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Donald Trump’s Incorrect Shell Game of Appropriated Spending

Yesterday, I argued that Trump would not yet defy courts because he wants to invite the Supreme Court to sanction his dictatorial powers, and so wants a clear appellate record.

Boy howdy was that a short-lived theory. Trump says he is appealing two orders that are not yet ripe for appeal in two lawsuits involving Democratic Attorneys General — RI Judge John McConnell’s order and follow-up order that the government pay grants to the states [appeal] and Paul Engelmeyer’s order ordering Treasury to stay out of the payment system [request for stay pending appeal] — as well as in Special Counsel Hampton Dellinger’s challenge to his dismissal.

So by the time Republicans figure out how they’re going to use reconciliation to pass Trump’s policies, SCOTUS may have already agreed to gut Congress’ power of the purse.

But the record in the spending cases is anything but clean.

In one of the two cases challenging DOGE’s [sic] access to Treasury systems — the DC case before Colleen Kollar-Kotelly — DOJ decided after the fact that Marko Elez, the DOGE [sic] boy who had been granted a copy of Treasury systems to sandbox, was actually a Treasury employee.

With the benefit of more time to investigate the facts over the weekend, Defendants came to understand that Marko Elez, who, at the time of the hearing was employed by the Department of the Treasury, had not, in fact, been designated by the Treasury Department as a Special Government Employee (SGE), as counsel stated at the February 5 hearing. Mr. Elez, was, however, a Treasury Department employee. Treasury hired Mr. Elez as Special Advisor for Information Technology and Modernization, Departmental Offices, Office of the Chief of Staff, under Treasury’s authority to establish temporary transitional Schedule C positions. See 5 C.F.R. § 213.3302. Although Mr. Elez could have been designated as an SGE because he was slated to perform temporary duties either on a full-time or intermittent basis for not more than 130 days, the Treasury department Ethics office did not designate Mr. Elez as a Special Government Employee, meaning that he in fact had to comply with additional ethics requirements that are not required for SGE positions.

[snip]

Defendants also wish to notify the Court that, as stated in the Declaration of Thomas Krause, Jr., filed yesterday, in State of New York v. U.S. Department of the Treasury, Case No. 25 Civ. 01144 (JAV) (S.D.N.Y.), Mr. Elez resigned from Treasury on February 6, 2025, and he returned all Treasury and BFS equipment and credentials the same day. See Exhibit 1, ¶ 11. Moreover, in that case, on February 8, the Court entered a temporary restraining order restricting who may access Treasury systems. See Ex. 2. Those restrictions are in addition to those imposed by this Court’s Order entered February 6.

This filing included Thomas Krause’ declaration (submitted in the Treasury suit filed by states, which Trump is appealing) describing that Elez had resigned (but not addressing whether he has been reinstated; in retrospect, it seems the declaration was written specifically to avoid calling Elez a DGE). But it didn’t include the underlying filing in the case, which in a footnote confesses that Elez had a full copy of the BFS system in a sandbox, falsely claiming that Krause addressed this in his declaration.

2 Since January 20, 2025, one other Treasury employee—Marco Elez—had “read only” access to or copies of certain data in BFS payment systems, subject to restrictions, and access to a copy of certain BFS payments systems’ source code in a “sandbox” environment. Krause Decl. ¶ 11. Mr. Elez resigned on February 6, 2025 and returned all Treasury and BFS equipment and credentials the same day. Id

This means that this correction doesn’t correct another false claim DOJ made to Kollar-Kotelly: that Elez’ access had been “read only.” And DOJ hasn’t told Judge Jeanette Vargas (to whom the New York case was assigned after Engelmeyer issued the TRO) that Elez is a full Treasury employee and so, if he has been reinstated, potentially excluded from Engelmeyer’s order.

In the USAID case, where Trump might believe he can coax a favorable ruling from his own first term appointee, Carl Nichols, Peter Marocco submitted a long, obnoxious declaration claiming they had to shut down USAID because of widespread insubordination among USAID employees. (I’d quote from it but the declaration breaks local rules requiring OCR filings.)

But after Marocco submitted that filing, the career AUSAs on the case submitted a declaration that included this correction.

Additionally, although Secretary Rubio’s January 24, 2025 directive only froze future contract obligations, id. ¶ 3, payments on existing contracts were paused as well as part of efforts by agency leadership to regain control of the organization’s spending and conduct a comprehensive review of its programs. See id. ¶¶ 5–10. Counsel for Defendants was unaware of this development prior to the hearing. [my emphasis]

Marocco confesses that existing contracts “were paused” by him this way:

Furthermore, many of USAID’s pre-existing programs were in conflict with the directives and priorities of the President and Secretary, and therefore were inconsistent with the public interest and foreign policy judgments of the Executive Branch. Given the scale of these programs, an ad hoc review of these conflicting programs would unduly burden the execution of the President’s other foreign policy priorities. A blanket pause with a waive-in process was the more efficient and effective path.

He describes this notice Marco Rubio sent to Congress, which makes no mention of pausing ongoing work. Then he continues to describe how existing programs “were paused” by him.

The first step of this review, in essence, involved the majority of USAID pausing a substantial portion of its ongoing work — going “pencils down” — so the Secretary and USAID leadership could gain control of the organization that included some employees who had refused to comply with lawful directives by the President and Secretary, directives designed to identify wasteful or fraudulent programs or those contrary to the foreign policy interests of the United States. The pause of ongoing work and use of paid administrative leave have enabled Agency leadership to begin a thorough review of USAID’s operations and align its functions to the President’s and Secretary’s priorities, without continued noncompliance by former Agency leadership and management undermining those priorities. Pausing a majority of USAID’s work was, and remains, necessary to continue this thorough review into the noncompliance issues first identified, as well as to continue to examine USAID’s processes and the manner in which USAID funds its programs.

In other words, the people that Marocco calls noncompliant are noncompliant because they’re following the law, a law uncontroverted by Trump’s order or even Rubio’s notice to Congress.

As Nichols said when he issued the TRO ordering USAID to reinstate employees, whether or not this involved existing or only prospective contracts was an issue of some contention in the hearing.

Plaintiffs finally seek a TRO as to Secretary Rubio’s January 24, 2025 order freezing funding to USAID’s contractors. As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

This factual dispute is relevant to plaintiffs’ TRO arguments, but ultimately is not dispositive of them. Plaintiffs allege that, by some legal mechanism, USAID contracting officers can be held personally liable for existing contractual expenses that USAID is supposed to, but does not, pay. Plaintiffs thus argue that those officers face irreparable harm as a result of the funding freeze because they will be left “holding the bag” when USAID imminently fails to disburse funds. Separately, plaintiffs argue that the general population of USAID employees will be emotionally harmed by the agency’s inability to pay its contractors because they will be stuck “watching a slow speed train wreck” as the agency reneges on its humanitarian commitments.

Even assuming the funding freeze indeed prevents payments on existing grants in the way plaintiffs claim (instead of merely preventing USAID from entering new obligations, as the government suggested during the hearing), the Court concludes that plaintiffs have not demonstrated resulting irreparable harm.

But because this suit involves employees, rather than states or other recipients of funds from Treasury (as is the case in the two suits where DOJ has said it will appeal), these plaintiffs themselves are not being injured because they’re still being paid.

DOJ is hiding behind career AUSAs making claims they likely do not know are false so as to shut down appropriations that have already been approved.

And they are appealing each instance in which a plaintiff has genuinely been injured (the states and Hampton Dellinger’s firing) in hopes — or maybe expectation? — after the Circuits deny appeals that are not yet ripe, SCOTUS will step in and render Congress impotent.

Update: USAID Inspector General somehow managed to put together a report on the damage the chaos is having. Among other things, it finds that the cuts have incapacitated any means of vetting disbursements to keep them out of the hands of terrorists.

USAID describes partner vetting as a risk-mitigation tool to “ensure that American taxpayer funds do not benefit terrorists and their supporters.” Currently, partner vetting is required for programming in Afghanistan, Iraq, Lebanon, Pakistan, Syria, West Bank/Gaza, and Yemen where designated terrorist organizations such as Hamas, Hezbollah, ISIS, and Ansar Allah (also known as the Houthis) operate. Before the Agency awards a contract, grant, or cooperative agreement in these locations, the proposed awardee must submit to USAID data needed to vet the organization and its key personnel. The same vetting must be undertaken before an aid organization issues a subaward. While USAID OIG has previously identified gaps in the scope of partner vetting, 10 USAID staff have reported that the counter-terrorism vetting unit supporting humanitarian assistance programming has in recent days been told not to report to work (because staff have been furloughed or placed on administrative leave) and thus cannot conduct any partner vetting. This gap leaves USAID susceptible to inadvertently funding entities or salaries of individuals associated with U.S.-designated terrorist organizations.

Trump Appointee Carl Nichols Enjoins Trump from Stranding USAID Workers

There was a big development (and a few smaller ones) in DOGE’s [sic] attempts to start shutting down big parts — Treasury and Office of Personnel Management — of the government.

Before I look at those, I want to look at the order Trump appointee Carl Nichols (a former Clarence Thomas clerk) issued in a lawsuit two unions filed to enjoin the USAID shutdown.

The unions claimed the USAID shutdown violated:

Separation of powers
Take care clause
Administrative Procedure Act because it was in excess of statutory authority
Administrative Procedure Act because it was arbitrary and capricious

They described the death and destruction the shutdown has caused and will cause.

The agency’s collapse has had disastrous humanitarian consequences. Among countless other consequences of defendants’ reckless dissolution of the agency, halting USAID work has shut down efforts to prevent children from dying of malaria, stopped pharmaceutical clinical trials, and threatened a global resurgence in HIV.40 Deaths are inevitable. Already, 300 babies that would not have had HIV, now do.41 Thousands of girls and women will die from pregnancy and childbirth.42 Without judicial intervention, it will only get worse. The actions defendants plan to take on Friday will “doom billions of dollars in projects in some 120 countries, including security assistance for Ukraine and other countries, as well as development work for clean water, job training and education, including for schoolgirls under Taliban rule in Afghanistan.”43

And they asked for a Temporary Restraining Order on certain actions the government took, which Nichols (after a hearing) construed this way:

Plaintiffs frame their TRO request as pertaining to one overarching event: the allegedly “illegal and unconstitutional dismantling of USAID.” Mot. at 9. But at the TRO hearing, it became clear that plaintiffs’ allegations of irreparable injury flow principally from three government actions: (1) the placement of USAID employees on administrative leave; (2) the expedited evacuation of USAID employees from their host countries; and (3) Secretary Rubio’s January 24, 2025 order “paus[ing] all new obligations of funding . . . for foreign assistance programs funded by or through . . . USAID.” Dep’t of State, Memo. 25 STATE 6828. The Court finds that a TRO is warranted as to the first two actions but not the third.

The request for a Temporary Restraining Order included declarations describing the injuries the shutdown has and will cause, including this one describing the harm a sudden move will cause to an employee’s two special needs kids.

This directive will have profound impacts on the wellbeing of my kids’ personal, educational and psychological development. I have two children at Post: a seven-year-old in first grade and a two-year-old in preschool. Both have received “Class 2” medical clearances from State MED and thus they receive a Special Needs Education Allowance (SNEA) for occupational therapy (OT). My older child has documented gross and fine motor skill delays due to prenatal intrauterine growth restriction (IUGR). My younger child also has documented gross and fine motor skill delays due to torticollis. Both children receive OT services in conjunction with their schooling in a purposefully integrated manner, a best practice promoted by specialists at the State Department ‘s Office of Child and Family Program (CFP) who oversee their care. Additionally, my older child who is in first grade was recently diagnosed by a licensed medical professional with ADHD and anxiety. They are now receiving Cognitive Behavioral Therapy (CBT) at Post from a licensed therapist and the Embassy Medical Unit is tracking their care.

Uprooting my children from their school, OT service providers, and child therapist in the middle of the school year will undoubtedly set back their development with possible lifelong implications. In the United States, we currently have no home or ties to a specific school district. My kids have lived overseas nearly their entire life in service of our country. There will be an inevitable gap – possibly a long one – before they are back in a stable routine of integrated schooling, OT services, and psychological services, a routine that medical professionals have determined they need to overcome developmental delays, and in the case of my seven-year-old, ADHD.

Or this one, describing the danger of losing access to security protections in high risk locations.

Personal Safety Risks: The shutdown could have life-threatening consequences for PSC colleagues serving in high-risk locations. The abrupt shutdown of government devices and access was highly reckless to colleagues in active conflict zones, such as Ukraine and Somalia. Friends and colleagues lost access to the Embassy safety communication channels, and many could no longer use a safety app called “Scry Panic 2.0,” which is installed on government-furnished equipment. In addition, many PSCs serving USAID abroad were unsure if they remained under U.S. chief-of-mission authority, which guarantees access to U.S. Government resources to ensure staff safety and accountability, including for emergency evacuations. U.S. Department of State officials, who were tasked with developing a plan to get USAID officials home, had no instructions or information on the next steps.

Many USAID PSCs work in high-risk environments where access to security resources is critical. I have heard from overseas colleagues who have now lost access to Diplomatic Security systems, meaning they can no longer coordinate security protocols, evacuations, or emergency procedures. Without official communication from USAID leadership, these PSCs remain in dangerous locations without clarity on whether they still have institutional protection. Others fear that in the event of a medical emergency or security threat, they will be forced to rely on personal funds or external assistance, as USAID has not provided guidance on whether existing security protocols still apply to them.

A risk exacerbated, the declaration explains, by the false claims launched against USAID staffers.

PSCs are also at increased risk of physical harm due to the threats, harassment, and misinformation that have accompanied the shutdown. The reckless rhetoric spread on social media and in political discourse has put USAID personnel at risk. I have heard from colleagues who have been labeled as criminals, supporters of terrorists, or Marxists—simply for doing their jobs.

High-profile figures, including Elon Musk and his supporters, have fueled this misinformation, creating a hostile environment where USAID staff fear for their personal safety. With individuals involved in the January 6th insurrection now released, there is a heightened sense of danger that USAID employees could be targeted next. I have colleagues who no longer feel safe in their own homes, with some refusing to leave family members alone out of fear that someone radicalized by online misinformation may try to harm them.

Judge Nichols cited both of those injuries in enjoining the government. He cited the latter risk when disputing the government claim that putting 2,700 USAID employees (500 of whom were already put on leave, the others would have been as of yesterday) was just a “garden-variety personnel action.”

Taking the TRO factors somewhat out of order and beginning with irreparable injury, the Court finds that plaintiffs have adequately demonstrated that their members are facing irreparable injury from their placement on administrative leave, and that more members would face such injury if they were placed on administrative leave tonight. Many USAID personnel work in “highrisk environments where access to security resources is critical.” ECF No. 9-10 ¶ 14. No future lawsuit could undo the physical harm that might result if USAID employees are not informed of imminent security threats occurring in the countries to which they have relocated in the course of their service to the United States. The government argued at the TRO hearing that placing employees on paid administrative leave is a garden-variety personnel action unworthy of court intervention. But administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.

And he cited the former injury when ruling that immediately recalling the officers overseas would create real injury, one not counterbalanced by any pressing government need.

Specifically, whereas USAID’s “usual process” provides foreign service officers with six to nine months’ notice before an international move, plaintiffs allege that USAID has now issued a “mandatory recall notice” that would require more than 1400 foreign service officers to repatriate within 30 days. Mot. at 18.

Plaintiffs have demonstrated that this action, too, risks inflicting irreparable harm on their members. Recalling employees on such short notice disrupts long-settled expectations and makes it nearly impossible for evacuated employees to adequately plan for their return to the United States. For instance, one of plaintiffs’ members attests that, if he is recalled from his foreign post, he will be forced to “[u]proot” his two special-needs-children from school in the middle of the year, “set[ting] back their development with possible lifelong implications.” ECF No. 9-5 ¶ 6. He also attests that, because his family has no home in the United States and his children have “lived overseas nearly their entire life,” there will be “an inevitable gap—possibly a long one—before they are back in a stable routine . . . that medical professionals have determined they need to overcome developmental delays.” Id. Other of plaintiffs’ members tell similar stories, explaining that the abrupt recall would separate their families, interrupt their medical care, and possibly force them to “be back in the United States homeless.” See ECF ECF No. 9-4 ¶ 7; ECF No. 9-5 ¶ 8; ECF No. 9-9 ¶ 6. Even if a future lawsuit could recoup any financial harms stemming from the expedited evacuations—like the cost of breaking a lease or of abandoning property that could not be sold prior to the move—it surely could not recoup damage done to educational progress, physical safety, and family relations.

But perhaps the most important language in Judge Nichols’ short opinion was his disdain for the government’s flimsy claims that the USAID employees have to be put on leave because of vague claims of fraud.

When the Court asked the government at the TRO hearing what harm would befall the government if it could not immediately place on administrative leave the more than 2000 employees in question, it had no response— beyond asserting without any record support that USAID writ large was possibly engaging in “corruption and fraud.”

That is, when pushed to justify this purge to a sympathetic Trump appointee, DOJ simply couldn’t substantiate claims of fraud.

To be sure, Nichols only enjoined the government until February 14. And he didn’t reverse the freeze on funding — notwithstanding that the government likely lied in saying that the freeze only applied to prospective funding obligations.

As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

But Trump’s administration had a chance to substantiate the wild claims of fraud and abuse that Elon Musk has leveled at USAID.

And Carl Nichols was unimpressed.

Every DOJ Beat Journalist Fails to Mention a Dozen Judges Approved of 1512 Charge for January 6

January 27, 2025/17 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

CNN didn’t mention it.

WSJ didn’t mention it. (Update: they now have.)

WaPo didn’t mention it (though it did break the news that Ed Martin says he’ll be appointed DC USAO). (Update: They’ve now added it.)

NBC didn’t mention it in a piece focusing on the firing of Trump investigators.

None of these outlets — among others — mentioned that every single DC District Judge approved the use of 18 USC 1512(c)(2) for January 6, and only Carl Nichols required that it include an evidentiary component (the stance ultimately adopted by SCOTUS).

None of these outlets mentioned DC Circuit approved the application.

None mentioned that when SCOTUS required an evidentiary component, they left open the possibility that the fake elector certificates would justify the application.

DOJ just launched an investigation into prosecutors who applied a law in a way approved by over a dozen judges, at least four of them Trump appointees.

Update: On Xitter, an influential propagandist, Julie Kelly, wondered who first applied the 18 USC 1512(c)(2) statute, claiming that Matthew Graves, who is Black, was too stupid to have done so.

I guess she didn’t consider basic rules of physics, which say that a guy confirmed in October 2021 could not have made the decision to charge (just as one example) Proud Boys Nicholas Ochs and DeCarlo with 1512 on February 4, 2021.

Update: 18 USC 1512(c)(2) was charged at least as early as January 11, 2021, with Jacob Chansley. Ed Martin is going to have to investigate Donald Trump! (Or at the very least, Michael Sherwin. He does not want to investigate Michael Sherwin, trust me on this.)

Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose

June 28, 2024/34 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.

But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.

I am an expert on the application of 18 USC 1512(c)(2) to January 6, and so can explain the significance of Justice Roberts’ ruling that it must involve making documents unavailable to an official proceeding.

Before the ruling, I had argued the court could do one of four things:

Leave the application in place
Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
Limit its application to paperwork crimes
Address the meaning of “corrupt purpose”

The court opted for option 3:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.

Or it may not.

Or it may not affect those who knew of the purpose of the vote certification.

After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.

If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.

There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.

Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.

It goes back to the DC Circuit to decide.

Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.

Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.

In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.

For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.

SCOTUS Takes Up January 6 Obstruction Challenge — But with Unknown Scope

December 13, 2023/18 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Today, SCOTUS granted cert to one of the initial challenges to 18 USC 1512(c)(2), that of Joseph Fischer.

Depending on what they do with the appeal, the review could have significant effect on all the January 6 cases charging obstruction — over 300 defendants so far, including Trump.

But no one knows how broadly they will be reviewing this appeal.

On its face, the only thing being appealed in Fischer is whether this statute requires document tampering.

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

If SCOTUS upheld the DC Circuit opinion (and all the underlying District opinions), nothing would change. If it overturned the DC Circuit opinion, then hundreds of cases of rioters would be thrown out.

Remember that defendants have always likened the January 6 attack with the interruption by protestors of Brett Kavanaugh’s confirmation hearing (there are significant differences, starting with the fact that all the protestors who disrupted Kavanaugh’s hearing were in the building legally). So I wouldn’t even rule out some set of Republicans rejecting this application on those grounds.

But it’s not clear that would affect the charges against Trump. That’s because Trump’s obstruction does involve document tampering: the forged elector certificates.

It’s possible, though, that SCOTUS will also review a more contentious issue: the definition of “corrupt purpose” in the statute. Fischer addresses that deeper in the petition.

While some courts have limited Section 1512(c)(2)’s scope by a particular definition of the critical mens rea element—“corruptly”—they have not defined it uniformly. See Miller, 605 F. Supp. 3d at 70 n.3. And the D.C. Circuit’s lead opinion declined to define it all, even while stating that “corrupt intent” limited Section 1512(c)(2)’s reach. Compare Pet. App. 17a-18a with Pet. App. 20a. The lead opinion nonetheless acknowledged three potential definitions:

1. Corruptly means conduct that is “wrongful, immoral, depraved, or evil.” Pet. App. at 18a (quoting Arthur Anderson LLP, 544 U.S. at 705, discussing 18 U.S.C. § 1512(b)).

2. Undertaken with a “corrupt purpose or through independently corrupt means, or both.” Pet. App. 18a-19a (quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021) (citing United States v. North, 910 F.2d 843, 942-43 (D.C. Cir. 1990) (Silberman, J., concurring and dissenting in part)).

3. Conduct that involves “voluntarily and intentionally [acting] to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Pet. App. 19a (quoting Aguilar, 515 U.S. at 616-17) (Scalia, J., concurring).

Here, SCOTUS could adopt the more restrictive definition of corrupt benefit, option 3.

In that case, it’s not clear what would happen with the crime scene defendants: at the DC Circuit, Justin Walker argued that Trump supporters might have obtained a corrupt purpose if Trump were unlawfully retained.

But for Trump, there’s no question: He was attempting to retain one of the most valuable jobs in the world through unlawful means.

All of which is to say, SCOTUS’ decision to review the case is huge — though not entirely unexpected.

But we won’t know what to make of the review for some time.

Update: I had been anxiously waiting to see what Steve Vladeck had to say about this. He notes that SCOTUS took Fischer but not Miller and Alam, which had been joined to it.

All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated.

The Effort by Accused Mobsters to End Run the DC Circuit on “Corruptly”

August 11, 2023/9 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Now that Trump has been charged with it, legal commentators have finally discovered that DOJ has been applying obstruction — 18 USC 1512(c)(2) — to January 6.

For example, in a post yesterday, Jay Kuo noted that over the two and a half years that DOJ has been charging January 6 defendants with obstruction, its application to January 6 as an official proceeding has been affirmed and the meaning of “corruptly” is getting closer to definition.

Seen from a broad perspective, the over 1,000 January 6 cases filed by the Justice Department against the rioters, insurrectionists and seditious conspirators have now yielded important precedents that can be applied to the charges and the case against Donald J. Trump. Without this important groundwork, there would be considerably more legal risks in the application of two of the primary counts in the indictment: obstruction or attempted obstruction of an official proceeding, and conspiracy to obstruct an official proceeding.

Those legal risks would have certainly been targeted and appealed by Trump’s attorneys, putting a very big question mark over the finality of any conviction. As things stand, there remains some legal uncertainty—such as which jury instruction for “corruptly” to apply here—but they likely will be resolved, perhaps even by the Supreme Court, long before the jury meets to deliberate Trump’s guilt.

And for all that legwork by Garland and his Department of Justice, forging a clear legal path to prosecute Trump under the obstruction statute, I am both grateful and impressed.

Kuo correctly notes that the most likely place we’ll get such a definition is in Thomas Robertson’s appeal, which was heard on May 11. Given the hearing, it seems likely that the DC Circuit will adopt a standard on “corruptly” that would include, at least, either the “otherwise illegal” standard that Dabney Friedrich has adopted or the corrupt benefit that Justin Walker addressed in Fischer. Under either standard, obstruction should apply to Trump more neatly than it does many of the other January 6 defendants who’ve been charged under the statute.

But as Roger Parloff has noted, there is one other possibility.

Shortly after the other DC Circuit decision — captioned after Joseph Fischer, but including appeals from Jake Lang and Garret Miller, all of whom had had their obstruction charge rejected by Carl Nichols — Norm Pattis (who also represents Joe Biggs and Owen Shroyer and, if he ever gets charged, Alex Jones) and Steven Metcalf (who also represents Dominic Pezzola) filed an appeal for Lang. That appeal was not closely focused or in my NAL opinion, all that well crafted. It did not focus on the definition of “corruptly.”

Then, on August 1 — hours before Trump was charged with obstruction — Nick Smith (who largely crafted these challenges to 1512 and also represents Ethan Nordean) filed a cert petition for Miller.

Even though “corruptly” wasn’t the central holding in the Fischer decision, Smith included it as one of the questions presented here.

Whether § 1512(c)’s “corruptly” element requires proof that the defendant acted with the intent to obtain an unlawful benefit, or whether it merely requires proof that the defendant acted with an improper or wrongful purpose or through unlawful means.

And he cited NYT’s coverage of the use of obstruction as part of his explanation for the import of this appeal.

Elevating the national political salience of the issues raised here, it appears that the former president of the United States, and candidate in the 2024 presidential election, will be charged under the same Section 1512(c) (2) theory of liability that the government has filed against Petitioner and hundreds of others. Obstruction Law Cited by Prosecutors in Trump Case Has Drawn Challenges, N.Y.Times, July 20, 2023, available at: https:// www.nytimes.com/2023/07/20/us/politics/trump-jan-6- obstruction-charge.html.

He made no mention of the pending Robertson decision.

His justification for why Miller’s appeal provides little reason to consider the definition of “corruptly” when it is not ripe below — to say nothing of why a third defendant before Carl Nichols also accused of assault makes a sound vehicle for testing a statute that is more troubling with defendants who did not engage in violence on the day of the attack. Instead, Smith suggests that Miller’s guilty plea on the assault charges brackets that issue.

Miller’s case presents a clean vehicle to address the questions presented. Miller’s case is usefully contrasted with that of Petitioner Edward Lang (No. 23-32).

The government alleges that Lang entered the Capitol’s Lower West Terrace tunnel where, according to the government, “some of the most violent attacks on police officers occurred.” Dkt. 1958170 at 24. The government further alleges: “Until approximately 5 p.m., Lang pushed, kicked, and punched officers, at times using a bar or a stolen riot shield.” Id. In an interview on January 7, 2021, Lang described how he “had a gas mask on for the first two, three hours” as he was “fighting them face to face” as part of “a mission to have the Capitol building” and “stop this presidential election from being stolen.” Id. According to Lang: “It was war. This was no protest.” Id.

While Miller’s conduct in entering the Capitol and pushing on police lines was wrong, he has accepted responsibility for his actions by pleading guilty to every valid offense with which he was charged—except the charge under Section 1512(c)(2). The charges to which Milled pled guilty already perfectly encompass all his misconduct that day. Thus, Miller’s case captures the essential point that the novel obstruction charge does not penalize any unique criminal conduct or intent.

Ultimately, both these appeals are misleading, because they suggest these appeals are about protesting. None of the three can claim to be only protesting; all three are charged with — and Miller pled guilty to — assault (though Lang, who has not yet been found guilty, claims he was engaged in self defense).

But that doesn’t rule out that a SCOTUS dominated by right wingers like Clarence Thomas, for whom Nichols, the lone DC District holdout on this application of obstruction, once clerked, may choose to weigh in now rather than waiting for the DC Circuit’s decision to ripen the issue.

This is the kind of thing that legal commentators could be productively focused on, because it is designed to affect the case against Trump.

Update: Mistakenly referred to Lang as Alam.

Protection Racket: Donald Trump Thinks He’s More Special Than Steve Bannon

August 5, 2023/51 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

As you no doubt know, Trump and his January 6 prosecutors had a bit of a spat about the protective order governing evidence in the case.

The timeline goes like this:

August 2, 9:55PM: A Jack Smith prosecutor — given the initials, probably Thomas Windom — sends John Lauro a proposed protective order, “largely track[ing] the existing protective order in SDFL.”

“Evening of August 3 and early afternoon of August 4:” DOJ reaches out twice more.

Friday, August 4, 1:09PM: Trump’s latest defense attorney sends their own proposed protective order.

Friday, August 4, 2:39PM: A prosecutor (probably Windom) responds saying that Trump’s proposed order doesn’t make sense, notes that DOJ is again proposing the same order as adopted (by Aileen Cannon) in SDFL.

Friday, August 4, 2:45PM: Someone responds saying they adopted their proposal “form [sic] similar orders used in the district.”

Friday, August 4, 6:06PM: An AUSA responds, noting that Trump’s proposed order “would leave large amounts of material completely unprotected in a way not contemplated by standard orders in” DC.

Friday, August 4, 6:39PM: Someone responds saying they should brief it to Magistrate Judge Upadhyaya, whom they do not name, and ask that DOJ note “that we have did not have adequate time to confer.”

Friday, August 4: Trump tweets out video attacking the prosecutors prosecuting him and Joe Biden.

Friday, August 4: Trump tweets, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

Friday, August 4, at least 3 hours after Trump’s tweet: DOJ files for a protective order, noting that Trump plans to just spill out grand jury information. The proposed motion is closely modeled on the Steve Bannon one.

Saturday August 5: Judge Chutkan orders Trump to respond by 5PM Monday

MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:00 PM on August 7, 2023, Defendant shall file a response to the government’s 10 Motion for Protective Order, stating Defendant’s position on the Motion. If Defendant disagrees with any portion of the government’s proposed Protective Order, ECF No. 10-1, his response shall include a revised version of that Protective Order with any modifications in redline

Saturday, August 5: Trump attorney John Lauro moves for reconsideration, claiming — while misrepresenting the timeline — that the government had not conferred with him about the protective order.

Saturday August 5: DOJ responds noting that Trump is holding things up and noting that Lauro left out other efforts to consult.

In emails not appended to the defendant’s extension motion, the Government followed up on the evening of August 3 and early afternoon of August 4. Thereafter, defense counsel finally responded by sending an entirely different protective order.

Saturday, August 5: Judge Chutkan denies Lauro’s motion, ordering him to comply by 5PM on Monday.

MINUTE ORDER as to DONALD J. TRUMP: Defendant’s 11 Motion for Extension of Time is hereby DENIED. Defendant may continue to confer with the government regarding its proposed protective order before or after the August 7, 2023 5:00 PM deadline for his response. The court will determine whether to schedule a hearing to discuss the proposed protective order after reviewing Defendant’s response and, if included, his revised proposed protective order with modifications in redline.

But what has been missed is this: The protective order the government proposed last Friday is the protective order Judge Carl Nichols, the former Clarence Thomas clerk appointed by Trump, issued for the Steve Bannon contempt case.

Here’s that order, which Chutkan has ordered Trump to modify.

Here’s the order Trump appointee Carl Nichols adopted in 2021 for a similarly situated defendant. They’re not identical: the one the government proposed includes more detail about what should be treated as sensitive. But otherwise, they’re the same.

What this boils down to is that Trump — after issuing threats targeting prosecutors and judges — thinks he’s more special than Steve Bannon.

And Judge Chutkan isn’t buying that bullshit.

Update: In Trump’s response, he didn’t include the protective order he wants. He included a great deal of other shit, including the docket from SDFL. But this is a protective order adopted in DC District that separates out sensitive material; it’s from the Russian troll farm case.

DC Circuit Upholds 18 USC 1512(c)(2), Sort Of

April 7, 2023/47 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

This passage from Judge Justin Walker’s concurring opinion in the DC Circuit’s ruling upholding the application of 18 USC 1512(c)(2) to three defendants accused of assaulting cops on January 6 may be the most important language, until further litigation sorts out the rest.

5 The dissenting opinion says a defendant can act “corruptly” only if the benefit he intends to procure is a “financial, professional, or exculpatory advantage.” Dissenting Op. 35. I am not so sure. Cf. United States v. Townsend, 630 F.3d 1003, 1010-11 (11th Cir. 2011); United States v. Girard, 601 F.2d 69, 70 (2d Cir. 1979); Trushin v. State, 425 So.2d 1126, 1130-32 (Fla. 1982). Besides, this case may involve a professional benefit. The Defendants’ conduct may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency. Like the clerkship that Samuel Vaughan corruptly sought hundreds of years ago, the presidency is a coveted professional position. See Vaughan (1769) 98 Eng. Rep. at 308-10; but see Telegram from William T. Sherman to Republican National Convention (1884) (“I will not accept if nominated, and will not serve if elected.”).

True, the Defendants were allegedly trying to secure the presidency for Donald Trump, not for themselves or their close associates. But the beneficiary of an unlawful benefit need not be the defendant or his friends. Few would doubt that a defendant could be convicted of corruptly bribing a presidential elector if he paid the elector to cast a vote in favor of a preferred candidate — even if the defendant had never met the candidate and was not associated with him. See Oral Arg. Tr. 18-19, Chiafalo v. Washington, 140 S. Ct. 2316 (2020) (discussing the fear that electoral college voters might one day be bribed).

[snip]

[I]t might be enough for the Government to prove that a defendant used illegal means (like assaulting police officers) with the intent to procure a benefit (the presidency) for another person (Donald Trump). * *

I most recently wrote about this appeal here (which links to my past coverage). DOJ has charged over 300 people with obstructing the vote certification on January 6. All but one judge — former Clarence Thomas clerk Carl Nichols — upheld the application. Judge Nichols said that the application of 1512 to these defendants, who allegedly engaged in significant assaults as part of their actions on January 6, had to involve a documentary component, like destroying a document.

Walker joined Florence Pan’s majority opinion upholding the obstruction statute with Garret Miller, Joseph Fischer, and Jake Lang. The decision before the court was primarily whether obstruction required a documentary aspect, and Pan and Walker agreed it did not, though at the hearing, Walker and Greg Katsas made it clear they were interested in limiting the “corrupt purpose” requirement of the statue.

That’s where Walker disagreed with Pan: whether the “corrupt purpose” part of 1512 must involve some kind of personal corruption or may be broader. He argues here — in a part of the opinion that Greg Katsas did not join — that it must.

But he interpreted his own definition requiring some personal corruption to extend to those, like the appellees, who committed crimes in service of keeping Trump in office.

I’m not sure his adoption of personal corruption to assault in the service of election theft is so obvious (his opinion makes it sound like he’s not sure either).

But as written, his language would extend to virtually all the people already charged with obstruction.

This will be further litigated. But given that this is the starting place, unless SCOTUS does something remarkable, it likely means obstruction will be upheld for all those currently charged and could be used with Trump and all his aides who were more clearly working for a corrupt purpose.

[Fixed appellee appellant — because I forgot the defendants won before Nichols]

Update: Earlier this week, I did a podcast with Joshua Holland. I said there were a number of things that Jack Smith might wait on before charging Trump. One of those was this appeal.

Update: Added a bit more description the Nichols’ holding that was overturned.

Update: Both Nick Smith (for Ethan Nordean and the guy who argued before the DC Circuit) and Carmen Hernandez (for Zach Rehl) are using the opinion to disrupt the Proud Boy trial, with Hernandez making a much more expansive ask.

They argue that because Walker would not have joined Pan’s majority opinion on the documents issue without a more narrow reading of “corruptly” than she adopted, Tim Kelly has to apply Walker’s standard in the Proud Boy case. That’s why I noted that Walker had little problem applying his “corruptly” standard to the defendants before him: if it can apply to guys who weren’t called out by the President in advance of playing a key role in an assault on the Capitol, then it surely could apply to guys accused of doing just that.

In her majority, Pan noted that Thomas Robertson’s appeal includes a challenge to the “corruptly” language used to convict him on obstruction, but this bid by the Proud Boys may hasten DOJ’s request for some other resolution.

How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

January 16, 2023/45 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

Carl Nichols’ interventions:

Question about applicability to Trump: November 22, 2021
Opinion requiring the involvement of documents: March 7, 2022, Garret Miller
Order denying reconsideration raising, for the first time, concerns about “corrupt purpose:” May 27, 2022, Miller

DC Circuit proceedings

DOJ Appeal: August 8, 2022
Defendants’ Response: September 14, 2022
DOJ Reply: October 5, 2022
Hearing before Greg Katsas, Justin Walker, and Florence Pan, captioned Joseph Fischer: December 12, 2022

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

The Thinness of the January 6 Committee’s Obstruction Referral

December 20, 2022/54 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I’m back (in Ireland after a visit to the US)!

I just finished a detail read of the Executive Summary released by the January 6 Committee. See this Mastodon thread for my live read of it.

I’d like to address what it says about referrals.

In the big dispute between bmaz and Rayne about the value of referrals, I side, in principle, with Rayne. I have no problem with the Committee making criminal referrals, especially for people not named Donald Trump. Some of the most damning details in the report involve details about how Kayleigh McEnany, Ivanka, and Tony Ornato turned out to not recall things that their subordinates clearly remembered (Pat Cipollone probably falls into that same category but the Committee gave him a pass for it) and how what must be Cassidy Hutchinson’s original lawyer fucked her over — details that would support an obstruction of the investigation referral.

Here’s an example of the former:

While some in the meeting invoked executive privilege, or failed to recall the specifics, others told us what happened at that point. Sarah Matthews, the White House Deputy Press Secretary, had urged her boss, Kayleigh McEnany, to have the President make a stronger statement. But she informed us that President Trump resisted using the word “peaceful” in his message:

[Q]: Ms. Matthews, Ms. McEnany told us she came right back to the press office after meeting with the President about this particular tweet. What did she tell you about what happened in that dining room?

[A]: When she got back, she told me that a tweet had been sent out. And I told her that I thought the tweet did not go far enough, that I thought there needed to be a call to action and he needed to condemn the violence. And we were in a room full of people, but people weren’t paying attention. And so, she looked directly at me and in a hushed tone shared with me that the President did not want to include any sort of mention of peace in that tweet and that it took some convincing on their part, those who were in the room. And she said that there was a back and forth going over different phrases to find something that he was comfortable with. And it wasn’t until Ivanka Trump suggested the phrase ‘stay peaceful’ that he finally agreed to include it.”525

[snip]

Kayleigh McEnany was President Trump’s Press Secretary on January 6th. Her deposition was taken early in the investigation. McEnany seemed to acknowledge that President Trump: (1) should have instructed his violent supporters to leave the Capitol earlier than he ultimately did on January 6th; 710 (2) should have respected the rulings of the courts;711 and (3) was wrong to publicly allege that Dominion voting machines stole the election.712 But a segment of McEnany’s testimony seemed evasive, as if she was testifying from preprepared talking points. In multiple instances, McEnany’s testimony did not seem nearly as forthright as that of her press office staff, who testified about what McEnany said.

For example, McEnany disputed suggestions that President Trump was resistant to condemning the violence and urging the crowd at the Capitol to act peacefully when they crafted his tweet at 2:38 p.m. on January 6th. 713 Yet one of her deputies, Sarah Matthews, told the Select Committee that McEnany informed her otherwise: that McEnany and other advisors in the dining room with President Trump persuaded him to send the tweet, but that “… she said that he did not want to put that in and that they went through different phrasing of that, of the mention of peace, in order to get him to agree to include it, and that it was Ivanka Trump who came up with ‘stay peaceful’ and that he agreed to that phrasing to include in the tweet, but he was initially resistant to mentioning peace of any sort.”714 When the Select Committee asked “Did Ms. McEnany describe in any way how resistant the President was to including something about being peaceful,” Matthews answered: “Just that he didn’t want to include it, but they got him to agree on the phrasing ‘stay peaceful.’”715

The Committee invites the public to compare McEnany’s testimony with the testimony of Pat Cipollone, Sarah Matthews, Judd Deere, and others, [punctuation original]

It turns out the latter example — of the lawyer Trump originally provided for Cassidy Hutchinson directing her testimony — doesn’t need to be referred in this report. That’s because, the report makes clear, the Committee already shared those details with DOJ (or knew them to be shared under the guidance of Hutchinson’s new lawyer, Jody Hunt).

The Select Committee has also received a range of evidence suggesting specific efforts to obstruct the Committee’s investigation. Much of this evidence is already known by the Department of Justice and by other prosecutorial authorities. For example:

[snip]

The lawyer instructed the client about a particular issue that would cast a bad light on President Trump: “No, no, no, no, no. We don’t want to go there. We don’t want to talk about that.”;

The lawyer refused directions from the client not to share her testimony before the Committee with other lawyers representing other witnesses. The lawyer shared such information over the client’s objection;

The lawyer refused directions from the client not to share information regarding her testimony with at least one and possibly more than one member of the press. The lawyer shared the information with the press over her objection.

The lawyer did not disclose who was paying for the lawyers’ representation of the client, despite questions from the client seeking that information, and told her, “we’re not telling people where funding is coming from right now”;

The client was offered potential employment that would make her “financially very comfortable” as the date of her testimony approached by entities apparently linked to Donald Trump and his associates. Such offers were withdrawn or did not materialize as reports of the content of her testimony circulated. The client believed this was an effort to impact her testimony.

That’s a testament that, even with regards to crimes that victimized the investigation itself, DOJ already has the details to pursue prosecution. This is a symbolic referral, not a formal one, even for the crimes that the Committee would need to refer.

As to the more significant referrals, you’ve no doubt heard that the Committee referred four major crimes:

18 USC 1512(c)(2): obstruction of the vote certification
18 USC 371: conspiracy to defraud the US in the form of obstructing the certification of the election
18 USC 371 and 18 USC 1001: conspiracy to present false statements — in the form of fake elector certifications — to the National Archives
18 USC 2383: inciting, assisting, or aiding an insurrection

I don’t so much mind that the Committee made these referrals. But I think they did a poor job of things.

For example, they don’t even consider whether Trump is exposed for aiding and abetting the actual assaults, something that Judge Amit Mehta said is a plausible (civil) charge against Trump. Some of the Committee’s evidence, especially Trump’s foreknowledge that the mob he sent to the Capitol was armed, would very much support such a charge. If Trump were held accountable for something like the tasing of Michael Fanone it would clarify how directly his actions contributed to the actual violence.

I’m also mystified why the Committee referred the obstruction conspiracy under 371 without consideration of doing so under 1512(k), even as DOJ increasingly emphasizes the latter approach. If DOJ’s application of obstruction is upheld, then charging conspiracy on 1512 rather than 371 not only brings higher base level exposure (20 years as opposed to 5), but it also lays out enhancements for the use of violence. If this application of obstruction is upheld, by charging conspiracy under 1512(k), you have a ready way to hold Trump accountable for the physical threat to Mike Pence.

It’s in the way that the Committee referred the obstruction charge, however, I’m most disappointed. This referral matters, mostly, if it can be used by DOJ to bolster its own defense of the statute or by a sympathetic judge to write a compelling opinion.

And this referral is weak on several counts. First, even with evidence that Trump knew his mob was armed when he sent them to the Capitol, the referral does not incorporate emphasis that the David Carter opinion they rely on did: That Trump (and John Eastman) not only asked Mike Pence to do something illegal, but then used the mob as a tool to pressure Pence.

President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.”217 President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”

The means by which Trump succeeded in obstructing the vote count was the mob, not just pressuring Pence. Indeed, the former was the part that succeeded beyond all expectations. The Committee referral here doesn’t account for the crowd at all (even though Greg Jacob explicitly tied the pressure on Mike Pence to riling up the crowd in real time). It just doesn’t conceive of how the mob played into the obstruction crime.

Second, there should be no doubt that President Trump knew that his actions were likely to “obstruct, influence or impede” that proceeding. Based on the evidence developed, President Trump was attempting to prevent or delay the counting of lawful certified Electoral College votes from multiple States.597 President Trump was directly and personally involved in this effort, personally pressuring Vice President Pence relentlessly as the Joint Session on January 6th approached.

[snip]

Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the Joint Session of Congress. Those facts standing alone are sufficient. But such a charge under that statute can also be based on the plan to create and transmit to the Executive and Legislative branches fraudulent electoral slates, which were ultimately intended to facilitate an unlawful action by Vice President Pence –to refuse to count legitimate, certified electoral votes during Congress’s official January 6th proceeding.603 Additionally, evidence developed about the many other elements of President Trump’s plans to overturn the election, including soliciting State legislatures, State officials, and others to alter official electoral outcomes, provides further evidence that President Trump was attempting through multiple means to corruptly obstruct, impede or influence the counting of electoral votes on January 6th. This is also true of President Trump’s personal directive to the Department of Justice to “just say that the election was was [sic] corrupt + leave the rest to me and the R[epublican] Congressmen.”604

A far more unfortunate weakness with this referral, though, is in the shoddy analysis of the “corrupt purpose” prong of the crime.

Third, President Trump acted with a “corrupt” purpose. Vice President Pence, Greg Jacob and others repeatedly told the President that the Vice President had no unilateral authority to prevent certification of the election.599 Indeed, in an email exchange during the violence of January 6th, Eastman admitted that President Trump had been “advised” that Vice President Pence could not lawfully refuse to count votes under the Electoral Count Act, but “once he gets something in his head, it’s hard to get him to change course.”600 In addition, President Trump knew that he had lost dozens of State and Federal lawsuits, and that the Justice Department, his campaign and his other advisors concluded that there was insufficient fraud to alter the outcome. President Trump also knew that no majority of any State legislature had taken or manifested any intention to take any official action that could change a State’s electoral college votes.601 But President Trump pushed forward anyway. As Judge Carter explained, “[b]ecause President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly’ under § 1512(c).”602

600 Documents on file with the Select Committee (National Archives Production), VP-R0000156_0001 (January 6, 2021, email chain between John Eastman and Marc Jacob re: Pennsylvania letter). One judge on the U.S. District Court for the District of Columbia, in the course of concluding that Section 1512(c) is not void for vagueness, interpreted the “corruptly” element as meaning “contrary to law, statute, or established rule.” United States v. Sandlin, 575 F. Supp. 3d. 15-16, (D.D.C. 2021). As explained above, President Trump attempted to cause the Vice President to violate the Electoral Count Act, and even Dr. Eastman advised President Trump that the proposed course of action would violate the Act. We believe this satisfies the “corruptly” element of the offense under the Sandlin opinion.

This part of the January 6 Committee’s arguments has always been weak, but it is especially inexcusable given how much more clear the status of the application has gotten in ensuing months. The Committee knows that Carl Nichols has already rejected the application of the statute based on acceptance that the vote certification was an official proceeding, but holding that the obstruction must involve documents. But as they acknowledge in footnote 600, they also know the clear standards that Dabney Friedrich has adopted — that one means to find corrupt purpose is by pointing to otherwise illegal activity. And they should know that the DC Circuit is looking closely at corrupt purpose, and one of two Republicans on the existing panel, Justin Walker, entertained a theory of corrupt purpose tied to personal benefit. (Here’s the oral argument.)

This referral was the Committee’s opportunity to show that no matter how the DC Circuit rules, you can get to obstruction with Trump for two reasons.

First, because unlike the hundreds of mobsters charged with obstruction, Trump had a direct role in documentary obstruction. As the Committee lays out, he was personally involved in the fake elector plot that resulted in faked electoral certifications. So even if the outlier Nichols opinion were sustained, obstruction would still apply to Trump, because he oversaw (the Committee used that word) an effort to create fraudulent documents as evidence before Congress.

And given the focus of the DC Circuit on corrupt purpose (which may well result in a remand to Nichols for consideration of that standard, and then a follow-up appeal), the Committee would do well to lay out that Trump, alone among the hundreds of people who have been or will be charged with obstruction, meets a far more stringent standard for corrupt purpose, one that some defense attorneys and Republican appointees would like to adopt: that his goal in obstructing the vote certification was to obtain an unfair advantage.

Trump can be referred for obstruction not just because he gave Mike Pence an illegal order, but because he used a mob as a tool to try to force Pence to follow that order.

Trump can be referred for obstruction because even if Nichols’ opinion is upheld, Trump would still meet the standard Nichols adopted, an attempt to create false documentary evidence.

And Trump can be referred for obstruction not just because he knowingly engaged in other crimes, but because the reason he did all this was to obtain the most corrupt kind of benefit for himself: the ability to remain as President even after voters rejected him.

On the key issue of this referral, the Committee missed the opportunity to show how, by any standard under consideration, Trump corruptly tried to prevent Congress to certify the electoral victory of Trump’s opponent. He did so by committing other crimes. He did so by mobilizing a violent mob. He did so using fraudulent documents. And most importantly, he did so for personal benefit.