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

Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.

He also presided over the Oath Keeper cases.

That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.

As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.

Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.

That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.

But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]

Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.

As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]

Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.

But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.

Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.

For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.

The Trained [Un]Seal that Performed for Trump’s Lawyers

At least thus far, I am wrong. Trump’s response to Jack Smith’s request for an oversized opening brief did not stage an emergency his lawyers can use to ask John Roberts for immediate help.

Oh sure. They wailed about fairness.

The proposed approach is fundamentally unfair, as the Office would attempt to set a closed record for addressing unfiled defense motions by crediting their own untested assessments of purported evidence, denying President Trump an opportunity to confront their witnesses, and preventing the defense from obtaining discovery.

They complained about the election — one thing that Judge Chutkan has made clear she doesn’t want to hear. They complained about the election over and over and over.

In doing so, though, they falsely claimed that Jack Smith was trying to release all this publicly.

[T]he Office is violating these protections and has instead articulated an unacceptable, extralegal “guiding principle” of “structur[ing] a schedule that leads to only one additional interlocutory appeal.” 9/5/24 Tr. 12-13. That is simply code for the Office’s continued preference for the type of “highly expedited” proceedings prior to the 2024 Presidential election that the Supreme Court has already criticized.

[snip]

[T]he Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election.

The strategy reflected by the Motion would increase the irreparable harm caused by the Gag Order in this case. False, public allegations by the Special Counsel’s Office, presented through a document that has no basis in the traditional criminal justice process, will undoubtedly enter the dialogue around the election. The Gag Order prevents President Trump from explaining in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties. While the D.C. Circuit modified and addressed the Gag Order previously, the court was careful to note that “the general election is almost a year away, and will long postdate the trial in this case.” United States v. Trump, 88 F.4th 990, 1018 (D.C. Cir. 2023). Circumstances have changed drastically: President Trump is the leading candidate in the Presidential election, which is just weeks away. The Office cannot be permitted to issue a massive and misleading public statement that is not responsive to a defense motion, and risks adverse impacts to the integrity of these proceedings, while simultaneously insisting on an unconstitutional prior restraint on President Trump’s ability to respond to their inaccurate assertions while he is campaigning.

The huge public filing that the Motion portends would also violate the Justice Manual, which prohibits “Actions that May Have an Impact on an Election.” Justice Manual § 9-85.500 (emphasis added). “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Id. Separately, prior to this case, DOJ followed an “Unwritten 60-Day Rule” summarized as follows6:

  • Former FBI Director Jim Comey: “[W]e avoid taking any action in the run up to an election, if we can avoid it.” DOJ-OIG Report at 17.
  • Former Attorney General Loretta Lynch: “[I]n general, the practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Id. at 18.
  • Former Deputy Attorney General Sally Yates: “To me if it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” Id. at 18.

Departures from these practices should never be countenanced because they risk allowing prosecutors to impact national elections, but the situation is even worse here where the Special Counsel’s Office is seeking to do so by turning criminal procedure on its head in order to file a 180-page false hit piece. See Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (“The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.”). “[O]nce the election occurs, there can be no do-over and no redress” for the voters or President Trump. League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014).

6 A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, U.S. Dep’t of Justice Office of Inspector General (June 2018) (the “DOJ-OIG Report”) at 17-18, available at https://s3.documentcloud.org/documents/4515884/DOJ-OIG-2016-Election-Final-Report.pdf. [emphasis mine]

But the most curious complaint is that Trump’s team says he’ll be harmed even with these filings submitted under seal.

For example, in support of the Office’s motion for a protective order, they argued that President Trump has “no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.” ECF No. 15 at 4. Now it is the Office that wishes to press their case to drive public opinion rather than justice.

None of this will impress Judge Chutkan. She has repeatedly told them she doesn’t want to hear about the election.

But they have previewed the argument they make when Jack Smith — or the press consortium — asks to unseal this.

Update: Judge Chutkan has ruled to permit Jack Smith his 180 pages. She addresses Trump’s concerns regarding publicity by pointing to the protective order.

Fourth, Defendant contends that the briefing schedule would be unfair given the court’s order restricting certain extrajudicial statements, ECF No. 105, and the Government’s position with respect to the protective order in this case, see Reply in Supp. of Mot. for Protective Order, ECF No. 15. But the former contention mischaracterizes the court’s order, and even so identifies potential political consequences rather than legal prejudice. Def.’s Opp’n at 7.1 And the court did not accept the Government position that Defendant decries—“that even materials marked ‘nonsensitive’ under the Protective Order” should be kept under seal, id. at 5—instead extending that protection only to sensitive materials, see Protective Order ¶¶ 2–12, ECF No. 28. The court likewise rejects Defendant’s unsupported assertion that publicly docketing nonsensitive materials during the immunity briefing would impermissibly “impact potential witnesses and taint the jury pool.” Def.’s Opp’n at 5. Moreover, and once again, Defendant offers no reason why the same predicted harms would not result from his own proposal, which would include immunity briefing with presumably the same materials. See Joint Status Report at 4.

1 Defendant claims that he cannot “explain[] in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties,” which could affect his political candidacy. Def.’s Opp’n at 7. As relevant here, the order only prohibits Defendant from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” United States v. Trump, 88 F.4th 990, 996 (D.C. Cir. 2023).

That language will lead to the nonsensitive material being unsealed sooner rather than later.

She mentions Trump’s wails about the election just once, noting that none of this causes him legal prejudice.

Fifth and finally, Defendant claims that the Government’s forthcoming brief violates Department of Justice policy. He asserts that the brief “would be tantamount to a premature and improper Special Counsel report,” Def.’s Opp’n at 6, which is provided at “the conclusion of the Special Counsel’s work,” id. (quoting 28 C.F.R. § 600.8(c)). And he argues that the brief would run afoul of the Justice Manual, which prohibits federal prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” Id. at 7 (quotation omitted). The court need not address the substance of those claims. Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy.

 

Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/HSGAC_Finance_Report_FINAL.pdf, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023), https://oversight.house.gov/wpcontent/uploads/2023/05/Bank-Memorandum-5.10.23.pdf, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023), https://oversight.house.gov/wpcontent/uploads/2023/08/Third-Bank-Records-Memorandum_Redacted.pdf, at 2. [my emphasis]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.