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The Conspiracy to Use a Very Large Trump Sign as a Weapon To Obstruct the Vote Certification

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Yesterday, a guy named Marshall Neefe pled guilty to conspiracy to obstruct the vote count (18 USC 1512(k)) and assault (18 USC 111(a)).

Unless you’re a really avid reader of this site, you’ve likely never heard of him. He’s just a QAnoner from Pennsylvania who planned with his buddy Brad Smith to arm themselves, with a club and a knife, respectively, and head to DC in response to Trump’s call.

The assault that Neefe pled to was, as part of a mob, using a very large Trump sign to push cops off their defensive line.

On the Capitol grounds, NEEFE and SMITH participated in hoisting and pushing a large metal sign frame holding a oversized “TRUMP” sign into a defensive line of Metropolitan Police Department (“MPD”) and USCP officers attempting to prevent rioters from further advancing on the West Front plaza of the Capitol. NEEFE understood and admits that at all times, these officers qualified as federal law enforcement officers and were engaged in performance of their official duties. The all-metal sign frame was approximately at least eight feet tall and 10 feet wide, welded with screws, and supported by large casters that were approximately the size of a man’s head. As described by one USCP officer who was part of the defensive line, the sign frame was heavy and it took at least 15 officers to carry the sign away after the rioters thrust into their line.

NEEFE’s hands were on the large metal sign for at least 10 seconds, including while the sign made contact with the line of officers. NEEFE advanced forward with the sign and other rioters into the line of officers, and retreated from the line after officers drove him and others back with pepper spray.

As part of his plea, Neefe didn’t plead guilty to 18 USC 111(b), using a deadly weapon. But his sentencing guidelines do treat the very large Donald Trump sign as a dangerous weapon.

Neefe is by no means the only one charged with assaulting cops with a very large Donald Trump sign.

But it’s significant, in this case, because of the way the conspiracy against Neefe and Smith was charged.

Neefe and Smith, like several of the other “lesser conspiracies” charged against non-militia members, started conspiring to participate in an insurrection in direct response to Trump’s own statements.

While both spoke in revolutionary terms immediately after the election, they viewed what is almost certainly Trump’s December 19 tweet as a direct call to action. Smith even called it a call to action on December 22.

SMITH: The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

NEEFE: We goin? . . . Cause hot damn son i really wanna crack some commie skulls.

SMITH: Yeah I”m going 100%. This is way more important than the last one actually. This one’s literally to save the city from chaos while they do their thing in the capital [typos original]

Smith also tried to recruit others to join them, citing (as other accused Jan6ers were in the same period) Trump’s orders as uniquely explicit.

Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesn’t burn down right away. It’s the only time hes ever specifically asked people to show up. He didn’t say that’s why  but it’s obviously why.

Somehow (how is of particular interest to me, given Smith’s apparent reference to one of the earlier rallies for Trump in DC), Smith’s understanding of the plan changed by December 31, when he raised storming the buildings with Neefe.

I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.

Smith continued to try to recruit others to come storm the buildings with him.

Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.

And the day before the attack, Smith called to, “Sacrifice the Senate!!!!!”

In the aftermath, both Smith and Neefe referenced Pence to explain their actions. “Then we heard the news on pence,” Neefe posted, “Amd  [sic] lost it …. So we stormed.” Smith, probably writing before Congress completed certification in the early hours of the morning on January 7, claimed that, “Pence cucked like we knew he would but that was an Unbelievable show of force and it did its job.”

All of which is to say that the very large Trump sign in Neefe’s guilty plea is more than symbolic. These totally random dudes took Trump’s call to violence as an order. They armed themselves, came to DC having at least considered taking over buildings, and did so explicitly in response to the demands Trump made of Pence.

In the context of the conspiracy, as charged, this largely meets the terms Amit Mehta laid out when ruling it plausible that Trump entered into a conspiracy with the Proud Boys and Oath Keepers. “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding.” Indeed, they even fit the framework Mehta laid out when deeming it plausible that Trump aided and abetted assaults — like the one using a very large Trump sign — on cops at the Capitol.

As noted, this conspiracy was charged under 18 USC 1512(k), meaning the sentence can be enhanced — as the guidelines have been, with Neefe — because of the use of threats. With this guilty plea, Trump may literally be on the hook for conspiring to obstruct the vote certification via his joint liability in using that very large Trump sign as a weapon to prevent the certification of Joe Biden’s win.

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

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As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.

On Ginni Thomas’ Obstruction Exposure and Clarence’s Former Clerk, Carl Nichols

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In a motions hearing for January 6 assault defendant Garret Miller on November 22, former Clarence Thomas clerk Carl Nichols asked the appellate prosecutor for the January 6 investigation, James Pearce, whether someone asking Mike Pence to invalidate the vote count could be charged with the obstruction statute, 18 USC 1512(c)(2), that Miller was challenging. Pearce replied that the person in question would have to know that such a request of the Vice President was improper.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

At the time (as Josh Gerstein wrote up in his piece), we knew that former Clarence Thomas clerk John Eastman had pressured Pence to throw out legal votes.

But we’ve since learned far more details about Eastman’s actions, including his admissions to Pence’s counsel, Greg Jacob, that there was no way SCOTUS would uphold the claim. In fact, those admissions were cited in Judge David Carter’s opinion finding that Eastman himself likely obstructed the vote count by pressuring Pence to reject the valid votes, because he knew that not even Clarence Thomas would buy this argument.

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice,37 would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.39

[snip]

Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed.254 More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,”255 including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes.257 Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.258

We’ve also learned more details about Ginni Thomas’ role in pressuring Mark Meadows to champion an attempt to steal the election, including — after a gap in the texts produced to the January 6 Committee — attacking Pence.

The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

In that message, Thomas expresses support for Meadows and Trump — and directed anger at Vice President Mike Pence, who had refused Trump’s wishes to block the congressional certification of Biden’s electoral college victory.

“We are living through what feels like the end of America,” Thomas wrote to Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!”

“Amazing times,” she added. “The end of Liberty.”

Ginni Thomas famously remains close with a network of Clarence’s former clerks, so much so she apologized to a listserv of former Justice Thomas clerks for her antics after the insurrection.

Any former Thomas clerk on that listserv would likely understand how exposed in efforts to overturn the vote certification Ginni was.

As I said, little of that was known, publicly, when former Justice Thomas clerk Carl Nichols asked whether someone who pressured Pence could be exposed for obstruction. We didn’t even, yet, know all these details when Judge Nichols ruled in Miller’s case on March 7, alone thus far of all the DC District judges, against DOJ’s application of that obstruction statute. While we had just learned some of the details about Jacobs’ interactions with former Thomas clerk John Eastman, we did not yet know how centrally involved Ginni was — frankly, we still don’t know, especially since the texts Mark Meadows turned over to the January 6 Committee have a gap during the days when Eastman was most aggressively pressuring Pence.

DOJ may know but if it does it’s not telling.

But now we know more of those details and now we know that Judge Carter found that Eastman and Trump likely did obstruct the vote certification. All those details, combined with Nichols’ treatment of the Miller decision as one that might affect others, up to and including Ginni Thomas and John Eastman and Trump, sure makes it look a lot more suspect that a former Clarence Thomas clerk would write such an outlier decision.

Which brings us to the tactics of this DOJ motion to reconsider filed yesterday in the Miller case. It makes two legal arguments and one logical one.

As I laid out here, Nichols ruled that the vote certification was an official proceeding, but that the statute in question only applied to obstruction achieved via the destruction of documents. He also held that there was sufficient uncertainty about what the statute means that the rule of lenity — basically the legal equivalent of “tie goes to the runner” — would apply.

DOJ challenged Nichols’ claim that there was enough uncertainty for the rule of lenity to apply. After all, the shade-filled motion suggested, thirteen of Nichols’ colleagues have found little such uncertainty.

First, the Court erred by applying the rule of lenity. Rejecting an interpretation of Section 1512(c)(2)’s scope that every other member of this Court to have considered the issue and every reported case to have considered the issue (to the government’s knowledge) has adopted, the Court found “serious ambiguity” in the statute. Mem. Op. at 28. The rule of lenity applies “‘only if, after seizing everything from which aid can be derived,’” the statute contains “a ‘grievous ambiguity or uncertainty,’” and the Court “‘can make no more than a guess as to what Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)) (emphasis added); see also Mem. Op. at 9 (citing “‘grievous’ ambiguity” standard). Interpreting Section 1512(c)(2) consistently with its plain language to reach any conduct that “obstructs, influences, or impedes” a qualifying proceeding does not give rise to “serious” or “grievous” ambiguity.

[snip]

First, the Court erred by applying the rule of lenity to Section 1512(c)(2) because, as many other judges have concluded after examining the statute’s text, structure, and history, there is no genuine—let alone “grievous” or “serious”—ambiguity.

[snip]

Confirming the absence of ambiguity—serious, grievous, or otherwise—is that despite Section 1512(c)(2)’s nearly 20-year existence, no other judge has found ambiguity in Section 1512(c)(2), including eight judges on this Court considering the same law and materially identical facts. See supra at 5-6.

[snip]

Before this Court’s decision to the contrary, every reported case to have considered the scope of Section 1512(c)(2), see Gov’t Supp. Br., ECF 74, at 7-9, 1 and every judge on this Court to have considered the issue in cases arising out of the events at the Capitol on January 6, 2021, see supra at 5-6, concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” Sandlin, 2021 WL 5865006, at *5. [my emphasis; note, not all of the 13 challenges to 1512(c)(2) that were rejected made a rule of lenity argument, which is why AUSA Pearce cited eight judges]

Among the other things that this argument will force Nichols to do if he wants to sustain his decision, on top of doubling down on being the extreme outlier on this decision, is to engage with all his colleagues’ opinions rather than (as he did in his original opinion) just with Judge Randolph Moss’.

The government then argued that by deciding that 1512(c)(2) applied to the vote certification but only regarding tampering with documents, Nichols was not actually ruling against DOJ, because he can only dismiss the charge at this stage if the defendant, Miller, doesn’t know what he is charged with, not if the evidence wouldn’t support such a charge.

Although Miller has styled his challenge to Section 1512(c)(2)’s scope as an attack on the indictment’s validity, the scope of the conduct covered under Section 1512(c)(2) is distinct from whether Count Three adequately states a violation of Section 1512(c)(2).6 Here, Count Three of the indictment puts Miller on notice as to the charges against which he must defend himself, while also encompassing both the broader theory that a defendant violates Section 1512(c)(2) through any corrupt conduct that “obstructs, impedes, or influences” an official proceeding and the narrower theory that a defendant must “have taken some action with respect to a document,” Mem. Op. at 28, in order to violate Section 1512(c)(2). The Court’s conclusion that only the narrower theory is a viable basis for conviction should not result in dismissal of Count Three in full; instead, the Court would properly enforce that limitation by permitting conviction on that basis alone.

The government argues that that means, given Nichols’ ruling, the government must be given the opportunity to prove that Miller’s actions were an attempt to spoil the actual vote certifications that had to be rushed out of the Chambers as mobsters descended.

Even assuming the Court’s interpretation of Section 1512(c)(2) were correct, and that the government therefore must prove “Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede[,] or influence Congress’s certification of the electoral vote,” Mem. Op. at 29, the Court cannot determine whether Miller’s conduct meets that test until after a trial, at which the government is not limited to the specific allegations in the indictment. 7 And at trial, the government could prove that the Certification proceeding “operates through a deliberate and legally prescribed assessment of ballots, lists, certificates, and, potentially, written objections.” ECF 74, at 41. For example, evidence would show Congress had before it boxes carried into the House chamber at the beginning of the Joint Session that contained “certificates of votes from the electors of all 50 states plus the District of Columbia.” Reffitt, supra, Trial Tr. at 1064 (Mar. 4, 2022) (testimony of the general counsel to the Secretary of the United States Senate) (attached as Exhibit B).

Those are the two legal arguments the government has invited Nichols to reconsider.

But along the way of making those arguments, DOJ pointed out the absurd result dictated by Nichols’ opinion: That Guy Reffitt’s physical threats against members of Congress or the threat Miller is accused of making against Alexandria Ocasio-Cortez would not be obstruction, because neither man touched any documents.

Any such distinction between these forms of obstruction produces the absurd result that a defendant who attempts to destroy a document being used or considered by a tribunal violates Section 1512(c) but a defendant who threatens to use force against the officers conducting that proceeding escapes criminal liability under the statute.

[snip]

Finally, an interpretation of Section 1512(c)(2) that imposes criminal liability only when an individual takes direct action “with respect to a document, record, or other object” to obstruct a qualifying proceeding leads to absurd results. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (rejecting interpretation of a criminal statute that would “produce results that were not merely odd, but positively absurd”). That interpretation would appear, for example, not to encompass an individual who seeks to “obstruct[], influence[], or impede[]” a congressional proceeding by explicitly stating that he intends to stop the legislators from performing their constitutional and statutory duties to certify Electoral College vote results by “drag[ging] lawmakers out of the Capitol by their heels with their heads hitting every step,” United States v. Reffitt, 21-cr-32 (DLF), Trial Tr. 1502, carrying a gun onto Capitol grounds, id. at 1499, and then leading a “mob and encourag[ing] it to charge toward federal officers, pushing them aside to break into the Capitol,” id. at 1501-02, unless he also picked up a “document or record” related to the proceeding during that violent assault. The statutory text does not require such a counterintuitive result.

The mention of Reffitt is surely included not just to embarrass Nichols by demonstrating the absurdity of his result. It is tactical.

Right now, there are two obstruction cases that might be the first to be appealed to the DC Circuit. This decision, or Guy Reffitt’s conviction, including on the obstruction count.

By asking Nichols to reconsider, DOJ may have bought time such that Reffitt will appeal before they would appeal Nichols’ decision. But by including language about Reffitt’s threats to lawmakers, DOJ has ensured not just the Reffitt facts and outcome will be available if and when they do appeal, but so would (if they are forced to appeal this decision) a Nichols decision upholding the absurd result that Reffitt didn’t obstruct the vote certification. Including the language puts him on the hook for it if he wants to force DOJ to appeal his decision.

I said in my post on Nichols’ opinion that DOJ probably considered themselves lucky that Nichols had argued for such an absurd result.

They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

By including Reffitt in their motion for reconsideration, DOJ has made it part of the official record if and when they do appeal Nichols’ decision.

This would be a dick-wagging filing even absent the likelihood that Nichols has some awareness of Ginni Thomas’ antics and possibly even Eastman’s. It holds Nichols to account for blowing off virtually all the opinions of his colleagues, including fellow Trump appointees Dabney Friedrich and Tim Kelly, forcing him to defend his stance as the outlier it is.

But that is all the more true given that there’s now so much public evidence that Nichols’ deviant decision might have some tie to his personal relationship with the Thomases and even the non-public evidence of Ginni’s own role.

Plus, by making any appeal of this opinion — up to the Supreme Court, possibly — pivot on how and why Nichols came up with such an outlier opinion, it would make Justice Thomas’ participation in the decision far more problematic.

Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin
  2. Amit Mehta, December 20, 2021, Caldwell
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma

 

All the Scheming at the Willard Only Matters because of the Bodies Occupying the Capitol and Threatening Pence

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In a post wondering whether DOJ hasn’t opened an investigation into Donald Trump for his role in obstructing the vote count, Ben Wittes provides this description of Judge David Carter’s opinion ruling that John Eastman and Trump had likely conspired to obstruct the vote certification.

The opinion’s first section—entitled “A. Facts”—begins on page three of Judge Carter’s opinion and runs through the middle of page 12. In a footnote attached to the word “Facts” in the subhead leading the section, Judge Carter notes in a fashion characteristic of the section’s understatement, “In this discussion, the Court relies solely on facts provided by Dr. Eastman and the Select Committee in their briefing and attached exhibits.”

He is not exaggerating. The section contains no judgments, no legal interpretations, no conclusions. It contains virtually no rhetoric at all. What’s more, the section does not contain a whole lot of new facts. The story of Eastman and Trump’s efforts to overturn the 2020 election, the relationship between that effort and Trump’s concurrent plot to decapitate the Justice Department, and ultimately to the insurrectionary activity of January 6, 2021, has dribbled out bit by bit over the months already. And to the extent the current litigation has revealed new material, that mostly emerged in the committee’s briefing and the accompanying exhibits a few weeks ago.

What makes Judge Carter’s account so powerful is that it is linked tightly to record evidence, that it tells the story in an end-to-end fashion crisply and efficiently, and that it thus assembles the evidence into a coherent account of the big picture. I cannot do Judge Carter’s account justice; please do read it. For present purposes, let me just say that it leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government.

As Ben tells it, Carter’s description of the conspiracy to obstruct the vote certification focuses on attempts to overturn the election, his attempt to “decapitate” DOJ, and only then to the “insurrectionary activity” on January 6 that included using “violence directed against a coordinate branch of government.”

Mike Pence’s name not only doesn’t appear in this passage, it appears nowhere in Ben’s piece. Pence is named 24 times in those nine pages of Carter’s narrative. I think the difference in emphasis is instructive.

It’s not that the things Ben focuses on — lawsuits attempting to discredit the electoral outcome and the attempt to install Jeffrey Clark to pursue more efforts to discredit the electoral outcome — didn’t appear in Carter’s narrative. It’s that they serve a different function than Ben accords them, not as independent criminal behavior, but as actions in the first of a three-part plot all of which ends up in an attack on the Capitol.

  1. Election fraud claims
  2. Plan to disrupt electoral count
  3. Attack on the Capitol

As noted, in Carter’s description of the attack on the Capitol, the pressure on, followed by the verbal attacks on and physical threats to Mike Pence are central.

President Trump returned to the White House after his speech. At 2:02 pm, Mark Meadows, the White House Chief of Staff, was informed about the violence unfolding at the Capitol.50 Mr. Meadows immediately went to relay that message to President Trump.51 Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”52

During the riot, Vice President Pence, Members of Congress, and workers across the Capitol were forced to flee for safety.53 Seeking shelter during the attack, Vice President Pence’s counsel Greg Jacob emailed Dr. Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day.”54 Mr. Jacob continued, “[a]nd thanks to your bullshit, we are now under siege.”55

I point this out because I think it is the easiest way to point out what I think is problematic with Ben’s search for an investigation — a separate investigation just for Trump, with leaks about grand jury subpoenas — like so many others. Even in portraying a document of which Ben claims, “the history of the United States has never seen an account of a president’s conduct quite so devastating,” Ben appears to misread the subject described, though later in his piece, he fully recognizes the question of Trump’s criminal liability discussed here is just about obstructing the vote certification.

Carter’s is not a story of an attempt to overturn the election. Judge Carter tells the story of an attempt to obstruct a vote certification. All the lawsuits matter because (on top of proving mens rea) the election fraud claims are what Eastman used to pressure Pence to throw out the vote and what Trump used to incite his mob. In fact that’s what, in my opinion, Carter laid out far better in his opinion than the Committee did in their brief, which argued that had Pence taken the steps Eastman wanted, the vote count would have been obstructed, and not that the false claims of fraud themselves led to a “siege” that in fact did obstruct the vote count.

There are, surely, other crimes that Trump might be investigated for — most notably his attempt to pressure Brad Raffensperger. But the way DOJ has been conceiving of the crime of January 6 from the start was as that successful (but temporary) obstruction of the vote count. All the people who seem to think an investigation into Trump would be somehow separate from that seem to be conceiving all that other corruption as separate from the dual effort to pressure Mike Pence with literal death threats and to occupy the Capitol and prevent the vote certification from taking place. This is why the people who claim you’ll never get to Trump through Alex Jones and Roger Stone are so mistaken: because it’s the actions Jones took leading the mob to add bodies to the attack and Stone took coordinating with the militias that most directly tie Trump to the actual effect on the official proceeding.

I am certain, and have been since well before August, that DOJ is investigating the ways that Donald Trump played a central role in getting bodies to the Capitol that had the effect of threatening the life of his Vice President (and Nancy Pelosi and even Mitch McConnell) and temporarily obstructing the vote certification. The overt signs of that investigation are not, as Ben has been looking for, subpoenas to witnesses in the Willard (in part because Roger Stone would never be subpoenaed). Rather, it is in getting sworn testimony that after Donald Trump sent out tweets about the riot in December, people took that as an order from Trump, and set themselves to buying plane tickets and buying body armor. It is in getting cooperating witnesses about the ways that militias that gave structure to the mob were working in tandem with Trump’s rat-fucker. It is in developing evidence that Trump’s false claim that he would join them at the Capitol — repeated by his Pied Piper Alex Jones — convinced people who otherwise would never have gone to the Capitol to do so. It is in getting sworn testimony that after Trump attacked Pence in his speech, people responded by decrying Pence while still at the rally and then continued to threaten Pence once they had moved to the Capitol.

I’m less certain DOJ is investigating Eastman but if they are, it would be for the reasons that Greg Jacob laid out: that Eastman’s lies played a part in getting bodies to the Capitol to threaten Pence’s life and that Eastman and Trump had the intent of using such threats to convince Pence to throw out the legal votes. It’s not his bad faith legal arguments that are illegal, it’s the way those bad faith legal arguments served to get bodies to the Capitol on January 6.

As Greg Jacob described it in real time, “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.” That is the crime under investigation. And because it involves mobilizing a mob, the investigation necessarily focuses on the means by which Trump orchestrated the mob.

Most of that evidence is not in the Willard Hotel, but in actions members of the mob took in direct response to Trump’s actions.

The rest of the commentariat has finally caught up to the point I made in August, that DOJ is investigating the obstruction of the vote certification. But I’m not sure they understand that everything, therefore, works backward from the bodies at the Capitol.

Judge David Carter Confirms Trump Could Be Prosecuted for [A Lower Standard of] Obstruction

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As you’ve no doubt heard, Judge David Carter issued an order releasing 91 documents from the days before and the day of the insurrection to the January 6 Committee. Chapman University professor John Eastman had attempted to withhold them from the 6 Committee under privilege claims. Judge Carter allowed Eastman to withhold just ten documents, most pertaining to then-ongoing lawsuits.

The headline finding from his opinion is that Judge Carter found it more likely than not that Trump committed the crime hundreds of other insurrectionists have been charged with — obstruction of an official proceeding — and Eastman and Trump (and others) entered into a conspiracy to do so.

On August 19, I laid out that if Trump were to be prosecuted, it would be for conspiring to obstruct the vote count. At the the time, TV lawyers ignored me, thinking they knew better. In December, after Liz Cheney argued that Trump had obstructed an official proceeding, those same TV lawyers started adopting the theory as if they had come up with it. Now a judge has agreed that it is likely that Trump did commit that crime that I laid out back in August.

Sometimes I hate to say I told the TV lawyers so. This is not one of those times.

Especially since, of the three kinds of overt acts that Carter cites to substantiate his decision, two — Trump’s pressure on Mike Pence and his mobilization of his mob to march on the Capitol — are Trump actions about which DOJ has been accumulating piles of evidence. In my opinion, by including the mobilization of the mob in his opinion, Carter showed a better understanding of Trump’s legal exposure than the Committee.

There are five elements Carter needed to establish to make his finding. First, to find Trump may have obstructed a vote count, Carter pointed to:

  • Proof the vote certification was an official proceeding
  • The actions Trump took to obstruct that official proceeding
  • Proof of Trump’s corrupt intent

Then, to show that Trump and Eastman (and others) entered into a conspiracy to obstruct the vote count, he pointed to:

  • An agreement to defraud the US
  • Eastman’s own dishonest actions

Carter didn’t spend much time on the official proceeding prong. Instead he relied on the ten existing DC rulings on the issue finding the vote certification was an official proceeding cited in the committee brief (there are now at least 13 opinions finding it to be an official proceeding, though Carter did not address the issue on which Judge Carl Nichols had differed from his colleagues, whether obstruction required destroying of documents).

Carter pointed to three kinds of acts that amounted to Trump’s effort to obstruct the election: two meetings before January 6 where they discussed pressuring Pence, several appeals on the morning of January 6 to Pence (including on Twitter), and “galvanizing the crowed to join him in enacting the plan,” by walking to the Capitol.

President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short.209 At that meeting, Dr. Eastman presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.210 When Vice President Pence was unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice President’s counsel on January 5.211 Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.212

On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan.213 At 1:00 am, President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”214 At 8:17 am, President Trump tweeted: “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”215 Shortly after, President Trump rang Vice President Pence and once again urged him “to make the call” and enact the plan.216 Just before the Joint Session of Congress began, 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.”218

Together, these actions more likely than not constitute attempts to obstruct an official proceeding. [my emphasis]

It is public that DOJ has spent months focusing on the second (pressure on Pence) and third (mobilizing his mob) actions. Indeed, as I have shown, DOJ has laid out proof that many of the conspiracies had the specific goal of pressuring Pence.

To show that this met obstruction’s requirement of corrupt intent, Carter relied on a Ninth Circuit precedent that, for where he is in California, adopts a lower threshold for corrupt intent than the one adopted by the DC District judges so far.

The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because 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).

There is no such precedent in DC and, as I’ve argued, Judge Dabney Friedrich’s adopted standard is actually higher than this, finding corrupt intent in the commission of otherwise illegal actions. So Carter’s opinion, on top of meeting a lower standard than DOJ would need to charge, dodged two legal issues already before the DC District judges, whether obstruction required the destruction of evidence and whether it required otherwise illegal actions. It’s not clear that the actions that he lays out would, by themselves, meet Friedrich’s standard.

Carter pointed to two kinds of proof that Trump knew the plan to obstruct the vote count was wrong. He pointed to the 60 court losses as proof that their claims of voter fraud were false. He also pointed to Trump’s demand from Brad Raffensperger for exactly the number of votes he needed to win, which Carter presented as proof that Trump cared about winning, not voter fraud (As I have repeated over and over, this is one Trump action that is otherwise illegal).

President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

Carter then points to the two meetings (bolded above) as the moment when Eastman and Trump — and others — entered into a conspiracy to obstruct the vote count. Notably, this may put everyone else who was in that meeting on the hook for the conspiracy as well, members of an enormous conspiracy already charged against sixty people, including some seditionists.

He then pointed to Eastman’s awareness that his theories were bullshit and Pence’s repetitive insistence they were to find Eastman acted dishonestly.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.”232 The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.”233 In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.234

[snip]

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

So on top of getting some documents, this opinion lays out a framework that envisions Trump being charged for the same crimes that DOJ has been working towards charging him and others on for over a year.

In several ways, though (the standard of proof and two legal standards he adopted on obstruction), Carter has only found Trump may have obstructed the vote count at a much lower standard than DOJ would need.

The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

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There’s a telling error in the January 6 Committee’s filing aiming to overcome John Eastman’s claims his emails are covered by Attorney-Client privilege. In the section asserting that Trump had probably violated 118 USC 1512(c)(2) — the same obstruction statute used to charge over 200 of the other January 6 defendants — the filing asserts that six judges “to date” have “refused to dismiss charges against defendants under the section.”

That number is incorrect. As of March 2, at least ten judges had upheld DOJ’s application of 18 USC 1512(c)(2), and a few more have as much as said they would.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean*
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson

When I first made this observation, I thought I was being a bit churlish in making it. But on reflection (and after reading the quotes from lawyers in this Charlie Savage article), I think it’s an important point. All the more so given how TV lawyers have claimed that, because the January 6 Committee has claimed Trump could be charged with obstruction, then damnit DOJ should already have done so.

The fact that the Jan 6 Committee isn’t even aware of all the obstruction rulings suggests they’ve been insufficiently attentive to what the rulings actually say, aside from the baseline holding of all of them that the vote certification was an official proceeding.

While ten judges have upheld the application, there are some differences between these opinions, particularly with regards to their formulation of the corrupt mens rea required by the statute. The most important differences from my review (but I’m not a constitutional lawyer and so I should not be the one doing this analysis!!!!!), are:

  • Whether “corrupt” intent requires otherwise illegal action
  • Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself)

Dabney Friedrich argued (and I laid out briefly here) — and has repeatedly warned in pretrial hearings for Guy Reffitt — that as she understand this application it must involve otherwise illegal actions. Amit Mehta ruled (as I wrote up here) that, at least for the Oath Keepers, this corruption may be just intransitive.

On both these issues, the Jan 6 Committee’s argument is a bit muddled. Here’s how they argue that Trump’s actions (and, less aggressively, Eastman’s) demonstrate that corrupt intent.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes — for any reason. Any such effort by the presiding officer would violate hte law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6. Plaintiff acknowledge that the Supreme Court would reject such an effort 9-0. And the Vice President made this crystal clear in writing on January 6: [1] any attempt by the Vice President to take the course of action the President insisted he take would have been illegal. 

Nevertheless, pursuant to the Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he universally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various states.

[snip]

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but [2] the President nevertheless sought to use the Vice President to manipulate the results in his favor.

[snip]

[T]he President and the Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. [3] Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result. [numbering and bold mine]

As I said, I think this is a bit of a muddle. For starters, the Jan 6 Committee is not arguing that the delay actually caused by Trump’s mob amounted to obstruction. Rather, they’re arguing (at [3]) that had Eastman’s efforts to get Pence to himself impose a delay would be obstruction.

They make that argument even though they have evidence to more closely align their argument to the fact pattern ten judges have already approved. The emails included with this filing show Pence Counsel Greg Jacob twice accusing Eastman of convincing Trump of a theory that Trump then shared with his followers, which in turn caused the riot.

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

That is, Jacob argued, in real time, that Eastman’s knowingly impossible theory, amplified by the President, caused the riot that ended up putting Pence’s life at risk and delaying the vote certification. But the Jan 6 Committee argues instead that the attempted persuasion of Pence the was the obstructive act.

Perhaps as a result, the agency (transitive versus intransitive) involved in this obstructive act is likewise muddled. In one place (at [1]), the Jan 6 Committee argues that the obstructive act was a failed attempt to persuade Pence to take an illegal action. I’m not sure any of the failed attempts to persuade people to do something illegal (to persuade Pence to do something he couldn’t do, to persuade members of Congress to challenge the vote with either good faith or cynical challenges, to persuade Jeffrey Clark to serve as Acting Attorney General) would sustain legal challenges.

If the Commander in Chief ordered his Vice President to take an illegal act, that would be a bit different, but that’s not what the Jan 6 Committee argues happened here.

Elsewhere, this filing (and other attempts to apply obstruction to Trump) point to Trump’s awareness (at [2]) that he lost the election, and so his attempts to win anyway exhibit an intransitive corrupt intent.

As Charlie Savage noted in his story and a thread on same, to some degree the Jan 6 Committee doesn’t need to do any better. They’re not indicting Trump, they’re just trying to get emails they will likely get via other means anyway (and as such, the inclusion of this argument is significantly PR).

But to the extent that this filing — and not, say, the opinion issued by Judge Mehta after he had approved obstruction, in which he both ruled it was plausible that Trump had conspired with two militias and, more importantly (and to me, at least, shockingly), said it was also plausible that Trump may be liable under an aid and abet standard — is being used as the model for applying obstruction to Trump, it is encouraging a lot of unicorn thinking and, more importantly, a lot of really sloppy thinking. There are so many ways to charge Trump with obstruction that don’t require an inquiry into his beliefs about losing the election, and those are the ones DOJ has laid a groundwork for.

Plus, there are a few more realities that TV lawyers who want to talk about obstruction should consider.

First, it is virtually guaranteed that Friedrich’s opinion — the one that holds that “corrupt” must involve otherwise illegal actions — will be the first one appealed. That’s because whatever happens with the Guy Reffitt trial this week and next, it’s likely it will be appealed. And Reffitt has been building in an appeal of Friedrich’s obstruction decision from the start. First trial, first appeal. So TV lawyers need to study up what she has said about otherwise illegal action and lay out some rebuttals if their theory of Trump’s liability involves mere persuasion.

Second, while ultimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

I’m convinced not just that Trump could be prosecuted for obstruction, but that DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.

“Thanks to your bullshit we’re now under siege”

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As numerous outlets have reported, a January 6 Committee challenge to John Eastman’s attempt to shroud his communications regarding the attempted coup under a privilege claim laid out three crimes they want the judge to use to consider crime-fraud exceptions to the claims. Two of the crimes they say they’ve got solid evidence Trump committed are the ones I said Trump would be prosecuted for back in August.

A. Obstruction of an Official Proceeding

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly. Id. (emphasis added). To date, six judges from the United States District Court for the District of Columbia have addressed the applicability of section 1512(c) to defendants criminally charged in connection with the January 6th attack on the Capitol. Each has concluded that Congress’s proceeding to count the electoral votes on January 6th was an “official proceeding” for purposes of this section, and each has refused to dismiss charges against defendants under that section.75

[snip]

B. Conspiracy to Defraud the United States

The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). The conspiracy need not aim to deprive the government of property. See Haas v. Henkel, 216 U.S. 462, 479 (1910). It need not involve any detrimental reliance by the government. See Dennis v. United States, 384 U.S. 855, 861

In spite of the fact I laid this all out in August, TV lawyers continue to assume I don’t know what I’m talking about with respect to this prosecution.

I’m starting my read of the filing with the exhibits — most notably some emails exchanged between John Eastman and Mike Pence’s Counsel, Greg Jacob, the day before and day of the insurrection. While it’s not always clear what time zone these are, I’ve tried to place these times in ET.

What they show is how even after the riot had kicked off, Eastman was badgering Pence (through Jacob) to violate the Electoral College Act. Twice, Jacob noted that Eastman’s shitty advice had led to the “siege,” emphasizing that his wife and kids were panicked about his own safety. As rioters were breaking in, Eastman badgered Jacob saying that he was wrong that Pence could not adjourn.

And then, as we know, Pence had to adjourn, so he could be rushed to safety, which Jacob reiterated was caused by Trump, “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.”

Then, after Congress had reconvened, Eastman seemingly pointed to the delay caused by the mob Trump sent as proof that the ECA is not sacrosanct, and asked Pence outright to violate the ECA some more.

There’s abundant evidence that Trump used the mob in utilitarian fashion to intimidate Pence and others and — as I have laid out — equally abundant evidence that it was the intent of many of the rioters to maximize the degree to which they would intimidate him, if not to kill him.

But this suggests another utilitarian motive: that Eastman, at least, figured that by forcing the Congress to adjourn, they would effectively force Pence into breaking the ECA, which Eastman shamelessly used to demand Pence further violate the law.

Update: Fixed the typos, I think. Thanks for the help!

January 5, 9:29PM: Eastman emails Jacob referencing a “good talk earlier tonight,” attaching a commitment from PA state senators to “recertify” their vote if Pence “implements the plan we discussed” (which Jacob’s testimony makes clear was a request to throw out the certificates).

January 6, 10:44AM: Jacob responds to the email from the night before saying, “Will call,” with some legal questions.

January 6, 1:33PM: Eastman respond “this is small minded” and claims Jacob is “sticking with minor procedural statutes while the Constitution is being shredded.” He cites a law George W Bush ignored during the Iraq War.

January 6, 2:14PM: Jacob responds and notes that no Justice or Circuit Judge would approve Eastman’s plan and explains that the role for States ends as soon as they certify their vote. He ends by saying,

I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.

And thanks to your bullshit, we are now under siege.

January 6, 2:25PM: Eastman responds saying,

My “bullshit” — seriously? You think you can’t adjourn the session because ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming. The “siege” is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.

January 6, 3:05PM: Jacob responds to Eastman’s complaint about bullshit by pointing out he’s being moved to a secure location.

I do apologize for that particular language, which was unbecoming of me, and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, “mostly peaceful” as CNN might say, who believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.

But the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.

For the record, we were in the middle of an open, widely televised debate that was airing every single point that you gave members of Congress to make when all of this went down and we had to suspend.

[snip]

Respectfully, it was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

January 6, 6:09PM: Eastman claims that Pence only addressed the most outlandish option and didn’t address a more moderate one.

January 6, 6:29PM: Jacob asks Eastman whether he advised Trump that “the Vice President DOES NOT have the power to decide things unilaterally.”

January 6, 6:45PM: Eastman claims Jacob was on the call when he did provide that advice, but then declines to,

discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.

January 6, 11:44PM: Eastman responds to the most recent Jacob email stating that because the House and Senate had “debated the Arizona objections for more than 2 hours” (which may account for the time Congress had been hiding from the mob) and observed that that and other things were violations of the Electoral Count Act. He then asks that, “now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed,” he should adjourn the vote for 10 days “to allow the legislatures to finish their investigations.”

The Half of Trump’s Conspiracy to Obstruct JustSecurity Left Out: Inciting an Insurrection

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Two days after Judge Amit Mehta ruled that it was plausible that Trump conspired with the Oath Keepers and Proud Boys, JustSecurity has posted an imagined prosecutor’s memo laying out the case that Trump, John Eastman, and Rudy Giuliani (and others known and unknown) conspired to obstruct the vote count that almost entirely leaves out the militias.

It has gotten a lot of attention among the TV lawyer set, who imagine that it would save Merrick Garland time.

With this obnoxious tweet, Laurence Tribe betrays (yet again) that he has completely missed what DOJ has been doing for the past year. What Barb McQuade did is lay out the theory of prosecution that DOJ has long been working on — as I laid out in August. Except that McQuade (of whom I’m a great fan both personally and professionally) misses great swaths of public evidence, and in so doing, makes her case far weaker than it would need to be to prosecute a former President.

Start with McQuade’s argument substantiating that Trump corruptly tried to obstruct the vote count.

Here, attempting to prevent the certification of the votes for president is illegal only it is wrongful or for an improper purpose. It would be wrongful or improper for Trump to seek to retain the presidency if he knew that he had been defeated in the November election. His public statements suggest that he genuinely believed that he had won the election, but, as discussed above, by Jan. 6, it was apparent that there was a complete absence of any evidence whatsoever to support his belief, which at this point had become merely a wish. The statements from Krebs, Barr, Rosen, Donoghue, Ratcliffe, and Raffensperger, and the memo from his own campaign team all permit a fair inference that Trump knew that there was no election fraud, and that his efforts to obstruct the certification was therefore corrupt.

Independently, regardless of his knowledge or belief in election fraud, it was an improper purpose to hold into power after the 50 states had certified their election results, the Electoral College had voted, and litigation had been exhausted after an across-the-board rejection by the federal courts.

This is the theory of prosecution where an obstruction case against Trump would succeed or fail. And I’m not sure it meets the understanding of obstruction already laid out by the judges who would preside over the case.

Defendants have been challenging DOJ’s application of 18 USC 1512(c)(2) to the vote certification since at least April, and so there’s a great deal of background and seven written, one oral, and one minute opinions on the topic:

  1. Dabney Friedrich (my post on it and the obstruction application generally)
  2. Amit Mehta (my post on his intransitive application of it to the Oath Keepers)
  3. Tim Kelly (my post on its application to the Proud Boys)
  4. Randolph Moss (my post situating his application with his past OLC opinion on charging a President)
  5. John Bates
  6. James Boasberg
  7. My livetweet of Beryl Howell’s oral opinion
  8. Colleen Kollar-Kotelly
  9. Richard Leon by minute order
  10. Christopher Cooper

One of the central issues addressed in these — and something any prosecution of Trump under 18 USC 1512(c)(2) would need to address — is how you establish that the effort to obstruct the vote count is “corrupt.” While thus far all judges have upheld the application, there’s some differentiation in their understanding of corruption (something that a site like JustSecurity might productively lay out).

Two key issues are whether corruption, under 18 USC 1512(c)(2) must be transitive (meaning someone tried to coerce another to do something improper) or intransitive (meaning someone exhibited corruption with their own actions), and the extent to which corruption is proven by doing acts that are otherwise illegal.

Importantly, Judge Friedrich’s opinion, and so the first jury instructions, only extends to illegal actions. In a recent hearing, she warned the Guy Reffitt prosecutors (both of whom also happen to be prosecuting cases charged as a conspiracy) that they will not prove him guilty of obstruction without first proving him guilty of other crimes at the riot.

Trump acted both transitively and intransitively corruptly

McQuade’s formulation is unnecessarily weak on the transitive/intransitive issue. There are at least two things that are missing.

First, citing some tax precedents, defendants wanted the application of obstruction to apply only to those who were obtaining an unfair personal advantage. That’s not the standard adopted in the opinions thus far, but it is a standard that some Justices one day might try to uphold. And while that standard was doable for the charged rioters (because they were attempting to make their own votes count more than the votes of the 81 million people who voted for Biden), it is a slam dunk for Trump. It’s not just that Trump was trying to win an election he knew he lost, he was trying to retain the power of the Presidency for himself. My complaint here, though, is mostly stylistic. McQuade could rewrite this paragraph easily to take advantage of the fact that, for Trump, obstruction of the vote count really was an attempt to gain personal advantage.

It’s in leaving out Trump’s transitive obstruction — even in a piece that focuses closely on the pressure of Pence — where McQuade’s memo could and I think might need to, to pass muster given the existing opinions on it — be vastly improved. That’s because it’s in Trump’s corruption of others where he clearly conspired in illegal acts.

Trump didn’t just do things an ethical President shouldn’t do (intransitive corruption). He carried out an extended campaign to pressure Pence to do something that violated Pence’s Constitutional obligations. That is, he tried to corrupt Pence (transitive corruption).

Trump transitively corrupted by conspiring with people who committed crimes

And it’s in the means by which Trump’s tried to corrupt Pence on the day of the insurrection that McQuade largely leaves out, and in the process forgoes an easy way to meet Friedrich’s current requirement (that those charged with obstruction commit a crime in attempting to obstruct the vote count).

Bizarrely, McQuade’s overt acts on January 6 are focused largely on John Eastman.

T. Trump Speaks at the Ellipse

On Jan. 6, 2021, Trump addressed a crowd of his supporters at approximately 1 p.m. on the Ellipse outside the White House.[129] During his remarks, Trump said, “If Mike Pence does the right thing we win the election.”[130] He explained, “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”[131] Trump then spoke directly to Pence: “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. I’m not hearing good stories.’”[132]

Giuliani, a former United States Attorney, also spoke at the rally. He declared that it would be “perfectly appropriate” for the Vice President to “cast [] aside” the laws governing the counting of electoral votes, and “decide on the validity of these crooked ballots or he can send it back to the state legislators, give them five to ten days to finally finish the work.”[133]

Another speaker at the rally was Eastman. “All we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not!” Eastman told the crowd. [134] “We no longer live in a self-governing republic if we can’t get the answer to this question!”[135]

According to reports, Trump was directly involved in planning the speaker lineup.[136]

U. Pence Issues Public Letter Rejecting Eastman’s Theory

On Jan. 6, at 1:02 p.m., Pence posted to Twitter a letter stating that as Vice President, he lacked “unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress.”[137] His duties, the letter stated, were “merely ministerial,” and were limited to counting the votes. The letter further stated that he would instead follow the Electoral Count Act, permitting members of Congress, as “the people’s representatives,” to resolve any disputes.[138] The letter had been drafted with the help of two conservative legal experts — former federal Judge J. Michael Luttig and former Justice Department official John Yoo.[139] Both have confirmed that they advised Pence’s staff and outside counsel that there was no basis for the vice president to intervene in the counting of electoral votes on Jan. 6. “I advised that there was no factual basis for Mike Pence to intervene and overturn the results of the election,” said Yoo, who now teaches law at the University of California at Berkeley. “There are certain limited situations where I thought the Vice President does have a role, for example in the event that a state sends two different electoral results. . . . But none of those were present here.”[140]

Luttig wrote subsequently that “Professor Eastman was incorrect at every turn of the analysis,” including his suggestion that the vice president could delay the electoral vote count.[141]

V. U.S. Capitol Attack Begins

At about 2 p.m., protestors broke a window at the U.S. Capitol and climbed inside.[142] The Senate and House of Representatives soon went into recess and members evacuated the two chambers.[143] At 2:24 p.m., Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”[144] The Capitol would not be secured again until about 6 p.m.[145]

Her discussion here doesn’t explicitly mention a single one of the 750 people already being prosecuted for crimes for their actions on January 6. She mentions neither Alex Jones (whom Trump ordered to take the mob on an unpermitted march to the Capitol and two of whose employees are already among those 750 being prosecuted) nor Roger Stone (who has ties to the two militias that orchestrated events that day and who has been a subject in the Oath Keeper investigation from its early days).

It’s not just or even primarily that Trump grasped John Eastman’s crackpot theory and used it to pressure Pence (which is not  itself a crime). It’s that he incited thousands of people to take an unpermitted walk to the Capitol to physically threaten Pence and other members of Congress directly.

As I laid out last month, DOJ has already collected a great deal of evidence that those who did break the law at the Capitol did so in response to Trump’s incitement with the motive of pressuring Pence.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.’”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President KePence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

I would add (because Amit Mehta did in his oral ruling that Stewart Rhodes should be detained pre-trial), in addition to the explicit attempt by Kelly Meggs to hunt down Nancy Pelosi, the other group of Oath Keepers appears to have tried to find those in the Senate, presumably including Mike Pence. If prosecutors can prove that, then, the militia that was checking in with Stone the day of the riot took overt steps to physically threaten Mike Pence.

Importantly, with the exception of QAnoner Chansley, all of the January 6 defendants I’ve laid out here were part of a conspiracy (Colt and Bisignano, because they flipped on co-conspirators, are not charged with one). All of these Jan6ers are accused of conspiring with others to carry out Trump’s will to transitively corrupt Pence by physically pressuring him to violate his Constitutional duty.

And Judge Mehta has now ruled it plausible (though he was careful to note he was addressing the lower standard of a civil suit) that Trump’s incitement amounts to entering into a conspiracy with all of these people who acted on his incitement to pressure and in some cases physically hunt down Pence.

McQuade’s theory of corruption may not meet Judge Friedrich’s standard for corruption (which we should assume as a baseline of one that Brett Kavanaugh might find palatable).

Which is why you cannot ignore the other half of the conspiracy: Trump entering into an agreement with Roger Stone to coordinate with the militias, entering into an agreement with Alex Jones to lead the mob to the Capitol, and Trump entering into an agreement with those he incited to directly pressure Pence to violate his Constitutional duty.

750 people have been charged with committing crimes at the Capitol. And the easy way to demonstrate that Trump employed illegal means in his effort to obstruct the vote certification is to point to the mountains of evidence that he conspired both via his close associates Stone and Jones but more directly via incitement with a vast number of those 750 people who allegedly broke the law.

Update: One thing McQuade does focus on (she’s a Michigander who does a lot of work on voter protection) are the fake electors. That’s another illegal act that probably should be brought in any statement of corrupt intent for the same reason Trump’s ties to the rioters should be.

Update, 2/25: Added link to Kollar-Kotelly’s opinion and noted that Leon and Cooper have now ruled.

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

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I continue to get people asserting as fact that the investigation into Trump’s role in January 6 would be going better if Merrick Garland had appointed a Special Counsel.

I have yet to see calls for a Special Counsel that are not, themselves, just an extended admission that the people calling for one don’t understand the investigation. For example, in a widely shared Asha Rangappa thread in October, she claimed to present Pros and Cons like this:

Pro:

  1. “It’s warranted” (she didn’t say what “it” was)
  2. “It would signal that getting to the bottom of this is a priority for the Justice Department” (she didn’t say what “this” was)
  3. “It could provide for a more efficient investigation … An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter”
  4. It would insulate Garland from political blowback; “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch”
  5. “The Special Counsel regulations have important formal mechanisms for reporting prosecutorial decisions (including declinations to prosecute)”

Cons:

  1. “It gives people who may be subjects of an investigation a ‘heads up'”
  2. “It creates a new space for politicization, as we saw with Mueller:”

More recently, a non-public non-expert suggested that because Merrick Garland hadn’t appointed a Special Counsel when he came in, Congress was doing the investigation that a Special Counsel was not.

I want to start from that claim — that Congress is investigating stuff that DOJ is not. It reflects a belief that even DOJ reporters have, such as in this shitty WaPo piece revealing in ¶30 that DOJ is investigating Roger Stone and Rudy Giuliani for their militia ties but then reporting as fact that DOJ “has yet to turn its attention directly to Trump and his close allies.” The things WaPo turns to before examining how — and ignoring that — DOJ is investigating Trump’s one-degree ties to the militias who managed the attack on the Capitol are:

  • Whether DOJ is investigating the war room at the Willard Hotel (never mind that WaPo missed one overt way DOJ is investigating the war room)
  • Whether DOJ is investigating Trump’s call to Brad Raffensperger
  • Whether DOJ is investigating Trump’s threats to install Jeffrey Clark to get an Acting Attorney General more amenable to claiming voter fraud occurred

Of those, only the call to Raffensperger (which is being investigated by Fulton County’s DA) is clearly illegal.

Special Counsels can only investigate crimes, not potential crimes not pursued

It is not clearly illegal, for example, for John Eastman to write a letter calling on Trump to pressure Mike Pence to reject the vote totals or for Peter Navarro to set up a propaganda campaign that members of Congress will point to to justify corrupt action (indeed, the latter is how lobbyists made DC run). It may not be illegal for a President to install someone who has been Senate confirmed as Acting Attorney General who will pursue his policy goals, no matter how corrupt they are; it’s not even illegal for a President to ask a Cabinet Member to lie to the public (and Cabinet Members lie a lot, sometimes for good reasons). It’s even less illegal to consider doing so but deciding not to because of the political cost of doing so, as happened with Clark. It is not even illegal to receive a plan to have the military seize voting machines, especially if you don’t pursue that plan (which Trump did not).

These things only become illegal when they are shown to be part of plan to commit a crime.

There’s the first problem with calls to appoint a Special Counsel. Much of what people want to investigate (again, Raffensperger and the fraudulent certificates are an exception) is not clearly a crime.

I have talked about how the Select Committee is investigating from the top down and DOJ is investigating from the crime scene up (in addition to investigating Sidney Powell’s potential Big Lie fraud). I’ve talked about how, as a separate co-equal branch of government, the Select Committee can more easily do things like get Executive Privilege waivers or waive Speech and Debate protections, the former of which was a challenge for Mueller’s investigation. I’ve laid out how the two investigations have already converged, first with the focus on the targeting of Mike Pence and more recently on the role of Trump’s directions serving as the motivating instruction for three different armed conspiracies, including the sedition one.

But it’s equally important to recognize that the Select Committee is also conducting the important work of investigating things that weren’t crimes, like considering but not acting on a suggestion to seize the voting machines and considering but not acting on a plan to make Jeffrey Clark Acting Attorney General (both issues Bennie Thompson addressed on the Sunday shows this morning).

A Special Counsel can’t be appointed to investigate something that is not a crime.

I realize that people have argued, starting on January 6, that Trump incited the insurrection and that’s the crime that could have predicated the Special Counsel. Bracket that idea. I’ll come back to it.

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

As it happens, Rangappa wrote her thread on October 25, three days before US Attorney for DC Matthew Graves was confirmed on a voice vote. While Ron Johnson held up the vote for other reasons, no Republican Senator thought it important enough to register opposition to Graves to call for a recorded vote.

That means, going forward, the US Attorney overseeing the January 6 investigation can claim the support of the entire Senate. No Republican recorded their opposition to Matthew Graves overseeing the investigation into January 6.

Those asking for a Special Counsel are, in effect, saying that there would be less political blowback if Merrick Garland chose, on his own, to appoint someone to lead an investigation than if a US Attorney against whom not a single Republican recorded opposition led the investigation.

The January 6 investigation is far too large for a Special Counsel

Now consider the claim that a Special Counsel investigation would be more efficient because the Special Counsel would have a dedicated team of prosecutors and FBI agents and a dedicated grand jury. Such claims are astounding for how little awareness of the actual investigation they show.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through. Given COVID, keeping these grand juries up and running has been a real bottleneck on the investigation (something else Garland alluded to). For one conspiracy indictment I followed, it took five months — from April until September — from the time DOJ stated it would charge it as a conspiracy and the time the FBI Agent could sit with the grand jury safely to get that indictment. So you’re better off having several to juggle than relying on one. “When will Garland get a grand jury for this investigation,” people keep asking, and the answer is that was done already, in January 2021 before Garland was confirmed, in May, in August, and in November. Over a hundred Americans have already been serving, in secret, during a pandemic, on these grand juries that people are wailing must be appointed some time in the future.

Then there are other things about the investigation that have required massive and immediate resource allocations. Most notably, DOJ had to appoint a team (led by a prosecutor named Emily Miller) to create an entirely new discovery system, which has involved throwing large amounts of money at both Deloitte and the Federal Public Defenders office. Special Counsels need to budget ahead, and because this investigation is so large, it would not be possible given the budgetary requirements of the Special Counsel regulation.

We know similar resource allocations are going on at a whole-DOJ level with respect to the FBI (including a reliance on Joint Task Forces for more localized investigations); those decisions are just less visible.

The point being that this investigation is so large it requires the DOJ, as a whole, to manage the resources for it. It’s far too large for a Special Counsel. And nothing about putting someone without those resources who has to budget in advance would make this investigation more nimble.

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

So let’s go back. The crime invoked by those calling now or in the past for a Special Counsel as the predicating crime for the investigation is incitement. There are problems with that. Trump’s defense attorneys rightly pointed out during his second impeachment trial that the riot had already started — by the militia that Trump had called out on September 29 — before he incited the mob at his rally. Trump’s relationship with the mob is far more complex — and frankly, damning, than that.

But the other problem with that is if you want to prove that Trump incited the crowd, you need to get proof that those who went on to riot were responding to Trump’s speech.

That’s actually one thing DOJ has been doing for the last year; I would guesstimate that about a third of the 200 or so people who’ve pled guilty have said things in their statements of offense to support an incitement charge against the former President. But they’ve also provided DOJ more specific details about their expectations for what would happen at the Capitol (most notably that Trump would speak again) and how those expectations were manipulated to get them to do things like climb to the top of the East steps just before it was breached. The way in which Trump (and close associates like Alex Jones) manipulated attendees was actually more malicious than simple incitement.

So even (perhaps especially) for the crime that everyone is sure Trump committed, incitement, you need to do some of the work everyone points to in claiming that DOJ is investigating the wrong people, just the pawns and not the generals. One thing DOJ has done in the last year is collect evidence that large numbers of those who, without planning to do so in advance, nevertheless played a key role in occupying the Capitol, did so not just because of Trump’s violent imagery, but also because of the expectations he set among rally goers.

More importantly, what DOJ has spent the last year doing is understanding what those who kicked off the riot while Trump was speaking did, and how those who brought mobs to the Capitol manipulated them to make them more effective. And what they’ve discovered — what WaPo thought worth burying in ¶30 — is they were working with Trump’s closest associates, if not responding to orders from Trump himself.

DOJ already is investigating what happened at the Willard Hotel (and has been since last summer). But they’re investigating it not because a bunch of the people there considered ideas — like seizing the voting machines — that weren’t adopted. They’re investigating it because there are tangible ties between what happened at the Willard and what happened on Capitol Hill.

Consider the centrality of efforts to pressure Mike Pence to reject the legal results of the election. After efforts to overturn the election with legal challenges based on the Big Lie (for which Sidney Powell is already being investigated by prosecutors also investigating other aspects of January 6) failed, Mike Pence became a necessary player in the plots to steal the election. And the effort to pressure Pence is continuous from Donald Trump to his allies to people at the mob.

Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

There are things that Trump did that are independently illegal, including giving Mike Pence an illegal order. But their illegality becomes much more salient in the context of the organized effort to pressure Mike Pence, threaten his life, and prevent the vote certification from taking place.

And DOJ has already acquired evidence that the people at the Capitol who were most deliberately implementing that plan have direct ties to Trump’s closest associates.

Bizarrely, the foundational assumption of those demanding a Special Counsel is that Trump didn’t have any tie to the riot — it has to be!! The foundational assumption of those demanding a Special Counsel is that the investigation of the insurrection won’t get to the former President unless it convenes a separate investigation into him, even though the investigation working up from the mob has already found at least three one-degree links between those mobilizing the bodies at the Capitol and Trump’s close associates (and the grand jury investigation that already charged sedition has at least three cooperating witnesses with ties to Roger Stone).

No one has to ask Merrick Garland to open an investigation that might prosecute Trump. It has been open since long before Garland was confirmed. No one has to ask Merrick Garland to get a prosecutor to convene a grand jury that will investigate Trump’s actions; grand juries have already indicted at least four violent conspiracies that were mobilized by Trump’s calls to violence, including one that has been working since two days after the attack.

If you believe that Trump’s actions played a central role in the insurrection — if you believe that the violent mob mobilized on January 6 was an important part of plans hatched at the Willard Hotel — then creating a separate investigation to investigate Trump does nothing but remove him from his liability in crimes already charged as sedition. That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

People have been wailing for a year that DOJ needs to open an investigation into Donald Trump and all the while an investigation has been open and has been working towards Trump.

January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

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In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests