There’s been a recent explosion of reporting about special counsel Jack Smith’s investigative focus on an event nearly three years in the rearview mirror: a volatile Dec. 18, 2020 meeting at the White House. What started in the Oval Office erupted into an expletive-filled shouting match that nearly turned into a brawl and ended in the president‘s residence after midnight.
In light of all the other unhinged meetings and plots during Donald Trump’s administration, you might be asking yourself, “What is so special about that meeting?”
First, perhaps more than any other reported event (other than the Jan. 3, 2020, Oval Office showdown between Justice Department leaders and White House lawyers), it is a prime example of White House aides and government officials pushing back on claims of widespread election fraud and telling Trump in unambiguous terms that he lacked the authority to seize voting machines.
As Rep. Jamie Raskin explained at a July 2022 public hearing of the House Jan. 6 committee, Trump listened during that hourslong meeting on Dec. 18, 2020, as White House lawyers “destroyed the baseless factual claims and ridiculous legal arguments” offered by Sidney Powell, Michael Flynn and other Trump allies.
The meeting is a ripe and easily mined source of evidence of the advice, warnings and facts that Trump ignored as he continued his bid to overturn the 2020 election.
Second, even by Trump administration standards, where meetings typically looked and sounded like a boardroom scene from “The Apprentice,” it was incredibly well-attended. Indeed, by last July, the Jan. 6 committee had spoken to six of the participants as well as “staffers who could hear the screaming from outside the Oval Office.”
The size and scope of who was there matters because although Trump lost multiple, successive battles to block grand jury testimony on grounds of executive privilege, his attorney-client privilege has been overcome in court only in two known instances: the House’s battle for John Eastman’s documents and the special counsel’s fight for testimony from Trump’s personal lawyer Evan Corcoran. (In a distinct but related development, we learned last week that Trump waived attorney-client privilege in Rudy Giuliani’s recent disciplinary proceedings by the District of Columbia Bar.)
Though multiple people in the room or on the phone during that meeting served as lawyers to the White House or the Trump 2020 campaign, others present — namely Powell, Flynn and former Overstock.com CEO Patrick Byrne — were no longer or never within the scope of any arguable attorney-client privilege.
The meeting, therefore, is a ripe and easily mined source of evidence of the advice, warnings, and perhaps most significantly, facts that Trump ignored as he continued his bid to overturn the 2020 election. And collectively, that proof could be used to demonstrate Trump and others’ intent to commit federal crimes, such as conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and even garden-variety wire fraud as it relates to the campaign’s fundraising emails.
Third, beyond supplying proof of intent, the Dec. 18, 2020, meeting could lead to proof of a pivot point in the overall plan, as well as how and why that happened. In particular, less than two hours after the meeting ended, at 1:42 a.m. ET, Trump tweeted the infamous “be there! Will be wild!” tweet that began his promotion of the Jan. 6 rally, his begging state election officials and state legislative leaders to intervene, and even the pressure campaign on then-Vice President Mike Pence to change history on his own. How Trump went from watching a manic free-for-all about the legality of seizing voting machines to crafting that tweet at nearly 2 in the morning is one of the greatest mysteries of the post-2020 election period.
What seems more clear, on the other hand, is that two individuals appear to have been the last ones standing with Trump that night: Giuliani and then-White House chief of staff Mark Meadows. Specifically, Trump White House lawyer Eric Herschmann testified before the Jan. 6 committee that when he, White House staff secretary Derek Lyons and White House counsel Pat Cipollone left the residence that night, the meeting was not yet over. Meadows had stayed behind with Trump, Giuliani, Powell and “that crowd,” Herschmann had testified. As Axios reported in February 2021:
It was after midnight by the time the White House officials had finally said their piece. They left that night fully prepared for the mad possibility Trump might still name Sidney Powell special counsel. You have our advice, they told the president before walking out. You decide who to listen to.
Giuliani, for his part, testified that after Herschmann, Lyons and Cipollone left, Trump quietly asked Giuliani and Meadows to “throw them [the others] out” and “just get rid of them.” Giuliani also recalled believing he was “the last one to leave” and that he may have talked to Herschmann or Cipollone downstairs as they waited for their car. In his congressional testimony, Giuliani did not recall having any privileged or non-privileged conversation about Jan. 6 plans that evening. But Smith’s team likely probed further in their recent meeting with Giuliani to understand: Is there a connection between the demise of Powell’s “seize the voting machines” plan and Trump’s promotion of the Jan. 6 rally? After all, within two days, on Dec. 21, 2020, Trump had another now-infamous meeting — this one also attended by Meadows and Giuliani, but also by GOP Reps. Jim Jordan, Scott Perry, and Marjorie Taylor Greene as well as other members of the House Freedom Caucus. It was during this meeting that Trump and his allies plotted out their effort to block the congressional certification of Joe Biden’s election victory. Of course, Trump supporters’ storming of the Capitol thwarted that plan. Finally, as Smith’s team reportedly intensifies the pace of their investigation, various outlets, including NBC News, have worked to assemble lists of known grand jury witnesses or others who have voluntarily spoken with investigators. Those witnesses include multiple participants in the Dec. 18, 2020, meeting, from Cipollone to Giuliani and former Trump national security adviser Robert O’Brien, who was dialed in by phone. Who’s missing from that list? None other than some of the chief actors from that fateful meeting: Powell, Flynn and Byrne. That list could also potentially include Meadows, who reportedly has testified before a federal grand jury convened by the special counsel, but in relation to which investigation(s) remains murky. Could that mean those folks are among those with possible criminal exposure? Watch this space.
Lisa Rubin is an MS NOW legal correspondent and a former litigator. Previously, she was the off-air legal analyst for “The Rachel Maddow Show” and “Alex Wagner Tonight.”
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