How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

As I noted and you’ve no doubt heard elsewhere, on Friday, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him, along with those of the Proud Boys and Oath Keepers. This is just the first step in an effort by police and some members of Congress to hold the former President civilly accountable for conspiring to prevent them from certifying the electoral vote on January 6. All he did was rule that the claims, as alleged, were plausible; this is not a ruling that Trump did conspire with two militias.

Judge Mehta’s decision will undoubtedly be appealed, by plaintiffs, the militias, and Trump.

But the decision matters because it lays out a framework to understand Trump’s actions on January 6 as a conspiracy between himself and two militias that played key roles in the insurrection on January 6.

It matters, too, because Mehta is not just any judge. He is well-respected by all involved (indeed, some Oath Keeper defendants have explicitly suggested that retaining Mehta as the presiding judge might worth more than challenging venue). Mehta’s order will carry a good deal of weight with any of his colleagues who might preside over a Trump criminal case, and with the DC Circuit. Plus, as the judge presiding over the Oath Keeper conspiracy and a number of other high profile January 6 cases, he has a far greater understanding of how the day’s events unfolded than, say, Chief Judge Beryl Howell, who is presiding over a disproportionate number of trespassing cases. As I’ll show in a follow-up, his opinion reflects a far greater understanding of January 6 (including, possibly, non-public information) than most others have.

So while this decision is nowhere near the last word on whether Trump conspired with two militias to attack the Capitol, it is a really important first word.

It is plausible that Donald Trump entered into a conspiracy with two militias

As Judge Mehta laid out, accepting the claims alleged as true (which one must do on motions to dismiss), there were five things Trump did that made the plaintiffs’ claims of a conspiracy plausible, which is the standard required to reject the motion to dismiss:

  • They agreed to pursue the goal of disrupting the vote certification: “The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th.”
  • Trump encouraged means of obstructing the vote count and the militias (and others) carried them out: “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts.”
  • Trump incited law-breaking: “Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.”
  • Trump called for collective action: “Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable.”
  • Trump ratified the riot: “And then, around 6:00 p.m., after law enforcement had cleared the building, the President issued the following tweet: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’ A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier.”

Laying out the conspiracy like this is the easy part.

The hard part is finding that the sitting President could be sued, and could be sued substantially for his speech.

The President has no role in certifying the vote count

Mehta got there in three key moves.

The first was dismissing Trump’s claim that his actions amounted to fulfilling his duty to Take Care that election laws were faithfully executed.

President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3,


President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id.

As Mehta notes, Trump’s law review student note sees the President’s role in enforcing election law to be litigation, not intervening to prevent the actual vote certification.

What President Trump omits from that quote, however, makes his citation grossly misleading. The full quote reads: “However, enforcing election laws through litigation [strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through litigation” completely changes the meaning of the sentence. The President can enforce election laws through litigation initiated by the Department of Justice or the Federal Election Commission, agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v. Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey note is inapt.

This comment has further implications, both because Trump’s campaign personally tried to sue to overturn the election results, but failed in spectacular fashion, and because Trump’s efforts to force DOJ to launch such suits failed. Mehta mentions neither of these details, but they do matter in understanding Trump’s actions.

Outside of such litigation, Mehta notes, the Constitution assigns the President no role in certifying the vote count.

[A] sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.

The other legal duties involved in certifying election results are explicitly assigned to other parties, including a co-equal branch of government.

President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President.11 The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.

The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President.

This language closely models language that DOJ is using in obstruction cases to establish that the vote certification was an official proceeding.

Then-President Trump was not speaking, as President, about matters of public concern

Mehta then dismisses Trump’s claim that he is immune from suit because his January 6 speech simply amounted to him, in the role of President, commenting on matters of public concern.

He bases his approach on a DC Circuit case that ruled that any claim of immunity must be rooted in the actual duties of the office.

Rather than apply the parties’ proffered categorial rules to the immunity question, the court thinks the better course is to evaluate the defense on the specific facts alleged and, based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham, a case in which then–Board Member of the Washington Metropolitan Area Transit Authority (“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly interfering with a developer’s ultimately unsuccessful project negotiations with WMATA.


“The appropriate focus,” the court wrote, “is on the relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to [the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that “[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.” Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests on the official claiming it. Id. at 1140.

Using that as a framework (and spending a paragraph admitting that consideration of a President’s role is a far more weighty matter), Mehta holds that it is not within the scope of the President’s duties to ensure his own incumbency.

In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency.

He goes allegation by allegation showing that Trump’s alleged actions served to ensure his own incumbency, including this key paragraph laying out the purpose of the Rally itself.

That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”

Via this approach, then, Mehta arrives precisely where DOJ did — in making a Hatch Act argument that campaigning is not among the duties of any federal employee — via different means. It is not the duty of the President to remain President, but that’s what Trump was doing in all the alleged acts.

Trump incited violence (and also ordered his followers to do something unauthorized)

Mehta ultimately judges that Trump’s speech on January 6 meets the Brandenberg test for incitement.

But before he gets there, he makes another important point. It was Trump’s campaign’s idea — and he was personally involved in — sending people on an unpermitted march to the Capitol.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).


[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

After a good deal of legal analysis, Mehta conducts a detailed analysis of Trump’s speech, focusing closely on how his call for non-violence come long before an airing of Trump’s false grievances and attacks on Mike Pence, leading up to calls to fight and to walk down Pennsylvania Avenue.

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.


That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

It’s not just the call for violence and Trump’s awareness (because of the threats leading up to January 6) that violence was likely to result. It’s also the call for a march that was not permitted.

That is, it’s not even just speech, or just incitement to violence. It’s also the call for a march that the campaign knew was not permitted.

While Mehta obviously returns to the unpermitted march over and over, he doesn’t dwell on the significance of it. That’s not the task before him. Moreover, though he alludes in passing to Alex Jones’ role (which I may return to), that likewise is not a developed part of the complaints before him.

The alleged complaints — the most recent of which was filed in March, an eternity ago in our understanding of January 6 — primarily focus on a theory of incitement.

But Trump did more than that. After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.

Related Posts

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”


99 replies
  1. Manwen says:

    Thank you for your clear, well-organized and concise summary of Mehta’s decision. (As well, thank you for all the work on the Durham investigation. At times, I did not understand what I was reading, but it all became clear in the wake of his last filing. There is no way I would understand all of that without following your posts.) I just wanted to draw attention to the Roger Stone reference Mehta makes. Perhaps it follows from his handling of the Oath Keepers’ case, but he seems to go out of his way to not the importance of discovery in this area. This is the passage where he references Stone:
    The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.
    Mehta seems to be telling the plaintiffs, “Here. Go here. The conspiracy is tied together here.” This could prove to be one of the most significant outcomes of this case. The case almost seems to assure more information of the militia-Stone-Trump nexus (and perhaps Alex Jones) than might become publicly available through any other investigation. And Mehta seems to imply that to the plaintiffs.

    • emptywheel says:

      Yup. I will deal with that and the Alex Jones reference separately. It’s what my nod to Mehta’s knowledge of non-public information was about.

    • Hoping4Better_Times says:

      Manwen pointed out the criminal route (Roger Stone) that DOJ needs to take. Mehta wrote “Discovery might prove that connection (via Roger Stone) to be an important one.” That short paragraph buried in the 114 page Mehta ruling is astounding.

  2. Bernie says:

    Finally, at least someone is taking this seriously and making the obvious connections visible in the public lens and elsewhere. The odds Trump will see any criminal sanctions from his insurrectionist activities is slim to none but at least civilly he may be held accountable by some people. It is refreshing to see someone act decidedly and not drag this out until as such time as the 24 elections when Trump will be the presidential candidate of the republican party and thus immune.

    The decision, at least the parts I have read, seems to be well researched and thought out.

  3. Rita says:

    Having listened to Trump’s March 6th speech and his emotional call to march to the Capitol at the end of the speech, I agree with Judge Mehta’s description. Trump knew what he was letting loose.

    His opinion provides some clarity on a fundamental question lurking in the background – was Trump merely doing his duty as President in challenging the election as vigorously as he did? And, behind that question is another question – when legal recourse has been exhausted and the Electoral College has voted, are any further actions to delay or decertify the election “legitimate public discourse”? Underlying all of the various coup plots is the plotters’ belief that extra-judicial remedies are superior to civilian judicial remedies (as one of the draft memos for seizing the election machines explicitly states).

    It will be interesting to see what the Supreme Court will do with this, when and if, it gets to it.

    • P J Evans says:

      The problem is that he had no legal basis for challenging the election – all the claims of fraud were spurious.

      • Frank says:

        Once the states certify their elections, the arguments are over. Actually, they’re over before that, but trying to contest elections after the Secretaries of State have signed off on them, is just lunacy.

        And he’s STILL doing it, as of Twosday 2/22/22

  4. WilliamOckham says:

    Aside from the Roger Stone stuff, I think the biggest deal is that Mehta makes it past the Brandenburg gate (sorry, couldn’t resist). Mehta just made the DOJ’s job much easier.

    • Kit Traverse says:

      Seth Abramson had a great thread last year breaking down the Ellipse speech in detail and made a compelling case that the calls for nonviolence were mere frippery; the entire point was incitement. I had worried for awhile this would be missed.

      Now Mehta lays it out with a rock-solid legal argument.

      Imma put on the first movement of the Brandenburg Concerto No. 3 ;)

        • Kit Traverse says:

          I am so thrilled that this old-school blog is not Twitter, else I’d be tempted to return empty snark with empty snark ;)

          Abramson’s critique of the Ellipse should be judged on its own terms, something I’ll trust most of MW’s denizens here to do.

          • bmaz says:

            Oh, that was very much not “snark” about Abramson. It is the god’s honest truth. His analysis is relentlessly shitty and hyperbolic, and, frankly he does not really seem to know squat about procedure and evidence in trials. His work is shit, and designed for desperate people to latch onto. Don’t fall for that bunk.

          • emptywheel says:

            A better way of thinking about this is that EVERYONE did that analysis.

            So yes, everyone did that analysis. It was central to impeachment.

            • WilliamOckham says:

              Yes, and I haven’t found many people convincing on that analysis (arguing it either way). Mehta is convincing AND his opinion matters.

              • Kit Traverse says:

                Leaving aside opinions of our favorite Substack jockeys (Seth’s thread was pre-impeachment IIRC), I was very worried Trump’s “peaceful” applique would vitiate the imminent lawless action standard. Seth had a synoptic, contextual argument that made me go woah, but not nearly as hard, of course, as Mehta’s.

      • Dave_MB says:

        Trump has a talent for talking out of both sides of his mouth, so that he can disclaim that he said anything. “Mexicans are murderers and rapists”, “…but some I’m sure are good people.”

        It’s one of his MO’s.

  5. Chirrut Imwe says:

    “After a good deal of legal analysis, Mehta conducts a detailed analysis of Trump’s speech, focusing closely on how his call for non-violence come long before an airing of Trump’s false grievances and attacks on Mike Pence, leading up to calls to fight and to walk down Pennsylvania Avenue.”

    Does this ‘call for non-violence’ refer to something Trump said earlier in his Jan 6th rally speech, or his half-ass 6pm tweet to go home?

    • civil says:

      In the first third of his Jan. 6 speech, Trump said “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

      • Frank says:

        …..then he used the word “fight” no less than twenty times, all the way up to and including his command to march down to the capitol.

        • Nord Dakota says:

          Oh, I remember! Shortly after the event I searched his speech for uses of the word “fight” and compared with the count for “peace” I don’t remember the numbers but they were definitely weighted one direction.

  6. Rugger9 says:

    Well, both the opinion and the EW analysis are well reasoned and likely to survive challenges in the legal forums (including the chattering class as well as the courts) if the rule of law prevails. However, we aren’t solidly in that area because of what Individual-1 did by appointing 240+ FedSoc judges to lifetime appointments so the crackpot contingency has to be planned for. That might mean forum-shopping (which the GQP already does down in TX) and other legal options.

    With that said, the screeching about HRC (my beloved is reading her book and…wow) has been cited as a ‘tell’ of desperation by one of the Never Trumpers. It is clear that Individual-1 is running out of options short of his pet 3 justices. Perhaps it would be worth the trouble to pressure some of the law schools (like Harvard and Notre Dame, etc.) by pressuring their donors to threaten to pull the money if the GQP five rule for Individual-1 (and to kill Roe and Griswold, etc.).

    OT, I’m still curious as to why Rove hasn’t surfaced in the muck yet. It could be possible that this plot was so ill-conceived that even Rove knew it would fail bigly, but others who were anti-Trumpers in 2015 (i.e. Kayleigh and IIRC Kellyanne, etc.) were brought in to the WH as willing warriors.

    Also OT, is anyone surprised that Pence is running away from his stance on J6? This is a guy delusional enough to think he’s got a shot at being POTUS but from where I see things he’ll get the votes of immediate family only. Maybe.

  7. Scott Johnson says:

    Re Marcy’s observation that Justice was unwilling to go along with Trump’s lawsuit spree, what are the odds Trump will argue that he was forced into this “alternate” course of action in furtherance of his electoral caretaking duties by insubordination at DoJ?

    • Bobby Gladd says:

      “his electoral caretaking duties”

      Well, while there is zero constitutional or caselaw language in support of that, a president DOES in fact have the authority to declare “martial law (however dubious the grounds in the moment).” Which, of course is what Flynn wanted him to do.

      If it was such a fucking “crime of the millennium,” then why didn’t he go there?

      Asked and answered.

    • John Colvin says:

      As the head of the executive branch, Trump could have gotten rid of the recalcitrant DOJ leadership, and in fact considered replacing the DOJ leadership with someone more pliable (Jeffery Clark). He appears to have shied away from this, fearing mass resignations.

    • Peterr says:

      He may argue that, and it would certainly fit with the toddler mindset that seem to be all the rage at Mar-a-Lago these days (“Mommmm! He hit me first, so he forced me to hit him back!”).

      I feel safe in saying that should Trump argue this in a legal filing, the laughter in the judge’s chambers might be audible to folks walking down the halls of the courthouse, and it will get publicly laughed out of court at the first hearing.

    • Rita says:

      Doesn’t Judge Mehta suggest that the only way for the President to address election law questions with respect to a specific election is through litigation carried out by the DOJ or other Executive Branch departments?

    • Hoping4Better_Times says:

      Mehta’s ruling only applies to the three CIVIL cases against trump and others. The burden of proof is much lower in civil cases. There is no criminal penalty for trump and/or others in these cases.

      • bmaz says:

        Information and discovery, that is what it is all about. And if they plead the Fifth in the civil cases, they are going to lose because, in civil cases, there is an instruction available to a plaintiff that if one or more defendants took the Fifth that can be considered evidence that the answers would have been damning. You can win just by asking the questions, don’t have to have the answers. And, yeah, juries respond to that instruction.

        • earlofhuntingdon says:

          This is the sort of suit that Trump would typically scream about for months, then quietly settle on undisclosed terms. I suspect that here, though, these plaintiffs have no interest whatever in a settlement.

  8. The Old Redneck says:

    I read the opinion, and it is meticulous and thorough. I suspect it will carry great weight in popular perception and in the DC Circuit.
    But having said that, these are not easy questions. There is not much precedent for them either (which, of course, is because Presidents don’t behave as Trump did). That creates plenty of wiggle room to go either way.
    This is not, in other words, like the flag-burning case where the Supreme Court has to reluctantly go along. They are writing on a virtually clean slate and can do whatever they want. I’m concerned that some in the current lineup of justices – who don’t even profess to care about precedent and stare decisis – will take it all apart.
    Let’s hope that’s not true.

    • timbo says:

      Or, like, in the Constitution itself, plan for it!

      While my above comment may seem flip to some, the fact that Justices on the Federal Bench are mostly there for life means that they are a countervailing balance to the President and the Congress when it comes to the conduct of governance and enforcement of the laws, etc. And it also means that lifetime appointed Justices have a lot to lose if they turn themselves into rubberstampers for the Executive and/or others with totalitarian tendencies.

    • John Colvin says:

      Because this is ruling on a motion to dismiss (a non-final order), the non-dismissed defendants do not have an easy route to having an appeal heard on their legal argument before the case goes to trial. To have an interlocutory appeal heard, the district court would have to certify an appeal should be heard. In this respect, 28 USC 1292(b) provides in part:

      When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

      • The Old Redneck says:

        That’s right. But that just means you may have it all taken away from you after you climb the mountain and get the verdict.
        The upside would be all the discovery the plaintiffs get to do and what it shows.

      • John Herbison says:

        An immediate appeal of a District Court’s ruling denying immunity is available under the collateral order doctrine, but I think that appeal would be limited to the denial of immunity. See, Mitchell v. Forsyth, 472 U.S. 511 (1985).

        • John Colvin says:

          Yes. I always think about the denial of police officers’ claims of “qualified immunity” (i.e. an argument that the actions taken did not violate any clearly articulated Constitutional right) as being subject to immediate appeal as in Mitchell v. Forsyth, but it’s is logical that claims of absolute immunity should be accorded the same treatment.

  9. TooLoose LeTruck says:

    Would the information the judge is presenting here be considered ‘Mehta-data’?

    Don’t worry… I know where the door is… I can show myself out…

    I do find it delightful that this article was posted on Presidents’ Day!

  10. Eastern Ash says:

    Apologies for injecting a textual query this far into a rich and substantive thread, but the closing paragraph contains a small point of confusion, if I’m not misreading it:

    “But Trump did more than that. After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.”

    Might the intention in the final sentence have been for “he could have [prevented] but did not . . .”?

    • obsessed says:

      That confuses me too. And I was following this one so well until that last paragraph:

      After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.

      He could have permitted it meaning that he could have applied for a permit that included a march? In other words, he could taken actions earlier that would have “made it permissible”?

      • Eastern Ash says:

        Likely, you are on the mark here in this reading.

        Perhaps it’s less awkward to those more familiar with legal jargon.

    • Leoghann says:

      In this case, the verb, permitted, is used to mean “obtained a permit for.” As in, “Bob the Builder, have you permitted that new house yet? The foundation crew is scheduled to be there tomorrow.”

    • FL Resister says:

      If the march to the Capitol had been permitted, better preparations would have been made to handle the situational issues and security precautions.
      Conflicting accounts of the National Guard’s response time haven’t been reconciled publicly yet, but Jan 6 Committee Chairman Bennie Thompson reportedly says we will hear more about this matter in the open hearings.

      • Jonathon Moseley says:

        “If the march to the Capitol had been permitted, better preparations would have been made to handle the situational issues and security precautions.”

        First, there were six (6) permits for demonstrations issued for the US Capitol Grounds on January 6, 2021 issued by the US Capitol Police, to occur at the same time as the Joint Session of Congress.

        Second, there was no march. People just making their own way any way they want, including on the Metro (subway) is not a march.

        Third, if the march had been permitted, that would not have really affected the US Capitol.

        Fourth, the fact that the US Capitol Police received full details for demonstrations on the US Capitol grounds in December is what counts.

        The US Capitol Police knew there would be not one but six (6) demonstrations on the Capitol Grounds while the Joint Session of Congress was hearing and resolving disputes over the Electoral College tallies, as commanded by the US Constitution and Federal law.

        And yet there were only 5-6 US Capitol Police officers guarding the flimsy chicken wire and bike rack make-shift “gate” across Second Street from the “Peace Monument”

  11. Jonathon Moseley says:

    They agreed to pursue the goal of disrupting the vote certification: “The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th.”



    WHY would anyone want to “to disrupt Congress from completing the Electoral College certification on January 6th.””

    How would that help Trump?

    How would that help any of the Trump supporters?

    The fact that you all so desperately “RUN AWAY!” from that gigantic sink hole in your argument (all of “you”) speaks volumes.

    You have a giant Florida sandstone size sink hole swallowing up whole buildings

    and you just whistle and pretend it isn’t there.

    NO ONE would want “to disrupt Congress from completing the Electoral College certification on January 6th.”

    That is so glaringly obvious that it is a from of insanity not to confront it.

    The Constitution is clear: The President’s term of office ends at NOON on January 20 every 4 years.

    Period. Full stop. Done.

    Could you answer HOW it would benefit Trump or his supporters “to disrupt Congress from completing the Electoral College certification on January 6th.”” ?

    Isn’t it master class level crazy to keep saying that?

    [Welcome to emptywheel. You appear to be new here, perhaps you might wish to acquaint yourself with the site’s Community Guidelines before spamming a comment thread with 7 comment attempts and no effort to get to know the community let alone read the site’s January 6 posts before commenting. If you are bucking for an opportunity to represent one of the January 6 defendants this is not the place for it. Slow your roll. /~Rayne]

    • earlofhuntingdon says:

      Your inability to imagine what Trump could do with, say, a vote thrown to the House – in which his party had a majority of state delegations – is not a failure to make an argument. It’s a failure to understand one, and a pedestrian repetition of Faux Noise talking points. Please do your homework.

    • John Herbison says:

      There was a mighty effort by Donald Trump, John Eastman and others to persuade Mike Pence to unilaterally reject several states’ slates of electors on January 6 — notwithstanding Pence’s abject lack of authority to do so under the Twelfth Amendment and 3 U.S.C. 15. That appears to be undisputed.

      My opinion, FWIW, is that the Department of Justice should focus on that effort to importune Pence, which is criminal irrespective of whether Trump is vicariously liable for the actions of those who breached the Capitol. 18 U.S.C. 1512(c)(2) prohibits attempts to corruptly obstruct, influence or impede an official proceeding. Section 1512(k) prohibits conspiring to do so. Trump and Eastman are directly implicated in the attempt (on January 4) to corrupt Pence, for the purpose of gaining a benefit to which Trump was not entitled — a second term in office. Rudy Giuliani coordinated putting together the slates of bogus electors, so he and the fake electors are implicated in the conspiracy. (Those who falsely claimed to be electors and sent such claims to the National Archives are culpable under 18 U.S.C. 1001.)

      These are offenses for which there is no plausible defense, IMO.

    • Kit Traverse says:

      OT, Rayne, but are formatting codes for italics allowed to mere mortal posters? I tried <'s and ['s and they don't work. Can you chuck the syntax our way if so? Thanks.

      [I’m not giving tutorials in HTML here; I generally refer community members to W3C Schools’ HTML tutorial. That said, you may find the comments here do not allow for a full range of HTML for security reasons. /~Rayne]

      • MB says:

        Italics: left-hand angle bracket + “em” + right-hand angle bracket
        + text to be italicized + left-hand angle bracket + “/em” + right-hand angle bracket


        • Kit Traverse says:


          Tried with both an em dash and “em” in quotes literally copying that, no dice. What do you mean by “em”?

          Thanks for the help, though. I can just read Rayne’s link if push comes to shove.

          [This is why I encourage people to use the W3C link — it has sandboxes for experimentation, while doing hit-or-miss here in comment threads clutters discussion. Please go and experiment at W3C. /~Rayne]

      • WilliamOckham says:

        How to use common HTML tags in comments on this site
        Make some words <b>bold for emphasis</b> -> Make some words bold for emphasis
        Italicize <em>some words</em> -> Italicize some words
        <blockquote>For blockquotes, you can use these tags.</blockquote> ->

        For blockquotes, you can use these tags.

        • Kit Traverse says:

          Thanks, guys. I’ve been on blogs and fora with various flavors of HTML and HTML-like coding for ages and the only thing that threw me is em for italics, but I got the gist without need for further experiment (sorry, Rayne).

    • WilliamOckham says:

      Gaslighting really only works when the target is vulnerable in some way or the gaslighter has some power over their target. It’s not going to work here.

      Disrupting the certification was pretty crazy. Planning to seize voting machines was crazy. Thinking Mike Pence could wave a magic wand and declare Trump the winner was crazy. The idea that satellites from Italy were changing votes was crazy. Thinking they could throw the vote to the House of Representatives and count on Liz Cheney’s vote for Wyoming was crazy. Pretending that Chinese IoT devices were changing votes was crazy. Accusing Mark Zuckerberg of buying the election for Biden was crazy. Claiming that Venezuela was controlling the election through Dominion’s software was crazy (and maybe crazy expensive…).

      The answer to “Why” for all of those things is the craziest part. It was all part of an attempt to keep Donald Trump in power for four more years.

      • Kit Traverse says:

        It’s like Putin in Ukraine, isn’t it; the “why” is almost trivial—pure power politics. What makes the “why” so creepazoid is that Trump has almost no ideology; his motives are almost entirely psychological, the proverbial cornered rat. His enablers, though, somehow see this deeply damaged man as a vessel of pure reaction, the means to, as Joe Walsh says, turn the country back to 1953. The worst of the worst are the radical business libertarians who don’t give a fig about any of this (Peter Thiel can be as gay as he wants and their womenfolk will always have access to abortion) and who substantially underwrite the cultural collapse that enables it, knowing they’ll be exempt.

    • Doctor My Eyes says:

      Oh. Thanks for making motives clear, although the smell of bs was already pungent enough.

      All in all, it seems a sign that discussion on this site reverberates through to the courts.

      Added: Ha! Just read below. Thanks, Harpie. Sometimes it’s all so very funny.

  12. harpie says:

    Marcy, on 9/27/21

    […] [Judge Tim Kelly] also had a separate hearing where Rehl informed him that Jonathon Moseley is now representing him and he’s quite happy with the relationship thus far.

    That’s how we got here, to Rehl’s second substantive motion, in which Moseley moved to request for a subpoena for information on the permits authorizing the Wild Protest rally at the location advertised on the East side of the Capitol. Or, if he can’t get that, he wants policies on port-a-johns because (the motion shows) there were port-a-johns where the rally advertisement said a rally would be held. […]

    Marcy on 9/28/21:
    3:42 PM · Sep 28, 2021

    This is the THIRD time the Proud Boy Leader attorneys have not credited me in a court filing.

    Shorter Rehl attorney Moseley: Give me a chance to check whether these permits expose my client and his co-conspirators to fraud charges on top of everything else before we discuss further. [screenshot] [link]

    4. However, in response to the filing of counsel’s Motion, a news blog noticed the Motion and commented on it, and the blog entry was forwarded to me as counsel. […]


    Considering changing my Twitter bio to, “The news source Proud Boys rely on but hope Judge Kelly doesn’t see…”

  13. Frank says:

    “It’s also the call for a march that the campaign knew was not permitted.”

    The rally planners likely knew about Trump’s wish to send his supporters to the capitol. Why else would they feel the need to expressly forbid it in the rally permit. The Trump campaign brought it up at planning discussions, and the actual rally organizers said “no.” Probably, at that time, simply for liability reasons. And then Trump did it anyway.

    But since then, those same rally organizers have disavowed Trump and his incitement of violence against Congress.

Comments are closed.