Posts

The “We the People Plan” Is Evidence of Tarrio’s Motive, But Not His Plan

/34 Comments/in , /by

As part of a renewed motion for bond for her client Zach Rehl, Carmen Hernandez released a copy of the “We the People” plan referenced in the indictments that include Enrique Tarrio. The document is disturbing and in some way reflects the plan to occupy the Capitol achieved during the insurrection on January 6. And it is evidence reflecting Tarrio’s — though not necessarily Rehl’s — motive. But it is not Tarrio’s plan.

We the People Plan

The plan itself consists of nine pages. The last two — intended for public consumption as a recruiting device — issue a demand for a new election on January 20, pledge fondness for Rand Paul and Ron DeSantis, and include a map.

The other seven pages lay out the plan to occupy Congressional office buildings and CNN but not the Capitol itself (one of the points Hernandez makes in her bond motion). The goal was to occupy the buildings with as “many people as possible inside these buildings” and then “present[] our demands in unity.”

The plan envisioned spending January 1 through 5, as well as on January 6 itself, recruiting as many participants as possible, using the public flier. Then, in advance of the attack on January 6, the buildings would be scouted by people wearing suits to blend in. For each building, the plan aspired to recruit a “covert sleeper” who would use a ruse to get inside the building and let others in, with a backup if the first person is discovered. This plan to have someone from the inside open doors to let others in does resemble something that happened on the East side of the Capitol, as Joe Biggs, the Oath Keepers, and the mob led there by Alex Jones all assembled in time for someone to open that door from inside.

The plan advocated using COVID masking to obscure identities (something none of the Proud Boys did, though one of Rehl’s co-travelers, as well as a few others, did a superb job of hiding his face via other means). It also proposed ways to distract by occupying other locations (like hotels and WalMart) and to block select roads in DC. There were conflicting chants — the same people who would chant “No Trump, No America” were also going to demand, “Free and fair elections,” which Trump lost. The plan advocating “sit[ting] in” key Senators’ offices, but then didn’t really understand what to do next.

One area where the plan most closely matches the one ultimately implemented by the Proud Boys was in timing: The mob was supposed to meet at 1PM, then an assessment would be made at 1:22PM if “enough people are around?,” then at 1:30, “Wait for sign from lead, storm the building.” Compare that timeline to this one put together by the Sedition Hunters. Both, importantly, were tied to the vote certification, not Trump’s speech.

The plan appears to have been developed by one or another of the “patriot” groups, which were separate from but with which the Proud Boys had some ties (and, at least in the case of some “Patriots” from Texas, fundraising ties). DOJ has only charged individual pairs of such rioters with conspiracy, even though there was a larger network passing such plans back and forth.

But this was their plan, not the Proud Boys’ plan.

Zach Rehl’s disproportionate charging

And that’s one of the points that Hernandez made in the bond motion. Rehl — and the other charged defendants — had no awareness of the document (though that would not include Jeremy Bertino, who is not currently a charged defendant).

The document was never shared or otherwise discussed with Mr. Rehl. 1776 Returns was sent to Mr. Tarrio by a female acquaintance. Mr. Rehl does not know the woman who sent the document and has not had any conversations with her. The government has represented that Tarrio did not forward the document to Mr. Rehl or the other defendants. And that Tarrio did not discuss the document or its contents with Mr. Rehl and the other defendants.

As I’ll show below, in the government’s theory of the conspiracy, in which Tarrio was a hierarchical head of the militia, that may not matter. The government has accused Rehl of following Tarrio’s plan, not this one.

Hernandez makes another point I find much more persuasive, though. Rehl is included in a sedition conspiracy with Tarrio, the hierarchical leader, Joe Biggs and Ethan Nordean, the onsite leaders who discussed an orally agreed plan starting on January 5, and Dominic Pezzola, whose actions were absolutely crucial from a tactical standpoint. Compared to them, he did play a smaller role in the conspiracy. As conspiracies work legally, that doesn’t necessarily help him much at trial, but this is a bond motion, and it might.

Hernandez cites one of Rehl’s co-travelers, who include Isaiah Giddings, Brian Healion, and Freedom Vy, stating that Rehl wasn’t really in charge and they just entered the Capitol to take a peak.

After the initial breach, [defendant] was with Zach [and two others]. [They] wanted to “go in and take a peek” and that they made the decision to enter the Capitol Building as a group. [Defendant] was curious as to what was going on inside the CapitolBuilding. . . . They left the building as a group.”

It’s true that these three men have, thus far, just been charged with a misdemeanor. But after Hernandez filed this filing yesterday, the prosecutor in their case, Alexis Loeb, filed for a continuance so prosecutors could continue to discuss a pre-charging resolution with these defendants.

The parties therefore request a 69-day continuance to allow defense counsel to continue their review of the discovery in this case. The requested continuance will also allow the government to continue to make progress providing additional discovery and continue discussions potential pre-charging resolution of this matter.

Hernandez also cites Jeff Finley’s treatment, who was with Rehl for part of the day (Hernandez refers to Finley having a cooperation agreement, which may confirm something that was fairly clear from his treatment).

By his own admission, on January 6, Finley marched with the Proud Boys from the start and participated and posted on the Boots on the Ground telegram chat. Id. (ECF 38) at ¶ 8. Finley watched as the barricades were torn down; after the crowd overran law enforcement, he followed the crowd onto the west terrace of the Capitol; and also invited other members of his chapter to join him at the Capitol. During these events, Finley 8 posed for a photograph with Mr. Rehl and three other Philadelphia Proud Boys “on the Upper West Terrace of the U.S. Capitol during the breach.” 9

After entering the Capitol and observing barricades torn down and the crowd overrunning law enforcement, Finley posted a video message, which among other things celebrated the events of the day and congratulated Mr. Rehl (“Yo, [Zach Rehl], proud of your (sic) fucking boy”). Finley (ECF 38) at ¶ 23. Finley deleted social media posts and photographs of himself and other Proud Boys at the Capitol and directed members of his chapter to do the same. Id. Despite almost identical 10 conduct by Finley and notwithstanding the allegations that Finley obstructed justice by deleting and directing members of his chapter to delete posts, the government did not consider Finley a risk of danger and did not seek his detention pretrial.

10 “Following the events at the Capitol on January 6, 2021, Finley took measures to obstruct the government’s investigation into criminal conduct at the Capitol. Among other things, Finley deleted his social media accounts and deleted photos and videos of himself and other Proud Boys at the Capitol. Finley also directed members of his chapter to delete their photographs and advised the presidents of other Proud Boys chapters of his actions, writing in an encrypted message, “Deleted all photos I may have had, advised my boys to as well. No talks about dc on telegram whatsoever and gathering #s as we speak.” Finley (ECF 38) at ¶ 24

According to Hernandez, the single thing that distinguishes Rehl from Finley is that Rehl was a member of the Ministry of Self Defense that Tarrio created in December 2020 as a leadership structure for what came next. She argues, in defiance of years of Proud Boy modus operandi, that the group was formed to avoid violence (rather than to better to incite it from others). And several things she cites actually hurt her argument. She cites Tarrio’s demand for a top-down structure, for example.

Now that goes with the whole thing. I don’t want this – this isn’t a foke (phonetic) thing. This isn’t a fuckin’, a thing where it’s going to be a fuckin’ super militant fuckin’ thing, but we do need to organize better and in order to do that, we need to have a top down structure, right.

She makes much of Tarrio’s demand that the Proud Boys will not, henceforth, be the ones to cross police barricades.

MR. TARRIO: Yeah, I mean every situation calls for something different, you know. Like we’re – I think on the verbalsense and the media sense, me and Biggs has got in on lock, where we know exactly what we’re going to say that will piss off the media. And you can translate that to on the grounds. Now I’m not saying, now I’m not saying to go ahead and fuckin’ talk shit. Go ahead and talk shit, as long as it, you know, keep it fuckin’ professional. But we’re never going to be the ones to cross the police barrier or cross something in order to get to somebody. We’re always going to be the ones standing back, right, and we’re always going to be the ones to fuckin’ defend. [Hernandez’ emphasis]

The Proud Boys weren’t the ones who crossed the barricade first on January 6. Instead, Joe Biggs made some comments to Ryan Samsel, and Samsel pushed over the barricades, giving Officer Caroline Edwards a lasting brain injury in the process and setting off hundreds of people behind him.

And Hernandez points to Bertino’s warnings (whom she names in a piece that also describes that Person-1 is the guy who, like Bertino, got stabbed at an earlier Proud Boy fight) about being stabbed to excuse the body armor the Proud Boys wore on a day when they targeted the Capitol at a time when few if any Antifa were present.

There’s a long redacted passage that, she explains, “refute the allegation that … MOSD planned a violent attack on the Capitol.”

Matters considered by the Court under seal also refute the allegation that the Proud Boys and the MOSD planned a violent attack on the Capitol.

This seems to be a reference to one of, if not the primary extended sealed dispute in this docket before Judge Kelly. Given Hernandez’ description of it, it may be the testimony of an FBI informant who repeatedly denied any such plans. Except that informant went to insurrection with the Kansas City cell of Proud Boys, and two of them — Louis Colon and Ryan Ashcroft — have since pled guilty to statements of offense that seem to directly counter the claims of their co-traveler.

Finally, Hernandez presents what is solid evidence that Rehl was not part of the planning discussions that did go on between Tarrio, Biggs, and Nordean, but which is not evidence that there was no plan.

That was the only plan communicated to the MOSD, to Boots-on-the-Ground and to Mr. Rehl. See also TSI at ¶¶ 63-65; Donohoe Plea (ECF 336 at ¶¶ 22-24). Note also that Mr. Rehl’s understanding of the plan was, as discussed in the 12/30 MOSD meeting, to break off into smaller teams. Mr. Rehl was not with Biggs and Nordean on the evening of January 5 and Tarrio was not in DC. Mr. Rehl did not speak with Tarrio by phone on January 5 or January 6. Compare TSI at 22 ¶¶ 63, 105. Thus, any communications between Mr. Rehl and Biggs, Nordean, or Tarrio on January 5, would have been on telegram. No message exists where they discuss a plan to attack the Capitol.

There was a meeting on January 5 involving Biggs and Nordean, after which Biggs explained that he had a plan that had been discussed with Tarrio. Rehl was not in that loop (and indeed had only just made it to DC). But there are repeated references to this plan.

I lay all this out for two reasons. First, probably because of some difficulties with the prosecution (including the number of Proud Boy informants, including Joe Biggs, that the FBI took to be credible and so got lied to), DOJ’s prosecutorial decisions don’t make transparent sense in the way they do with the Oath Keeper conspiracy, which has been a relentless march towards more senior plotters. But also because, at least according to the government’s theory of how this worked (which does appear in both Matthew Greene and Charles Donohoe’s statements of offense), this attack was implemented using a top-down structure led by a guy, Tarrio, giving oral instructions from offsite. And those oral instructions may have been influenced by the plans of others that Tarrio was known to be in contact with in December, only one of which is this “We the People” plan.

Tarrio’s motive and plan

And that’s why, I would argue, the “We the People” document is in the existing conspiracy indictments. It led Tarrio to express his own motive twice. The sedition indictment has two references to it. First, in regards to discussions Tarrio had with the woman who shared it with him in December, well before the Proud Boy plan was finalized.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to oceupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

To her (using a phone Tarrio believed would not be exploited, and which did take a year to be exploited), he agreed that “the revolution is [sic] important than anything,” Tarrio seemingly agreed that “every waking moment” he spent was dedicated to that revolution.

Then, after an attack led by the Proud Boys (who had succeeded in recruiting others to break through the barricades) Tarrio made a reference that suggests Bertino — referred to here as Person-1 — does know about this plan.

107. At 7:39 pm, PERSON-I sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-I texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

In response to Bertino’s boast of 1776, Tarrio responded with the code for occupying buildings, Winter Palace. That is, this seems to be his tacit reference to the plan to occupy buildings.

But this exchange goes well beyond that of the We the People plan, which imagined issuing a set of demands but didn’t know what would happen next. This occupation, as reflected by Bertino’s awareness that “They HAVE to certify today! Or it’s invalid,” reflects some knowledge of the entire legal theory espoused by people like John Eastman: that to succeed in winning their demands, occupiers needed to ensure that the certification did not happen as scheduled.

Rehl has a point (though prosecutors, being prosecutors, would note that it’s the same point that Donohoe, who only came to DC on January 6 to fill in for Tarrio after the Proud Boy leader predictably got arrested and so retreated to Baltimore for the actual violence) came to: that Tarrio set up this conspiracy to insulate himself, leaving people like Donohoe and Rehl to take the fall for his plan.

Prep for the January 6 Committee Hearings: Focus on 18 USC 372

/55 Comments/in , /by

I’ve got some potentially unwelcome news for you: Given the time zone differential, I think it unlikely I’ll stay up to watch tonight’s prime time hearing of the January 6 Committee. Hopefully, though, I’ll have reviewed it and posted on it by the time most of you wake up tomorrow.

That said, there seems to be a requirement somewhere that everyone do a big prep post of what to expect.

For example, Brookings did legal analysis of Trump’s legal exposure, laying out the evidence and legal background for charging him under 18 USC 371 and/or 1512(c)(2) and (k). I did a (actually, several) versions of that post too. But I posted it back on August 19, 2021.

The Brookings analysis misses a number of things, however. While it cites Judge Amit Mehta’s decision finding it plausible that Trump entered into a conspiracy with the Oath Keepers and Proud Boys (this is a much lower standard than the one DOJ would need to charge Trump), it doesn’t mention Mehta’s decision that Trump may have liability for aiding and abetting the assaults at the Capitol. Similarly, neither Brookings nor anyone else I’ve seen have noticed DOJ’s recent addition, in the same indictments in which they charged the militias for seditious conspiracy (Oath Keeper, Proud Boys), of 18 USC 372 charges, which is a conspiracy to prevent by force or intimidation any person from discharging his duties.

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

As I’ve noted of late, the only other January 6 defendants charged with a 372 conspiracy are George Tanios and Julian Khater, for the alleged attack on Brian Sicknick and others. In the same way I was screaming in August that TV lawyers need to pay attention to how DOJ was using 1512(c)(2) (which they’ve finally started doing), I’m going to start screaming about 372 now. I think the 372 charges are designed to do more than backstop the showier conspiracy charges. Insofar as Mike Pence was acting in his role as President of the Senate on January 6 (and so would be included in the language about preventing by intimidation Members of Congress from carrying out their duties), it might be easier to charge people like John Eastman or Peter Navarro with 372 than with 1512. That’s because parts of this conspiracy didn’t rely on obstructing the vote certification, it relied on preventing Pence from doing his job.

Plus, Brookings remains, as virtually all such analysis does, far too focused on the events in the Willard, and far too little focused on the Capitol. It’s as if they don’t believe, or can’t conceive, how closely Trump is tied to the violence at the Capitol.

Hopefully, tonight’s hearing will change that focus. As the NYT first reported, documentarian Nick Quested and officer Carolyn Edwards will testify tonight.

When the committee on Thursday evening holds the first in a series of public hearings scheduled for this month, the two people said, it intends to present live testimony from Nick Quested, a British documentarian who was filming the group with its permission during the riot, and from Caroline Edwards, a Capitol Police officer who was injured, according to videotape of the incident, by a rioter who had been in a conversation moments earlier with one of the Proud Boys indicted on the sedition charge.

Mr. Quested spent a good deal of the postelection period filming members of the Proud Boys, including Mr. Tarrio, and is considered by the committee likely to have been a witness to their conversations planning for Jan. 6. Mr. Quested had accompanied the Proud Boys to pro-Trump rallies in Washington in both November and December 2020, and was on the ground with members of the group on Jan. 6 when several played a crucial role in breaching the Capitol.

Mr. Quested was also present with a camera crew on the day before the attack, when Mr. Tarrio met in an underground parking garage near the Capitol with a small group of pro-Trump activists, including Mr. Rhodes of the Oath Keepers. Late in the day on Jan. 6, Mr. Quested and his crew were with Mr. Tarrio in Baltimore, filming him as he responded in real time to news about the riot.

Ms. Edwards, a well-respected Capitol Police officer, is believed to be the first officer injured in the attack, and suffered a concussion during the assault.

Such testimony will explain how the Proud Boys kicked off the entire riot before Trump even finished. Edwards’ assault figures in language added to the Proud Boys indictment when Tarrio was added.

Seconds before 12:53 p.m., BIGGS was approached by an individual whose identity is known to the grand jury. The individual put one arm around BIGGS’s shoulder and spoke to him. Approximately one minute later, this individual crossed the barrier that restricted access to the Capitol grounds. This was the first barrier protecting the Capitol grounds to be breached on January 6, 2021, and the point of entry for NORDEAN, BIGGS, REHL, Donohoe, and PEZZOLA.

This assault — one implicating the Proud Boys in that exchange with Samsel — is the kind of thing covered by 372. A victim impact statement was read in a detention hearing for Samsel, which focused on how much lasting damage the assault had done to Edwards health and ability to work.

With Edwards and Quested’s testimony, I expect the Committee will show that the attack was far more than a disorganized mob, but instead was coordinated, almost like a dance. That coordination includes Alex Jones and his entourage, the Pied Pipers of insurrection, ordered to lead thousands to the attack on the Capitol.

The coordinated events at the Capitol are why another point missed by the legal analysis I’ve seen so far is so important. The Willard is actually the wrong place to start a prosecution of Trump. You can’t hold Trump responsible for the attack on the Capitol unless you first show that he was instrumental in mobilizing the people there — whether by inciting them at the rally, advertising the riot itself in ways rioters took to be orders, or coordination with the militias. All the other stuff just broadens the conspiracy to include the legal talent.

Trump wielded the mob as his weapon. There are witnesses to his premeditated plan to do that in the White House. But to show that those mobilized by Trump responded to his orders, you need to rely on their testimony.

And abundant testimony already shows that thousands would not have rioted except for Trump’s orders or his promises to meet supporters at the Capitol (and Alex Jones’ similar promises, used to move bodies around to form a second front of attack).

Enrique Tarrio thinks this focus is all being coordinated with DOJ. In the wake of the sedition indictment rolled out on Monday, Zach Rehl’s attorney Carmen Hernandez moved for permission to issue a press release responding to the indictment. Hernandez wants to note that Rehl is not, himself, accused of any violence.

Without adding a single factual allegation concerning Mr. Rehl, the government today filed the Third Superseding Indictment in the instant case, nearly 1-1/2 years after Mr. Rehl was first indicted and detained pretrial and just two months before he is scheduled to begin trial. Mr. Rehl is now charged with seditious conspiracy, an offense that requires the government to prove that Mr. Rehl “conspire[d] to overthrow, put down, or to destroy by force the Government of the United States.” Yet, the Third Superseding Indictment does not allege that Mr. Rehl used force at any time nor encouraged anyone to do so.

I think Rehl’s problem is not so much the conspiracy indictment, it’s that he’s the least culpable of the remaining defendants, on the hook for actions that Ethan Nordean, Joe Biggs, and Enrique Tarrio are alleged to have taken, and arguably included in the Leader indictment when others (like Ron Loehrke, who remains charged by complaint with civil disorder) were more instrumental to the success of the assault on January 6.

Tarrio has a different problem, however. Thus far, he’s the only one to have joined, in part, in Hernandez’ motion. He wants to issue a press release claiming that the only reason DOJ charged him with sedition is to make a big stink with the January 6 investigation.

The government filed the Third Superseding Indictment on June 6, 2022 to coincide with the January 6th Select Committee Hearings which are scheduled to commence on June 9, 2022 on prime-time TV. Additionally, the select Committee has announced that the hearings will commence immediately and with the central focus of Enrique Tarrio and the Proud Boys. Documentary producer, Nick Quested who was “imbedded” documented via video recording the events on January 6, 2022 which Mr. Tarrio was not present for. This suspiciously seems orchestrated at the highest levels of government. This Honorable Court should raise caution as to the true intent of why the Government filed a Third Superseding with trumped up allegations with no new supporting facts on the eve of the January 6th Select Committee Hearings.

As the Court is aware, Mr. Tarrio has always been cooperative with law enforcement and has always complied with judicial orders in the past. Mr. Tarrio even voluntarily appeared before the January 6 Select Committee and answered questions honestly without invoking his right to remain silent. In accordance with Local Criminal Rules 57.7, Undersigned seeks the authority of this Honorable Court to make a press release with full compliance of the Protective Order entered by the Honorable Court [D.E.82]

It’s not true that there are no new supporting facts. The sedition indictment added the Tarrio reference to the Winter Palace, seemingly evidence that he intended to occupy the Capitol thereby making it impossible for members of Congress to do their jobs (again implicating 18 USC 372).

At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

But as I noted the other day, the discovery index the government provided as of last Thursday did not yet reflect the cooperation of Charles Donohoe and may not reflect the cooperation of Louis Colon.

Tarrio may not be entirely wrong about some coordination, however — but it may work in the opposite direction.

Multiple reports on the January 6 Committee have indicated that they’re packaging their public hearings up with an eye towards making admissible evidence available to DOJ and other law enforcement investigations. Along with speech and debate and executive privileged testimony, the January 6 Committee has greater ability than DOJ to obtain the testimony of journalists than (under Merrick Garland’s media guidelines) prosecutors at DOJ can.

That’s why the prominent inclusion of Quested is of particular interest. As of last Thursday, there was just one reference to Quested in the Proud Boy Leaders discovery index (though his work is included in open source videos). But whatever testimony he provides tonight will become accessible to prosecutors, who have just one more week before deadlines on discovery start kicking in.

There’s one more detail that I expect the Committee to include that has gotten too little focus: the other bodies.

Because QAnon mobilized bodies in less direct ways than the Proud Boys or Oath Keepers, that effort is in some ways more accessible to Congress than to DOJ (because Congress doesn’t need to show probable cause to obtain evidence). And thus far, at least, the Committee’s efforts at understanding the role of the 1st Amendment Praetorian — militia associated more closely with Mike Flynn — have been more public than those of DOJ.

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

/112 Comments/in , , /by

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.

DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

/33 Comments/in , /by

In August, I wrote about how one of Brady Knowlton’s lawyers got up to claim that because there could be no miscarriage of justice in the January 6 vote certification, his client could not have obstructed it under the statute DOJ is using to charge the more serious January 6  perpetrators, 18 USC 1512. I noted that the lawyer, Brent Mayr, was actually suggesting that Joe Biden and the 81 million voters who voted for him would suffer no injury if Biden’s vote certification had never taken place.

Up until that moment, the hearing before Judge Randolph Moss was an admittedly close question. Knowlton’s other lawyer made a robust argument that vote certifications weren’t the kind of official proceeding that could be obstructed. And AUSA John Pearse focused on the word “corruptly” distinguishing other First Amendment protected activities, such as those who protested the Brett Kavanaugh hearing, from those who stormed the Capitol.

Something similar just happened in the Oath Keeper case. After David Fischer made the same argument that Knowlton’s lawyers made — that this was not an official proceeding, to much skepticism from Judge Amit Mehta — Carmen Hernandez got up to argue that her client could not have known that he would risk a 20 year sentence for forcing his way into the Capitol as part of a stack.

Before I explain what happened next, four details are worth noting. First, Hernandez is, in my opinion, a smart and passionate lawyer. Her briefs on this case (surely helped by other public defenders, as they have so many clients facing this charge) were probably the most cogent I’ve read, and I’ve read virtually all of these challenges. That said, Hernandez submitted a 30-page brief, this morning which (Judge Mehta made a point of telling her) he had read by the time of the 2PM hearing. Also, she interrupted Mehta several times. Those things really pissed him off. Finally, of all the Oath Keepers, I think Donovan Crowl may have the best argument that he did not willfully enter into a conspiracy and did not intend to interrupt the vote count. That is, I think Crowl might beat the obstruction charge Hernandez was challenging in court, even if his co-defendants might not, but that’s an evidentiary issue, not a constitutional one.

Still, it was a robust argument. Hernandez made as good a First Amendment argument as has been made about this, that this was just about influence Congress. “Influencing Congress, going to Congress and shouting and making a fool of yourself? That’s what Americans do.”

Mehta challenged prosecutor Jeffrey Nestler why under Yates v. US, in which SCOTUS ruled that destroying fish to avoid prosecution for catching undersized fish was not tantamount to obstruction for a statute envisioning the destruction of documents, this kind of obstruction is not obviously obstruction.

Nestler also made a point that hasn’t been made enough by DOJ — one I noted in my post on Knowlton’s challenge. To argue that the rioters obstructed justice, rather than Trump or those who orchestrated the mobs, you really need to argue that it’s a kind of witness tampering, an attempt to terrify members of Congress not just to flee, but also to vote against the lawful winner of the election. There is abundant evidence that not only occurred on the day of the vote certification, but that the terror of the event led some Republicans to vote against impeachment. This is a classic case of witness tampering, a case where Congress was held hostage in an attempt to terrify them to not do their jobs. And it nearly succeeded. And the after effects remain.

So Nestler argued that the object of the conspiracy was to scare Congress to stop the proceedings. Judge Mehta rightly responded, “Where do I look in the indictment for that?”

But like the Moss hearing, this one ended up with a hypothetical. If someone burst into his courtroom with the specific intention of preventing these proceedings from taking place, Judge Mehta asked Hernandez, would that amount to obstruction. Yes, she responded, resorting immediately to the far weaker argument that Fischer had tried to make, that the vote certification is not an official proceeding.

That may ultimately be the hook on which Mehta starts to unravel this question.

Whatever happens, that will not be the end of this question, because until DOJ makes a much stronger argument, both about how the terror was designed to function here and what distinguishes not only January 6 defendants from Kavanaugh protestors, but also the January 6 obstruction defendants from those charged with parading, judges will continue to face this difficult question. And at some point, a defense attorney will avoid providing the judge the obvious way to answer the question.