The 45-page federal indictment of former President Donald Trump meticulously details his efforts to overturn the election, but there’s one conspicuously unsourced passage that is raising more questions than it’s answering—and could spell even more trouble for Trump.
The passage deals with Trump’s much-hyped phone call on Jan. 6, 2021, with the top House Republican, Kevin McCarthy.
“At 3:00 p.m., the defendant had a phone call with the Minority Leader of the United States House of Representatives. The defendant told the Minority Leader that the crowd at the Capitol was more upset about the election than the Minority Leader was,” the indictment stated.
ADVERTISEMENT
At the time of that phone call, House and Senate members had only evacuated their respective chambers minutes earlier. Rioters were still pouring into the Capitol. And Trump was sitting on his hands.
To hear then-Rep. Jaime Herrera Beutler (R-WA) tell it, the phone call was incredibly damning. About a month after the Jan. 6 attack, Herrera Beutler came forward to offer her version of the call, which she said McCarthy recounted to her.
Herrera Beutler reported that Trump not only didn’t show remorse for the attack on the Capitol, he actually sided with the attackers. He allegedly told McCarthy that members of the mob were just “more upset about the election than you are.”
While it’s possible Special Counsel Jack Smith is basing his description of the phone call off Herrera Beutler’s public account, that would be a sharp departure from his normal tactics. Indeed, paragraph 115 appears to be one of the very few instances in the indictment where Smith doesn’t lay out his sourcing for a claim.
By choosing to speak as an omniscient narrator for that paragraph, federal prosecutors have left it entirely unclear how they know what was said on that phone call. And that’s fueling speculation about a number of possibilities: Is there a recording of the call? Did Trump’s chief of staff, Mark Meadows—who is speculated to have been in the room with Trump at the time—provide an account to investigators? Did McCarthy?
Meadows has remained silent about the matter. (He did not answer a request for comment.) And if McCarthy has been helping out Smith, he’s doing his damnedest to not make it seem that way. (McCarthy’s office also didn’t respond to questions.)
Shortly after the indictment was unsealed, McCarthy posted a statement about the Hunter Biden saga and called the indictment “DOJ’s attempt to distract from the news and attack the frontrunner for the Republican nomination, President Trump.”
While McCarthy knows what was said on that phone call—and said a week after Jan. 6 that Trump “bears responsibility” for the attack on the Capitol—McCarthy quickly mended his relationship with Trump and has stood in the way of any sort of accountability for the former president and his actions surrounding the insurrection.
But according to Herrera Beutler, McCarthy immediately blamed Trump for Jan. 6. She recalled the briefing on a podcast in February 2021.
“He called the president and said, ‘Hey, you basically need to get on TV, you need to call these people off,’” she said on the podcast. “And the president’s response to him was, ‘These aren’t my people, these are Antifa.’”
“Kevin, to his credit, responded, ‘No, they just came through my window, my staff are running, these are your people, they have MAGA hats on,’” Herrera Beutler continued.
“And the president’s response to him was, ‘Well, Kevin, I guess they are just more concerned about this election than you are,’” she said.
That closely tracks with the call’s description in the indictment. (Beutler, who has since become a fellow at Harvard University’s Kennedy School of Government, did not reply to an interview request.)
But that was not the last that the public heard of the phone call. The House Jan. 6 Committee extensively explored the call and the events of that day. They described the phone conversation this way:
“Multiple witnesses told the Select Committee that Minority Leader Kevin McCarthy contacted the President and others around him, desperately trying to get him to act. McCarthy’s entreaties led nowhere. ‘I guess they’re just more upset about the election theft than you are,’ President Trump told McCarthy.”
But as time went on, McCarthy adopted a different version of the events that day.
He changed his story when discussing the matter with Michael Fanone, who defended the Capitol and left the Metropolitan Police Department after suffering injuries during the attack. Fanone confronted McCarthy during a private meeting, saying that, “While you were on the phone with him, I was getting the shit kicked out of me, almost losing my life.”
To which McCarthy replied: “I’m just telling you from my phone call, that, I don’t know that he did know that.”
That conversation was secretly recorded by Fanone and later aired on CNN.
Peter Carr, a spokesman for the special counsel handling this indictment, would not clarify whether prosecutors merely relied on public reporting or relied on an inside source.
Former DOJ lawyers pointed out that federal prosecutors have a great deal of leeway when writing an indictment.
“It’s quite common for indictments to reference conversations without giving a source. The only reason this passage may stand out is that this particular indictment alludes to sourcing far more than usual,” said Columbia law professor Daniel Richman, a former federal prosecutor.
However, the special counsel could simply be leaving his options open. Richman said the details about that call might have come from another person in the room who was merely told about the exchange—someone whom the government doesn’t need to identify at this stage in the game.
That theory was also endorsed by Neama Rahmani, a former federal prosecutor who now runs his own firm in Los Angeles.
“Even though it is unsourced in the indictment, there is a record of presidential phone calls. There is a presidential call log and a presidential diary which documents the nature of the call, even though the call itself is not recorded. McCarthy could have cooperated with prosecutors or testified before the grand jury. But it’s more likely that this conversation was documented by a Trump or McCarthy staffer,” he told The Daily Beast.
Then there are those who still have that nagging feeling that it could be Trump’s right-hand man at the White House.
“What about Meadows? What is he doing? Why is he quiet?” asked former federal prosecutor Scott Tenley. “Is there an agreement with Meadows that we aren't going to expressly source him in a charging document? Maybe that's what his counsel demanded to keep the heat off of him over the next six or eight months.”
Tenley acknowledged that this kind of secret agreement between prosecutors and a witness would be odd—but what isn’t at this point?
“It would be abnormal, but this is an abnormal case. Mark Meadows is an abnormal witness,” he said.
Tenley, who is also now in private practice in Los Angeles, noted that the DOJ’s special counsel might actually have an easier time getting someone who served in the Trump White House to flip than a legislator—particularly since members of Congress can refuse to cooperate by citing the Constitution’s “speech and debate clause,” which limits the encroachment of the executive branch on the legislative one.
Then again, McCarthy could have just confirmed to investigators that what’s already out there is, in fact, true.
“It could be something as simple as: They interviewed Kevin McCarthy informally and he confirmed he said that,” Tenley said.
