to do with anything posted but, you are correct, they do not.

[progressoid]

26. Frankly, this isn't very reassuring. Shades of Fitzmas.

[Ohio Joe]

27. I think there are some key differences...

Fitzmas was centered around a single grand jury where people believed Rove/Cheney would be indicted. Aside from the grand jury ending, there were no facts to back up the wish.

What you are seeing here are factual things backed up by cites and links (should you care to read the article and it's links) that show the tangible progress the DOJ is making. There are no promises of an indictment, much less a conviction... Simply factual progress being made and realistic expectations being set on when the next steps may be seen.

[progressoid]

34. Oh I read it.

Including the cites and links. Like Fitzmas it includes a lot of "may be, might be, could be," suppositions.

Fitzmas was more than being centered around a single grand jury. It was also centered around a group of keyboard commandos who would sift through mostly redacted information in an attempt to show us that there is light at the end of the tunnel.

Until we receive an official declaration for the DOJ, this is just more speculation.

[Ohio Joe]

36. Well...

If you are reading everything over there you would see that there is a whole lot more than keyboard commandos and little of what they use has any redaction. They link to subpoenas, court filings and warrants. It's not just speculation but rather concrete evidence that things are indeed happening.

[liberalla]

28. This is a great post by EmptyWheel. I don't feel frustrated and I appreciate the update.

I'm hopeful and excited about the whole investigation.

[uncle ray]

30. and if Clark sings or had his passwords written on paper?

[calimary]

35. I couldn't help noticing the opening paragraph.

“Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.”

That one could have been written with me in mind. I could have sworn A.G. Garland was only now even starting to wake up. Thought he’d been asleep all this time.

I guess we’ll see. Gotta admit I’ve felt some pretty doggone massive disappointment all this time. Been watching and waiting and hoping against hope for SOME sense of justice being served, and it’s often felt like Garland has delivered nothing but a big fat nothing. Nobody home/nobody interested/nobody bothering. It’s been downright depressing sometimes.

I would be ECSTATIC to be proven wrong about him.