Brady Knowlton’s Lawyer Suggests There Were No Victims on January 6

“We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

Judge Randolph Moss just held a very thorough hearing for one of the first challenges to DOJ’s use of obstruction to charge felonies against January 6 defendants, which I live-tweeted here. Knowlton’s lawyer Ronald Sullivan started by making the argument in their brief — which is that the January 6 vote count doesn’t count as an official proceeding the obstruction of which would be a felony and even if it does, Knowlton had no way of knowing that it did. James Pearce, arguing for the government, laid out why the vote count is an official proceeding and would even qualify under the more circumscribed definition Knowlton adopted.

Along the way, Judge Moss asked a lot of questions that make it clear he understands how complex this question is — and even the possible unintended consequences. He wanted to know what distinguishes events on January 6 from protestors who interrupt a Congressional hearing. He wants a sober answer to the question, what distinguishes January 6 rioters from protests against Brett Kavanaugh (which DOJ bolloxed last week). Moss even suggested that, procedurally, the government should attempt to get the inevitable Supreme Court review before it creates double jeopardy problems with charging the most serious defendants with something like insurrection or seditious conspiracy.

For well over an hour, this was the hearing I’ve been expecting since DOJ first rolled out this unprecedented use of the obstruction statute months ago. This is a hard question, and I’m not sure DOJ has made its case.

And then Knowlton attorney Brent Mayr stood up to rebut. Eventually, he got around to arguing — in a challenge that says his client, who apparently is studying law, could not understand that interrupting the vote count would be felony obstruction — that they shouldn’t use the lay definition of “official proceeding,” but instead use a narrower legal one that treats only judicial proceedings as official proceedings. That is, he argues Knowlton couldn’t know this was a crime, even while insisting that’s true by applying a non-obvious legal definition he wants to use for what Knowlton did.

Crazier still, Mayr tried to distinguish the kinds of proceedings one can obstruct and those one cannot based on whether people risk harm based on the outcome. He explained that the hearing before Moss was obviously an official proceeding because Knowlton and co-defendant Patrick Montgomery’s liberty was at stake.

Mayr: Not abt formality. Not abt seriousness. What it’s about is consequence of proceeding. This makes it clear easy way to understand. At very core, it affects these two gentlemen we see on screen.

Effectively, Mayr argued that there were no victims on January 6 — that had the attempt to obstruct the vote count on January 6 succeeded, there would be no victim, or even that there were no victims from what happened on January 6.

An insurrectionist’s lawyer claimed there were no victims on January 6 nor could be were the attempt to prevent the certification of the 2020 Presidential election successful.

He doesn’t think that Joe Biden, the lawful winner of the 2020 Presidential election, would be harmed if he was not certified the winner after winning the Presidential election.

He doesn’t think that Kamala Harris, who was present that day, would be victimized if she never got sworn in as Vice President.

He doesn’t think that Biden’s 81 million voters would suffer any harm if their votes were nullified.

Crazier still, Mayr doesn’t think anyone was victimized by what happened that day, by the people swarming the hallways threatening to assassinate Mike Pence and Nancy Pelosi while people hid under tables. Mayr doesn’t think the four cops who have taken their own lives were victims of the events of January 6.

He doesn’t think that his client, who wanted his candidate to remain in power even after losing an election, and “came here for change,” victimized the 81 million voters who voted for the successful candidate.

DOJ has, in my opinion, not done enough to explain how the intimidation inherent to the entire event proves its corrupt intent. Whether Congress counted as the jury or the witnesses here — or both — not only were they intimidated, not only were they all chased away under threat of physical harm, but that intimidation worked so well that some number of Republicans voted against impeachment out of fear arising out of the events of January 6. These people took our democracy hostage for several hours on January 6, and Brent Mayer believes there were no victims as a result.

As it happens, though, Judge Moss has already spoken about the lasting harm of this event. In the Paul Hodgkins sentencing, Moss described how both Americans and people around the world can no longer be sure of the peaceful transfer of power. That harms all Americans, and the notion of democracy itself.

And Brady Knowlton’s lawyer doesn’t think that’s a real harm.

Update: Fixed the spelling of Pearce’s name.

32 replies
    • Eureka says:

      ** mic drop**

      Also from a pragmatic pov (what did they do, how did they plan) they understood it to be an official proceeding (which they wanted to disrupt/ delay/ terminate, and which they were taught all about by their thought leaders — how many of them knew about 1/6 beforehand) in every colloquial sense so I am not compelled by some of this defense legal hokum and DOJ has plenty of material from which to work with to do better. And it doesn’t get much more ‘colloquial’ than StopTheSteal. How would they “stop” it outside of official proceedings (IKR- civil war, blood in sthe streets, like they said). Those are the contrasts set up in their discourse and planning/action spaces, that’s their dialectic: win/take-over by “official” routes, or do so by the decidedly not “official proceeding” of violent war. We see how that resolved into the insurrection. [This bivalent is also, btw, part of why Trump and allies keep propagandizing the idea that 1/6 was “peaceful”: bivalent poles conceptually travel together, and only war is permitted “violence”. Consider black (protest) and white (protest) as another relevant polar pair. It also relates to why 1/6 planners/actors might think they could plausibly deny mixed messaging (goading with metaphors of war combined with calls for peace) while pulling off violence.]

      All the pre-election wargamers and Trumpers alike were laser-focused on 1/6 as the last stand before the inauguration for Trump to somehow maintain power. This was amply documented prospectively, as was the notion that Pence would not break on 1/6 and would do his Constitutional duty [I’m recalling even David Frum in The Atlantic ca Sept. 2020 saying this about Pence, in summary of some election integrity exercises (such that it seemed sourced to Pence’s camp)]. This matters because team Trump planning adjusted accordingly (with multiple other prongs of attack failing in real time), focused on intimidating Pence et al. and at least delaying the vote count (perhaps until they could get Pence whisked offsite, as he had worried, or any number of other schemes).* It’s far from a digression to revisit the (unfortunately uncharged) organizers’/peers’ relentless language, the ecosystems from which this “protest” emerged.

      Several elements of context separate 1/6 from e.g. Kavanaugh besides citizen action in DC for the respective proceedings.

      Ali Alexander (and possibly others) said they’d have to “break the system” and look at them go, like a certain famous greymailing chef; or Trumpian (vexatious) “litigation”; or post-election “audits”; or… “protest”. I am sick of this trend where they use ‘same words (those of or imbued with rights)/different thing’ to destroy our country.

      They are even replicating the idea of “official” American proceedings to this day by how they talk about Trump and his “cabinet” and events at MaL, all of the ‘from the desk of’ crap. Come on.

      We are a country entrained on the legitimacy of official proceedings, even — especially — the most susceptible, vulnerable among us.

      *Rudy’s message for Tuberville to stall for time pairs nicely with Ali Alexander’s 1/6 ca. 11:36 am post, including in part: “Sources are telling me we are gonna try to use 2 hours per state”. Meant to add this to one of harpie’s comments but can’t find it rn.

      • Eureka says:

        (1) Screenshot of the 1/6 Alexander tweet (see the top reply, included, re House/Senate may want to flee given how things are going), can’t find archive link rn:

        (2) Here’s Frum on July 31, 2020 in plain language:

        Where the System May Break
        A war-game exercise simulating the 2020 election unmasked some key vulnerabilities.

        Nor can Trump somehow cling to power after Inauguration Day once the electoral vote is certified against him. If the Electoral College certifies Joe Biden the winner when its votes are counted in Washington, D.C., on January 6, then at noon on January 20, Donald Trump ceases to be president. His signature loses all legal effect, the officer carrying the nuclear football walks away, the chairman of the Joint Chiefs of Staff does not take his call.


        The meeting of electors in Washington, D.C.

        This normally ceremonial event is scheduled for January 6, 2021. It will be presided over by the incumbent vice president, Mike Pence. We tested what might happen in a close result—one in which the Republicans hold on to the Senate and Trump falls short of an Electoral College majority by just a single state’s vote—if Pence somehow tried to insist that the pro-Trump slate of electors was valid.

        This did not usually work. Pence was a weak link in the Trump team, too concerned about his own future and his own reputation to go all-out in the way the core Trump team wanted.

        Generally, once we got past the December 8 date, the Trump team’s options for keeping power dwindled to zero. What was left then was scorched-earth self-enrichment, self-protection, and spite.

        I may have had the date wrong or been thinking of a different article, but the point stands: these were the cards and they were on the table for awhile.

        • Eureka says:

          I appreciate your kind comment, JVO (I nearly left that rant unshared but the whole let’s-end-American-democracy movement gets to us all at times).

  1. Duke says:

    For more than I care admit, I have this ear worm going through my simple mind. How come Republicans are the victims?

    It is our votes and the integrity of our election that they are impugning with slanderous, professionally organized operations. How is this legal criminally? How is this legal civilly?

    These asshats and clowns are just the front facing irritant which gets everyone distracted. This is and has been well financed by big money And small money, by foreign and domestic enemies of our democratic republic.

    These people are throwing absolute horseshit against the wall and can get a hearing before judges while we cannot seem to find any avenues besides the nonchalant griping liberal lawyer/bureaucrat/talking head.

    Is there really nothing to do within the approved systems to hold these people accountable?

    • Rugger9 says:

      The GQP isn’t, but they scream loudly to “work the refs” and push the line farther in their favor. I don’t think Mayr did his client any favors trying to minimize this threat.

      OT, the new law being pushed in Nassau County, NY trying to create police as a “protected class” where they can litigate about being harassed re-confirms to me just how much they have evolved into whiny snowflakes. No internal discipline, incessant demands for more power and more mulligans and the rest grate really hard on my proverbial ears. With power comes responsibility and obligations. These bozos just want their badges and guns and to be able to shoot whoever they want with complete impunity.

      • Joe Stewart says:

        And complete immunity. This qualified immunity stuff is for the birds. White men with guns need complete immunity – impunity isn’t enough. :)

  2. Spencer Dawkins says:

    Because “reasons”, I don’t follow Twitter, and only see tweets and threads that people post pointers to elsewhere. Dr. Wheeler, thank you for including a pointer your live-blog for this hearing.

    I’m especially enjoying

    “[This ain’t gonna work the way he wants.”,
    “[Knowlton’s argument was going great until this guy got up]”, and
    “[Apparently associate has missed last 50 years of Congress]”

    much more, seeing them in context.

  3. earlofhuntingdon says:

    On the other hand, Glenn Greenwald can always find a rightwing victim to put on his pedestal – and no end of real journalists to hatemonger against. (EW’s acronym for GG is a short form of Area Substacker: ASS.)

    ASS’s latest propaganda is to attack those criticizing the fascistic Tucker Carlson for his love fest this week with Hungary’s fascist leader. (Carlson’s late to the table. The European right, including Brexit’s top proponents, has been in Oban’s corner for years.) ASS’s technique is to attack a method the USG has used in the past, and then assume that the USG is using it in this instance. Happily for ASS, but not his followers, this avoids assessing whether his assumption is true. Straightforward propaganda 101. Journalism my ASS.

  4. nord dakota says:

    I had a professor once in graduate school (math) who, as long as I stayed really focused and had a lot of coffee, I could follow except that it would be like climbing into high altitudes where you start realizing you don’t have all the oxygen you would like to keep up with the leader. Luckily these were one hour classes, we’d get done right before my brain would have begun to vaporize.

    These posts are sort of like that, so sometimes I focus on a paragraph. I was curious about the arguments for Count Ten and went to the arguments. I thought I might find something worth pondering. I’m by NO means a lawyer, but in connection with stuff in my own life I have read state and federal appeals decisions (and the briefs accompanying them). And a couple of times when I have had to represent myself in civil proceedings I managed to beat the lawyers (including a federal proceeding, although when I thwarted summary judgment because the school district’s lawyer was an idiot I realized I needed a real lawyer to continue, and $25k later I realized I could not afford to risk $100k plus).

    I mean, really? Pretend that the relevant part of a statutory definition doesn’t exist? And nobody will look it up to check in case they actually forgot? Or was there real lawyering here that I’m missing?

    • nord dakota says:

      I started to edit, then I couldn’t.
      So I read the next paragraph.
      Assuming there really is a serious question about how much you can interfere with Congress before you violate the statute, then shouldn’t the lawyer have gone into that subject? Framed an area of actual controversy?

      • emptywheel says:

        Moss essentially asked for briefing on that. he asked specifically if chasing Members of COngress who were conducting some kind of hearing out of the room would count and Sullivan agreed it would.

    • bmaz says:

      That is not a good comment. Equating a criminal defense atty with a convicted murderer is asinine. While you may not agree with a given argument made in open proceedings, equating that with Chauvin himself is reprehensible.

  5. gmoke says:

    Is Ali Alexander still at large? Has he even been charged with a crime yet? Or even asked to come in for a chat with the FBI?

  6. Eureka says:

    Will Kavanaugh be recusing himself from any SCOTUS review? We know he is quite sensitive when his devil’s triangle gets touched.

  7. skua says:

    “… Moss described how both Americans and people around the world can no longer be sure of the peaceful transfer of power. That harms all Americans, and the notion of democracy itself.”

    Taking this example and applying Theory to it, I have the question, “Is this an abstract harm?”

    If it is considered an abstract harm then does something like “we shouldn’t force public officials to consider abstract harms” apply?

    For me it does appear to be an abstract harm, and forcing public officials to consider the harm would in my view progress the nation.

    But I’m willing to be schooled.

  8. Rusty Austin says:

    I’m having a hard time wrapping my head around why anyone thinks this is a complex issue. It’s not. A rabid mob attacked the Capitol with the intention of stopping the legitimate transfer of power because they were unhappy with the outcome of the election. The mob was even allowed to erect a functioning gallows on the National Mall. They wanted to assassinate the Vice President and the Speaker of the House. People were killed. Police Officers that were there are clearly suffering from PTSD and a few have committed suicide. And DOJ is using laws that are designed to prosecute someone that unfurls a BLM banner from the gallery during a regular session of Congress then purposely gets arrested. The mob will be back, absent 20 to life sentences. It’s infuriating, watching these traitors get away with treason.

    • bmaz says:

      You are full of it, and do not have a clue what you are talking about. You read a bunch of things from the press and internet and think every fact applies to every defendant. That is not how it works in the law, every element, of every crime has to be proved with specificity as to every defendant. And life sentences are not available in the first place. Your repeated comments of this nature are a disservice to this community, are ill informed beyond belief and will not be accepted in the future. You want to know what is “infuriating”? Your ignorance of law, how it works, and ignorant assertion that these defendants are “traitors” or have committed “treason”. This is not acceptable commentary here.

      • The Old Redneck says:

        That’s the key distinction people may be missing. The issue is not what the entire crowd did. The issue is whether the charges brought against those defendants match their specific conduct.

      • Robert N Eckert says:

        I do not understand why you call it “ignorant” to characterize this behavior as treasonous. They are being prosecuted as if they were obstructing some Congressional hearing on, say, a controversial clean-air-regulation. In fact they were obstructing the very procedure which permits the Republic to continue to exist. For “elections” to be decided not by operation of law but by the emotions of a mob would be the abolition of our form of government. This was more like the British taking Washington with the aim of ending our government than like any mere protest march. Since they were not foreigners, perhaps a better analogy would be Jubal Early’s feints toward Washington, which like this attempt failed, but the January 6 insurrectionists were in a sense more treasonous than the Confederates, who did not seek to end the Republic altogether, only to deprive it of jurisdiction over a large part of its territory.

        • bmaz says:

          Yeah? Then go research what the actual legal definition of “treason” is, try to figure out what entity we were formally at war with, that these clucks were conspiring with, and then get back to me. This has been, repeatedly and relentlessly, covered here. I cannot help it you cannot grok it. Do not post this garbage here.

        • Robert N Eckert says:

          Whether the charge is formally captioned as “treason” or “sedition” is hardly the issue here. The legal definition of “treason” speaks of “enemies” of the United States, not of any formal state of war, and the Confederates were certainly called “traitors” at least in the vernacular, despite the absence of a declaration of war. An attack on the seat of government to destroy our system of government should have been repelled by armed force, as was eventually done with the British and Confederates, but was not practical here because of complicity in the treason/sedition/whatever you prefer to call it, by high officials who have not charge with anything. The Confederates were not prosecuted because of mass pardons, which has been regarded as a tragic error, but is certainly less bad than asserting that the legal system is impotent to take any cognizance of an existential threat to the very rule of law. The best analogy perhaps is the weak prosecution of the Beer Hall putschists, which guaranteed that they would make further attempts until successful. This all bodes very ill for the chances that America will survive this (in the form of a united country under a democratic republic) any longer than Weimar did.

        • Rayne says:

          No. Not going to happen here. This site has been through this particular argument too many times, and with persons who fail to use the law to bolster their case. The central condition of 18 USC 2381 Treason is war and there is no war; there are only persons intent on undermining the Constitution and the government established by it.

          If we’re to preserve this nation — one which its founders deliberately established as a rejection of monarchy’s autocratic power bound in one man by creating a government of laws, and not of men — we follow those laws. The insurrectionists have been and will be charged according to the laws which they have violated, not the ones you personally insist must be prosecuted.

          We’re done with this line of interrogation.

        • P J Evans says:

          They might be seditious – but that charge should be against the leaders, who should reasonably have known what they were doing.

        • Rayne says:

          Treason has a specific legal meaning based on its historic origins related to traditional kinetic warfare; it requires a formal declaration of war and with it an identified enemy. Please stop using the term “treason” or “treasonous” unless you can provide evidence which fits the narrow legal definition of that term. See: Chapter 115, Title 18, U.S. Code section 2381 — to levy war means there has been a formal declaration by a organized entity and there has not been one. This site has been over this explanation numerous times over the last several years; it’s annoying to have to rehash it again and again.

          Should the concept of treason be revisited for contemporary hybrid warfare? Perhaps, but then a recognized state of war must still exist.

          We have ample existing and appropriately fitting laws under which to charge the insurrectionists including U.S. Code Chapter 19 (Includes conspiracy) and Chapter 73 (includes obstruction); charges under Chapter 115 (includes sedition) are still possible. Take a seat and chill out because this is one of if not the biggest conspiracy investigation and it will simply take time to get the right individuals to roll on other key defendants to indict, prosecute successfully, and convict.

          I will part with bmaz when it comes to the use of the words “traitor” or “traitorous” because neither are specific legal terms and both are accurate describing individuals and actions which betray their oaths if sworn as law enforcement, elected officials, or military, and the Constitution as citizens. The persons who incited, planned, and participated in the January 6 insurrection to undermine its democratic operations betrayed this country — they are traitors.

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