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OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR

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From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.

With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.

Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September. 

It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.

The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department. 

Huge but tempered.

Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.

In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally. 

Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.  

Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here. 

I will, however, belabor others. 

First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations. 

In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.  

For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute. 

But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy. 

I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress. 

OATH KEEPERS ON APPEAL 

At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow. 

And it has. 

Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.

Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons. 

The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.

Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.) 

Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. 

Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted. 

 THE DEVIL IN THE DETAILS

After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.

Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle. 

The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said. 

Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications. 

They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked. 

The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities. 

They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”

“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said. 

Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event. 

During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits. 

If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.

“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.

Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew. 

On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty.  At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue. 

Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.

Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.) 

And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie. 

Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer. 

Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully. 

When he was en route to D.C. from Texas,  bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.” 

When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place. 

Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C. 

At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them. 

At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.

It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.

Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6,  not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients. 

And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers. 

Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)

The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.

If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”

“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”

Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact. 

Trump would be killed by his enemies if he didn’t act now, Rhodes warned.

‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote. 

He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.

He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office. 

The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put  Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further. 

All of these elements are just slivers of what jurors heard in the weeks-long trial.

There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside. 

Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”

The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help. 

So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)

On seditious conspiracy:

  • Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett

On conspiracy to obstruct an official proceeding: 

  • Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett

On obstruction of an official proceeding: 

  • Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo

On conspiracy to prevent officials from discharging their duties: 

  • Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett

On tampering or destruction of evidence: 

  • Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett

Impeding officers during a civil disorder:

  •  Jessica Watkins

IS EVERYTHING OLD NEW AGAIN?

When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.

The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.

A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there. 

After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how  Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise. 

At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights. 

But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.” 

He was the one giving orders, Mehta said. 

“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said. 

When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it. 

The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant. 

Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct. 

Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist. 

The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs. 

“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said. 

Will these words haunt an appeal to come? 

When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is  20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in. 

Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.

“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”

Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start. 

But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead. 

At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals. 

Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up. 

If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?

Second Impeachment Ahead: Articles Have Been Drafted [UPDATE-3]

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[NB: Update(s) at the bottom of this post. /~Rayne]

Representatives David Cicilline, Ted Lieu, and Jamie Raskin have drafted articles of impeachment against Trump which are now circulating among House members.

Here’s a transcript:

         Resolved, That Donald John Trump, President of the
United States, is impeached for high crimes and mis-
demeanors and that the following articles of impeachment
be exhibited to the United States Senate.

Article of impeachment exhibited by the House of
Representatives of the United States of America in the
name of itself and of the people of the United States of
America, against Donald John Trump, President of the
United States of America, in maintenance and support of
its impeachment against him for high crimes and mis-
demeanors.

ARTICLE I: ABUSE OF POWER

          The Constitution provides that the House of Rep-
resentatives “shall have the sole Power of Impeachment”
and that the President “shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors”. In his conduct of
the office of President of the United States—and in viola-
tion of his constitutional oath faithfully to execute the of-
fice of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution
of the United States, and in violation of his constitutional
duty to take care that the laws be faithfully executed—
Donald J. Trump engaged in high Crimes and Mis-
demeanors by willfully inciting violence against the Gov-
ernment of the United States, in that:

On January 6, 2021, pursuant to the Twelfth
Amendment of the United States Constitution, the Vice
President of the United States, the House of Representa-
tives, and the Senate met at the United States Capitol
for a Joint Session of Congress to count the votes of the
Electoral College. Shortly before the Joint Session com-
menced, President Trump addressed a crowd of his polit-
ical supporters nearby. There, he reiterated false claims
that “we won this election, and we won it by a landslide”.
He also willfully made statements that encouraged—and
foreseeably resulted in—imminent lawless action at the
Capitol. Incited by President Trump, a mob unlawfully
breached the Capitol, injured law enforcement personnel,
menaced Members of Congress and the Vice President,
interfered with the Joint Session’s solemn constitutional
duty to certify the election results, and engaged in violent,
deadly, destructive, and seditious acts.

President Trump’s conduct on January 6m 2021 was
consistent with his prior efforts to subvert and obstruct
the certification of the results of the 2020 presidential
election. Those prior efforts include, but are not limited
to, a phone call on January 2, 2021, in which President
Trump urged Georgia Secretary of State Brad
Raffensperger to “find” enough votes to overturn the
Georgia presidential election results and threatened Mr.
Raffensperger if he failed to do so.

In all of this, President Trump gravely endangered
the security of the United States and its institutions of
government. He threatened the integrity of the democratic
system, interfered with the peaceful transition of power,
and imperiled a coordinate branch of government. He
thereby betrayed his trust as President, to the manifest
injury of the people of the United States.

Wherefore President Trump, by such conduct, has
demonstrated that he will remain a threat to national se-
curity, democracy, and the Constitution if allowed to re-
main in office, and has acted in a manner grossly incom-
patible with self-governance and the rule of law. President
Trump thus warrants impeachment and trial, removal
from office, and disqualification to hold and enjoy any of-
fice of honor, trust, or profit under the United States.

It’s narrow in scope, doesn’t require investigation and subsequent hearings, because the act of incitement occurred in public and was recorded on video, distributed over broadcast and cable television as well as the internet.

The inclusion of the phone call to Georgia’s Secretary of State illustrates in most minimal fashion a pattern of behavior and intent.

These articles aren’t the only approach being taken to remove Trump. Earlier today both Sen. Chuck Schumer and Rep. Nancy Pelosi called VP Mike Pence to ask for the invocation of the 25th Amendment:

They’ve since made public statements reiterating their demand for the 25th Amendment, and for impeachment leading to removal if the 25th isn’t invoked.

NBC reported earlier that Trump is fragile and feeling betrayed:

Fuck that. Trump is not the United States; Congress is not elected to fluff one delicate snowflake’s dementia-addled ego.

The United States, however, is now fragile, made so by the gross failings of a malignant narcissist in decline, who has spawned an attack on his own country with seditious incitement.

It’s time for Mike Pence to honor his oath to defend the Constitution by invoking the 25th Amendment.

If Pence should fail the republic yet again, it’s time for Congress to impeach, convict, and remove Trump before he does any further damage to this fragile democracy.

~ ~ ~

UPDATE-1 — 8:20 PM ET —

This is not good. It’s been wholly predictable to those who’ve assumed Trump suffers from a progressive neurological disorder like frontotemporal dementia on top of his malignant narcissism — but still not good.

It’s also increasingly urgent.

We need to hold Trump’s cabinet members accountable — including the “principal officers” of departments like the Acting Director in cases where the Director has left the government — for not demanding the invocation of the 25th Amendment. Pence may be resisting invocation but he’s not the only person responsible for its application and execution.

And if Pence and the cabinet aren’t going to address this, then it’s up to Congress to remove Trump from the ability to hurt this country.

All of them — Pence, the cabinet members and principal officers, members of Congress — have sworn an oath to the Constitution. It’s time to protect and defend it by removing Trump from office immediately.

Call your representative and ask them to support articles of impeachment because Trump has incited seditious behavior against the U.S. and he is acting increasingly unstable.

Call your senators and ask them to convict and remove Trump from office upon the presentation of the articles of impeachment from the House because Trump has incited seditious behavior against the U.S. and he is acting increasingly unstable.

Congressional switchboard: (202) 224-3121 — or use Resist.bot.

Time’s of the essence. Go. Leave word in comments if you’d care to share your experience.

~ ~ ~

UPDATE-2 — 10:42 PM ET —

Update on status of impeachment:

House Judiciary Committee Chair Jerry Nadler supports impeachment and wants it to go directly to the House floor:

Head count is mounting.

The number 200 without context means doodley squat. We need two very specific numbers.

We need 218 House votes, or one more than half of 435. (This may be lower because there are two seats still open IIRC.)

We need 67 Senate votes, or two-thirds of the total 100 seats.

If you manage to reach your representative or senators, ask where they stand on impeaching Trump. Then ask them to support it if they don’t, or thank them if they do.

I hope we have the numbers by morning. What could go wrong the longer Congress drags its feet is incalculable.

~ ~ ~

UPDATE-3 — 12:52 AM ET 08-JAN-2021 —

Two cabinet members, Transportation Secretary Elaine Chao and Education Secretary Betsy DeVos, have tendered their resignations. Chao’s exit is effective January 11; I haven’t checked DeVos’s exit date. Her resignation could have been effective immediately. Former White House Chief of Staff Mick Mulvaney resigned from his role as Special Envoy for Northern Ireland. Four national security aides quit.

A police officer has died of injuries sustained during the Capitol Building riot. That’s more dead police than the entirety of George Floyd/BLM protests during the summer of 2020.

A family member acknowledged the death of a 34-year-old woman who participated in the Capitol Building riot but was crushed to death. She was likely one of the three accidental deaths tallied so far.

Displeased cabinet and staff members, dead police and mob member…not good, but there was something worse afoot.

Read this entire Twitter thread. And then recall the conspiracy against Michigan’s Gov. Whitmer.

Several accounts on Twitter have noted the rioters could be sorted into two groups: the tourist mob who did sightseeing and some vandalism, and some crypto-paramilitary persons who were prepared to do more than simply take selfies and smash furniture. They came armed with knives and zip ties and may have had more weapons on their persons. They were better masked than most of the tourist rioters.

There have been videos shared which appear to show Capitol Police actively encouraging the mob. Off-duty officers may not only have participated in the rioting but aided the paramilitary participants.

And there have been repeated remarks about coming back on the 19th — “I’d do it again, and I’d have a gas mask next time.”

We should not forget there were two IEDs found, one at each of the RNC and DNC offices, as well as a suspicious vehicle which has been characterized as mobile bomb factory.

There were elements inside the rioters who wanted to do more damage and possibly seize and hurt members of Congress along with VP Pence.

We don’t know if they left any preparatory materials behind or whether law enforcement did an adequate sweep considering how poorly prepared they were for the breach of the Capitol Building by rioters.

Trump must be impeached before he can encourage worse. His statement this evening suggests he is willing to encourage more seditious acts, like those at statehouses across the country yesterday while a mob rioted inside the Capitol Building.

Braced for Impact

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My maple flooring is taking a beating today as I pace from end to end of the house, waiting for one of the remaining states to drop the hammer on Trump’s dwindling Electoral College hopes.

I can’t even concentrate long enough to cook something, had to work my way up to typing out this post. I just can’t sit still for long.

My kid isn’t helping much. Whenever a state reports a new vote count, they yell downstairs, regurgitating everything I’ve just read online. But they’re just as anxious as I am, and at 23 they haven’t yet lived through much election weirdness.

“Did you hear about the riot in Detroit, the Trump supporters harassing the vote counters?”

Yes, dear, I did, and it’s like the Brooks Brothers riot all over again, with fewer hanging chads and pinpoint oxford button-down shirts, with more camouflage and Confederate flags.

“What’s a hanging chad?”

~sigh~

We know it’s inevitable. The writing is on the wall. It’s even on Fox News but Trump refuses to yield to reality, just as he’s never yielded to the truth for his entire term in office.

The worst part: the anger is turning dangerously nasty, and it’s not just Trump but his family, minions, and his hardcore whackdoodle base who are going past acceptable expressions of frustration and grief.

Some of what we are seeing is intended to create chaos while disrupting the normal election process.

In a word, it’s seditious.

Now bmaz may jump on me for using a legal term here though I’m not a lawyer.

I do mean seditious, referring to seditious conspiracy.

Here’s the Wikipedia definition of sedition:

Sedition is overt conduct, such as speech and organisation, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or rebellion against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.

Here’s the U.S. Code for seditious conspiracy:

18 U.S. Code § 2384.Seditious conspiracy

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Emphasis mine.

Our country is a democratic republic. Voting and counting those votes to elect officials is foundational to our system of government. It’s embedded in our Constitution including several amendments.

Advocating any interruption of normal voting and vote counting, especially the increasing calls for violence including militarized language, could be construed as incitement. Two or more people working to this end could be construed as seditious conspiracy against the United States.

All votes must be counted. The counting process will weed out those ballots which are not valid. This is how democracies work. It’s outlined in our Constitution and laws and undermining these laws is seditious.

It’s horribly embarrassing that our country’s president has attempted to claim a victory before all the votes are counted, but that so many attempts have been made to obstruct the normal electoral process. The world sees this very clearly for what it is, sees Trump for what he is.

We can see that Trump knows better as well; he has all the appearance of a narcissist in meltdown because he isn’t getting what he wants to feed his ego.

This has to end. It will end, as soon as the next state — likely Pennsylvania — finalizes their vote count, pushing Joe Biden to or past the necessary 270 electoral votes to win the presidency.

The really sad part is that we don’t know what will happen when it does end.

Will the real tantrum begin? Will Team Trump engage in a smash-and-grab on the way out? Will they obstruct what should be a peaceful transition of power?

We can’t tell. We can only brace ourselves for impact.

Yet Another Warning from Michigan: FBI Busted Plot to Kidnap “That Woman”

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As you’ve probably heard by now, the FBI foiled a plot to kidnap Michigan’s Gov. Gretchen Whitmer. The conspirators intended to move her across state lines to Wisconsin where she would be tried by a kangaroo court for “treason.”

Timing of the plot and events which may have inspired this idiocy:

10-MAR-2020 — Governor Whitmer issued Executive Order 2020-4, declaring a state of emergency in Michigan to address the COVID-19 pandemic.

13-MAR-2020 — Gov. Whitmer issued Executive Order 2020-5 canceling all events and assemblies over 250 people, ending on Sunday, April 5 at 5 p.m. Michigan’s public schools and churches were closed with this order.

16-MAR-2020 — Gov. Whitmer issued Executive Order 2020-9, closing places of public accommodation including restaurants, bars, gymnasiums, theaters through March 30.

20-MAR-2020 — Militia group in Michigan brought to attention of FBI when group sought addresses of local law enforcement. A Confidential Human Sources (CHS) was identified during FBI interview with a concerned militia member.

23-MAR-2020 — Gov. Whitmer issued “Stay Home, Stay Safe” Executive Order 2020-21, directing all Michigan businesses and operations to temporarily suspend in-person operations that are not necessary to sustain or protect life, effective immediately.

27-MAR-2020 — During a press conference discussing Pence’s work as head of the White House Coronavirus Task Force, Trump tells VP Pence, “Don’t call the woman in Michigan.”

01-APR-2020 — Gov. Whitmer issued Executive Order 2020-33 expanding Executive Order 2020-4, declaring both a state of emergency and a state of disaster across the state of Michigan.

07-APR-2020 — Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.

09-APR-2020 — First extension of Stay-Home order until May 1 due to rising COVID cases.

15-APR-2020 — Drive-in “Operation Gridlock” Protest in capital city Lansing, violating Stay-Home order; organizer received financial assistance from DeVos family.

17-APR-2020 — Trump tweeted, “LIBERATE MICHIGAN!“

24-APR-2020 — Second extension of Stay-Home order until May 15 due to increased COVID cases. Some restrictions were lifted on outdoor businesses. Masks ordered for all residents in public spaces.

30-APR-2020 — Armed protest in state capitol building

06-MAY-2020 — GOP-majority state house and state senate file suit against Gov. Whitmer (Michigan House of Representatives and Michigan Senate v. Whitmer)

08-MAY-2020 — Third extension of Stay-Home order until May 28. Some restrictions lifted on manufacturing as of 11-MAY-2020 as part of a phased re-opening.

21-MAY-2020 — Michigan Court of Claims ruled in favor of Gov. Whitmer in Michigan House of Representatives and Michigan Senate v. Whitmer; the state of emergency would continue without legislative approval.

22-MAY-2020 — Fourth extension of Stay-Home order until June 12. State of emergency also extended to June 19. Two northern Michigan regions were able to reopen, allowing restaurants and bars to operate at 50% capacity. Groups of 10 were permitted across the state.

01-JUN-2020 — Stay-Home order lifted with restrictions, ex. groups of 100 outdoors, outdoor fitness classes, etc.

06-JUN-2020 — Meeting of ~15 co-conspirators in Dublin, Ohio.

08-JUN-2020 — Restaurants allowed to reopen and operate across the state at 50% capacity with other mandatory changes like masks and social distancing.

08-JUN-2020 — On reopening, Harper’s brewpub restaurant in East Lansing, Michigan, violated several of the remaining emergency restrictions. Over the next month at least 185 cases of COVID will have been traced back to this facility’s reopening.

14-JUN-2020 — A key co-conspirator and a militia group member meet at a militia field training exercise.

15-JUN-2020 — Stay-Home order ends. Some restrictions remain on events and assemblies as well as public accommodation facilities.

18-JUN-2020 — Gov. Whitmer issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.

18-JUN-2020 — Co-conspirators met with militia group leadership at the Second Amendment rally at the state capitol in Lansing, Michigan.

20-JUN-2020 — Several co-conspirators met at a co-conspirator’s business in Grand Rapids for planning.

25-JUN-2020 — Key co-conspirator streams a rant about Gov. Whitmer to a private Facebook group.

28-JUN-2020 — Several co-conspirators met in Munith, Michigan for a tactical training
exercise.

04-06-JUL-2020 — Holiday weekend partying results in uptick of COVID cases.

10-12-JUL-2020 — Co-conspirators attended a field training exercise in Cambria, Wisconsin which included attempting to make IEDs with balloons, BBs, and black powder.

13-JUL-2020 — Gov. Whitmer issued Executive Order 2020-147, mandating the wearing of masks to contain spread of COVID-19.

18-JUL-2020 — Co-conspirators met in Ohio, discussed attacking Michigan State Police and shooting up Gov. Whitmer’s vacation home in western lower Michigan.

27-JUL-2020 — Co-conspirators discussed plan to kidnap Gov. Whitmer at vacation home, transport her to Wisconsin, and prosecute her.

09-AUG-2020 — Co-conspirators discussed obtaining intelligence about Gov. Whitmer’s Lansing home as well as attacking her at that site.

18-AUG-2020 — Co-conspirators discussed surveillance of Gov. Whitmer’s vacation home and getaway plans.

23-AUG-2020 — Co-conspirators discussed surveillance while meeting in Lake Orion, Michigan.

29-AUG-2020 — Co-conspirator and CH-2 surveil Gov. Whitmer’s vacation home.

30-AUG-2020 — Co-conspirators discuss findings of surveillance.

12-13-SEP-2020 — Co-conspirators meet in Luther, Michigan for field training exercise and practice making and using IEDs as well as tighten planning and coordination.

14-SEP-2020 — Co-conspirators discuss executing plan in late October, well before Election Day.

30-SEP-2020 — Co-conspirators discuss acquiring taser for plan.

02-OCT-2020 — Key co-conspirator confirms acquisition of taser.

06-OCT-2020 — In a 4-3 ruling along partisan lines, Michigan Supreme Court determined Gov. Whitmer did not have the authority to issue COVID-related executive orders after April 30, 2020.

07-OCT-2020 — Co-conspirators planned to meet to make payments on equipment.

07-OCT-2020 — Co-conspirator Garbin’s house was raided.

09-OCT-2020 — Arrest of ‘Wolverine Watchmen’ conspirators announced, complaint published.

I use word inspired loosely, because there doesn’t seem to be a direct link between the most aggressive emergency action and the inception and progress of this seditious terror plot. The emergency Stay-Home order was lifted the week the conspirators began planning; what restrictions remained clearly did not stop these men from traveling, meeting, organizing, and planning.

They also didn’t have a legitimate beef about the effectiveness of the governor’s actions, any more so than the polarized and irrational MIGOP-controlled state legislature. Eleventh largest by population, Michigan was hit hard early in the pandemic, now ranking 10th in overall COVID-19 deaths. But since Whitmer declared the state of emergency and enacted the Stay-Home order along with a phased reopening process, the state’s daily death toll has plummeted and its cases per million is now 40th in the country.

You’ll recall from posts I wrote about the protests opposing Whitmer’s orders back in April that the protests cause spikes in active confirmed cases beginning 5-10 days after the protests. They’re visible here in these charts.

The plot wasn’t about Whitmer’s handling of COVID-19.

One only needs to look and listen to the language the conspirators used about Gov. Whitmer to know that this was about hate for a woman with the authority to give orders with regard to a deadly pandemic.

Tyranny to this baker’s dozen of white men was about a democratically-elected woman in a position of legitimate authority telling them what to do.

Trump set the tone for this by refusing to help Whitmer when she asked for federal assistance, by refusing to allow Pence as COVID-19 Task Force chair to listen to Whitmer, and by tweeting, “LIBERATE MICHIGAN” after the first protest against Whitmer’s orders.

His tweets yesterday attacking Whitmer again even after the arrests of kidnapping conspirators only reinforce the real intent of Trump and seditious domestic terrorists alike.

What will Trump’s tweets spawn next as we head into a second wave of COVID-19, this time with Michigan’s governor disempowered by Republicans on the state supreme court?