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Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022

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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.

In Peter Navarro Sentencing, No Mention of Competing Claims about Official Acts

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As you’ve no doubt heard Judge Amit Mehta sentenced Peter Navarro to four months in prison plus a $9,500 fine. Here’s Kyle Cheney’s account.

The punishment matched the sentence imposed — but stayed pending appeal — by Trump appointee Carl Nichols, but with a bigger fine.

At first, Navarro attorney Stan Woodward told Judge Mehta that Navarro would say nothing.

But then he did. He claimed, as a Harvard-educated gentleman, he was helpless to figure out what to do in response to a subpoena.

Navarro made a last-ditch appeal for leniency to Mehta, addressing the court even after his lawyers had initially said he wouldn’t. He said he grew confused about the thicket of precedents and rules around executive privilege and believed he didn’t have to comply with Congress’ subpoena.

“I’m a Harvard-educated gentleman, but the learning curve when they come at you with the biggest law firm in the world is very, very steep,” Navarro said.

Judge Mehta, a mere Georgetown/UVA grad, was having none of it. He noted that by the time Navarro defied the January 6 Committee, Steve Bannon had already been charged.

I’m just as interested in what wasn’t said at the sentencing. In spite of unsealing part of the communications pertaining to the Presidential Records Act lawsuit still pending against Navarro, which I wrote about here, I saw no mention of it in today’s hearing.

If I’m right that Navarro continues to withhold communications about the coup based on a claim they’re not protected by the Presidential Records Act, nothing would prevent Jack Smith from handing Navarro a subpoena. Indeed, Navarro’s testimony today would validate that Navarro now knows exactly how to respond to a subpoena — and that he doesn’t believe these are official records.

The big drama going forward is whether Judge Mehta lets Navarro stay out of jail pending appeal, as Judge Nichols did with Bannon.

But if Navarro were to defy another subpoena, it might be a way to get him jailed more quickly.

Peter Navarro and the Office-Seeker Using ProtonMail Challenge

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The two Peter Navarro litigations are drawing to a head in a way that reveal just how difficult it is to prosecute a President who attempts a coup.

First, Navarro is set to be sentenced for his contempt of Congress on Thursday. Navarro has asked for no more than a year’s probation with a request any detention be stayed while he appeals based on his claim that Trump invoked Executive Privilege without saying or doing anything specific with regards to Navarro to assert that. DOJ asked for six months on each count while (deeper in the sentencing memo) noting that each count requires a one month sentence and they can be imposed concurrently. Judge Amit Mehta, who is presiding over this case, is a namby pamby former public defender Democratic appointee, and it’s unlikely he’ll sentence Navarro for longer than Carl Nichols did Steve Bannon.

In his sentencing memo, Navarro’s attorneys, including Stan Woodward (who is party to Trump’s baseless arguments about the Presidential Records Act in the stolen documents case), included Joe Biden’s waiver of Executive Privilege over documents at NARA among his list of firsts tied to this prosecution.

Dr. Navarro’s trial and conviction involves a series of firsts: the first time an incumbent President waived the executive privilege of a former President; the first time a senior presidential advisor was charged with contempt of congress by the Justice Department, let alone the Justice Department of a political rival; the first time a District Court held an evidentiary hearing on whether a former President had properly invoked executive privilege; and the first time a senior presidential advisor was convicted, and now is to be sentenced, for following what that advisor reasonably believed was an instruction by the former President not to comply with the Select Committee’s subpoenas.

I believe I remain the only person who noted how craftily Merrick Garland obtained that waiver, doing so in such a way that adhered to DOJ contact policies and kept Biden shielded from any information about the criminal investigation into his predecessor. The TV lawyers were and remain too busy claiming that Garland dawdled to notice the steps Garland took in July 2021 to negotiate this difficult problem.

Subsequent to those initial filings, DOJ asked to file an extra-long reply. It addresses some of Navarro’s novel theories, but also includes a long passage rebutting Navarro’s bid to stay out of jail pending his appeal that argues that Navarro’s claim that Executive Privilege entitled him to entirely blow off a subpoena could not be sound.

With respect to Court Two, the Department of Justice has made clear that testimonial immunity should apply only with respect to questions seeking information from a close presidential adviser concerning “matters that occur[red] during the course of discharging [the adviser’s] official duties.” See Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. 5 at 7 (July 15, 2014) (“Simas Opinion”); Testimony Before Congress of the Former Counselor to the President, 43 Op. O.L.C. _ (2019) (“McGahn Opinion”) at 19; Conway Opinion at 1. Arguably, no president, current or former, would have the authority to make a categorical invocation of testimonial immunity over all the information sought by the Committee from the Defendant because most of the information the Committee sought did not concern matters that occurred in the course of the Defendant’s discharge of his governmental duties.

For example, the subpoena sought, among other things, “all documents and communications relating in any way to protests, marches, public assemblies, rallies, or speeches in Washington, D.C. on November 14, 2020,” and “all communications, documents and information that are evidence of the claims of purported fraud in the three-volume report you wrote, The Navarro Report.” See Ex 1 at 19-20.

Defendant was a trade adviser, and responsible in part for the Trump administration’s response to the Coronavirus crisis. In contrast, the Select Committee subpoena sought information wholly related to the attack on the Capitol on January 6, 2021, and the threat to the peaceful transition of power between administrations. 7 As with the alleged assertion of executive privilege, any such assertion of testimonial immunity therefore would have been germane only (at most) to the Defendant’s testimony about a fraction of the subjects about which the Committee informed him it wished to inquire at the deposition.

Accordingly, a reasonable assertion of executive privilege or testimonial immunity, had one actually occurred, could not have been grounds for the Defendant to refuse to testify altogether; instead, the most it would have justified would have been an assertion of privilege at the former President’s request regarding particular documents or testimony seeking information about communications between the Defendant and the former President himself (or, in the case of a proper immunity assertion, about testimony concerning matters related to the Defendant’s official duties). Therefore, even if the Defendant could establish that former President Trump instructed him to assert privilege as to all questions that might be asked of him at the deposition, such an assertion would not have been proper. It follows that such an assertion could not preclude the Defendant’s conviction on Count Two of the Indictment.8 But of course, the record is devoid of any assertion at all. As the Defendant’s own testimony at a pretrial hearing made clear, even the Defendant’s conversation with the former President included nothing – not even a wisp – that could constitute an actual invocation of executive privilege.

7 Given his own assertions to the contrary, mostly notably in the press releases accompanying the release of his “reports,” it is not credible to believe that the Defendant thought the subpoena related exclusively to his official responsibilities. See, e.g., ECF No. 79-4 (Press Release).

8 Moreover, as previously briefed, because the Defendant failed to raise an immunity claim with the Committee, he is not allowed to invoke testimonial immunity before this Court or the Court of Appeals after the fact to foreclose prosecution for a violation of Section 192. Such argument has been waived. See United States v. Bryan, 339 U.S. 323, 330-34 (1950) (“[I]f respondent had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that she state her reasons for noncompliance upon the return of the writ. . . . To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of authority and an obstruction of its processes.” (citation omitted)); Hutcheson v. United States, 369 U.S. 599, 608- 611 (1962) (stating that a constitutional objection “must be adequately raised before the inquiring committee if [it] is to be fully preserved for review in this Court. To hold otherwise would enable a witness to toy with a congressional committee in a manner obnoxious to the rule that such committees are entitled to be clearly apprised of the grounds on which a witness asserts a right of any assertion at all. As the Defendant’s own testimony at a pretrial hearing made clear, even the Defendant’s conversation with the former President included nothing – not even a wisp – that could constitute an actual invocation of executive privilege.

Meanwhile, DOJ’s civil suit against Navarro to force him to hand over communications covered under the Presidential Records Act that he conducted using ProtonMail may be drawing to a close. Things hit an impasse last summer when, after a previous attorney had told the government that Navarro had 800 PRA-covered communications on his ProtonMail, while represented by Stanley Woodward, he only turned over 211.

Last August, Judge Colleen Kollar-Kotelly ordered Navarro to provide her records of his search by October.

Partially out of deference to defense counsel’s burgeoning trial calendar, the Court deferred ruling until after it had further opportunity to review the record. After further consideration, and in an effort to finally bring this litigation to a close, the Court will opt for both courses of action. On or before October 15, 2023, Defendant shall file under seal a notice listing all search terms used, the metadata fields searched, and the email accounts searched. Also on or before October 15, 2023, Defendant shall deliver to Chambers a random sample of fifty emails across each account searched that were not identified as responsive in his last review. The Court will maintain these records under seal.

Navarro complied in October.

Then Judge Kollar-Kotelly issued what appears to be an order to the government to weigh in on whether his search was adequate.

Then, last week, Woodward asked to unseal those exchanges so he could submit the government one to Judge Mehta in support of sentencing (I think he only asked to unseal the documents to share with Mehta; thus far, at least, we don’t get to see them).

In Navarro’s own sentencing reply, he described what he was after: the government’s argument, in December (and so after Blassingame — a decision upholding Amit Mehta’s ruling that actions Trump took as a candidate are not immune from civil suit — distinguished between presidential actions taken as a candidate for office and holder of that office), that some of Navarro’s communications pertaining to the attempted coup might include official records.

The government’s betrayal is manifest of its true motive – the prosecution of a senior presidential advisor of a chief political opponent. By way of a second example, consider the position taken by the Department – representing one United States – in its litigation against Dr. Navarro for allegedly refusing to return purportedly presidential records to the National Archives and Records Administration under the Presidential Records Act. 44 U.S.C. §§ 2201- 2209. Here, the government claims that Dr. Navarro’s work related to the 2020 Presidential Election could only have been conducted in his personal capacity.4 Yet there, because it suits their interests, the government recently asserted – originally under seal – that Dr. Navarro, and the Administration of President Trump, could very well have worked to ensure election integrity as part of his official duties. See Notice, at 4 (Dec. 29, 2023) (ECF No. 35) (“However, the United States has not taken the position that every action that Defendant took in connection with the 2020 Presidential Election was done in his personal, and not official, capacity; nor has the United States taken the position that any communications related to the 2020 Presidential Election are not Presidential records.”).

So in the civil suit, Navarro appears to have decided that almost 600 communications sent on ProtonMail — those pertaining to his role in a coup attempt — were not sent in the conduct of his official duties and therefore don’t need to be turned over under the PRA to NARA (whence Jack Smith could subpoena them).

But in the criminal case, Navarro claims to have believed and still believe that everything Congress subpoenaed from Navarro, which would have covered every communication pertaining to his role in a coup attempt, was covered by Executive Privilege.

ProtonMail, because it is less often used on phones and because it is hosted in Switzerland, happens to be among the most difficult platforms from which to obtain communications in a criminal investigation — harder even than the Signal and Telegram apps on which much of this coup was plotted. At least based on what DOJ showed in the Josh Schulte case,  as recently as 2018, FBI didn’t have a means to access Proton content without a password under criminal process. So for a contemnor like Navarro who blows off subpoenas, you’re not going to get his ProtonMail content without his involvement in some way. It seems likely that Navarro has effectively conceded there are almost 600 records about the coup that DOJ still wants, records he refused to give January 6 Committee based on a frivolous claim of Executive Privilege, records that he now refuses to give NARA under a claim they’re not Presidential Records at all.

The facts at this point are fairly clear: along with two aides, Navarro spent much of his last month in office focused not on his trade duties or even his COVID response, but instead on ginning up false claims that the election was stolen. That is, in his apparent claim that his coup communications were not official duties, Navarro seems to confess he spent the last month in office defying the Hatch Act. And the false claims he ginned up played a key role in the coup (and one of those aides, Garrett Ziegler, was one of Ali Alexander’s direct ties to the White House).

The government has been attempting to retrieve the communications Navarro conducted on ProtonMail since December 2021, shortly after a COVID-related investigation surfaced their existence. And over two years later, Navarro apparently continues to withhold almost 600 records relating to the coup.

I assume there are still steps DOJ can take once these two legal cases are resolved — such as subpoenaing Navarro directly for the communications he now claims were not official records (he invoked the Fifth Amendment and demanded immunity from prosecution in refusing to turn them over before). That is, Navarro could end up facing a second criminal contempt charge, which is one reason Stan Woodward keeps making bullshit claims about politicization.

Nevertheless, through a combination of frivolous claims of privilege and reliance on technology that thwarts the FBI, it appears that a significant chunk of coup communications remain outstanding.

11th Circuit Adopts DC Logic that Mark Meadows and Trump’s Campaigning Is Not an Official Act

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The 11th Circuit just ruled that Mark Meadows cannot remove his prosecution in the Georgia case to Federal court. The primary basis for the ruling is a technicality: That removal only applies to current federal officials, not former ones.

But the court, in an opinion by Chief Judge William Pryor, also explained that they wouldn’t have approved the removal in any case because Meadows (and by extension, Trump) had no authority over state elections and electioneering of Meadows (and by extension, Trump) was not in their official duties.

This passage, for example, adopts the logic of Amit Mehta’s opinion in Thompson, which was in turn adopted in Sri Srinivasan’s opinion in Blassingame, but does so to the criminal context.

Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act. Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it. See Thomspson, 590 F. Suppl. 3d at 82. Indeed, the political branches themselves recognize that electioneering is not an official federal function.

Elsewhere, Pryor’s opinion solidly debunks Meadows argument — adopted by Trump’s in his own filings — that the Take Care Clause gave him basis to intervene.

Meadows argues that the Take Care Clause, U.S. CONST. art. II, §3, empowers the President with broad authority to “ensure that federal voting laws are enforced.” But he concedes that the President has no “direct control” over the indidviduals — members of Congress and state officials — who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President’s power extends to “assess[ing] the conduct of state officials.” We are aware of no authority suggesting the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally-authorized act.

These are precisely the issues that the DC Circuit or, if it accepts Jack Smith’s appeal, SCOTUS, will be reviewing in weeks ahead. And by the time whoever reviews it does so, a very conservative judge will have backed the same logic coming out of DC.

When John Eastman Acknowledged that Candidate Trump Spoke in His Personal Capacity

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In Sri Srinivasan’s opinion in Blassingame holding that presidents, when speaking as candidates, are not immune from civil suit, he pointed to a key moment in the 2020 transition period to illustrate the distinction he was making between when a president running for re-election speaks as an office-seeker, rather than an office-holder: When Trump intervened in the Texas v. Pennsylvania lawsuit.

As an example, consider a situation directly germane to the cases before us in which President Trump publicly volunteered that he was acting—and speaking—in an unofficial, private capacity. In the period after the 2020 election and before January 6, the Supreme Court considered an effort by Texas to challenge the administration of the election in several battleground states in which then-President-elect Biden had been declared the winner. Texas v. Pennsylvania, No. 22O155 (U.S. 2020). President Trump moved to intervene in the case. In doing so, he specifically explained to the Supreme Court (and captioned his filing accordingly) that he sought to “intervene in this matter in his personal capacity as a candidate for re-election to the office of President of the United States.” Motion of Donald J. Trump, President of the United States, to Intervene in his Personal Capacity as Candidate for ReElection, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion to Intervene 14, Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene). He relatedly elaborated that he wished “to intervene to protect his unique and substantial personal interests as a candidate for re-election to the Office of President.” Id. at 24.

President Trump, then, affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his “personal capacity” as a candidate for reelection—indeed, he explained that his reason for wanting to participate in the case was a “substantial personal” one rather than an official one. That stands in sharp contrast with other cases in which he—like all Presidents—had filed briefs in the Supreme Court in his “official capacity as President of the United States.” See, e.g., Brief for the Petitioners at II, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President Trump’s effort to participate in Texas v. Pennsylvania was made in an expressly and self-consciously personal, unofficial capacity, the content of his speech in his submission undoubtedly involved a matter of significant public concern: his challenge to the election results in various pivotal states, whose “electors [would] determine the outcome of the election.” Trump Mot. to Intervene 27.

As that example illustrates, an immunity for all presidential speech on matters of public concern—without regard to the context in which the President speaks—would be grounded purely in “the identity of the actor who performed it” rather than “the nature of the function performed.” Clinton, 520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a result is “unsupported by precedent.” Id. And it is unsupported by the basic object of granting a President official-act immunity: assuring that the President is not “unduly cautious in the discharge of his official duties.” Id. at 694 (emphasis added) (quoting Nixon, 457 U.S. at 752 n.32). That concern necessarily has no salience when the President acts—by his own admission—in an unofficial, private capacity.

b.

As President Trump’s intervention motion in Texas v. Pennsylvania highlights, whether the President speaks (or engages in conduct) on a matter of public concern bears no necessary correlation with whether he speaks (or engages in conduct) in his official or personal capacity. And because it is the latter question that governs the availability of presidential immunity—as a matter both of precedent and of the essential nature of an immunity for (and only for) official acts—we must reject President Trump’s proposed public-concern test as illsuited to the inquiry. [my emphasis; links added]

Remember that time, weeks before the actions alleged in these lawsuits, Srinivasan might have been nudging the six Republican appointees to the Supreme Court, where even Donald Trump admitted that sometimes when the president speaks, he speaks only in his personal capacity?

It was more than that, though, and in ways that might be significant to both the civil cases and Jack Smith’s case.

This was not just Donald Trump acknowledging that, at that moment in December 2020 when he asked the Supreme Court to make him the winner of the 2020 election, he was speaking in his personal capacity. It was John Eastman, Counsel of Record on that motion, who described Trump as such. Eastman filed that motion to intervene, representing Trump in his personal capacity, in a period when he was discussing with Clarence Thomas’ spouse about lawsuits to challenge the results of the election (though she told the January 6 Committee she had no involvement “at all” in Texas v. Pennsylvania). Even Republican members of Congress got into the act, starting with now-Speaker Mike Johnson and including Jim Jordan and Scott Perry.

When Ken Paxton asked the Supreme Court to throw out the votes of four swing states, a bunch of people who would go on to play key roles in the attack on Congress were party to an action in which Co-Conspirator 2 described that Defendant Trump spoke in his personal capacity.

In days ahead, we’ll learn more about how the DC Circuit civil decision being sent back to Amit Mehta will intersect with Tanya Chutkan’s criminal decision that former president Donald Trump is entitled to no immunity as former president. These two decisions may literally and figuratively pass each other in the halls of Prettyman Courthouse, as one decision heads back to the older District chambers and another heads up to the fancier Circuit chambers.

Srinivasan’s opinion is limited, inviting very specific fact-finding.

As I described, in a passage citing the Blassingame decision released just hours earlier, Chutkan very pointedly stopped short of that specificity. She declined to weigh in on whether a former president’s immunity from criminal prosecution would be different if he was acting “within the outer perimeter of the President’s official” duties than if he was engaged in official acts, effectively inviting Srinivasan and his colleagues to do that.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Chutkan’s decision might well be sufficient. There are plenty of things a president might do, claiming to do so in his official capacity, which would also break the law; DOJ raised five pretty familiar looking examples in their response to Trump’s bid for absolute immunity.

DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

[snip]

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

It would be nice if first DC Circuit and then SCOTUS could put this matter to bed, so it stops holding up Trump cases.

But judges like to move cautiously, testing the easy cases before they test the harder ones. With the Srinivasan decision in hand, the DC Circuit might treat the criminal appeal differently than they otherwise might.

For example, they might note, as DOJ did in its response, that five of six Trump described co-conspirators are also private citizens: Trump’s personal attorney Rudy Giuliani, Eastman representing Trump in his personal role, Sidney Powell, whom Trump recent said would be conflicted from representing him personally), Ken Chesebro who also claimed to be representing Trump personally, and Boris Epshteyn, who nominally remained an employee of the campaign.

If invited to do further briefing in light of Srinivasan’s opinion, DOJ might note that after SCOTUS denied Texas v. Pennsylvania cert, Trump’s campaign lawyers gave up the fight, as the January 6 Committee Report describes, ceding the fight to Rudy and the other co-conspirators.

Not everyone on the campaign was eager to pursue the fake elector plan. OnDecember 11th, the U.S. Supreme Court rejected a high-profile lawsuit filedby the State of Texas challenging the election results in Pennsylvania, Georgia, Michigan, and Wisconsin.42 After that decision, the Trump Campaign’s senior legal staffers said that they reduced their involvement in thefake elector effort, apparently because there was no longer a feasible scenario in which a court would determine that President Trump actually won any of the States he contested.43 Justin Clark, who oversaw the Trump Campaign’s general counsel’s office, said that he basically conveyed, “I’mout,” and encouraged his colleagues on the legal team to do the same.44 Findlay told the Select Committee that “we backed out of this thing,” and Morgan, his boss, said he had Findlay pass off responsibility for the electorsas “my way of taking that responsibility to zero.”45

Clark told the Select Committee that “it never sat right with me that there was no . . . contingency whereby these votes would count.”46 “I hadreal problems with the process,” Clark said, because “it morphed into something I didn’t agree with.”47 In his view, the fake electors were “not necessarily duly nominated electors” despite being presented as such.48 Hesaid he believed he warned his colleagues that “unless we have litigationpending like in these States, like I don’t think this is appropriate or, you know, this isn’t the right thing to do.”49

DOJ might also note that, as charged in the indictment, the suit played a specific role in the Georgia allegations, when Chris Carr refused Trump’s request that he join in Texas’ lawsuit, because none of Trump’s claims had merit.

And it’s not just Trump’s personal lawyer co-conspirators. The invocation of Texas v. Pennsylvania even weighs heavily on the role Jeffrey Clark, then serving as Acting Assistant Attorney General at DOJ and so in a far better position to claim to be acting in an official role, played in the alleged conspiracy.

That’s because Trump’s bid to replace Jeffrey Rosen with Clark was directly tied to an effort to get DOJ to file a similar lawsuit. Here’s how Jeffrey Rosen described it to the January 6 Committee.

Q Okay. And want to talk to you also about the December 27th call where | believe you conferenced in Mr. Donoghue. ~ And that involved the President as well. In Mr. Donoghue’s notes, he references John Eastman and Mark Martin and has a note that says: P trusts him.

What do you remember about that aspect of the conversation?

A So I think that day someone had sent over to us a draft Supreme Court brief modeled on the Texas v. Pennsylvania case that the Supreme Court had rejected. And I was I think Rich Donoghue and Steve Engel and I had a meeting that we were there for t0 address an oversight set of issues that had produced some controversy that Members of Congress who – I won’t get nto all that, other than that Mr. Meadows had asserted to me that the thing had – that he and AG Barr had resolved it. But now AG Barr was gone, and it wasn’t resolved, and he wanted to talk to me about getting it resolved.

But at that discussion Mr. Meadows raised with us: ~ Did you guys see the Supreme Courtbrief that was sent over?

And I think we said: Haven’t read it carefully, but it doesn’t look viable.

And he responded in some sense — and, again, I’m paraphrasing, because I don’t I’m repeating the substance rather than the words was: Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s great idea.

And we said: Well, you know, we’ll get back to you. But preliminary take is it has problems, that it doesn’t look like a good idea to us. But we’ve only had it 2 hours or something like that, you know, whatever the timeframe was, which it was relatively brief.

Trump followed up twice, pushing DOJ to sue as the government.

What I remember better was that, on Wednesday, after the Kurt Olsen incident, I spoke to the President. I think that was just me, or Rich may have been in my office, but I don’t think it was on the speakerphone. Some of these were on speakerphone with me and Rich, and some, it was just me, but Rich could’ve been in my office.

And the way I remember it is, on Wednesday, I wound up telling the President, “This doesn’t work. ~ There’s multiple problems with it. And the Department of Justice is not going to be able todo it” And–

In the same exchange, there was discussion of whether a DOJ attorney, like Jeffrey Clark, could represent the president in his personal capacity.

Q Okay. So is it fair then to say that this was not partof the Department’s official businessatthe time?

A Yes

Q And, to your knowledge, can Jeff Clark as the assistant — Acting Assistant Attorney General for the Civil Division, can he represent the President in a personal capacity while also maintaining his role at the Department of Justice?

A Let me just make sure I understand the question. You’re saying, can he outside of his DOJ role represent the President in a personal capacity? And I’m trying what I’m trying to distinguish is sometimes the President or others get sued in their individual capacity. But they have some form of governmental immunity or the like. And so the government can represent them as individuals. That’s not what you’re getting at. You’re talking about, can a – can someone who’s a government employee, You know, have like a side gig representing a private person?

But then, after Jeffrey Rosen refused to make DOJ Trump’s own personal law firm, Trump took steps to make Jeffrey Clark, who was willing to do that, Acting Attorney General.

This application may even have critical import to the application of 18 USC 1512(c)(2) and (k) to Trump’s actions. Weeks before Trump and Eastman allegedly conspired to obstruct the vote certification on January 6, Eastman described that Trump had “unique and substantial personal interests” in throwing out the votes of four states that voted for Joe Biden. That’s the kind of admission from co-conspirator 2 that would make any analysis of Trump’s corrupt purpose in obstructing the vote certification quite easy.

Srinivasan’s use of Trump’s motion to intervene was, at one level, a very convenient use of Trump’s own legal claims — made before a conservative Supreme Court that will eventually answer both of these questions — against him.

But it maps onto the criminal case, too, in ways that DC Circuit might choose to apply as a way to tiptoe their way into sanctioning the first prosecution of an ex-president for actions he took as an office-seeker, rather than an office-holder.

Update: Ben Wittes and Quinta Jurecic similarly discuss how these two rulings work in tandem.

DC Circuit Rules that a President’s Speech as Candidate Is Not Official

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The DC Circuit just ruled that three lawsuits against Donald Trump (and others) for actions on January 6 can move forward.

Chief Judge Sri Srinivasan wrote the majority opinion, joined by Greg Katsas and Judith Rogers. He wrote:

When a sitting President acts in his capacity as a candidate for re-election, he acts as office-seeker, not office-holder.

But Katsas — a former Trump White House counsel and a Trump appointee — may have summarized the holding best.

Today, we do not definitively resolve that question. Instead, we hold only that we cannot resolve it on a motion to dismiss. Our conclusion rests on two propositions persuasively established by Chief Judge Srinivasan’s lead opinion. First, in certain limited contexts, courts may reliably conclude that a sitting President is speaking only in a private capacity as a candidate for re-election or as the leader of a political party. These include instances where the President speaks at a party convention, in a presidential debate, in a political advertisement, at a campaign rally, or at a party fundraiser. Second, the operative complaints plausibly allege that the January 6 speech involved this kind of purely private campaign speech. In particular, the complaints allege that the January 6 rally was organized by campaign staff and funded by private donors, and was neither facilitated by White House staff nor paid for with congressionally appropriated funds. Given those allegations, which remain to be tested on summary judgment or at trial, we cannot resolve the immunity question in President Trump’s favor at this stage of the case.

Trump never argued that his actions were official. Instead, he said that when a President speaks on matters of public interest, even as a candidate, he is entitled to immunity.

But all three judges rejected that view.

Srinivasan engaged in an extended discussion of how unfair it would be for a former President running to be elected President again if he were running against the sitting President — that is, the presumed state of the 2024 race. Under Trump’s scheme, Biden would be immune for anything he said as a candidate; Trump would not.

Under President Trump’s proposed public concern test, if the candidate happens to be the sitting President (but not if she is a former President or any other candidate), her speech in the ad would be official—even though it is plainly campaign speech in a campaign ad given in her private capacity as candidate. A sitting President then would be absolutely immune from defamation liability for something she may have said about her opponent in the campaign ad, whereas a former President would face liability for saying the very same thing in the very same ad.

The pro-incumbent imbalance would be especially stark if the former and current Presidents were to run against each other. In that situation, one candidate, the former President, would face civil damages liability for statements on matters of public concern in campaign ads or in an acceptance speech at a party convention. But the competing candidate, the sitting President, would be wholly insulated from damages liability for making the very same statements on the opposing side of the very same race. We see no basis for giving an incumbent President that kind of asymmetrical advantage when running against his predecessor.

This case — and Trump’s criminal case, presumably — will now focus on certain aspects of January 6 to test whether this was a campaign event or an official event. It will pivot on who paid for what and who organized the event.

There’s a big problem with this opinion. A sitting President cannot be prosecuted if he spends official resources for campaign events. Trump’s White House was repeatedly found to have broken the Hatch Act, and the President and Vice President are not covered by it. So a future Donald Trump (and indeed, all Presidents to some degree) will now have an incentive to bill taxpayers for all events so as to enjoy presidential immunity.

But for now, it’ll go back before Judge Mehta for a renewed discussion about whether this was an official presidential event or a campaign event.

Update: Fixed Judith Rogers/Janice Rogers Brown for probably the 100th time in my life.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

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Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

How and Why to Charge Trump First

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In the wake of the news of Trump’s target letter in the January 6 investigation, journalists have found no Trump associate willing to admit, on the record, to having received a target letter themselves, leading to questions about whether Jack Smith might charge Trump and only later add co-conspirators.

In this thread, I suggested there might be (unusual) merit to charging Trump — the head of the conspiracy — first, then add in everyone else. A bunch of people asked what I meant — so this post attempts to explain my thinking.

It builds on this post, written before the first January 6 Committee hearings. That post relied on three judge’s opinions conceiving Trump’s role in the January 6 attack:

  • Amit Mehta’s opinion sustaining the lawsuits against Trump for January 6
  • David Carter’s opinion finding crime-fraud exception for some John Eastman’s email
  • Reggie Walton’s opinion that proving Trump’s effect on the rioters must stem from the Trump communications the rioters actually knew of, including Trump’s December 19 tweet announcing the event and (for those who watched) his Ellipse speech; the Proud Boys are a special case because of Trump’s September 29 debate comment and because almost all Proud Boys skipped Trump’s speech

I used those opinions to lay out what the judges — two who were familiar with January 6, one who relied on J6C’s representations about it — viewed as evidence supporting that Trump committed a crime. Once you understand that the bodies at the Capitol were a key way Trump obstructed the vote certification (something included in Judge Carter’s opinion but often overlooked), then the import of Trump’s impact on rioters becomes more clear. It narrows the evidence needed to prove Trump’s obstruction beyond what most people understand — and very nearly maps the dozens of successful obstruction prosecutions DOJ already obtained, which I first started mapping out in August 2021.

This table updates my earlier one (and remains mostly a talking document — there’s a lot missing). It adopts the two most likely standards for “corrupt purpose” that the DC Circuit might adopt in the Thomas Robertson appeal. And it includes a number of details — largely focused on Mike Pence — on which both J6C and the investigation have focused for over a year.

My argument is that, to prosecute Trump, you need to obtain proof of the stuff highlighted in yellow, largely focused on his effect on Pence and on the mob. To prosecute Trump’s lackeys, you need to collect a lot more information and, likely, will need to flip some people. The rest of the table shows what it would take to include the others.

Jack Smith obviously thinks he has the evidence to charge Trump (though the circus involving Will Russall yesterday could have created a few hurdles).

With the obstruction charge — assuming the reports of a “witness tampering” charge really refer to 18 USC 1512(c)(2) — Smith has obviously already secured almost all the Pence-related people whose testimony really matters, including Pence himself. Two key exceptions are Rudy Giuliani and John Eastman. But the testimony of the former was locked in in a two-day proffer a few weeks ago and the testimony of the latter was locked in in sworn testimony in Eastman’s disbarment trial in the same time period.

The one other exception I can think of is Ivanka.

With regards to the mob, Smith can rely on the statements of offense of hundreds of convicted defendants, including people who had a key role in the attack, including the Proud Boys and even some others who played a key role in specific breaches.

That’s my understanding of how you could charge Trump (at least with obstruction) before charging a bunch of his lackeys: the evidence requires less proof of the conspiring on comms that may still be in filter reviews.

Why is another matter.

First, if you’re going to charge Trump you need to do so as soon as possible, because of the election. If you charge Trump alone (though it’s not clear that’s really happening), you might be able to get to trial before August 2024.

Another reason to charge Trump is that it undercuts his ability to buy silence from other witnesses. If people are no longer protecting Trump, they may be less willing to add to their own legal jeopardy by lying.

It’s possible, too, that some of the charges would be prophylactic. If Smith were charging Trump as well for attempting to tamper with Cassidy Hutchinson’s testimony to J6C — something about which we know she gave testimony last September — it might give Trump somewhat more caution before tampering with the testimony of others.

If Smith charged Trump with attempting to discount Black and Latino voters, as opposed to just all Biden voters, it might raise the stakes on Trump’s efforts to disenfranchise minority voters in 2024.

In both cases, such charges might give prosecutors cause to include specific prohibitions in release conditions (though Trump will undoubtedly still be released).

It’s still not clear what conduct Smith would charge as a conspiracy (18 USC 371). It could be attempting to install Jeffrey Clark to aid his attempts to discredit the election (privilege reviews for which started in May 2022). It could be the fake electors plot (though I’m not convinced that Smith has locked in the testimony of all relevant witnesses yet). But here, too, charging Trump with conspiracy while identifying as-yet uncharged co-conspirators might lead them to hesitate before helping Trump.

I think, in general, anxious commentators underestimate the degree to which Smith is going to want to lock in each and every witness before charging a certain part of this larger conspiracy. J6C’s delay in releasing transcripts actually contributed to the difficulty, and probably added several months of delay in January and February. But if Smith were to charge obstruction on a narrowly targeted Pence-and-the-mob charge, then it would limit the necessary evidence to testimony and evidence DOJ already spent years collecting.

Update: Very belatedly fixed Will Russell’s last name.

Stewart Rhodes: Yale Law Grad, Seditionist, Terrorist, and Ongoing Threat to Democracy

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Judge Amit Mehta, one of the most measured judges in DC, just sentenced Stewart Rhodes to 18 years in prison.

In sentencing Rhodes, Judge Mehta observed,

I dare say Mr. Rhodes, and I have never said this to anyone I have sentenced: You, sir, present an ongoing threat and a peril to this country, the Republic and the very fabric of democracy.

Brandi Buchman will have a much more detailed report much later today, after fellow seditionist Kelly Meggs also gets his sentence.

Until then, consider this an thread for talking about Yale Law Grads who take up terrorism.

Update: Kelly Meggs, the car salesman who set up cooperation between the Oath Keepers, Proud Boys, 3 Percenters, and Roger Stone before the attack and led the main stack into the Capitol, was sentenced to 12 years.

I’m really grateful we’ll have more of Brandi’s evocative reports from the courthouse. If you’d like to support Brandi’s coverage, please consider donating! 

DOJ Says Inciting a Riot Is Not Part of the President’s Job Description

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When Trump appealed Amit Mehta’s ruling that he could be sued for his role in setting off an attack on January 6, Trump said he had absolute immunity from being held accountable for his role in the attack.

The DC Circuit asked DOJ what they thought about that claim.

DOJ has now responded in an amicus filing. They argued that Mehta’s opinion — which held that it is plausible that Trump incited violence at the Capitol — would not cover stuff that is part of the President’s job description.

Here, the district court concluded that plaintiffs’ complaints plausibly allege that President Trump’s speech at the rally on January 6, 2021, precipitated the ensuing attack on the Capitol—and, in particular, that the complaints plausibly allege that the former President’s speech encouraged imminent private violent action and was likely to produce such action. The United States expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints. But in the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States.

In this Court, President Trump has not challenged the district court’s conclusion—reiterated by plaintiffs on appeal—that the complaints plausibly allege that his speech instigated the attack on the Capitol. Instead, his briefs advance only a single, categorical argument: A President is always immune from any civil suits based on his “speech on matters of public concern,” Trump Br. 7—even if that speech also constitutes incitement to imminent private violence. The United States respectfully submits that the Court should reject that categorical argument.

The government specifically and repeatedly stated that they are not endorsing Mehta’s opinion. They also make it clear that they’re not stating a view about the criminal liability of anyone for January 6.

[T]he United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events.

But they are saying that if Mehta’s opinion holds, then what his opinion covers (and he excluded Trump’s inaction as areas in which he might be immune) would not be covered by the President’s job description.

The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol. But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this Court should reject the categorical argument President Trump pressed below and renews on appeal. Resolving the appeal on that narrow basis would allow the Court to avoid comprehensively defining the scope of the President’s immunity for speech to the public—including when and how to draw a line between a President’s speech in his presidential capacity and speech in his capacity as a candidate for office.

Of note for Scott Perry: In the midst of a passage that explains that a President’s natural incumbency position must render some reelection speech Presidential, it also notes that that’s not true for Members of Congress, because House ethics rules exclude campaign activity from a Member of Congress’ job description.

For those reasons, and because of differences in the applicable legal standards, the outer perimeter of the President’s Office differs from the scope of a Member of Congress’s employment for purposes of the Westfall Act, 28 U.S.C. § 2679. Cf. U.S. Resp. to Mo Brooks’s Westfall Act Pet. at 8-19, Swalwell v. Trump, No. 21-cv-586 (July 27, 2021), Dkt. No. 33 (explaining that Representative Brooks’s speech at the January 6 rally was outside the scope of his employment because House ethics rules and agency-law principles establish that campaign activity is not within a Representative’s employment).

So Members of Congress can’t campaign as part of their jobs. Presidents can. But they cannot — whether to stay in office or for some other reason — incite private actors to engage in violence.

Update: As I laid out here, DOJ may be laying the groundwork for proving aid and abet liability for both Trump and Rudy Giuliani in the near-murder of Michael Fanone. Those exhibits are being presented in the bench trial, before Amy Berman Jackson, of Ed Badalian.