Dabney Friedrich Rejects Challenge to January 6 Obstruction Application

I have written — a lot — about the application of obstruction (18 USC 1512(c)(2)) at the heart of the way DOJ has approached the January 6 prosecution. (July; July; August; August; September; September; December; December)

The government has, thus far, chosen not to charge January 6ers with Seditious Conspiracy (18 USC 2384), a crime which carries a sentence of 20 years but requires the government show specific intent to overthrow the government. DOJ has a history of spectacular failure when trying to charge white terrorists with sedition, in part because the bar to proving the elements of the offense is quite high, and in part because white terrorists have long known how to package their extremism in heroic terms. Sedition would be particularly hard to prove with regards to January 6, since it was an attack launched by one branch of government on another.

Instead, the government has charged those Jan6ers against whom they had solid evidence of a specific intent to stop the vote certification with obstruction of an official proceeding under 18 USC 1512(c)(2). Like sedition, that crime can carry a 20 year sentence. But the base offense carries a range closer to 18 months (or the eight months to which Paul Hodgkins was sentenced). To get to stiffer sentences, DOJ would have to demonstrate any of a number of exacerbating behaviors, most notably, the threat of violence or an attempt to assassinate someone, but also destruction of evidence. That’s how DOJ got to very different guideline ranges for five men, all of whom pled guilty to the same obstruction offense:

That is, using obstruction offers the possibility of the same sentence as sedition for the more serious perpetrators, without the same political blowback and legal risk, while giving DOJ more flexibility in punishing different kinds of actions that day as felonies.

Only, using obstruction in this fashion is without precedent, in part because no one has ever tried to prevent the vote certification by violently attacking the Capitol before.

Because of that, January 6 defense attorneys have launched a concerted legal attack on the application, variously claiming:

  • This application of obstruction can’t be applied to the vote certification because 18 USC 1512(c)(2) is limited to those proceedings for which there is some kind investigation and adjudication of evidence (like an impeachment)
  • If DOJ wanted to charge obstruction, they should have used some other part of the law (that didn’t carry a potential 20 year sentence)
  • A recent Supreme Court ruling in Yates v United States that ruled fish could not be evidence of obstruction, which pivoted largely on grammar and conjunctions, would apply to using a mob to stop a vote certification
  • January 6 rioters had no way of knowing that the vote certification counted as an official proceeding the obstruction of which would carry a felony charge
  • The same confusion about what “corruptly” means that saved John Poindexter exists here

Yesterday, Judge Dabney Friedrich denied Ronnie Sandlin and Nate DeGrave’s motion to dismiss their conspiracy to obstruct and obstruction charges. The opinion is succinct, step-by-step dismissal of each of those challenges (I’ve put the bullets above in the order she addresses them to make it easier to read along).

There are three other major efforts (by Brady Knowlton before Randolph Moss, by Proud Boy Ethan Nordean before Tim Kelly, by Thomas Caldwell before Amit Mehta in the Oath Keeper case) and a slew of other more minor efforts to overturn this application. So the viability of this application of obstruction is by no means a done deal. If any of those other judges ruled against the government, it would set off interlocutory appeals that could upend this decision.

But one judge, at least, has now sanctioned DOJ’s novel application, at least as used with these two defendants.

It’s significant that Friedrich has ruled against this motion (she’s facing a similar one from 3%er Guy Reffitt), for a number of reasons. That’s true, for one, because she’s one of four Trump appointees in the DC District. While all four are (unlike some Trump appointees on the DC Circuit or Supreme Court) quite serious judges, Friedrich is, with Trevor McFadden, one of the judges who might be more sympathetic to the Trump-supporting defendants before her.

Friedrich had also raised questions as to why DOJ hadn’t used a different clause of the obstruction statute, 1512(d)(1) that might also apply to January 6, but which carries just a three year sentence. That makes her sustained treatment of how the law works — citing a Scalia opinion that defendants have raised repeatedly — of particular interest, because it’s the question she seemed to have the most doubt about.

Indeed, § 1512(c)(2) is more akin to the omnibus clause in 18 U.S.C. § 15035 than it is to “tangible object” in § 1519. The specific provisions in § 1503 cover actions related to jurors and court officers and the omnibus clause “serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice.” As such, it is “far more general in scope.” United States v. Aguilar, 515 U.S. 593, 598 (1995). The ejusdem generus canon does not apply to limit § 1503’s omnibus clause to acts directed at jurors and court officers, because the clause “is not a general or collective term following a list of specific items.” Aguilar, 515 U.S. at 615 (Scalia, J., concurring in part and dissenting in part) (emphasis omitted). Instead, “it is one of the several distinct and independent prohibitions contained in § 1503 that share only the word ‘Whoever,’ which begins the statute, and the penalty provision that ends it.” Id. So too here.


Nor does the plain text of § 1512(c)(2) create “intolerable” surplusage. Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). To be sure, interpreting subsection (c)(2) to include any and all obstructive, impeding, or influencing acts creates substantial overlap with the rest of § 1512, and with other provisions in Chapter 73. But the Court does not find that it creates intolerable overlap.

To start, a broad interpretation of § 1512(c)(2) does not entirely subsume numerous provisions with the chapter. For instance, § 1512(a)(1)(C), (a)(2)(C), (b)(3), and (d)(2)–(4) proscribe conduct unrelated to an “official proceeding.” Sections 1503 and 1505 prohibit obstructive acts related to the “due administration of justice” and congressional inquiries or investigations, respectively, which may have no relation to an official proceeding. Section 1513, meanwhile, prohibits retaliatory conduct that occurs after a person participates in an official proceeding. Section 1512(c)(2), on the other hand, concerns obstructive conduct that occurs either before or during such proceedings.

It is true that killing a witness to prevent his testimony at an official proceeding, see § 1512(a)(1)(A), or intimidating a person so that he withholds a record from the proceeding, see § 1512(b)(2)(A), among others, could be charged under § 1512(c)(2). But the fact that there is overlap between § 1512(c)(2) and the rest of § 1512, or other provisions in Chapter 73, is hardly remarkable; “[i]t is not unusual for a particular act to violate more than one criminal statute, and in such situations the Government may proceed under any statute that applies.” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (internal citations omitted); see also Loughrin, 573 U.S. at 358 n.4.

In the Reffitt case, Friedrich had made DOJ provide a Bill of Particulars to explain how they understand Reffitt to have obstructed the vote certification, which was a different approach than other judges have taken. Moss and Mehta, for example, seem most concerned about limiting principles that distinguish obstruction as charged here from otherwise protected political speech (which also might give them a different basis to reject this application, particularly given that Donovan Crowl attorney Carmen Hernandez has focused on the First Amendment in the Oath Keeper case).

One other factor that makes Friedrich’s quicker decision on this issue (this challenge came before her after all the others I’ve listed as major above) interesting is that her spouse, Matthew Friedrich, was an Enron prosecutor. And — as Judge Friedrich’s opinion makes clear — Congress passed this specific clause in response to lessons learned in Enron.

In 2002, following the collapse of Enron, Congress enacted a new obstruction provision in Section 1102 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 807: “Tampering with a record or otherwise impeding an official proceeding.” It was codified as subsection (c) of a pre-existing statute, 18 U.S.C. § 1512. Section 1512(c), in full, states:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c)(2).


As noted, Congress enacted § 1512(c) as part of the Sarbanes-Oxley Act of 2002 following “Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.” Yates, 574 U.S. at 535–36. That Congress acted due to concerns about document destruction and the integrity of investigations of corporate criminality does not define the statute’s scope. Statutes often reach beyond the principal evil that animated them. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).

She has personal reason to know this history and the import of the statute well.

Friedrich looked to the Enron history to map how “corruptly” might apply in this case, too.

In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted).


The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.

All in all, this was a no-nonsense opinion that didn’t rely on distinct aspects of this case, such as that Sandlin encouraged others in the Senate to look for and seize laptops and papers, the kind of destruction of evidence that makes the question easier.

Her opinion laid out just one limiting factor, though given how DOJ has charged conspiracy to obstruct the vote certification in all the conspiracy cases, an important one. This case was easy, Friedrich suggests, because so much of what else Sandlin and DeGrave are accused was obviously illegal (even moreso than Reffitt, who didn’t enter the building and whose resistance to cops was not charged as assault).

The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line. It alleges that the defendants obstructed and impeded the congressional proceeding to certify the election results. Superseding Indictment ¶ 37. And it further alleges that the defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber. Id. ¶¶ 15-33. This alleged conduct is both “independently criminal,” North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) and “inherently malign,” Arthur Andersen, 544 U.S. at 704. And it was allegedly done with the intent to obstruct the congressional proceeding, see Friske, 640 F.3d at 1291. Assuming that the government can meet its burden at trial, which is appropriate to assume for purposes of this motion, the defendants were sufficiently on notice that they corruptly obstructed, or attempted to obstruct, an official proceeding under § 1512(c)(2).

The Court recognizes that other cases, such as those involving lawful means, see, e.g., Arthur Andersen, 544 U.S. at 703, will present closer questions.14 But the Court need not decide here what constitutes the outer contours of a “corrupt purpose.” Because the indictment alleges that the defendants used obvious criminal means with the intent to obstruct an official proceeding, their conduct falls squarely within the core coverage of “corruptly” as used in § 1512(c)(2). See Edwards, 869 F.3d at 502 (“While the corrupt-persuasion element might raise vagueness questions at the margins, the wrongdoing alleged here falls comfortably within the ambit of the statute.”). The Court will address further refinements of the definition of “corruptly” with jury instructions.

14 As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.

Whether Sandlin and DeGrave corruptly attempted to halt the vote count is easy, Friedrich suggests, because they are accused of so much else that was clearly illegal, including both trespassing and assaulting cops. Whether this application of obstruction holds for overt acts that are not, themselves illegal, will be a much harder question, but it was not one before her in this case.

This question is already before other judges though, significantly (for DOJ’s efforts to hold what I’ve termed, “organizer inciters” accountable) in the 3%er SoCal conspiracy. And, as the AUSA dealing with the legal application of all this, James Pearce, responded in yet another challenge to this application of obstruction, it goes to the core of whether this application of obstruction could be used with the former President.

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

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

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

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

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

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

If Trump honestly believed that Mike Pence could blow off the vote certification when he ordered him to do so on January 6, this application of obstruction would be far more problematic, as even DOJ’s expert on this application concedes. But if Trump knew the demand violated the law (or the Constitution), then it would meet the definition of “corruptly” under this application of the statute.

The entire course of the January 6 prosecution has been waiting on these decisions about DOJ’s use of obstruction. And while Friedrich’s opinion does not decide the issue, DOJ has notched one significant opinion in support for the approach they’re using. If a few other judges match her opinion, we could begin to see a wave of plea deals to felony convictions.

Update: Here’s the order Friedrich issued in Reffitt’s case, deferring the 1512 question until trial unless he gives her a good reason not to:

MINUTE ORDER. Before the Court is the defendant’s [38] Motion to Dismiss Count Two of the Indictment on multiple grounds, including that Count Two is unconstitutionally vague as applied. On a motion to dismiss, the Court “is limited to reviewing the face of the indictment,” United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009), and it must assume the truth of the indictment’s factual allegations, United States v. Bowdoin , 770 F. Supp. 2d 142, 149 (D.D.C. 2011). The question for the Court at this stage of the proceedings is “whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.” Id. at 146.

A criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489, 497 (1982). And “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy , 417 U.S. 733, 756 (1974). Numerous courts have rejected vagueness challenges the word corruptly as used in obstruction statutes. See, e.g.United States v. Shotts , 145 F.3d 1289, 1300 (11th Cir. 1998); United States v. Edwards, 869 F.3d 490, 50102 (7th Cir. 2017); see also Mem. Op. issued December 10, 2021 in United States v. Sandlin , 21-cr-88, Dkt. 63 (holding that § 1512(c)(2) is not unconstitutionally vague as applied to defendants who allegedly forcibly breached the Capitol and assaulted Capitol police officers with the intent to impede the official proceeding).

In contrast to the indictment at issue in Sandlin, the Indictment in this case does not allege any facts in support of the § 1512(c)(2) charge. Count Two merely alleges that Reffitt “attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.” [34] Second Superseding Indictment at 2. The government proffers in its brief, however, that “[w]hile at the Capitol, the defendant, armed with his handgun in a holster on his waist, confronted U.S. Capitol Police officers on the west side stairs, just north of the temporary scaffolding. The defendant charged at the officers, who unsuccessfully tried to repel him with two different types of less-than-lethal projectiles before successfully halting his advances with pepper spray. The defendant encouraged other rioters to charge forward at the officers, which they did. The officers were forced to fall back, the Capitol was invaded.” [40] Gov’t Opp’n at 1. Reffitt disputes this in his briefing. [38] Def.’s Mot. to Dismiss at 13-15.

Because it is unclear, based on the indictment alone, what actions Reffitt allegedly engaged in to obstruct and impede the official proceeding, the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him. For this reason, the Court is inclined to defer ruling on his vagueness challenge until the facts have been established at trial and the jury has had an opportunity to consider that evidence. See United States v. Kettles , No. CR 3:16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (finding that pretrial as-applied challenge to § 1591(a) was premature because “[t]he court cannot determine the nature and extent of [defendant’s] conduct in this case and, therefore, also cannot determine whether § 1591(a) is void for vagueness as applied to that conduct”); United States v. Raniere , 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019).

Accordingly, the defendant is directed to file, on or before December 15, 2021, a supplemental brief of no more than 5 pages in length explaining why the Court should not defer ruling on his motion until the evidence has been presented at trial. Upon review of the defendant’s supplemental brief, the Court will consider whether a response from the government is necessary.

120 replies
  1. Kent says:

    It certainly seems that Trump’s efforts to impede and influence the federal vote count/certification in states like Georgia violate 18 U.S.C. § 1512(c)(2). Any reason that 1512 wouldn’t apply there?

    • emptywheel says:

      No. I’ve always said the two things he did that were most obviously illegal are that and the request to Pence. But DOJ needs to have proof he knew it was wrong.

      DOJ can certainly use whatever evidence the Fulton County GJ collects in their investigation, though, so DOJ may get there. It would be even easier if Trump is charged under GA law.

      • WilliamOckham says:

        I think there’s another way to get to Trump on 18 U.S.C. § 1512(c)(2). That’s if (and this is still a big “if”) the DOJ can prove that Trump had foreknowledge that some folks were going to force their way into the Capitol. The last part of Trump’s speech went like this (emphasis added):

        And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.

        Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country.

        And I say this despite all that’s happened. The best is yet to come.

        So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.

        The Democrats are hopeless, they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.

        So let’s walk down Pennsylvania Avenue.

        He’s clearly saying that he’s trying change some votes on certification. And I doubt that the “fight” lines are enough to prove he’s talking about something other than a legitimate political protest. On the other hand, if he was aware, when he said those words, that there were folks planning on using the march as cover for a physical confrontation, there’s a much better case for obstruction (through intimidation).

        And we know the intimidation worked. As Peter Meijer has said:

        On the House floor [on Jan. 6], moments before the vote, Meijer approached a member who appeared on the verge of a breakdown. He asked his new colleague if he was okay. The member responded that he was not; that no matter his belief in the legitimacy of the election, he could no longer vote to certify the results, because he feared for his family’s safety.

        • emptywheel says:

          I think there are several.

          The Georgia call was clearly illegal.

          The statement that DOJ just had to support his conspiracy theories and he’d do the rest suggests foreknowledge.

          And depending on the timing of his and Rudy’s calls to Congress, he might be on the hook for attempting to get Pence killed.

          So there are bases for it–DOJ (with the Jan 6 Committee’s help) just needs to get there. Thankfully, Pence’s staffers seem to be quite cooperative, which helps things mightily.

        • Max404 says:

          Pence needs Trump out of the way if he has any hope of getting the nomination in 2024. Do his staffers have “enough” to hang Trump ? Asking for a friend …

        • Eureka says:


          Robert Costa:

          “But despite all of these docs and PowerPts, the most revealing thing of this period isn’t a document. It’s what he says to Pence on Jan. 5.

          At the end of the day, Trump isn’t looking to these docs to make his case. He looks to the gathering mob in the streets. (Ch. 43, “Peril”)” […thread…]
          10:15 AM · Dec 11, 2021

          “”If these people say you had the power, wouldn’t you want to?” Trump asked.

          “I wouldn’t want any one person to have that authority,” Pence said.

          “But wouldn’t it almost be cool to have that power?” Trump asked.

          “No,” Pence said.


          And I think a few angles from:

          John Eastman told Pence team Pence’s actions caused attack on Capitol, in email during riot

          might converge and knit with other facts.

          (Pence aide/chief counsel Greg Jacob’s draft editorial is linked therein, though Jacob there does try to shield 45 by saying that to the best of his knowledge, Eastman et al. ever told Trump that Eastman et al. were FOS and knew it.)

        • emptywheel says:

          I agree. The cooperation that Pence’s people are giving the Jan 6 committee may end up getting the critical evidence into DOJ’s hands.

        • earlofhuntingdon says:

          A fair bit of victim-blaming there by Eastman. “Mikey, you failed the coup by refusing to certify the vote. You forced us to further it through violence. That’s on you, bud. It was handy, though, that we already had a mob in place, because we knew you’d wimp out.”

        • Eureka says:

          Eastman’s is the Claremont-speak version of Capitol defendant and would-be revolutionary Damon Michael Beckley’s floridly animated blaming of Pence for the violence they helped to ensure:

          Ford Fischer: “I spoke to one activist who says Mike Pence caused the “situation.” He *then* mentioned that a girl was shot dead. This is the precise moment I found out about that and asked him questions about it. To be completely frank, I didn’t believe it at the time. [video]”
          7:59 PM · Jan 6, 2021

          Transcription from Beckley’s criminal complaint/arrest warrant:

          BECKLEY: Vice President Pence, my name is Damon Michael BECKLEY and I do not appreciate one bit this situation you caused here sir. All this violence and everything was 100 percent unnecessary, okay. Now we’ve got a girl that’s shot, she’s dead, laying on the
          ground in there. We’re all crying like we can’t save her and you her blood is on your hands
          Mike Pence

          UNSUB: say you saw someone get shot

          BECKLEY: they got they shot her right through the neck

          UNSUB: i heard that too but i thought it was a rumor

          BECKLEY: yeah with a service weapon

          BECKLEY: we’re not putting up with this tyrannical rule. if we got to come back here and
          start a revolution and take all of these traitors out, which is what should be done, then we
          will” (end transcription).

          Woolen suits or acrylic hats, a thug is a thug is a thug.

        • Katherine M Williams says:

          M Cohen testified that Trump never gives direct orders, he just says he wants something done (“Will no one rid me of this turbulent priest?”). In the Georgia case, however, he came awfully close to giving their Sect State a direct order “Find me X number of votes!”

          I guess intent could hinge on definition of the word “find me” rather than “give me” or something more specific.

  2. Bay State Librul says:

    —But if Trump knew the demand violated the law (or the Constitution), then it would meet the definition of “corruptly” under this application of the statute.
    For fuck’s sake, how could Trump not know?
    He took an oath to uphold the Constitution.
    He was briefed by staff that he could not screw around with the process.
    The time is always right to do what is right

    • emptywheel says:

      Tell me how you prove that with a guy whose truth claims are always self-negating?

      It’s one thing to say this in blog comments that of course this is obvious. It is obvious. But think about what it takes to prove it.

      • Bay State Librul says:

        I agree.
        It is philosophic in nature.
        Why do you have to “prove” truth?
        That’s why the law, in all its wonder, and bright flashes, comes up short
        Ask Pilate, ask the Greeks, ask the Romans.
        To this day, it drives me nutso.

        • bmaz says:

          Baloney. Mental states are established in every criminal court in the US every day, of every week, of every year. But it is a necessary element for a great many crimes, and always has been.

        • Ed Walker says:

          So what we’re talking about is “truth”. Meaning what exactly? Whatever the jury says after a judge decides that there’s enough “evidence”. So, in other words. we don’t know. We just infer. And there’s plenty from which to infer guilt. Exactly as Bay State Librul says.

        • bmaz says:

          Semantics my friend, semantics. Yes, the American court system is the worst in the world, except for all the others. But in actual courts, it still works as intended most of the time, and that is easily seen when you are in and around courts all the time.

      • matt fischer says:

        That is one of the apparent benefits of being DJT. When he arrives at a belief it is necessarily true, by fiat. Whether that belief is contradicted by the facts or by his own previously held beliefs is demonstrably immaterial to him and vast swaths of the populace, and is thus without contradiction.

    • Katherine M Williams says:

      Trump said under oath that he could not read the contract his tenants had to sign. He then said he had perfect vision. But could not read the contract. Somehow he gets away with this schizo behavior.

  3. Rita says:

    Thank you for this analysis and your overall excellent dogging of the details of the Capitol attack and events surrounding it. Because I follow your commentary, when Judge Friedrich issued this ruling, I understood the significance.

    I do have a question about your last second to the last paragraph where you posit; “If Trump honestly believed…”. The juxtaposition of Trump and honest is disconcerting. And is the standard “honest” belief or “reasonable”, or, even, “good faith” belief? Were the various memos floating around from Ellis and Eastman designed to give Trump not only a roadmap to overturn the election but also this defense? (Or is that giving too much credit for thinking ahead to the attorneys?).

    The more detail about the events culminating in Jan. 6th that becomes available, the more it seems that the question of the kind of belief that could or should be exculpatory for each level of the planners may be essential.

      • Rita says:


        Especially since he said that right after Jeff Rosen had told him that there was no facts justifying calling the election corrupt. Couple that with Bill Barr saying the same, as well as Krebs, and the 60 court decisions, it is hard to argue that Trump had a good faith belief justifying overturning the election. I have a hard time not thinking that all the frivolous lawsuits, the Mike Lindell claims, the Big Lie were just pretexts to provide the bare minimum of political cover for overturning the election.

        • earthworm says:

          if the militia people and militants were organizing in October ’20 for their Capitol Caper, as shown by their DM’s and social media posts, then they and the Trump campaign already knew Trump would not win the election, 11/3/20. Looks as though plans for the putsch were already well formed….

  4. John Paul Jones says:

    Just read through that August post and was struck by the confusion over which agency was supposed to be the lead agency. Since August, has anything come to light which would clear this up? Reading it over again, it looks very much as though the White House’s claim that DOJ was supposed to be the lead agency was at best a partial truth, i.e., the WH told others that DOJ was the lead, but told DOJ something different, thus guaranteeing confusion, and a slower than “normal” response.

    • emptywheel says:

      I think Jan 6 is collecting a great deal of information that may get to that, particularly given the conflicting stories from DOD.

      Ultimately, the DOD stories can be tested with location warrants. And if the DOD story starts to fall apart, then I think the answer will come from it.

      • earthworm says:

        “What did Trump know and when did he know it?”
        At the very time Trump was removing and or firing officials, and appointing acting ones, in the military/pentagon (early Nov 2020), I commented here, or thought I had, that these are the moves one would make if one was planning a putsch.
        It seemed so obvious to me.
        Can anyone find that comment? i looked but did not find it.

        • Alan Charbonneau says:

          Perhaps you are referring to this?

          December 5, 2020 at 8:40 pm
          relieved to know rugger9 doesn’t think DJT is setting up a war here, with us.

          December 5, 2020 at 10:37 pm
          The military won’t do it. However, between the CPB “brownshirts” and the Proud Boys there will be plenty of trouble here.

    • matt fischer says:

      In a similar vein, Generals Piatt and Flynn have been leaning heavily on the fog of war defense to obscure apparent malfeasance surrounding the response to the events of Jan 6. Likewise with other apologists for the DoD’s response and the flawed DoD IG report. Per Politico:

      “When there is a combat incident there are always multiple sides of the story. I think in this case it’s going to be challenging to get a complete picture of what happened unless you were there. It’s such a hot mess,” the DOD official said.

      It may be a challenge (for some, by intent), but per Dr. Wheeler, may we “get to that”.

        • matt fischer says:

          Most definitely. Over the last week or two Maj. General Walker and Col. Matthews have essentially been arguing that Piatt, Flynn, O’Donnell (acting DoJ IG) and Garrison (Deputy IG) are full of it ‪— that the DC National Guard had a clear plan of action for Jan 6, with fully equipped guardsmen ready to deploy, that the events of Jan 6 were precisely the kind of thing the DCNG prepares for ‪— but that Piatt and Flynn objected to DCNG deployment, that Miller, McCarthy and were nonresponsive/unreachable and/or otherwise unavailable and that all of the above were effectively derelict. Matthews, an eyewitness of key events, is bluntly claiming that the Army (especially as represented by Piatt and Flynn) is concocting a cover-up, and openly questioning whether the IG office (under O’Donnell and Garrison) are willingly playing along. Matthews has pointed out numerous obvious logical/temporal fallacies in the DoJ IG’s report, and made accusations of willful deception an perjury. It also sounds like there are more than enough eyewitnesses and contemporaneous accounts to ultimately back his claims up. Per Politico:

          “One side or the other is lying,” said Sol Wisenberg, a white collar defense attorney and former federal prosecutor. “One side or the other has committed perjury or obstructed a congressional inquiry concerning a topic of paramount importance. The Department of Justice should unquestionably be investigating this matter for possible perjury and/or obstruction charges. Something this serious cannot be left to Congress alone.”

        • P J Evans says:

          I’d certainly believe that the DC Guard had plans – they’ve seen so many marches and demonstrations since the 50s that they’d be derelict if they *didn’t* have plans.

        • matt fischer says:

          Indeed. And yet, from Matthews’ memo:

          In his sworn testimony, Flynn claims, a team under his direction of “40 officers and noncommissioned officers, immediately worked to recall the 154 D.C. National Guard personnel from their current missions, reorganize them, reacquaint them, and begin to redeploy them to the Capitol.” Flynn’s sworn statement is so astounding on its face that it defies reason. If it does not constitute the willful and deliberate misleading of Congress, than [sic] nothing does. Flynn was referring to 154 D.C. Guardsmen who were already on duty, were trained in civil disturbance response, already had area familiarization with Washington, DC, were properly kitted and were delayed only because of inaction and inertia at the Pentagon. Why would the DCNG need the assistance of “40 officers and noncommisioned officers” from the Army Staff to “organize and acquaint” these Guardsmen? [emphasis original]

  5. joel fisher says:

    In the prosecution of obstructing an official proceeding, wouldn’t it be useful to show why the defendant was doing the obstructing? In the absence any sort of demonstrated motivation the government’s case would seem to be weaker. Juror: “How the heck am I supposed to know what he/she was thinking?” If so, aren’t the proofs necessary very similar to what one might hear in a 2384 sedition prosecution? As the excellent EW piece points out, 2384 hasn’t been raised so the Feds must think it problematic. Still, the propensity of prosecutors to overcharge with some crime they can later deal away seems, in these cases, not to exist.

    • emptywheel says:

      THey’re only charging people with 1512 who speak specifically about overturning the vote IN ADVANCE, so that’s how you get to motive. But even that is easier than getting to sedition, bc, again, these people genuinely thought they were saving their country, not overturning it. But they did know they were trying to prevent that vote count.

      • joel fisher says:

        Thanks for the clarification. Still I wonder how the intent of the rioters–all the rioters–who did in fact interfere with the certification are not thought to have had that intent, whether mum about it or not. Seems like there’s plenty of criminals whose intent is inferred from their behavior while committing their crimes.

        • timbo says:

          Also, it is highly likely that at least a few folks in the crown knew they were actually trying to hold a revolution >against< the Congress. The rhetoric is all there in the speeches throughout the previous two days.

      • AlaskaReader says:

        …wait, they ‘genuinely believe they are saving their country’?
        What they were doing has no place in a democracy, their delusions are ameliorating factors?
        I’m more inclined to call that some kind of mental incompetence defense maybe because what they believe’ is ‘saving the country’ has nothing to do with democracy.
        Kind of like, believing they had to instill fascism to save the democratic state.
        I’m quite certain it’s obvious I’m not a lawyer, but some of this is a stretch for me to grasp what with my belief that their ‘intent’ is clearly aligned with destruction of the very ideals the country is founded upon.

        • harold hecuba says:

          I think quite a few of them literally thought they were saving their country. You and I know they were not, but when the people they look up to and respect tell them that they have to fight for their country and “take it back”, then that’s what they’ll do.

        • Ravenclaw says:

          You are assuming “their country” and “our democracy” are somehow the same thing. Many of these people never believed in democracy, unless the franchise were restricted to members of certain castes (or complexions).

      • Robert N Eckert says:

        They may have thought they were saving “the country” (within their private conception of what the country is) but they were overtly trying to overthrow all of the constitutional authorities, not allowing county boards or state executives or the judiciary or the Congress to decide who won the election, substituting the judgment of themselves, as backed up by nothing except the force of their mob violence.

  6. Riktol says:

    With respect to Trump’s intent, is the standard for intent “he knew” or “he should have known”?
    If the latter, I think there are a few breadcrumbs around.
    My memory of the reporting is fuzzy, but I thought that multiple people, spoke to him shortly after the election and tried to tell him to accept the loss. I think that was Jared, Ivanka, and maybe Chris Christy?
    The other thing to learn is how they created the legalese to justify overthrowing the election. Did Trump ask for it, or did he make coded comments until it was offered, or was it spontaneously offered? That would be something to ask Clarke and Eastman.
    The other thing would be whatever pushback came from Rozen at DOJ, and the Whitehouse counsel (whose name I can’t remember ATM), which might have stated or implied that Trump lost. Barr might know as well.

    • Hoping4Better_Times says:

      The WH counsel was Pat Cippolone and his deputy was Pat Philbin. No doubt Cippolone and probably Philbin knew what was going on in the Oval Office. Will they be subpoenaed by Jan 6 Select Committee? Will they hide behind Attorney-Client privilege? TBD.

      • Leoghann says:

        The WH Counsel and Deputy are employees of the federal government, not a law firm. Their specific jobs are to act as counsel to the operation of the White House in general, particularly to the President, in his role as Chief Executive. Since Cippolone and Philbin were not Trump’s personal lawyers, any legal advice that applied to his campaign would be unethical, and not covered by A/C privilege. The same principle applies to Jeffrey Clark, who was an employee of DOJ.

  7. Badger Robert says:

    From Colorado in December, it looks comparable to the first crack in the rock face, into which water may enter and freeze.

  8. greenbird says:

    covered with tabs and bookmarks!! trying to tidy up-glad i kept so much good stuff. there’s this, updated as of Dec 06, from https://twitter.com/capitolhunters, of additional use, perhaps.
    and standing thanks to you all.

    [FYI, I am leaving the Google Docs link active, but community members should open this with caution as it has not been vetted for possible malware. /~Rayne]

  9. JohnForde says:

    I have a feeling we will soon be reading a lot more analysis on this blog about the role of Colonel Phil Waldron, a retired U.S. Army PsyOps specialist formerly in the command of Michael Flynn. According to WaPo Waldron was circulating the memo titled “Election Fraud, Foreign Interference and Options for 6 Jan” on the hill and met with WH COS Meadows 8-10 times.

    • Troutwaxer says:

      Per Salon Waldron is the person who originally “circulated” the “Meadows” powerpoint. Who created it is possibly another matter.

      “But the Times reports that Phil Waldron, a retired Army colonel and one of the key propagators of Trump’s Big Lie, apparently circulated the document among influential lawmakers, holding several briefings for Senators and House members on Jan. 4 and 5, respectively. Waldron, who reportedly cites a history of involvement with “informational warfare,” told the paper that he hadn’t given Meadows a copy but wasn’t surprised it found his way to Trump’s chief of staff.”


      • Leoghann says:

        It’s almost funny. No one working for Meadows ever saw Waldron, or the Power Point. Waldron didn’t give Meadows the Power Point. Yet Meadows was in possession of it. And, similar to Bill Clinton not inhaling, Meadows didn’t look at the Power Point.

        • Rayne says:

          I’d like to know how Eastman’s and Ellis’s memos cross-match Waldron’s PowerPoint. I haven’t had the time to sync them up if they do. How did the legal people transfer knowledge to the layers closer to the January 6 mob?

        • harpie says:

          I can’t really concentrate right now, but this might be of interest though I’m possibly already late. Things seem to be moving fast.]:
          5:42 PM · Dec 10, 2021

          MORE: After psyops expert Colonel Phil Waldron explained he was involved w/ the PowerPoint in Meadows’ possession used to present to Congress, he later added:
          – Trump was briefed re: “options” as far back as “Nov”
          – Waldron was in Oval Office
          – Waldron spoke w/ John Eastman [VIDEO] […]

        • TooLoose Letruck says:

          Jesus… I just watched 6 or 7 minutes of Waldron talking about how the CCP controls Dominion and so on and on so on… and now I feel queasy…

          These people are truly scary… and an horrific threat to the country.

        • Eureka says:

          Those Waldron interview clips are with Ann Vandersteel of Steel Truth.

          She was super present 1/5 and 1/6 (and there’s a SAD interview clip linked here w/ her & Patrick Byrne pre-coup Christmas where he gripes about Meadows & the Big Onion keeping Lindell et al. away from Trump post-12-18. Lotta desperation in one pre-holiday week’s time):


          (up- and down-thread here ^)

        • harpie says:

          THANKS AGAIN, Eureka!
          What a LOT of effort you put into that train of thought!…I just can’t believe all the threads we’ve been following [or trying to]. That one from late October feels like last year!

        • Eureka says:

          Your kind words prompted me to scroll that thread and now I am exhausted. We’ve had some long days, eh? …

          [This just reminded me that the other day I was going to put a note to you, Keeper of 1/6 Collections, about the something something more for 25th Nov. It was probably related to all this **gestures around** but it’s since met the mental circular file.]

          It was haunting the other day to see again the first (mainstream platform) video of the NW barricades breach, the one we saw posted that evening (moins the prior Biggs-Samsel tete-a-tete, of course). It’s now so plain. But recalling that day, that night … I’m glad we all spent it together.

        • Eureka says:

          Interesting that Blaze TV’s Schaffer (in contrast to others) had this clarity of perspective at this time:

          ELIJAH SCHAFFER: “IMPORTANT: this is exact moment the siege of the Capitol building began as the two men in front ripped down a preliminary barrier & rushed officers who were behind a 2nd barrier

          They then encouraged others to follow their lead. Officers appeared to be taken completely off guard [video]”
          6:46 PM · Jan 6, 2021

          Re-visit, too, the voluminous “antifa” comments in replies (a then-unnamed Samsel removing his jacket to expose his black clothing and turning his maga hat backwards vas part of zee auntie plan) — almost like that whole notion’s an op in and of itself!

        • Leoghann says:

          I realize this isn’t publicly accessible information, **yet**, but we should also toss Waldron’s personal visits with 45 into the cross-referencing mix. Those are all logged, as well as who else was in the room for each meeting.

      • dadidoc1 says:

        Shouldn’t there be metadata imbedded in the PowerPoint that would point to the creator of the presentation?

        • Rayne says:

          There’s been some examination of the document’s sourcing. I have a feeling some key components aren’t being shared widely because as long as the implication is public that the J6 committee has more details, they have leverage over the originators and conspirators.

        • rip says:

          It’s pretty easy to strip meta data from any Office (or other) products. In fact it’s usually recommended when creating a document that may be disseminated outside of the originating organization.

    • Leoghann says:

      Waldron has also been working with Russell Ramsland, as well as Jeffry Philyaw, a/k/a Jovan Pulitzer, for quite some time. All three of those are top notch purveyors of misinformation and conspiracy, as well as long-term grifters. Also, Waldron is the individual who recommended CyberNinjas to Karen Fann, the president of the Arizona State Senate.

    • Benton says:

      Which US Senators were briefed on this plan on Jan. 4 and subsequently stayed silent? (briefing of Senators on Jan. 4 reported by NYTimes yesterday) Potential candidates:

      1. Lindsey Graham? The Washington Post reported yesterday that Graham was once briefed by Waldron in the chief of staff’s office at the White House. Giuliani was also present. This is based on an interview with Waldron. The date of this meeting was not reported.

      2. Tommy Tuberville? Zach Everson (now with Forbes) places Tuberville at the Trump Hotel D.C. on the night of Jan 5. Waldron was also placed in the hotel at this time based upon photos posted to Instagram. Other likely attendees: Michael Flynn, Rudy Giuliani, Adam Piper (executive director of the Republican Attorneys General Association – robocalls urging supporters to come to D.C. to “fight” Congress), among others.

      Senators who rejected Arizona’s or Pennsylvania’s election results (or both): Ted Cruz, Josh Hawley, Cindy Hyde-Smith, Cynthia Lummis, John Kennedy, Roger Marshall, Rick Scott, and Tommy Tuberville.

      • Rita says:

        I’ve always thought that most Members of Congress went along with the Objection scheme because they thought it didn’t have the votes to succeed. It was just cheap theater to placate the base.

        But knowing that the Power Point was distributed to some Members, it is harder to believe that they didn’t think that their Objection might serve a different and larger function. My bet is that the distribution was limited and that people like Tuberville were not plotters, just reliable tools, who would follow directions without question.

      • Leoghann says:

        That meeting at the Trump DC hotel is interesting, since Waldron and several others in attendance were also denizens of the “War Room” at the Willard on the 4-6 January.

        Oh, and one other thing about Tuberville. He’s in his office strictly because the GQP Powers that Be knew he’d be a shoo-in for the Alabama Senate race. He’s strictly a useful tool, and a moron.

  10. Jharp says:

    Paul Hodgkins: 15 to 21 months
    Jacob Chansley: 41 to 51 months
    Scott Fairlamb: 41 to 51 months
    Josiah Colt: 51 to 63 months (Colt is cooperating against the defendants in this case)
    Graydon Young; 63 to 78 months

    Every time I see this I think of those bozos sitting in prison while Trump plays golf and dines at his luxury resorts.

    And they are all OK with that?

    • emptywheel says:

      RIGHT NOW, only the first three are in prison. One benefit of flipping, in many cases, is you get released on conditions.

  11. Bay State Librul says:

    Bmaz writes “Because “truth” without proof is simply opinion.”

    Thou doth oversimplify too much. There is no QED following your statement.
    All roads don’t lead to Rome, they lead to Donald Trump as Sedition-er-in-Chief.
    When I see an insurrection play out in real time, with my own eyes, I don’t need a legal definition to muddy the truth.
    The event was violent, premediated, executed, and completed with foresight and malice. The only way our democracy was saved is that our precious ballots were not destroyed.
    Mens Rea be damned.

    • bmaz says:

      Well, then, that is completely and unequivocally fucked up. It is hilarious how you talk about the rule of law, and are blithely willing to violate every precept b because of you emotionally wrought feelings.

      • Bay State Librul says:

        My point is that Bennie, Zoe, Adam, Jamie, Pete, Stephanie, Elaine, Liz and Adam are giving voice to the “truth” of what happened to our democracy.
        That is the “truth” that I’m talking about, not the legalistic truth of whether it is obstruction, sedition, lying, deception, or using the law for outrageous claims of executive privilege and all kinds of meaningless bullshit.
        Time is of the essence. The Insurrection was unprecedented
        We fiddle and diddle while America burns.

  12. Bay State Librul says:

    It’s too bad you couldn’t be more understanding, like “Uncle Charlie”, in Ben Affleck’s new movie, adapted from a memoir “The Tender Bar” by J.R. Moehringer.
    Listening to a bartender can sometimes be more enjoyable than listening to a lawyer.
    God save the Republic.

  13. AlaskaReader says:

    If I may, I understand some of the uncharged crimes Trump clearly committed have exceeded statutes of limitations. Some other uncharged crimes are knocking at that same door.
    I hear some excuse the lack of action by DOJ on reasons of ‘process’, the slow pace of the law, the need to be ‘thorough’, etc. I get that, …to a point.
    From my perspective, it appears more it’s a matter of Garland’s or Mueller’s style or preference. I can’t help wondering what if? What if we had more aggressive head prosecutors?
    Too many times, I feel previous and this administration’s crimes were essentially ignored by DOJ and I fear the same results going forward.
    I’m prepped to hear some dismiss my trepidations, but I’m thinking many more are with me and excuses can drive apathy. More apathy will aid those intent on destroying our democracy.
    In terms of public support for preserving our democracy, it may even be more beneficial to charge more often even if it means you don’t win all the prosecutions.
    At least the public perception wouldn’t be undermined by so many crimes being ignored, left uncharged.

    • bmaz says:

      “In terms of public support for preserving our democracy, it may even be more beneficial to charge more often even if it means you don’t win all the prosecutions.
      At least the public perception wouldn’t be undermined by so many crimes being ignored, left uncharged.”

      This is absolutely contrary to clear cut and long extant DOJ charging standards and guidelines. They should NEVER charge just to salve the feelings and outrage of the public at large. They do not exist to serve that function, they exist to do justice, whether people know enough to understand it or not.

      • timbo says:

        It depends on how much time is needed to stabilize the Republic and how bad the rot is. If the rot is really bad then due diligence in following the Republic’s systems will fail to save it/them. The DOJ and the current Congress have at least another year to get things right here… may they do so.

    • Leoghann says:

      Basically what you’re advocating is mob rule. That’s all well and good, as long as you’re in the mob. But a short study of either the French or the Russian Revolution, or both, will show you how the mob’s makeup changes. I don’t know if you’ve read my comment in another thread that compares the timeline of this prosecution with that of the Enron case. But AG Garland is way ahead of that one, as well as numerous others, with the sheer size of the Jan 6 case being historic.

      • AlaskaReader says:

        I’m referring to known crimes Trump admitted to that have already run out the clock and some others he admitted to that shortly will run out without being charged.

        Many more examples of crimes going uncharged and your reference to some imaginary case that also hasn’t been charged does not provide any confidence that crime actually being charged is going to happen either.

        Mueller was asked if Trump could be charged for obstruction and he said yes. I’m waiting and I expect the statute of limitations will run out before I see those charges filed.

        • bmaz says:

          Listen, let’s be crystal clear, Trump has not “admitted” to diddly squat as to criminal conduct. What you see in the press, and take away from his psycho-babble is not even close to an admission legally. You continue to push this false narrative like it is all tied up with a bow already and there have never been any actual issues of law and DOJ charging standards. That is bullshit.

          And the constant refrain of “what Mueller said” is similarly flimsy and wrongheaded. Mueller said that obstruction “could” be charged, not that it should b e, or that it should be before all the ducks are lined up in a row. Seriously, handwringing internet commenters are so cock sure of themselves without knowing much of how it all really works.

  14. John Paul Jones says:

    Re: The Power Point presentation. The Guardian cites “multiple sources” in its stories on this which link Trump directly to the Willard Hotel crew. This might suggest that said “sources” are people are among the 270 or so who have already spoken to the J6 Committee, and who feel that because their information is already, so to speak, on the record, there’s no harm in speaking to reporters so as to make the information public.

  15. TooLoose LeTruck says:

    By God, y’all are doing a terrific job here, following this story…

    I’ve never seen anything like it…

    And proving once again, it’s no fun living thru history…

    Keep fighting the good fight!

    • bmaz says:

      This is what Marcy does (and hopefully the rest of the blog too, even if in a lesser role). You should have seen the work done on the Bush/Cheney administration and the criminal charging, prosecution and trial of Scooter Libby. She has been doing this a very long time.

      • chetnolian says:

        Which is where I found this place, nested as it was in Firedoglake.

        The one point you do not make to all the people who want the law to be easier to apply, is to ask the age old question, “Would you care about this if you were the accused?” To which the answer is always “Of course!”. The course of a criminal trial is to come to a decision on, among other things, the intent of the perpetrator (mens rea) beyond reasonable doubt. For the clearest explanation of that to a jury see Johnnie Cochrane in the OJ Simpson trial. These two principles are at the very core of English, and thus US, criminal Law.

        • bmaz says:

          It is hard to get across to people without substantial experience seeing it live, whether as an attorney, defendant, juror or sitting through a few full trials even as a spectator. The process works, and all of those rights, procedures and evidentiary matters are really all critical and of utmost importance to jealously defend and protect.

      • Rita says:


        Is it too much to hope that some of the folks at DOJ and/or the Jan. 6th Committee take a peak at this website every so often?

  16. Bay State Librul says:


    Please don your publishing hat, and coax Marcy to publish her well-researched and provocative works.
    Give the green light for a sequel to “Anatomy of Deceit”
    Anxious travelers take Lorazepam before takeoff
    ADHD workers take stimulants so they can do their jobs.
    Readers of Emptywheel need a book that exposes how a deranged leader almost stole and is stealing our democracy.
    As Paul Simon might say we are “slip sliden’ away

  17. harpie says:

    I guess MARCY will soon be making another UPDATE:

    11:23 AM · Dec 14, 2021


    I got on late (I had moved to a third call). But Judge Kelly SEEMS to have just agreed with Judge Friedrich that DOJ’s obstruction application is sound.

    This post explains it. [Linking to THIS post] […]

    Now we have 2 Trump appointees, including Kelly on perhaps the single most important case, affirming this application

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