Like All His Co-Conspirators, Donald Trump Would Be Charged for Obstruction, Not Incitement

Today is the day that DOJ has to inform Judge Amit Mehta whether or not Mo Brooks’ incitement of January 6 rioters is part of his job, which would require DOJ to substitute itself for Brooks in Eric Swalwell’s lawsuit. Commentators who appear not to have followed the court cases very closely suggest that if DOJ does substitute for Brooks, it’ll make it impossible to hold Trump accountable for his role in the riot.

Brooks argued in court papers that his statements came as Congress prepared to certify the election results and that he was acting in his role as a federal lawmaker, representing his constituents, that day.

Now, the Justice Department and the top lawyer for the U.S. House of Representatives are involved. U.S. District Judge Amit Mehta has directed them to say by Tuesday whether they consider Brooks’ statements to be part of his duties as a member of Congress, and whether the federal government should substitute itself as a defendant in the case.

“We hope DOJ will see Brooks’ appalling conduct on Jan. 6 for what it was and what he admitted it was, which was campaign activity performed at the request of Donald Trump, which inarguably is beyond the scope of his employment as a member of Congress,” said Philip Andonian, a lawyer who brought the case on behalf of Swalwell.

Andonian said there’s no way Brooks and Trump were acting in their capacity as federal officials, which would give them a legal shield under a law known as the Westfall Act. Instead, he said, they were engaged in campaign activity, which doesn’t deserve that kind of protection.


[Protect Democracy’s Kristy Parker] said she’s worried that if the Justice Department endorses Brooks’ and Trump’s statements on Jan. 6 as within the scope of their federal employment, it could complicate the efforts of prosecutors to bring the rioters to justice.

“That is not going to have a good impact on the ongoing criminal cases when it comes to persuading judges that the people who stormed the Capitol should get hefty sentences when the people who inspired them to do it have been endorsed as acting within the scope of their official jobs,” Parker said.

This column lays out some of the legal complexities regarding Brooks, including that even if DOJ does substitute for Brooks, it likely still leaves him exposed to part of the lawsuit.

I say the people claiming that this decision will determine whether or not Trump can be held accountable seem not to be following the actual court cases. If they had, after all, they’d know that the crime for which key instigators are facing “hefty sentences” is obstruction and conspiracy to obstruct the vote count. They’d also know that every single conspiracy indictment thus far has the same objective — to stop, delay, or hinder Congress’s certification of the Electoral College vote.

They’d also know that the overt acts in these parallel conspiracy cases involve getting large numbers of people to DC — often by publicizing the event on social media — and then getting those people to occupy the Capitol.

That is, if people were following the court cases rather than uninformed commentators, they’d know that the 38 people charged with conspiracy and the at least four people cooperating against them (not to mention the almost 200 individuals charged individually with obstruction) all had the same goal as Trump — they wanted to prevent the vote certification. Those charged with a conspiracy also used some of the same overt acts that Trump did, making sure lots of bodies were there and making sure that those bodies were occupying the Capitol.

They also might know that, starting with the Three Percenter SoCal conspiracy, DOJ started charging people who threatened violence as part of their efforts to get more bodies to the Capitol.

The difference between the threats that Trump made against Mike Pence after Pence refused an unconstitutional request from him and the threats of execution that were included in Alan Hostetter’s posts in advance of the riot is that virtually all the people who occupied the Capitol on January 6 were aware of Trump’s threats and some took action to implement them.

The disorganized militia conspiracy (which will presumably be rolled out any day now) is significant because at least one of the men who will likely be charged in it, Nate DeGrave, said he was responding entirely to Trump’s exhortations. DOJ likely has video evidence of the effect that Trump’s attacks on Mike Pence had on those men as they walked from his speech to the Capitol. Those men fought with cops to open up a second front of the siege on the Capitol and then they fought with cops to get into the space where, Josiah Colt hoped and believed, Senators were still conducting the vote count. These men are charged with trying to intimidate government personnel like Mike Pence, something that Trump also did.

We already have evidence Trump shared the same goal as every person charged with conspiracy and evidence that Trump committed some of the very same overt acts as those charged. We even have evidence tying Trump’s own actions with physical violence committed with the goal of reaching Mike Pence to intimidate him.

We don’t, yet, have evidence that Trump agreed with any of the co-conspirators already charged. But we are within two degrees of having that, working through either Rudy Giuliani or Roger Stone, which would make Trump a co-conspirator with all the others.

I’m not saying DOJ will get that evidence. As I’ve said, a goodly number of people are going to have to agree to cooperate before DOJ will get there, though we have abundant reason to believe such agreements were made.

But unless this novel application of obstruction gets thrown out by the courts, then it remains ready-made to fit Trump right in among the other co-conspirators, just one violent mobster among all the others.

Even Billy Barr agreed that Presidents could be charged with obstruction. And if Trump is going to be held accountable for his actions on January 6, it will be via obstruction charges, not incitement.

50 replies
  1. P J Evans says:

    The former guy spent a lot of time obstructing various legal government actions, from Mueller to 1/6. I really hope they can indict him.

  2. Peterr says:

    There is also the county prosecutor’s investigation in Georgia into Trump’s attempt to strong-arm the Governor and Secretary of State into not certifying the vote or actively “finding” most votes that would have switched the state to Trump, complete with helpful recordings of Trump’s “perfect” phone calls. This, too, goes to potential charges of obstruction, rather than incitement, and seems to this not-a-lawyer to be much more of a clear-cut case with a decent likelihood of success.

    • Tracy Lynn says:

      Just spitballin’ here but I’ve been thinking about how TFG could have known there were ways to mess with the election results (I.e., during certification). He must have had some advisors who knew at least a little about how the system of national elections actually worked, because I’d bet my house that TFG did not. Those advisors are the most dangerous to our system of government.

      • Fraud Guy says:

        IIRC, in April 2020, when Trump started spitballing how the election would be stolen from him, a group of not currently running Democrats, Republicans, and others held a “war game” of what would happen if the election was contested, but using Biden as the contestor, not Trump. A lot of what happened post election seemed to be based on the one scenario of what to do should Biden have lost by a lot and tried to throw the election to the House and/or popular consensus.

        It hate it when liberals prepare game plans for conservatives to follow.

      • subtropolis says:

        Much of the awful policy stuff came straight from the nameless fascists who’d prospered under TFG. He’s an ignorant dipshit, and counted on those he’d enabled to keep him safe. In regard to the coup attempt, that includes Brian Jack, his political director, who seems to have been at the centre of planning for it, along with Brooks, Jordan, and others. Jack was later hired by Kevin McCarthy to fill the same role in the minority leader’s office.

        There are plenty of others like Brian Jack in Washington. They often fly under the radar, much like the producers at Fox, who work in anonymity while the “talent” get the spotlight.

      • Rugger9 says:

        Speaking of which, after DJT demanded that the Maricopa County election officials turn over the servers, the AZ Senate subpoenaed them. Given how Cyber Ninjas already spoiled 3 M$ or so of voting machines with shoddy security, what’s another 6 mill?

        If I tried to do that kind of thing I would be required to post a bond to cover the costs of the damage to the equipment, but since it is allegedly the AZ Senate demanding this stuff, the taxpayers have to cover the bill.

        • P J Evans says:

          I thought they were asking for the routers. (Yeah, I know they think that they’ll get information from those, but I don’t think they know the difference. The former guy certainly doesn’t.)

            • Peterr says:

              Better be in the kitchen, getting ready to bring out my meal. Why do you ask?

              By the way, have you tried the taco bowl? It’s better than anything you’d find in Mexico!


              • Marinela says:

                Recently at the rally Trump asked about routers, numerous times, but it reminded me about his obsession with private servers before.

                Maybe he was talking about taco bowls he never got from private servers.
                No wonder FBI never found them.

  3. Dutch Louis says:

    “the overt acts in these parallel conspiracy cases involve getting large numbers of people to DC”. IANAL and not familiar with American law, but is it possible that those who organized the 1/5 event will be included in the conspiracy case(s) because it was a preparation for the actions on 1/6?

  4. CD54 says:

    Not to mention evidence of the overt act of withholding NG response to the attack — on video?

  5. Marinela says:

    They cannot charge Trump with incitement because of being considered free speech?

    Understand the obstruction charge, but to me it is also a case of incitement to violence.
    Maybe harder to prove, the specific violence portion, but wanting to hung somebody is not “normal” or lock them all up goes in the grain of political violence. You don’t campaign and hold rallies on locking people up.

    The DOJ, if they have a reason to investigate they should do it.

    A political candidate, or incumbent, should not be in the business of investigating enemies, and glorifying political violence just to get votes.
    When Trump wants to lock enemies up, he is not talking about investigating corruption, instead he declares them guilty of opposing him, so it is then ok to lock them up.

  6. earlofhuntingdon says:

    Area subtacker auctions his soul. Only Fox News is buying:

    if anyone ever needs to do a term paper on Selling Your Soul, here’s yr guy.

    Hearing anyone describe a traumatic and violent experience provoke emotions: even for police officers. That’s what today is for.

    But the fixation on 1/6 is about exactly this: classifying Trump supporters as Enemies of the State for political gain & Security State power.

    It’s so MSM of Glenn to acknowledge an event and then bury it without context – or with a false one. The hate must burn, Glenn.

    • earlofhuntingdon says:

      Oh, and the rightwing hate being poured over Simone Biles for putting her health ahead of an athletic event seems to come from white men barely supple enough to touch their toes. That includes the New York bloody Times.

      Feeling a little bit off isn’t enough to bother an armchair quarterback, not if the beer fridge is close by. But doing inverted reverse triple whizzbangs at great speed – but incorrectly owing to injury – can cause permanent damage and loss of health and career. Thank you, Ms Biles, for modeling mature behavior often missing in the world of corporate sponsor and coach-driven sport.

      • Alan Charbonneau says:

        I hadn’t heard about anger towards Biles, though I’m not surprised.
        /Rant on
        Those spouting this nonsense somehow feel they are entitled to “celebrate a team gold for America” as if it is their accomplishment. They’re indifferent to any injuries she has — if she hurts herself trying for “their” gold, why that’s the American way!

        Additionally, I’ve seen a bunch of this kind of “shoot first aim later” stuff all over YouTube and Twitter. From Glenn Kirchner decrying Tom Barrack for making bail to Major (ret) Richard Ojeda saying insurance companies should deny coverage to people who won’t get the vaccine — it has my head is spinning.

        I mean, I wonder what planet these people inhabit. What’s really bad is that these aren’t cranks, but are, for the most part, people I like and respect. Kirchner would have done far more good at pointing out, as bmaz has, that bail isn’t a system to punish those we think are guilty, it’s to make sure people appear.

        Also, seeing liberals root for insurance companies to deny cover for a horrible illness isn’t a good look — it seems rather cruel. It isn’t helped by rationalizing that they are MAGAs and they deserve it because they’re stupid. Instead, it’s “let their lungs fill with fluid and/or be bankrupted for having false beliefs” along with a statement that they no longer have the patience to deal with “those people” yada, yada, yada. Some of those idiots are family members and I don’t wish this on anyone. There are legal problems with canceling coverage by fiat, but that’s another issue.

        Such hatred makes me want to cry.


        • P J Evans says:

          On the insurance – it’s understandable. These are people who deny it’s a serious disease, some right up until it kills them. They refuse to take recommended precautions like wearing masks, they refuse to get vaccinated against it, and they spout lies as the reason. They get sick and take up many beds in hospitals and fill emergency rooms, so people can’t get treatment and some die from that or the lack of necessary surgery because of full hospitals.
          (A lot of them are the same people who scream about taxes. And about 80% are white.)

        • Peterr says:

          The analogy of the treatment of smokers by the insurance industry might be helpful here. Smokers cannot be denied coverage simply because they smoke, but the ACA allows insurance companies to charge higher rates (up to 50% higher!) for smokers because of the statistically significantly larger medical costs that smokers will rack up.

          I suspect there will soon be a push to allow for an anti-vax surcharge for people who choose not to take minimal steps to protect themselves and their communities from COVID.

          • Greg Hunter says:

            I went down this path the other day and then realized they can claim stupidity as a pre-existing condition.

        • Molly Pitcher says:

          The hospitalization costs for those in the ICU for weeks on end is easily $1M+. I am counting on the anti-vaxxers being charged a considerably higher rate, because the rest of us are going to be paying for this pandemic through our medical insurance for decades.

          The only medical thing free to us IS the vaccine.

          • P J Evans says:

            My Medicare statement says that the provider charged $60 per and Medicare paid $45.09 – that’s not unreasonable, in my mind. I’d cheerfully have paid the other $15 for each one.

        • Marinela says:

          Cannot contain a pandemic if 30% are irresponsible and don’t take the vaccine. What are you suggesting the rest of us do? Give them a hug? They don’t respond to reason. Maybe they will respond to high insurance prices, to getting fired, to loosing people they care about, to leave the rest of their lives with pre-existing conditions.
          The thing is they are killing people they don’t even know, at random. What tells you about their value on the human life?
          They are killing other people, plural, so they are serial killers disguised as freedom fighters.
          They don’t value their life, or others, so I don’t hate them. Just don’t see how you can reason with serial killers.

          We know most of them are manipulated by those interested in Biden failing on economy, but that just makes them cultist and fanatical killers.

        • J.Morgan says:

          Personally, I think insurance should RAISE RATES on anyone who chooses not to get vaccinated. Or, to make it easier for some folks to stomach, reframe and say we will LOWER RATES on folks who have been vaccinated! They do this in relation to cigarette smoking already, right?

        • posaune says:

          Alan @7:00 pm,
          I think insurance company business plans are way ahead of all of us — why would they change their MO now? I read yesterday about a proposal from United to deny coverage for any ER visit that is deemed “not an emergency.” Seems to me a plan for those patients presenting with long covid — “you had covid 18 months ago — not an emergency just because you can’t breathe now.”

      • Rugger9 says:

        Both Aly Raisman and Nastia Liukin pointed out that when Simone lost her sense of location in the air, it’s really dangerous. I sensed something was up in qualifications when Simone veered off on the vault, but she soldiered on to get the team into the finals.

        After all, I’m pretty sure Simone Biles knows how good her teammates are and was quite aware that Chiles on target would be better than Biles would be as off-target as she was. Biles therefore made the best decision for her team and there’s nothing wrong with that for anyone that has played sports at a high level. Most of the haters are also charter members of the 101st Fighting Keyboarders whose principal concern is to keep the Cheetos off the keyboard (or at least most of them).

        It would have been better to find out earlier, though. My 2 cents says Simone Biles does the all-around (if she gets her location back) and the event finals.

        Long ago and far away in a different sport, we have the example of Steve Sax who in a case of the yips became unable to throw from second to first, but alas (since he was a Dodger) he sorted it out.

        • Rugger9 says:

          Biles is not doing the all-around (Jordan Carey moves in) but Sunisa Lee and Carey are both capable of medalling.

          And, since Piers Morgan is bored, he decided to weigh in using his standard blowhard rhetoric. It’s not like he was an elite athlete or anything, just a hack with a pen.

        • earlofhuntingdon says:

          Thankfully, many have supported Biles in her decision, especially talented gymnasts and divers, who know what it means to get the yips – to lose your spatial awareness or muscle memory. Moves that were once fluid and well-timed become mistimed and off-balance. Given the unprecedented and aggressive moves Biles executes, having the yips means risking serious permanent injury. Imagine the other professions – pilots, martial artists, climbers – for whom the problem would be debilitating.

          Biles did the courageious thing. The timing sucks, but mostly for her. Disappointed bookmakers, corporate sponsors, coaches, and fans should comfort themselves with the spiel they give those harmed their their actions – shit happens, get used to it.

    • FL Resister says:

      “Political gain” and “security state power” are the reasons, according to this joker, for holding an official and comprehensive inquiry into the violent and deadly assault on our nation’s Capitol, January 6, 2021.

      ‘Well yes Glenn, Republicans look very bad in these hearings. And Kevin McCarthy is tripping over his ripped out appendage right now.’

      The Republicans are definitively on the wrong side of this matter, and it will be televised.

      ‘As far as “security state” goes Glenn, we all like order around our Houses of Congress, particularly when both are in session certifying a U.S. presidential election.

      I think Adam Schiff said they’re going to straight to subpoena and DOJ granted “unrestricted testimony” “The extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress…”

    • skua says:

      Whilst I have memories of bmaz writing that this won’t get to its destination, it is kinda thrillin’ seeing it get rolling on the runway.

    • harpie says:

      …but…(you knew there must be a “but”, right?)
      10:02 PM · Jul 27, 2021

      One quick—but important—procedural note: That DOJ has refused to certify that Rep. Brooks was acting within the scope of his employment isn’t conclusive.

      Under 28 U.S.C. § 2679(d)(3), Brooks can now petition the court to make that determination *itself*:

      DOJ’s analysis here is quite persuasive, and sure *ought* to persuade any court considering such a motion.

      My point is only that DOJ’s refusal is not the end of the road for the question of whether the Westfall Act applies to these claims; there’s likely more litigation ahead.

    • harpie says:


      Unpacking the DOJ Letters: No “Executive Privilege” for Trump-Era Witnesses on 2020 Election Machinations
      Andy Wright July 27, 2021

      […] the Department of Justice has now informed Trump administration witnesses that it does not support an assertion of executive privilege — in its presidential communications” and “deliberative process” components — on matters related to this nucleus of facts. As a result, the department has advised the witnesses that they may provide “unrestricted testimony.” (Update: the Department’s letters are now publicly available. [link])

      Those officials are: Jeffrey A. Rosen, Richard P. Donoghue, Patrick Hovakimian, Byuang J. Pak, Bobby L. Christine, and Jeffrey B. Clark

      • harpie says:

        […] This position by the department also raises interesting questions about whether executive branch immunity will shield those involved in these issues from other potential legal liabilities. If the Department of Justice has concluded that White House officials who contacted the department seeking its involvement in the election controversy were acting in a personal capacity, it could have profound effects in related litigation (such as the civil lawsuit brought by Capitol Police officers against President Trump and one by Rep. Eric Swalwell (D-CA) against President Trump and Rep. Mo Brooks (R-AL) and others). […]

  7. TooLoose LeTruck says:

    Much to my frustration, I came the conclusion quite some time ago that Trump himself would never face criminal charges for anything he did while in office, no matter how bad…

    It all seems just too politically charged…

    But I can see more than a few of the people he surrounded himself with… fine, upstanding individuals like Flynn, Rudy, Alex Jones and Roger Stone… and maybe even some elected Republicans… eventually ending up charged for their involvement with Jan 6 and/or the Big Lie… and all the better now with IMPOTUS no longer in a position to issue pardons like a Pez dispenser spitting out Tic-tacs…

    However, some of the civil suits that seem to hover endlessly around Donnie, much like flies around fresh manure on a hot summer day, just might eventually hit home and score, and then Trump could end up financially hobbled the rest of his days…

    One can hope…

    And no, IANAL, don’t pretend to be one, and while I would be delighted to see Trump in jail I sadly doubt it will ever happen…

    • MB says:

      If Trump were somehow magically stripped of his current cult-leader powers, that might be enough. If he were forced to walk the earth as a “free man”, and everywhere he went he would have no followers and would be reviled by nearly everybody he encountered…well I’m dreaming, I know!

      He might have to find his version of Elba. Hmm…maybe Guantanamo – he could turn it into a resort like Pablo Escobar did on his fortress in Colombia. (He was such a dominating figure that he “self-imprisoned” there).

      • TooLoose LeTruck says:

        I’m looking forward to video footage of him paddling from room to room in a kayak, down at Mar a Lago…

        Global climate change is a hoax, ya know…

  8. Joe says:

    “We don’t, yet, have evidence that Trump agreed with any of the co-conspirators already charged. But we are within two degrees of having that, working through either Rudy Giuliani or Roger Stone, which would make Trump a co-conspirator with all the others.”

    Part of me is finding it difficult to believe that Stone or Rudy, as crazy/craven and desperate as either would be, would promise something to an armed and dangerous militia and then leave them out to dry when it failed. While I agree on the loose conspiracy, I can quite as easily see the Oathkeepers et al deciding to do this based on the information and conspiracies that were already out there, and that they consumed daily.

  9. CCM says:

    My view of 1/6 is it appeared well coordinated. Trump gave a rally, he knew the attendees were headed to the capitol, and said he was going as well. The rioters uniformly brought “non-lethal” weapons, protective gear. None seemed to have firearms. They seemed to know the goal was to stop the vote. Who in Trump-world has ties to Proud boys? Roger Stone.

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