Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022
Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.
He also presided over the Oath Keeper cases.
That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.
As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.
Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.
That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.
But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.
Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]
Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.
As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]
Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.
But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.
Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.
For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.
At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.
The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]
As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.
I think its an open and shut case – the goal of the point folks, that broke the barrier first.
Was the real electoral ballets.
???
In English, please?
Does this translation help:
I think it is an open and shut case. The goal of the point folks, that broke the barrier first, was the real electoral ballots.
It’s getting there; but who are the “point folks”? —> “those who first broke through the barriers and got into the Senate chamber”?
AI experiences frequent glitches. The Russian-English translator, too.
That Electoral Ballet Company has to be the clumsiest bunch of dancers I’ve ever seen.
Yeah, but ‘Electoral Ballet Company’ is definitely the name of my next puck rock Neal Diamond cover band…
Their interpretation of Richard Strauss’ “Elektra” was so indecisive it went to a recount.
I’m confused: in soccer a goal is a point. Offsides?
In this context I think “point folks” is intended to be “point men”, ie “the people in front”/”the people leading the charge”.
Part of me wonders if Smith is creating a tangible record for posterity in the event of a Trump victory. And Trump better win for his own good, because the case Smith was given time to create is pretty remarkable
If TFG’s inflammatory speech falls under “Aiding and Abetting”, then what of the other speakers on Jan 5th and 6th who’s speeches were also quite inflammatory?
Should/could they also have charges brought for asserting false evidence and then invoking a fight or die scenario that is clearly intended to create a a high degree of anger directed at the DC Government, or is TFG’s liability tied directly to his request (order) to march on the capitol?
My take: From Mehta’s Jan. 2022 ruling [Marcy’s first quoted section above]:
The first is “encouragement” [not mere presence] and the second is that:
TRUMP, as President was in a “position of apparent authority” The others were not.
I think Trump’s personal lawyer might carry some authority. I think congress critters would carry some authority. I think Mike Flynn’s position as a retired Intel officer would carry some authority.
But I get it, governmental authority.
Maybe some of the congress critters who were stirring up the crowd, maybe?
“Maybe some of the congress critters who were stirring up the crowd, maybe?”
Maybe start with the weakest link. What’s Madison Cawthorn up to these days?
They may not have been in the same position of authority as Trump, but were in a conspiracy with him to achieve the same goals, and so can be charged under that, IIRC.
Was “Candidate” Trump in a position of authority? This case is not about “President” Trump.
Trump was the head of his party’s ticket. He had authority as such.
Trump was also president and commander-in-chief; his chances at helming the GOP’s ticket were always best because of his existing role as president.
Perps who violently acted to obstruct Congress’s proceedings in an attempt to toss the certified ballots and replace them with fraudulent ballots also felt ordered or compelled to take action because of Trump’s authority with them as individuals and as members of one or more groups. His then-existing role as president was a partial factor in the authority they perceived him to have; they intended the candidate to continue to possess that role, legally or otherwise.
Good.
Thanks Marcy.
Fee, Fum, Foe, Fie
More than an apple of my eye:
All the MAGAs baked in a pie,
standing back & standing by,
answered my calling and let it fly.
If I told them “do or die”,
they’d not ask once or reason why,
I set their vengeance so damn high,
they let loose their battle cry.
I just had to give them my
Fee, fum, foe, fie,
together with Trump’s Big Lie,
‘cause MAGA mobsters are not shy.
Back made a stand & so did by,
I hardly even had to try,
because I’m just that kind of guy,
Fee, fum, foe, fie.
This is a slightly technical argument I am about to embark upon but I think it is an interesting and important one to tease out significant nuances.
The aiding and abetting provisions 18 U.S. Code § 2 – Principals https://www.law.cornell.edu/uscode/text/18/2
States
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal”
(a) is a statutory restatement of the traditional common law position in criminal law (and informs the civil law principles of vicarious liability of joint tort feasts for intentional torts committed by one encouraged etc by the other)
(b) is something different.
The note to 18 USC 2 states the history of the provision and illuminates the point
Re (a) “Based on title 18, U.S.C., 1940 ed., § 550 (Mar. 4, 1909, ch. 321, § 332, 35 Stat. 1152).
Section 2(a) comprises section 550 of title 18, U.S.C., 1940 ed., without change except in minor matters of phraseology.”
Ie a history of restating the common law.
But (b)
1. “ Section 2(b) is added to permit the deletion from many sections throughout the revision of such phrases as “causes or procures”.
Ie allowed the removal of verbiage from the definitional elements of various crimes, by inserting this provision relating to accessories and principals;
2. “The section as revised makes clear the legislative intent to punish as a principal
not only
•one who directly commits an offense• and
•one who “aids, abets, counsels, commands, induces or procures”
another to commit an offense •
but also
anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States.
It removes all doubt that
one who puts in motion or assists in the illegal enterprise but causes
• commission of an indispensable element of the offense•
by an ••innocent agent or instrumentality••
is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense.” [additional line breaks and emphasis added]
So proof that the agents or instrumentalities were indeed guilty of crimes is unnecessary ie there is no necessity to prove the mental state of the tools.
It is sufficient to prove the defendant wilfully caused the tools to do acts, which if he had done himself would constitute an element of the crime with which he is charged.
Not *joint tort feasts
But *joint tortfeasors
Oh! But I like tort feasts! :-(
Sachertorte feasts are especially good
I’m just starting Judge Chutkan’s discovery opinion but I think she may say something similar — and of course she has presumably reviewed a good deal of Jack Smith’s evidence.
Chutkan is wasting no time:
Why do I think Defendant will file a motion for extension of this date as soon as Government has done what Chutkan requires them to do by October 26, 2024?
I think convictions of some of the crime scene obstructionist(s) though not strictly necessary, but is helpful on the conviction of Trump (particularly on the substantive charge of obstruction but also on the conspiracy count ) in showing that “causation” is not weak or attenuated or implausible.
The caselaw indicates that the consequence of an attenuated chain of causation may be that it is more difficult to establish “wilfully” to the jury’s satisfaction
The case cited by Smith outlines this. I quote a few paragraphs because it is easier to see the mens rea issue
United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999)
https://casetext.com/case/us-v-hsia-10
“Counts Two through Six charge that Hsia, by means of her conduit contribution schemes, willfully caused certain recipients of such contributions-Clinton/Gore `96, the Democratic National Committee, and The Friends of Patrick J. Kennedy `96 — to make false statements to the FEC in violation of 18 U.S.C. §§ 2 and 1001
Counts Two through Six are based on 18 U.S.C. §§ 2(b), 1001(a):
Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
18 U.S.C. § 2(b).
[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully — . . .
(2) makes any materially false, fictitious, or fraudulent statement or representation . . .
shall be fined under this title or imprisoned not more than 5 years, or both
Believing that the charges here required an unconventional and extreme interpretation of §§ 2(b) and 1001, the [trial] court found that Hsia could not have known that her conduct would fall within their grasp.
Although we find no material novelty in the government’s reading of the statutes (see below), our decision on whether the element of willfulness is adequately alleged does not turn on this point. We believe that the government need not prove that Hsia knew her acts to be unlawful; the question whether she could in fact have had such knowledge is therefore irrelevant
The natural reading of §§ 2(b) and 1001 is this: the government may show mens rea simply by proof (1) that the defendant knew that the statements to be made were false (the mens rea for the underlying offense — s 1001) and (2) that the defendant intentionally caused such statements to be made by another (the additional mens rea for § 2(b))
Section 2(b) does not, of course, limit by its terms the particular means by which the defendant may “cause” another to commit the act, nor the degree of permissible “attenuation” between these two people’s actions. Cf., e.g., United States v. West Indies Transp., Inc., 127 F.3d 299, 307 (3d Cir. 1997) (defendant may be prosecuted under §§ 2(b) and 1001 even if people who actually made false statements are not criminally liable). The mens rea element of the statute [ie 18 USC 2(b) ] provides an outer limit on the latter, for a weak or implausible causal link would make it more difficult to prove that the defendant brought the effect about “willfully.””
So with evidence that the crime scene actors knew the significance of the proceedings and intended to obstruct them, the stronger the causal link, and consequently the greater the difficulties for jurors to find reasonable doubt on the issue of the Defendant’s intent.
Evidence that it was widely known that it was contended that alternative certificates existed and contended that they should play a part in the proceedings, is evidence which also bolsters the prosecution case on these issues.
Would Kellye SoRelle be another key case?
https://www.justice.gov/usao-dc/pr/texas-woman-pleads-guilty-felony-and-misdemeanor-charges-actions-during-jan-6-capitol
“Texas Woman Pleads Guilty to Felony and Misdemeanor Charges for Actions During Jan. 6 Capitol Breach” – 8/21/24
Kellye Kellye SoRelle
Got yourself a felony
Feel thy penalty
Kelley.
H/T Shirley Ellis The Name Game
This is all well and good, and I agree that Smith has some serious evidence to implicate Trump in aid and abet if not outright insurrection BUT….
…what does it all matter if this isn’t public prior to the election? I’m getting increasingly nervous about the polls…there is some online disinfo campaign reaching possible swing voters causing them to favor Trump. What it is, I don’t know.
I realize that that’s not necessarily the point of Smith’s prosecution, however if the evidence points to a more direct culpability by Trump, it needs to come out. And if Trump wins, it won’t.
Hmmm, Trump has an army of assholes that do violence for him. Why don’t we just delay until he recruits more assholes to do more violence for him? Is this what our society of Harvard, Yale, Princeton and our wonderful Wall St, and social engineers, and brilliant corporations with fantastic profit margins of this great country, is this what “us” is actually going to do? We are allowing him to create a following of violent creeps that seek to deport human beings, to pull them from their homes.
What exactly is our legal system waiting for? He should be in hand cuffs and in jail. Make a martyr out of him. Please.
Him on stage with Kristy Noem was operatic. It was like a blend of infomercial, lunacy, and dirty old man with a beautiful woman, and vomit.
At this point, does our country allow an individual to create a militia within the bounds of the law? Can men and women begin to recruit more like minded souls in to larger groups to threaten violence? Do we have the freedom of speech to do so?