Amit Mehta Archives - Page 3 of 6

Posts

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

February 21, 2022/63 Comments/in 2016 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

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.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol. In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

February 21, 2022/99 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As I noted and you’ve no doubt heard elsewhere, on Friday, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him, along with those of the Proud Boys and Oath Keepers. This is just the first step in an effort by police and some members of Congress to hold the former President civilly accountable for conspiring to prevent them from certifying the electoral vote on January 6. All he did was rule that the claims, as alleged, were plausible; this is not a ruling that Trump did conspire with two militias.

Judge Mehta’s decision will undoubtedly be appealed, by plaintiffs, the militias, and Trump.

But the decision matters because it lays out a framework to understand Trump’s actions on January 6 as a conspiracy between himself and two militias that played key roles in the insurrection on January 6.

It matters, too, because Mehta is not just any judge. He is well-respected by all involved (indeed, some Oath Keeper defendants have explicitly suggested that retaining Mehta as the presiding judge might worth more than challenging venue). Mehta’s order will carry a good deal of weight with any of his colleagues who might preside over a Trump criminal case, and with the DC Circuit. Plus, as the judge presiding over the Oath Keeper conspiracy and a number of other high profile January 6 cases, he has a far greater understanding of how the day’s events unfolded than, say, Chief Judge Beryl Howell, who is presiding over a disproportionate number of trespassing cases. As I’ll show in a follow-up, his opinion reflects a far greater understanding of January 6 (including, possibly, non-public information) than most others have.

So while this decision is nowhere near the last word on whether Trump conspired with two militias to attack the Capitol, it is a really important first word.

It is plausible that Donald Trump entered into a conspiracy with two militias

As Judge Mehta laid out, accepting the claims alleged as true (which one must do on motions to dismiss), there were five things Trump did that made the plaintiffs’ claims of a conspiracy plausible, which is the standard required to reject the motion to dismiss:

They agreed to pursue the goal of disrupting the vote certification: “The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th.”
Trump encouraged means of obstructing the vote count and the militias (and others) carried them out: “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts.”
Trump incited law-breaking: “Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.”
Trump called for collective action: “Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable.”
Trump ratified the riot: “And then, around 6:00 p.m., after law enforcement had cleared the building, the President issued the following tweet: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’ A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier.”

Laying out the conspiracy like this is the easy part.

The hard part is finding that the sitting President could be sued, and could be sued substantially for his speech.

The President has no role in certifying the vote count

Mehta got there in three key moves.

The first was dismissing Trump’s claim that his actions amounted to fulfilling his duty to Take Care that election laws were faithfully executed.

President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3,

[snip]

President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id.

As Mehta notes, Trump’s law review student note sees the President’s role in enforcing election law to be litigation, not intervening to prevent the actual vote certification.

What President Trump omits from that quote, however, makes his citation grossly misleading. The full quote reads: “However, enforcing election laws through litigation [strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through litigation” completely changes the meaning of the sentence. The President can enforce election laws through litigation initiated by the Department of Justice or the Federal Election Commission, agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v. Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey note is inapt.

This comment has further implications, both because Trump’s campaign personally tried to sue to overturn the election results, but failed in spectacular fashion, and because Trump’s efforts to force DOJ to launch such suits failed. Mehta mentions neither of these details, but they do matter in understanding Trump’s actions.

Outside of such litigation, Mehta notes, the Constitution assigns the President no role in certifying the vote count.

[A] sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.

The other legal duties involved in certifying election results are explicitly assigned to other parties, including a co-equal branch of government.

President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President.11 The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.

The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President.

This language closely models language that DOJ is using in obstruction cases to establish that the vote certification was an official proceeding.

Then-President Trump was not speaking, as President, about matters of public concern

Mehta then dismisses Trump’s claim that he is immune from suit because his January 6 speech simply amounted to him, in the role of President, commenting on matters of public concern.

He bases his approach on a DC Circuit case that ruled that any claim of immunity must be rooted in the actual duties of the office.

Rather than apply the parties’ proffered categorial rules to the immunity question, the court thinks the better course is to evaluate the defense on the specific facts alleged and, based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham, a case in which then–Board Member of the Washington Metropolitan Area Transit Authority (“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly interfering with a developer’s ultimately unsuccessful project negotiations with WMATA.

[snip]

“The appropriate focus,” the court wrote, “is on the relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to [the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that “[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.” Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests on the official claiming it. Id. at 1140.

Using that as a framework (and spending a paragraph admitting that consideration of a President’s role is a far more weighty matter), Mehta holds that it is not within the scope of the President’s duties to ensure his own incumbency.

In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency.

He goes allegation by allegation showing that Trump’s alleged actions served to ensure his own incumbency, including this key paragraph laying out the purpose of the Rally itself.

That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”

Via this approach, then, Mehta arrives precisely where DOJ did — in making a Hatch Act argument that campaigning is not among the duties of any federal employee — via different means. It is not the duty of the President to remain President, but that’s what Trump was doing in all the alleged acts.

Trump incited violence (and also ordered his followers to do something unauthorized)

Mehta ultimately judges that Trump’s speech on January 6 meets the Brandenberg test for incitement.

But before he gets there, he makes another important point. It was Trump’s campaign’s idea — and he was personally involved in — sending people on an unpermitted march to the Capitol.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).

[snip]

[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

After a good deal of legal analysis, Mehta conducts a detailed analysis of Trump’s speech, focusing closely on how his call for non-violence come long before an airing of Trump’s false grievances and attacks on Mike Pence, leading up to calls to fight and to walk down Pennsylvania Avenue.

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.

[snip]

That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

It’s not just the call for violence and Trump’s awareness (because of the threats leading up to January 6) that violence was likely to result. It’s also the call for a march that was not permitted.

That is, it’s not even just speech, or just incitement to violence. It’s also the call for a march that the campaign knew was not permitted.

While Mehta obviously returns to the unpermitted march over and over, he doesn’t dwell on the significance of it. That’s not the task before him. Moreover, though he alludes in passing to Alex Jones’ role (which I may return to), that likewise is not a developed part of the complaints before him.

The alleged complaints — the most recent of which was filed in March, an eternity ago in our understanding of January 6 — primarily focus on a theory of incitement.

But Trump did more than that. After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

The Green Bay Sweep Is Inextricably Tied to the Violent Mob

January 11, 2022/202 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Between yesterday’s hearing in the January 6 lawsuits — where Judge Amit Mehta noted that,”The conspiracy to sow distrust in the election is not illegal, no[] matter what we think about conduct,” — and something I’m working on, I’ve been thinking about all the stuff that happened between November and January, which the Select Committee is working aggressively on.

I’ve said that I believe the phone call to Brad Raffensperger is illegal on its own right. The Fulton County DA says she’s getting closer to a charging decision on it, and whatever she decides she can likely share her findings with DOJ. Politico reported on some of the other damning information that the Select Committee has received, including other calls to pressure Georgia officials.

I’ve laid out how Trump’s pressure on Mike Pence is already a key focus of both investigations (which the NYT wrote about yesterday).

But as to the rest of it, thus far, the vast majority of what has been made public is — as Judge Mehta qualified it — a legal conspiracy to undermine trust in elections. As I noted, the reason why Peter Navarro’s confessions aren’t enough to charge him with sedition is because as confessed, the coordinated effort to get Republicans to raise bad faith challenges to the vote certification is not illegal.

But there are two ways to think about these events leading up to the mob. The first, which I’ll lay out in more depth later, is as proof of mens rea. When Trump called up Raffensperger and asked for the precise number of votes he needed to win, it was a (recorded) admission that he knew he had lost the state.

To the extent DOJ and the Select Committee can substantiate that Trump knew the request was illegal, Trump’s sustained demands that Pence reject the legal vote count is also proof of kind of corrupt purpose that would be necessary to charge him with obstruction (as DOJ’s expert on this approach himself said fairly explicitly).

I’d like to go back to what I believe to be the third most compelling proof of corrupt mens rea. As I noted, when — in the wake of state certifications — Trump told Richard Donoghue to just say the election was corrupt and “leave the rest to me and the Republican Congressmen,” he effectively admitted he was asking DOJ to claim there were problems with the election when they were telling him there weren’t.

On December 27, Acting Deputy Attorney General Richard Donoghue took notes from a call where Trump laid out the alleged fraud that merited DOJ involvement. Donoghue noted Trump saying, “You guys may not be following the Internet the way I do.” Donoghue recorded multiple times that DOJ officials told Trump his election claims were wrong, detailing the investigations that DOJ had already done into the allegations. He recorded Trump’s intimation that he might start replacing people with Jeffrey Bossert Clark if they didn’t back his claims of fraud.

At one point, Trump demanded, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”

At the time I wrote that post in August, I believed it proved the mens rea that DOJ would need to show Trump was acting with corrupt intent.

But I look at it differently given Peter Navarro’s cover story about the subsequent effort. Navarro claims that he and Steve Bannon rolled out an (entirely legal) effort to provide members of Congress with enough election disinformation to sustain 24 hours of debate.

“The Green Bay Sweep was very well thought out. It was designed to get us 24 hours of televised hearings,” he said. “But we thought that we could bypass the corporate media by getting this stuff televised.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

The next phase of the plan was up to Bannon, Navarro describes in his memoir, In Trump Time.

“Steve Bannon’s role was to figure out how to use this information—what he called ‘receipts’—to overturn the election result. That’s how Steve had come up with the Green Bay Sweep idea,” he wrote.

“The political and legal beauty of the strategy was this: by law, both the House of Representatives and the Senate must spend up to two hours of debate per state on each requested challenge. For the six battleground states, that would add up to as much as twenty-four hours of nationally televised hearings across the two chambers of Congress.”

The plan, as laid out in Navarro’s cover story, is entirely legal so long as you believe two key claims he makes: that he doesn’t know when this effort started and doesn’t remember Trump being personally involved.

Although Navarro told The Daily Beast he doesn’t remember when “Brother Bannon” came up with the plan, he said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits. So instead, they came up with a never-before-seen scheme through the legislative branch.

Navarro starts off his book’s chapter about the strategy by mentioning how “Stephen K. Bannon, myself, and President Donald John Trump” were “the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,” as it would disrupt their plans.

When asked if Trump himself was involved in the strategy, Navarro said, “I never spoke directly to him about it. But he was certainly on board with the strategy. Just listen to his speech that day. He’d been briefed on the law, and how Mike [Pence] had the authority to it.”

“Leave the rest to me and the R[epublican] Congressmen.” Navarro (claims he) doesn’t remember when this plan started.

But Trump already told DOJ (the people conducting this investigation, the ones that got a privilege waiver for this material back in the summer) when it started, all the way back in 2020. By December 27, he had a plan that required DOJ to claim fraud, so that Trump and Republican Congressmen could implement what would ultimately be called the Green Bay Sweep.

But even before he had done that, on December 19, he sent out the Tweet that insurrectionists great and small took as their cue to start planning to attend a riot.

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

DOJ has had, since before January 6, the proof that these two efforts worked in conjunction.

And that’s what changes the (as Judge Mehta described it) legal conspiracy to sow distrust in the election into an illegal conspiracy, with demonstrated mens rea of corrupt intent, to obstruct the vote count.

This is why DOJ has been pursuing a conspiracy to obstruct the vote count and not incitement. Because only the former can reach to those who helped Trump commit his crime.

After a Six Hour Hearing on Lawsuits against Trump, the Only Clear Thing is Don Jr Is in the Clear

January 10, 2022/32 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

We just finished a 6-hour hearing before Judge Amit Mehta in the consolidated lawsuits (by Bennie Thompson and other members of Congress, by Eric Swalwell, and by some cops) against Trump and others for January 6.

As the judge presiding over the Oath Keepers case, Mehta knows January 6 as well as anyone — and probably has seen a bunch that is not public.

And the only two takeaways about which he seemed certain are that, first of all, Don Jr’s attempts to get his Pop to call off the riot, on top of the fact that his incendiary speech wasn’t nearly as pointed as his Dad’s, likely puts him in the clear for tortious liability. Whether Trump himself is, Mehta said over and over, is a very difficult question.

He seemed to think the question of whether Trump abetted the riot is easier than whether he conspired with the criminals.

The one other thing about which Mehta seemed certain, based on the record before him (and possibly on stuff he has seen that’s not public) is that a claim that the Oath Keepers and Proud Boys conspired is not at all a stretch. He even noted, at one point, that Jonathon Moseley’s claim that some people who listened to Trump might have listened to his speech and then gone to lunch was not applicable here given that, as he knows well, the Oath Keepers did not go to lunch.

Here’s my thread on the rest, which I’ll presumably return to.

Because this case was for a conspiracy before a judge who knows January 6 as well as anyone, in suits arguing incitement more aggressively than a conspiracy that I think is becoming more evident (but that was not briefed before Mehta), his caution should caution others. These lawsuits are basically a dry run of any criminal charges against the Former, particularly for incitement. And, at least per Judge Mehta, the case is not as clearcut as many seem to believe.

DOJ’s Approximate January 6 Conspiracies

January 4, 2022/25 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Amid the clamor for Merrick Garland to say something about the January 6 investigation, DOJ has announced he will give a speech, tomorrow, to mark Thursday’s year anniversary of the assault on the Capitol.

Meanwhile, late last year, DOJ released a one-year summary of the investigation. It’s similar to periodical reports the DC US Attorney’s Office has released before, including that its numbers generally skew high. It includes DC Superior Court arrests, in addition to federal arrests, to come up with “more than 725 defendants;” (GWU’s count, which those of us tracking this closely consider the canonical list, shows 704 arrests). DOJ appears to mix assault and civil disorder arrests to come up with 225 in some way interfering with cops; my own count, while low, counts fewer than 150 people charged with assault. DOJ’s summary boasts that 275 people have been charged with obstruction, a number that includes those who’ve been permitted to plead down to misdemeanors.

One number, however, is low: DOJ claims that,

Approximately 40 defendants have been charged with conspiracy, either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three.

By my count, this number is at least 25% off the known count. There are 39 people currently charged in the top-line militia conspiracies, plus five people cooperating against them.

There are at least another 13 people charged in smaller conspiracies (though the Texas “Patriot” conspiracy has not been indicted yet), with two more people cooperating in those cases.

It’s most likely DOJ got this number so badly wrong because it is overworked and some of these (like the Texas one and the status of Danny Rodriguez co-conspirator “Swedish Scarf”) aren’t fully unsealed.

But it’s also likely that these numbers are not what they seem.

That’s because in (at least) the larger conspiracies, there have been a lot of plea discussions going on behind the scenes, if not hidden cooperators. Certainly in the wake of five decisions upholding the obstruction application (including in the main Oath Keeper conspiracy, in the Ronnie Sandlin conspiracy, and by Tim Kelly, who is presiding over three of the Proud Boy conspiracies), we should expect some movement. I expect there will be some consolidation in the Proud Boy cases. The Texas case and some other Proud Boy defendants have to be indicted.

Importantly, too, these conspiracies all link up to other key players. For example, Roger Stone, Ali Alexander, and Alex Jones coordinated closely with the Proud Boy and Oath Keeper conspirators. The state-level conspiracies are most interesting for local power brokers and the elected officials with whom these conspirators networked — like Ted Cruz in the case of the Texas alleged conspirators or Morton Irvine Smith in the SoCal 3%er.

The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.

And so while DOJ is undoubtedly overwhelmed, it may also be the case that DOJ would like to keep potential co-conspirators guessing about what’s really behind them.

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

January 2, 2022/178 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
A law review article on prosecutorial discretion
Robert Jackson’s seminal text about the role of a Federal prosecutor
The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
The quip, “hard cases make bad law”
An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

December 28, 2021/95 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

Nordean (4 defendants)
Pezzola (2 remaining defendants after Greene’s change of plea)
Chrestman (6 defendants)
Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
Hughes (2 defendants)
Pruitt
Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.

The Intransitive Corruption of the Oath Keepers

December 21, 2021/16 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In a 49-page opinion upholding the government’s application of obstruction to January 6, Judge Amit Mehta lists using encrypted communications during the January 6 operation among the means by which the defendants are alleged to have obstructed the vote count.

Section 1512(c)(2) targets only “corrupt” acts of obstructing, influencing, or impeding an official proceeding. Therefore, it does not “proscribe lawful or constitutionally protected speech.” Thompson, 76 F.3d at 452. And the indictment here reflects that the government is not prosecuting protected speech. Rather, it charges Defendants with conspiring “to stop, delay, and hinder the Certification of the Electoral College vote.” Indictment ¶ 38. They allegedly carried out the conspiracy by various means, including “[a]greeing to participate in and planning an operation to interfere with the Certification of the Electoral College vote on January 6, 2021,” i.e. “the January 6, operation,” id. ¶ 39a; bringing and contributing paramilitary gear and supplies—including firearms—for the January 6 operation, id. ¶ 39f; forcibly storming past exterior barricades, Capitol Police, and other law enforcement officers to enter the Capitol building, id. ¶ 39j; and using encrypted communications during the January 6 operation, id. ¶ 39k. If the government can carry its burden of proof at trial, a conviction of Defendants premised on such activities would not violate the First Amendment.

I start with that detail not to raise concerns that Mehta is criminalizing Signal in the way DOJ always likes to — though it is a concern — but to note that Mehta does not distinguish obstruction, as Dabney Friedrich did, at least with respect to Ronnie Sandlin and Nate DeGrave, solely by illegal activities.

That’s important because (in part because Mehta was addressing the filings of about 6 defendants) this opinion is likely to be the one that the DC Circuit and SCOTUS look to when defendants inevitably appeal obstruction convictions.

In addition to being very thorough, Mehta provides all the context, historical background, and translation from the Latin to make this opinion accessible to those trying to figure out what the challenge is about.

While the opinion is, generally, a point by point rejection of each of the challenges that defendants have brought against this application, two moves Mehta makes are worth noting.

Mehta relies on 1512(d) to lay out a limiting principle

First, to rebut several kinds of arguments that 1512(c)(2) can’t be applied to the occupation of the Capitol as a means to obstruction the vote certification because other parts of the law would apply, Mehta focuses on part of the law that Friedrich addressed in a hearing but largely ignored in her opinion: 1512(d)(1). He does so several times, first in dismissing a Begay challenge that would require 1512(c)(2) to treat the destruction of evidence. He points out that 1512(d)(1) contemplates obstruction to include preventing someone from attending an official proceeding.

Defendants also colorfully assert that the government’s interpretation of section 1512(c)(2) “out-Begays Begay.” Crowl Suppl. Br. at 10. That is so, according to Defendants, because the offenses charged in Counts One and Two are not only dissimilar to the evidence spoliation prohibited by section 1512(c)(1) but also dissimilar to “[e]very crime in §§ 1512(a)–(c)(1) and (d),” which are “designed to affect the integrity or availability of evidence in a proceeding.” Crowl Suppl. Br. at 10. That characterization is simply not correct. Subsections (a) and (b) are, concededly, largely aimed at proscribing conduct that affects the presentation of evidence at an official proceeding—but not entirely. Each subsection also makes unlawful certain acts that cause another to “hinder, delay, or prevent the communication” of an offense to law enforcement and judicial officers. 18 U.S.C. § 1512(a)(2)(C), (b)(3). What’s more, subsection (d) has little to do with the presentation of evidence. It does, in one of four subparagraphs, prohibit harassment of another person to hinder, delay, prevent, or dissuade giving “testi[mony] in an official proceeding,” id. § 1512(d)(1), but the same subparagraph makes unlawful harassment that affects mere “attending” of an official proceeding, id., and the remaining subparagraphs concern the reporting of crimes or other violations to law enforcement and judicial officers, id. § 1512(d)(2)–(4). Thus, section 1512 is not, as Defendants contend, targeted exclusively at protecting the presentation of evidence at an official proceeding.

He then returns to 1512(d) to respond to surplusage claims that the application of 1512(c)(2) to obstructing the vote count would be covered elsewhere by focusing on the mens rea requirement.

[I]f there is a concern about the breadth of section 1512(c)(2) it would be with respect to its impact on section 1512(d), which imposes only a three-year maximum penalty. The “harass[ment]” prohibited by section 1512(d) arguably could be swept up by section 1512(c)(2)’s broad proscription, transforming three-year felonies into 20-year felonies, thereby vesting substantial leverage in charging and plea bargaining to prosecutors. But section 1512(d) is different two critical respects. One, it requires only that the person act “intentionally,” and not “corruptly.” That more stringent mens rea element serves as an important barrier to charging mere harassment as a 20-year felony. And, two, as discussed, subsections 1512(d)(2) through (d)(4) extend to acts not impacting official proceedings. So, even a broad understanding of section 1512(c)(2) will not render 1512(d) obsolete.

Mehta’s treatment of 1512(d) does a whole lot of work here, work barely touched on by defendants, because it both proves that Congress did intend attendance at official proceedings to be covered by the statute, but also sets a limiting principle — mens rea — that Mehta (and Randolph Moss) were seeking.

Mehta’s response on constitutional avoidance

I’m also interested in Mehta’s response to a challenge brought by James Beeks, who by dint of being arrested very recently, contributed to this challenge at a very late date. He argues that to avoid constitutionality problems, 1512(c)(2) must be limited to evidence.

To “sidestep constitutional quicksand,” Defendants Beeks contends, these principles compel a construction of section 1512(c)(2) that reaches “only its core conduct—acts that affect the integrity and availability of evidence used in an official proceeding.”

I’m interested in Mehta’s treatment of this not because I think — particularly given what Mehta does with 1512(d) — that it has merit.

But I think this treatment of McConnell may not be enough to convince SCOTUS.

McDonnell v. United States does not demand a more restrictive reading, either. There, the Court rejected the government’s reading of the term “official act” in 18 U.S.C. § 201 as reaching “nearly any activity by a public official.” 579 U.S. , , 136 S. Ct. 2355, 2368 (2016). The government had urged that the term “official act” include “workaday functions,” such as “setting up a meeting, calling another public official, or hosting an event.” Id. at 2368. The Court read “official act” as encompassing only a “formal exercise of governmental power” that is “specific and focused” on a pending matter or one that may be brought before a public official. Id. at 2372. This narrowed reading avoided a “vagueness shoal.” Id. at 2373 (quoting Skilling, 561 U.S. at 368). The vagueness concerns that animated McDonnell are not present here. For one, the Court expressed worry that the government’s essentially unbounded definition of “official act” would chill the conduct of public officials who, as a matter of course, made meeting arrangements and contacted other officials for constituents. Id. at 2372. If such constituents made campaign contributions or extended invitations to the public official, as often happens, “[o]fficials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” Id. Such concerns are less pronounced here. Their alleged actions were no mere political protest. They stand accused of combining, among themselves and with others, to force their way into the Capitol building, past security barricades and law enforcement, to “stop, delay, and hinder the Certification of the Electoral College vote.” Indictment ¶ 38. Prosecuting such conduct under section 1512(c)(2) poses little risk of chilling otherwise protected activities. The Court in McDonnell also was concerned that the “standardless sweep” of the government’s proposed definition could subject public officials, without fair notice, to prosecution/potential criminal liability “for the most prosaic interactions.” 136 S. Ct. at 2373 (internal quotation marks omitted). A straightforward reading of section 1512(c)(2), by contrast, would have provided these Defendants with sufficient notice that their alleged acts, even though not affecting evidence, put them in danger of prosecution. Even if there were a line of ambiguity inherent in section 1512(c)(2), their alleged acts went well beyond it.

When these challenges get to SCOTUS, you’ll not only have the possibility that the Republican majority will be hunting for some way — and given this court, it doesn’t even have to be credible — to help out the mobsters who tried to keep Trump in power. But you’ll also have a thin-skinned Brett Kavanaugh who is still smarting over the fact that his past abuse of women became an issue in his confirmation. And defendants are already arguing that the Kavanaugh protests — which featured, separately, protestors who breached police lines and protestors who (after having gone through security and waited in line for a seat) interrupted the official proceeding — are indistinguishable from January 6.

And so if SCOTUS decides they want to fuck with Mehta’s ruling, this may be the place they do so, relying on John Roberts’ opinion in McDonnell to say that it’s just too confusing to distinguish prosaic things like disrupting a hearing. I’m not arguing it would be legally sound. I’m arguing that’s the kind of thing I might expect from this court.

Mehta’s intransitive corruption

But until such time as defendants start appealing any convictions, a more important aspect of this opinion has to do with how Judge Mehta treated the mens rea requirement that defendants acted “corruptly.” After spending some time dealing with the history of Poindexter (click through to read it), Mehta asserts that “corruptly” here “must be read in the intransitive sense,” meaning the defendant him or herself must have themselves had corrupt intent, rather than that they intended to persuade someone else to act corruptly. Mehta gets there by noting that the application of corruption used in 1512(c)(1) must be the same one as applies in 1512(c)(2).

With this background in mind, the court explains why this case is not controlled by Poindexter. Unlike section 1515 at the time of Poindexter, the term “corruptly” in section 1512(c) must be read in the intransitive sense—that is, the person must act “corruptly” to violate section 1512(c)(2). That is plain from section 1512(c)(1), which prohibits corrupt acts with respect to a “record, document, or other object” “with the intent to impair the object’s integrity or availability for use in an official proceeding.” 18 U.S.C. § 1521(c)(1). Corruption of another is not required to violate 1512(c)(1). Indeed, the purpose of enacting section 1512(c) was to close a loophole in the pre-Arthur Andersen law that only made it an offense under section 1512(b) to “intimidat[e], threate[n], or corruptly persuad[e] another person” to shred documents. Yates v. United States, 574 U.S. 528, 536 (2015); See S. Rep. No. 107-146, at 6–7 (2002) (referencing the “legal fiction” in Arthur Andersen that the defendants were “being prosecuted for telling other people to shred documents, not simply for destroying evidence themselves”); cf. Yates, 574 U.S. at 535–36 (2015) (discussing Arthur Anderson and the loophole in existing law leading to Congress’s passage of section 1519). That reading must similarly extend to a prosecution under 1512(c)(2): the term “corruptly” applies equally to subsections (c)(1) and (c)(2). The term thus must be understood in its intransitive form with regard to these Defendants.5 Accordingly, the concern that animated Poindexter—that a transitive reading of corruptly under section 1505 did not reach the making of false statements to Congress—is simply not present in this prosecution under section 1512(c)(2).

5 For this reason, the court also rejects Defendant Connie Meggs’s contention that the Indictment fails to allege corrupt intent because “there is no allegation that either the co-conspirators or Ms. Meggs sought to corruptly influence any other persons.” Connie Meggs MTD at 9. Unlike section 1512(b), section 1512(c)(2) on its face does not require a defendant to have acted corruptly with respect to “another person,” 18 U.S.C. § 1512(b).

Mehta’s language seems to exclude the possibility of transitive corruption, even though there is good reason — particularly given Kelly Meggs’ seeming attempt to hunt down Nancy Pelosi — that one goal of this operation, one that succeeded wildly, was to terrorize members of Congress into voting not to certify Joe Biden’s votes (and, later, to terrorize Republicans not to vote for impeachment). That, to my mind, is transitive corruption.

The other reason I’m interested in this passage is for how closely, relying on Arthur Anderson, Mehta links “knowingly” and “corruptly.”

Arthur Andersen also ameliorates any lingering concerns about the vagueness of “corruptly.” See Edwards, 869 F.3d at 502. To be sure, the issue of vagueness was not squarely presented in that case. But it is notable that the Supreme Court there relied on common definitions of “knowingly” and “corruptly” to proscribe the mens rea element of section 1512(b)(2). Circuit courts had done so prior to Arthur Andersen. See, e.g., Thompson, 76 F.3d at 452 (interpreting “corruptly” for purposes of section 1512(b)(2) to mean “motivated by an improper purpose”); accord Shotts, 145 F.3d at 1300. This court does the same here.

Doing so results in a definition of “corruptly” that, at the very least, requires Defendants to have acted with consciousness of wrongdoing. See Arthur Andersen, 544 U.S. at 706. The government agrees with that definition. See Gov’t’s Suppl. Br. at 15 (“That the term ‘corruptly’ requires the government to prove that a defendant acted not only with intent to obstruct but also with ‘consciousness of wrongdoing’ ensures that Section 1512(c)(2) ‘reaches only’ those who have committed felony obstruction.”). The court need not adopt a firm definition of “corruptly” at this point. Courts have approved various formulations of the term. See, e.g., United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (defining “corruptly” under section 1512(c) to mean “with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct the [official proceeding]” (internal quotation marks omitted)); United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013) (adopting Eleventh Circuit’s definition); United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013) (approving jury instruction defining “corruptly” to mean “consciousness of wrongdoing”); cf. United States v. Edlind, 887 F.3d 166, 173 n.3 (4th Cir. 2018) (noting in prosecution under section 1512(c)(1) that the trial court had instructed the jury that “it could convict only if [the defendant] ‘acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice,’ and was ‘conscious of wrongdoing’”). It suffices for present purposes to say that to prove that Defendants acted “corruptly,” the government, at least, will have to show that they acted with consciousness of their wrongdoing. So defined, the term “corruptly” is not unconstitutionally vague.

Defining “corruptly” in this way also substantially mitigates, if not resolves altogether, Defendants’ vagueness challenges to section 1512(c)(2) as a whole. The Supreme Court “has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U.S. 379, 395 (1979). Criminal statutes that lack a scienter requirement, the Court has held, present “a trap for those who act in good faith.” United States v. Ragen, 314 U.S. 513, 524 (1942). On the other hand, where a statute requires as an element of conviction that the defendant possessed a specific intent, the statute “gives a person acting with reference to the statute fair warning that his conduct is within its prohibition.” Screws v. United States, 325 U.S. 91, 104 (1945). “One who does act with such specific intent is aware that what he does is precisely that which the statute forbids. He is under no necessity of guessing whether the statute applies to him.” Id. Here, Defendants cannot complain that section 1512(c)(2) does not supply fair notice if it is construed to require proof that Defendants acted with a specific intent to do what the statute prohibits: obstruct an official proceeding. Again, the court need not decide the precise contours of what the government must prove at this stage. For now, it is sufficient to say that interpreting section 1512(c)(2) to contain a stringent specific intent mens rea requirement shields it from unconstitutional vagueness.

I have no doubt that DOJ will provide proof that most of these defendants had the goal of obstructing the vote count and/or preventing Joe Biden from becoming President.

But by tying “corruptly” with “knowingly,” I think Mehta invites a defense that some of these defendants actually believed they were doing the right thing by obstructing the vote count. A number of the Oath Keepers, for example, have claimed that Trump’s call to rise up was an order from the Commander-in-Chief, and as veterans it was natural to respond.

To be sure, DOJ still has proof that these defendants knew they were doing something wrong. Even aside from the trespassing or the (in some cases) confrontations with cops, or example, they were denied entry to Trump’s rally wearing their military kit, so putting it back on (as they did) to enter the Capitol distinguished that behavior. In this case, DOJ can get there even with legal behavior. And a number of these defendants acted as if they knew they had done something wrong afterwards by destroying evidence.

But to the extent Mehta’s approach — rather than Friedrich’s focus on other illegal acts — is adopted, the trials risk getting bogged down with defendants claiming, truthfully, that they believed the propaganda Trump and QAnon fed them.

Two Months after Insinuating Ali Alexander Should Be Held Responsible for January 6, Jonathan Moseley Claims To Be His Lawyer

December 18, 2021/60 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Like Mark Meadows and John Eastman before him, Ali Alexander has sued Verizon in an attempt to keep evidence about a coup out of the hands of Congress.

The lawsuit seems significantly intended to provide information to others involved in the coup, both by identifying which texts Alexander shared with Congress and which (by omission) he did not, but also by communicating that everything he did provide to Congress constituted telephony communication. That seems to suggest that Alexander did not share any communications involving Signal, Telegram, or other messaging apps.

On November 24, 2021, Mr. Alexander provided the Select Committee with over one thousand and five hundred (1,500) mobile messages sent and received by him and people he corresponded with. All of these were using his Verizon phone service. Mr. Alexander expressed his concerns to the Select Committee about compromising the privacy rights of uninterested parties, and members of political group(s), and productions that exceeded the scope of H. Res. 503.

More importantly, Alexander provided the Select Committee with a privilege log of his text messages noting where the subject matter of the text was not pertinent to the Committee’s scope of inquiry or otherwise privileged but did not identify the party or the phone number of the sender or recipient of the text unless it was Mr. Alexander.

[snip]

At Alexander’s December 9, 2021 deposition, he testified that he had a few phone conversations with Representative Paul Gosar and no verbal phone conversations with Representatives Andy Biggs or Mo Brooks that he recalls. The Select Committee asked him about all three Members of Congress. Mr. Alexander testified that he had phone conversations with Rep. Brooks’ staff about a “Dear Colleague” letter and how his activists could be helpful. Mr. Alexander believes he exchanged a text message with Rep. Brooks, contents which he provided to the Committee. He also testified that he spoke to Rep. Biggs in person and never by phone, to the best of his recollection. In January, Mr. Alexander held an organizing call where Members of Congress might have been present and some were invited. He doesn’t recall who was in attendance because there was no roll call of attendees because the call was so large.

On January 6, 2021, it was reported that Mr. Alexander had a call with fundraiser Ms. Kimberly Guilfoyle. Mr. Alexander volunteered this information on a radio show that early morning. The Select Committee asked him about this call. He stated that it was a short and pleasant call. Ms. Guilfoyle thanked Mr. Alexander for being a leader on voting rights and creating the “Stop the Steal” movement. The two spoke about the ongoing Georgia election and the GOP primaries that would take place in 2022. The Select Committee seemed satisfied with Alexander’s explanation of that short call.

The more remarkable part of the lawsuit, however, is his legal team.

As I previously noted, Alexander is represented by Paul Kamenar, the lawyer who played a key role in attempting to cover-up Roger Stone’s role in coordinating with Russia in 2016 by delaying the testimony of Stone’s aide, Andrew Miller. Alexander had at least two other lawyers at his deposition last week, including Baron Coleman and Joseph McBride, who recently told Ryan Reilly (in regards to his representation of a different January 6 defendant) that he doesn’t give a shit about spreading bullshit conspiracy theories.

But as HuffPost went into more detail explaining why the idea that Rally Runner was some sort of undercover law enforcement agent was absurd, McBride shifted a bit. He said his job was to defend his client, and he didn’t “need to be right” in everything he claimed.

“If I’m wrong, so be it, bro. I don’t care,” McBride said. “I don’t give a shit about being wrong.”

McBride said he was simply “theorizing things” and “not publishing conclusive findings,” and he said his appearances on Carlson’s show were a part of his effort to combat the narrative being given about his Jan. 6 clients.

“If this guy turns out to be some, some guy who runs around the Cardinals’ stadium with his face painted, then that’s great,” he said. “If that’s the truth, then so be it, and God bless America.”

McBride is not on Alexander’s lawsuit, though Kamenar — Alexander’s Roger Stone cover-up specialist — is (Kamenar cc’ed Coleman on the letter he sent to Verizon alerting him to this suit).

The surprising appearance, however, is from Jonathon Moseley. Moseley currently represents Kelly Meggs — one of the Oath Keepers with ties to Roger Stone — and until Tuesday, also represented Zach Rehl, one of the Proud Boys accused of conspiring with Stone associate Joe Biggs to mastermind an attack that encircled the Capitol and involved Stone associate Alex Jones, using the excuse of permits obtained using covers by Alexander, luring unwitting Trump fans to the East doors just before they opened from inside.

Moseley’s legal promiscuity among these coup plotters is itself notable.

Crazier still is his claim to be representing Alexander just over two months after — back when he was ostensibly representing Rehl — filing a motion suggesting that Alexander (whom he repeatedly called “Ari”), not Rehl, should be the one held accountable for any crimes arising from the riot.

The one person who claims to have been the National Organizer of the “Stop the Steal movement” through events across the country and the “Stop the Steal rally” in Washington, D.C., is Ali Alexander, born Ali Abdul-Razaq Akbar. See Allam, Hannah; Nakhlawi, Razzan (May 16, 2021). “Black, Brown and extremist: Across the far-right spectrum, people of color play a more visible role”. The Washington Post, accessible at: https://www.washingtonpost.com/national-security/minorities-far-right-visiblerole/2021/05/16/e7ba8338-a915-11eb-8c1a-56f0cb4ff3b5_story.html

The mob that stormed the U.S. Capitol on Jan. 6 was overwhelmingly White,1 but the official speaker lineup for the rally that day was more diverse. Vernon Jones, a Black former Georgia state lawmaker, and Katrina Pierson, a Black adviser and former spokeswoman for the Trump campaign, were among the speakers parroting the baseless assertion that the 2020 election was stolen from Trump. Another familiar face was main rally organizer Ali Alexander, born in Texas as Ali Abdul-Razaq Akbar, of mixed Black American and Middle Eastern descent.

Id. (emphasis added).

Ari [sic] Alexander is – as far as Defendant Zachary Rehl knows – entirely innocent of the crimes committed on January 6, 2021. Surely, the FBI is busy identifying and charging those who actually attacked police officers. We are confident that the FBI will complete that important task of bringing to justice those who actually battled with police before silencing parents who are petitioning for the redress of grievances in school board meetings, thus alienating suburban mothers.

However, without undermining Alexander for exercising his rights as a citizen, the one person who CLAIMS credit for organizing the “Stop the Steal” rally and movement including in Washington, D.C. on January 6, 2021, 2 is being basically ignored while Zachary Rehl who DID NOT organize anyone or anything but himself, and tell his friends that he would be there, too, is sitting in a jail cell for things he did not do. Zachary Rehl did not get to see his child being born while being locked up since March. His wife with a newborn is struggling arrange a forbearance on the mortgage on their modest rowhouse.

See, video interview with Ali Alexander, with Jenny Chang, “Ali Alexander on What Will Happen on January 6,” NTD News, December 31, 202[sic], https://www.ntd.com/ali-alexander-on-what-will-happen-on-january-6_547084.html. Ari [sic] Alexander is presented as the “National Organizer of ‘Stop the Steal.’

Without question, some idiots and brawlers also showed up who committed criminal acts of brawling with police, apparently initiated violent assaults on police, and reportedly (though counsel has not seen it directly) there were calls before the rally that were for a variety of violent acts that are not peacefully expressing a message under the First Amendment. [all emphasis Moseley’s]

Even ignoring the overt racism suggesting that one of the few brown people involved in the riot should be the one held accountable for it, Moseley as much as says that Alexander more responsible than Rehl for any violence that happened.

Now, Moseley claims it will badly harm Alexander if Congress learns even just the phone numbers of people Alexander engaged in telephony communications with.

It has long seemed as if there was a concerted effort to ensure certain January 6 defendants receive the kind of representation that might not protect their own interests, but would firewall those they had close ties to. But Moseley’s sudden conversion to representing Alexander strains credulity.

Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

December 13, 2021/112 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Back in June, I noted that Ethan Nordean’s lawyers were staking his defense on getting all the crimes charged against him thrown out — from the obstruction charge applied in an unprecedented manner, to the civil disorder tainted by its racist past, all the way to trespassing.

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

[snip]

[T]actically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

[snip]

[I]f any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

As I noted, on Friday Dabney Friedrich became the first DC District judge to uphold the obstruction application. The decision comes as — predictably — DOJ seems to be closing in on a much more substantive description of the Proud Boy-led plan to assault Congress. All the while, Nordean has been sitting in SeaTac jail, and even got thrown into SHU (solitary) last week for as yet undisclosed reasons.

To be clear: Friedrich’s is in no way the last word. Judges Randolph Moss, Amit Mehta, and the judge presiding over Nordean’s case, Tim Kelly, are all due to rule on the issue as well, with a number of the other judges facing such challenges as well. I’d be surprised if all the judges ruled for DOJ.

And because these judges are likely to rule differently, as all the parallel challenges have been briefed, some of the lawyers in the key cases have kept the judges apprised of what was going on in other challenges. For example, after getting leave first, the government submitted filings they made in Nordean and Guy Reffitt’s challenges to obstruction in the Brady Knowlton docket. Defendants have occasionally used that opportunity to respond.

Yesterday, without first asking for leave to file it, Nordean submitted what was billed as a “notice of new authority” in the case, but which was, in fact, a 23-page point by point rebuttal of and which didn’t actually include Friedrich’s opinion. As part of that, purportedly to take issue with the grammatical claims that Judge Friedrich made but actually in an effort to attack an example Friedrich used rather than the law itself, Nordean lawyers David and Nick Smith use an Emily Dickinson poem to — they claim — make a point about line breaks and semicolons.

And the Court did not explain how a semicolon and line break somehow altered the meaning of (c)(2)’s “otherwise” phrase which, as the Court correctly noted, “links” it to the meaning of (c)(1). As Nordean has previously explained, the question of meaning involves grammar, not page format. Subsection (c)(2) is a clause dependent on (c)(1) for its meaning because the predicate “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to. . . .” is not a complete sentence.

[snip]

As the Court will see, each of the provisions in the case relied on by the Sandlin Court is a complete sentence, unlike subsections (c)(1) and (c)(2) of § 1512. Thus, they are grammatically independent in a way that (c)(1) and (c)(2) are not. The same grammatical point distinguishes Justice Scalia’s finding in United States v. Aguilar, on which the Sandlin Court relies, that the ejusdem generis canon did not apply to § 1503’s “omnibus clause.” 515 U.S. at 615-16 (finding that the omnibus clause is “independent” of the rest of § 1503 in a grammatical sense: it stands alone as a complete sentence).

Contrary to the Sandlin Court’s understanding, line breaks and semicolons do not necessarily alter the meaning of the clauses that follow in a sentence. One simple example would seem to suffice:

The reticent volcano keeps
His never slumbering plan;
Confided are his projects pink
To no precarious man.

In the sentence above, the line break between “The reticent volcano keeps/His never slumbering plan” does not indicate that the second line’s meaning is “independent” of the first line’s. To the contrary, the phrase containing the pronoun “his” cannot be understood without reference to its antecedent in the first line. Similarly, the same pronoun following the semicolon cannot be understood without reference to the first line. Just so with (c)(2)’s “; or otherwise obstructs . . .” We are concerned with meaning, not the surface of the page.

This is poetry!! It is fairly insane to liken poetry, much of the power of which stems from breaking the rules of grammar and which often strives to obscure meaning, to US Code, which aspires to use grammar in ways that clarify meaning.

There’s one more problem, too.

There’s some dispute, because there is no final manuscript for this poem, about whether Dickinson used a semicolon or a dash after “slumbering plan.” And Dickinson’s dashes — literary experts say with all the certitude that drove me from literary academics — put great stake in the ambiguity introduced by such punctuation.

“The dash is an invitation to the reader to make meaning,” Dr. Smith said. “It can also be a leap of faith.”

Moreover, these were handwritten works, and so dashes would not even be regular lines. The variation in such lines has been interpreted with various meanings as an immediate expression of Dickinson’s intent. [Note: I owe this observation to several people on Twitter but have lost those Tweets; h/t to them]

That is, Dickinson’s poem is not so much an apt comment on Friedrich’s examples. Rather, it’s an example of the uncertainty embodied by the artistic expression of another individual, almost the opposite of laws codified by Congress.

Bizarrely, the citation of Dickinson is among the parts of Smith’s brief that Brady Knowlton’s attorneys lifted and replicated in their own unsolicited notice and reply. Carmen Hernandez, who is Donovan Crowl’s attorney, not only remembered to include Friedrich’s opinion, but she didn’t include the Dickinson poem.

There have been many aspects of my own literary training that I’ve used in my coverage of the January 6 investigation. Reading Emily Dickinson (about which I have no expertise) is not one I’d expect to need.

Update: In a hearing today, Judge Kelly joined Friedrich in rejecting the challenge to the obstruction application.

Posts

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

Landon Copeland

Thomas Webster

Shane Woods

Peter Schwartz

The Oath Keepers

Related Post

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

It is plausible that Donald Trump entered into a conspiracy with two militias

The President has no role in certifying the vote count

Then-President Trump was not speaking, as President, about matters of public concern

Trump incited violence (and also ordered his followers to do something unauthorized)

Related Posts

The Green Bay Sweep Is Inextricably Tied to the Violent Mob

After a Six Hour Hearing on Lawsuits against Trump, the Only Clear Thing is Don Jr Is in the Clear

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

Other Posts

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

The Intransitive Corruption of the Oath Keepers

Mehta relies on 1512(d) to lay out a limiting principle

Mehta’s response on constitutional avoidance

Mehta’s intransitive corruption

Two Months after Insinuating Ali Alexander Should Be Held Responsible for January 6, Jonathan Moseley Claims To Be His Lawyer

Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

Interesting links

Pages