The Half of Trump’s Conspiracy to Obstruct JustSecurity Left Out: Inciting an Insurrection

Two days after Judge Amit Mehta ruled that it was plausible that Trump conspired with the Oath Keepers and Proud Boys, JustSecurity has posted an imagined prosecutor’s memo laying out the case that Trump, John Eastman, and Rudy Giuliani (and others known and unknown) conspired to obstruct the vote count that almost entirely leaves out the militias.

It has gotten a lot of attention among the TV lawyer set, who imagine that it would save Merrick Garland time.

With this obnoxious tweet, Laurence Tribe betrays (yet again) that he has completely missed what DOJ has been doing for the past year. What Barb McQuade did is lay out the theory of prosecution that DOJ has long been working on — as I laid out in August. Except that McQuade (of whom I’m a great fan both personally and professionally) misses great swaths of public evidence, and in so doing, makes her case far weaker than it would need to be to prosecute a former President.

Start with McQuade’s argument substantiating that Trump corruptly tried to obstruct the vote count.

Here, attempting to prevent the certification of the votes for president is illegal only it is wrongful or for an improper purpose. It would be wrongful or improper for Trump to seek to retain the presidency if he knew that he had been defeated in the November election. His public statements suggest that he genuinely believed that he had won the election, but, as discussed above, by Jan. 6, it was apparent that there was a complete absence of any evidence whatsoever to support his belief, which at this point had become merely a wish. The statements from Krebs, Barr, Rosen, Donoghue, Ratcliffe, and Raffensperger, and the memo from his own campaign team all permit a fair inference that Trump knew that there was no election fraud, and that his efforts to obstruct the certification was therefore corrupt.

Independently, regardless of his knowledge or belief in election fraud, it was an improper purpose to hold into power after the 50 states had certified their election results, the Electoral College had voted, and litigation had been exhausted after an across-the-board rejection by the federal courts.

This is the theory of prosecution where an obstruction case against Trump would succeed or fail. And I’m not sure it meets the understanding of obstruction already laid out by the judges who would preside over the case.

Defendants have been challenging DOJ’s application of 18 USC 1512(c)(2) to the vote certification since at least April, and so there’s a great deal of background and seven written, one oral, and one minute opinions on the topic:

  1. Dabney Friedrich (my post on it and the obstruction application generally)
  2. Amit Mehta (my post on his intransitive application of it to the Oath Keepers)
  3. Tim Kelly (my post on its application to the Proud Boys)
  4. Randolph Moss (my post situating his application with his past OLC opinion on charging a President)
  5. John Bates
  6. James Boasberg
  7. My livetweet of Beryl Howell’s oral opinion
  8. Colleen Kollar-Kotelly
  9. Richard Leon by minute order
  10. Christopher Cooper

One of the central issues addressed in these — and something any prosecution of Trump under 18 USC 1512(c)(2) would need to address — is how you establish that the effort to obstruct the vote count is “corrupt.” While thus far all judges have upheld the application, there’s some differentiation in their understanding of corruption (something that a site like JustSecurity might productively lay out).

Two key issues are whether corruption, under 18 USC 1512(c)(2) must be transitive (meaning someone tried to coerce another to do something improper) or intransitive (meaning someone exhibited corruption with their own actions), and the extent to which corruption is proven by doing acts that are otherwise illegal.

Importantly, Judge Friedrich’s opinion, and so the first jury instructions, only extends to illegal actions. In a recent hearing, she warned the Guy Reffitt prosecutors (both of whom also happen to be prosecuting cases charged as a conspiracy) that they will not prove him guilty of obstruction without first proving him guilty of other crimes at the riot.

Trump acted both transitively and intransitively corruptly

McQuade’s formulation is unnecessarily weak on the transitive/intransitive issue. There are at least two things that are missing.

First, citing some tax precedents, defendants wanted the application of obstruction to apply only to those who were obtaining an unfair personal advantage. That’s not the standard adopted in the opinions thus far, but it is a standard that some Justices one day might try to uphold. And while that standard was doable for the charged rioters (because they were attempting to make their own votes count more than the votes of the 81 million people who voted for Biden), it is a slam dunk for Trump. It’s not just that Trump was trying to win an election he knew he lost, he was trying to retain the power of the Presidency for himself. My complaint here, though, is mostly stylistic. McQuade could rewrite this paragraph easily to take advantage of the fact that, for Trump, obstruction of the vote count really was an attempt to gain personal advantage.

It’s in leaving out Trump’s transitive obstruction — even in a piece that focuses closely on the pressure of Pence — where McQuade’s memo could and I think might need to, to pass muster given the existing opinions on it — be vastly improved. That’s because it’s in Trump’s corruption of others where he clearly conspired in illegal acts.

Trump didn’t just do things an ethical President shouldn’t do (intransitive corruption). He carried out an extended campaign to pressure Pence to do something that violated Pence’s Constitutional obligations. That is, he tried to corrupt Pence (transitive corruption).

Trump transitively corrupted by conspiring with people who committed crimes

And it’s in the means by which Trump’s tried to corrupt Pence on the day of the insurrection that McQuade largely leaves out, and in the process forgoes an easy way to meet Friedrich’s current requirement (that those charged with obstruction commit a crime in attempting to obstruct the vote count).

Bizarrely, McQuade’s overt acts on January 6 are focused largely on John Eastman.

T. Trump Speaks at the Ellipse

On Jan. 6, 2021, Trump addressed a crowd of his supporters at approximately 1 p.m. on the Ellipse outside the White House.[129] During his remarks, Trump said, “If Mike Pence does the right thing we win the election.”[130] He explained, “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”[131] Trump then spoke directly to Pence: “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now. I’m not hearing good stories.’”[132]

Giuliani, a former United States Attorney, also spoke at the rally. He declared that it would be “perfectly appropriate” for the Vice President to “cast [] aside” the laws governing the counting of electoral votes, and “decide on the validity of these crooked ballots or he can send it back to the state legislators, give them five to ten days to finally finish the work.”[133]

Another speaker at the rally was Eastman. “All we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not!” Eastman told the crowd. [134] “We no longer live in a self-governing republic if we can’t get the answer to this question!”[135]

According to reports, Trump was directly involved in planning the speaker lineup.[136]

U. Pence Issues Public Letter Rejecting Eastman’s Theory

On Jan. 6, at 1:02 p.m., Pence posted to Twitter a letter stating that as Vice President, he lacked “unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress.”[137] His duties, the letter stated, were “merely ministerial,” and were limited to counting the votes. The letter further stated that he would instead follow the Electoral Count Act, permitting members of Congress, as “the people’s representatives,” to resolve any disputes.[138] The letter had been drafted with the help of two conservative legal experts — former federal Judge J. Michael Luttig and former Justice Department official John Yoo.[139] Both have confirmed that they advised Pence’s staff and outside counsel that there was no basis for the vice president to intervene in the counting of electoral votes on Jan. 6. “I advised that there was no factual basis for Mike Pence to intervene and overturn the results of the election,” said Yoo, who now teaches law at the University of California at Berkeley. “There are certain limited situations where I thought the Vice President does have a role, for example in the event that a state sends two different electoral results. . . . But none of those were present here.”[140]

Luttig wrote subsequently that “Professor Eastman was incorrect at every turn of the analysis,” including his suggestion that the vice president could delay the electoral vote count.[141]

V. U.S. Capitol Attack Begins

At about 2 p.m., protestors broke a window at the U.S. Capitol and climbed inside.[142] The Senate and House of Representatives soon went into recess and members evacuated the two chambers.[143] At 2:24 p.m., Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”[144] The Capitol would not be secured again until about 6 p.m.[145]

Her discussion here doesn’t explicitly mention a single one of the 750 people already being prosecuted for crimes for their actions on January 6. She mentions neither Alex Jones (whom Trump ordered to take the mob on an unpermitted march to the Capitol and two of whose employees are already among those 750 being prosecuted) nor Roger Stone (who has ties to the two militias that orchestrated events that day and who has been a subject in the Oath Keeper investigation from its early days).

It’s not just or even primarily that Trump grasped John Eastman’s crackpot theory and used it to pressure Pence (which is not  itself a crime). It’s that he incited thousands of people to take an unpermitted walk to the Capitol to physically threaten Pence and other members of Congress directly.

As I laid out last month, DOJ has already collected a great deal of evidence that those who did break the law at the Capitol did so in response to Trump’s incitement with the motive of pressuring Pence.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.’”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President KePence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

I would add (because Amit Mehta did in his oral ruling that Stewart Rhodes should be detained pre-trial), in addition to the explicit attempt by Kelly Meggs to hunt down Nancy Pelosi, the other group of Oath Keepers appears to have tried to find those in the Senate, presumably including Mike Pence. If prosecutors can prove that, then, the militia that was checking in with Stone the day of the riot took overt steps to physically threaten Mike Pence.

Importantly, with the exception of QAnoner Chansley, all of the January 6 defendants I’ve laid out here were part of a conspiracy (Colt and Bisignano, because they flipped on co-conspirators, are not charged with one). All of these Jan6ers are accused of conspiring with others to carry out Trump’s will to transitively corrupt Pence by physically pressuring him to violate his Constitutional duty.

And Judge Mehta has now ruled it plausible (though he was careful to note he was addressing the lower standard of a civil suit) that Trump’s incitement amounts to entering into a conspiracy with all of these people who acted on his incitement to pressure and in some cases physically hunt down Pence.

McQuade’s theory of corruption may not meet Judge Friedrich’s standard for corruption (which we should assume as a baseline of one that Brett Kavanaugh might find palatable).

Which is why you cannot ignore the other half of the conspiracy: Trump entering into an agreement with Roger Stone to coordinate with the militias, entering into an agreement with Alex Jones to lead the mob to the Capitol, and Trump entering into an agreement with those he incited to directly pressure Pence to violate his Constitutional duty.

750 people have been charged with committing crimes at the Capitol. And the easy way to demonstrate that Trump employed illegal means in his effort to obstruct the vote certification is to point to the mountains of evidence that he conspired both via his close associates Stone and Jones but more directly via incitement with a vast number of those 750 people who allegedly broke the law.

Update: One thing McQuade does focus on (she’s a Michigander who does a lot of work on voter protection) are the fake electors. That’s another illegal act that probably should be brought in any statement of corrupt intent for the same reason Trump’s ties to the rioters should be.

Update, 2/25: Added link to Kollar-Kotelly’s opinion and noted that Leon and Cooper have now ruled.

109 replies
  1. Kit Traverse says:

    Transitive corruption: That’s the keynote right there.

    It’s how the Oath Keepers / Proud Boys only needed a few kitted-out stacks to whip the NPCs into a bloodthirsty rage.

    It’s what you get when your pillar of the community stands before the judge and pleads for mercy because Trump made him do it.

  2. Paul Sturm says:

    JustSecurity didn’t entirely leave out “inciting an insurrection”. It gets a brief mention as follows:

    “While Trump’s vitriolic comments on the Ellipse that day may have been designed to incite the crowd to attack the Capitol, more evidence that violence was part of Trump’s plan would be needed to support criminal charges for this offense.”

    Which, I think, is correct — it’s questionable whether or not a prosecutor could meet the burden of proof to show that the Ellipse speech is incitement under the Brandenburg test. For at least a couple reasons I can see: the violence had been planned days or weeks in advance; police lines at the Capitol had been breached prior to Trump delivering the “fight like hell” line; evidence that Trump intended criminal violence, as opposed to purely 1A-protected political activity, has not yet arisen.

    In any case it’s arguable that an incitement charge would stick; JustSecurity did evaluate the possibility and for prudential reasons decided not to include it in the model prosecution memo. Reasonable minds may differ, but I think it’s a justifiable choice.

    • Kit Traverse says:

      In Mehta’s ruling, which granted is just a motion to proceed in a civil case, he certainly allowed it was plausible that Trump directly caused the violence as an actionable tort.

      • Paul Sturm says:

        Yes, “plausible”. I don’t think that means any more than that the judge believes the argument could be made, and wouldn’t be tossed out immediately. I’m sure the author of the JustSecurity article would acknowledge as much (as would I). Nevertheless the author would recommend not going down that route, because even though it clears the “plausible” bar for getting into civil court, the evidence isn’t sufficient to sustain a conviction all the way through. Or at least, that “obstruction” is a better overall strategy than “incitement”. (Surely a “plausible tort in a civil case” is a lower/different bar than what would be required for a criminal conviction.)

        • earlofhuntingdon says:

          The civil proceeding was to make a determination whether to reject a cause of action. McQuade drafted a hypothetical criminal prosecution memo. They should articulate different standards.

    • harpie says:

      It is known that Trump orchestrated the Rally, deciding who would speak when, and even micromanaging what they would say. Every speech on the ellipse that day built up to a crescendo of “Fight for TRUMP!!” chants from the by-TRUMP-assembled MOB.

      TRUMP’s words “fight like hell” may have come at the end of his speech, but the word “FIGHT” came within the first 5 minutes:

      […] We will not let them silence your voices. We’re not going to let it happen, I’m not going to let it happen.
      (Audience chants: “Fight for Trump.”)
      Thank you. […]
      And Rudy, you did a great job. He’s got guts. You know what? He’s got guts, unlike a lot of people in the Republican Party. He’s got guts. He fights, he fights. […]

      The previous time TRUMP had said “Fight like hell” to a rally mob was at the
      1/4/21 Dalton, Georgia Senate runoff campaign event where he continued to claim that the general election “was a rigged election” and that he would “fight like hell.”

      • Paul Sturm says:

        There’s no court in the land that is going to criminalize a politician using the word “fight”. I wish politicians would be more circumspect in their language, but this sort of hyperbolic political speech is deeply protected by decades of First Amendment jurisprudence. There would have to be some other evidence, not yet publicly known, that can be used to prove Trump welcomed criminal activity on his behalf.

          • Paul Sturm says:

            Because that’s the crux of the incitement argument.

            I think the incitement argument fails for more than one reason — both in that the timeline is fatally problematic, and also that a politician saying “fight” is insufficient.

            • harpie says:

              I disagree that Trump using the words “fight like hell” in his Rally speech is the “crux of the incitement argument”.

              Per Marcy’s previous post, excerpted above, for example, Gina Bisignano responded to these TRUMP words:
              “I hope Pence is going to do the right thing” [Though I think he said “Mike” in the speech, instead of “Pence”]

              GB: “I hope so. He’s a deep state.” [] “we are marching to the Capitol to put some pressure on Mike Pence.” [] “I’m going to break into Congress” [] “Break the window!” [she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.]

              [btw, TRUMP said those particular words at approximately 12:10 PM]

              • Paul Sturm says:

                There’s definitely more to that speech than just the “fight like hell” bit, so certainly I can see the incitement argument covering other bits of the speech. That makes sense. Building the case would require digging in to all those details and comparing timestamps with the criminal events over at the Capitol. I don’t wanna do all that grunt work, so I’m not going to be too assertive on that point. But yeah, I’d leave it to someone else to lay out the exact tick-tock — nevertheless, I think you’ll still hit intractable timeline problems, given that a nascent riot was already afoot (pushing through police barricades and criminal trespass) before Trump even approached the mic. Trump definitely inflamed matters, and a large portion of the crowd didn’t approach the Capitol until after the speech, but I think it’s a problematic argument to make in the end.

              • Paul Sturm says:

                Please note that I have no actual training or expertise in legal matters! I’m hoping to learn as well from this discussion.

        • earlofhuntingdon says:

          Fight like hell – to what purpose? The election was over. Trump lost. He lost all but one of five dozen civil suits trying to overturn that loss in key states.

          He was grasping at any argument, no matter how outrageous, that would allow his VP to act unconstitutionally and obstruct a constitutionally mandated government proceeding. He repeatedly and explicitly pointed out to Mike Pence that the mob – inherently a tool of violence – was on his side and that Pence should bend to its will or face the consequences.

          Fight like hell – in that context – is not pure speech, not even rabidly partisan speech. It is threatening immediate physical violence on those responsible for upholding the constitutional order. The purpose was to illegally keep Donald Trump in office, immune from prosecution, and able to exact revenge on his enemies.

          • Paul Sturm says:

            You know that and I know that. But it comes down to what a prosecutor can prove beyond a reasonable doubt. I’m by no means a Trump defender; my interest here is in making the most robust case possible. I’m convinced such a case will be built around conspiracy/obstruction, to the exclusion of incitement.

          • Wajim says:

            Quite. Moreover, his honor, Mehta, just dismissed Rudy from a case even as he urged “trial by combat.” So, yeah, live by the 1st, die by the 1st. I’ll take the former even at the risk of the latter

    • emptywheel says:

      Wow. I guess all those statements of offense where people describe acting on Trump’s language is just wasted paper, huh?

      Sorry: That’s why this is such a shortcoming in the JS piece. Because DOJ has accumulated unbelievable amounts of evidence that it was incitement. And the people who had other plans — the Proud Boys — were conspiring with Trump via Stone and probably Rudy.

      • emptywheel says:

        And I’ll add, this is the reason why Mehta’s (to me) surprising upholding of the aiding and abetting charge has me reconsidering how much DOJ already has. As I noted, MOST of the worst assault cases before Mehta involve people describing being commanded by Trump.

        In other words, Mehta — perhaps the most important judge on Jan 6 cases — believes the case can be made not just that Trump was conspiring with the militias (and I promise, the evidence of that will really snowball), but also that he abetted the actual assaults on cops.

        • BobCon says:

          Is there any sense if Mehta’s view appears to based for the most part on evidence submitted to him that is largely out in the open, or is it possible he is basing his view on a lot of evidence that is not yet out in the open?

        • Paul Sturm says:

          Right yes, that’s all building towards charges other-than-incitement. Incitement is barking up the wrong tree, and it makes sense that a prosecutor would leave it by the wayside.

          Heck, to a certain extent, incitement and conspiracy charges are working at cross-purposes: conspiracy implies pre-planning; incitement has in mind a spontaneous reaction to the Ellipse speech. They’re not necessarily diametrically opposed, but it does make it messy to try to suss out which criminal acts were pre-planned and which were incited in the moment. It makes sense for a prosecutor to streamline the case around conspiracy and not devote resources to throwing incitement at the wall just to see if it sticks.

            • bmaz says:

              Yes, they actually do. One is fairly standard and easy to understand, and the other, incitement, is not and would be far harder to understand, and far harder to establish intent on. It would be tactically stupid to pollute a solid obstruction case with incitement.

              • Leoghann says:

                I’m not trying to be cute here, but is conspiracy to incite a thing? Because the militia conspiracies relied, and spoke at some length about relying, on someone inciting the normies. And the big kahoona of “someones” is the big orange guy himself–the fearless leader.

                • harpie says:

                  I wonder that as well.

                  Marcy’s comment at 2/23 at 12:22 PM:
                  Trump got bodies here and got them to the Capitol and they –with the direction of Jones and the militias–occupied the Capitol. So they’re not at all at cross-purposes. And by charging THAT as conspiracy then his tweets getting people to DC (which many defendants described as an order) will be proof of the conspiracy.
                  [end blockquote]

          • emptywheel says:

            I think you’re hung on up conspiracy–which, again, I’ve been laying out based off of DOJ’s charging documents since August–not involving the actual rioters.

            Trump got bodies here and got them to the Capitol and they –with the direction of Jones and the militias–occupied the Capitol. So they’re not at all at cross-purposes. And by charging THAT as conspiracy then his tweets getting people to DC (which many defendants described as an order) will be proof of the conspiracy.

            • Paul Sturm says:

              I do agree that I’m hung up on conspiracy. I think that’s the most viable path forward to a Trump indictment. I think that roping in incitement is not necessary and may make the case more complex with no offsetting benefit. But I acknowledge that that is a judgement call for the prosecutor that could go either way.

      • Paul Sturm says:

        I think those statements-of-offense are more useful in supporting a conspiracy/obstruction charge rather than an incitement charge. Especially the ones where they say they travelled to DC in response to earlier statements by Trump. If Trump’s Ellipse speech was the act of incitement, it couldn’t have retroactively induced them to travel to DC (or to pre-assemble a gallows, or to pre-stage weapons at a Virginia hotel). If some earlier Trump statement induced them to travel to DC, then it fails the Brandenburg test, in that the speech act in question did not produce “imminent” lawless action. It’s much more plausible to bring all of that together to sustain a conspiracy charge, not an incitement charge.

        • Christopher Rocco says:

          I think various charging documents, and judges, along with ew have pointed out that it was the massive numbers of a huge mob that made the attack possible. The point is that you can’t separate the assaults by the militias from the actions of the mob. It was the mobsters numbers that made the militia attacks possible. That links incitement to conspiracy.

            • Kit Traverse says:

              Not necessarily or in every case, no.

              But in this particular case, it’s beyond obvious that Trump wasn’t just looking for his mob to go forth and exercise their First Amendment protest rights.

              • bmaz says:

                Hard to Tell at this point. There is not even a charging document so we can see and understand what the charges are (if there are even to be charges against Trump and/or his inner circle). And as Marcy consistently reminds, it is almost certain there is a treasure trove of additional evidence that DOJ is sitting on and/or is still collecting and analyzing. Those are serious unknowns. My best answer is stay tuned, we shall see.

                • Kit Traverse says:

                  Not saying as a matter of law (you’re the lawyer; I’m just an Internet bloviator), but simple common sense would lead anyone to that conclusion if Trump’s stated intent was to change the outcome of an official proceeding without a legally recognized mechanism to do so.

                  The intent Trump was encouraging wasn’t to merely register a protest; the intent was to make a concrete change that logically couldn’t happen without a violent interruption.

                • Leoghann says:

                  It can’t be for nothing that there are a whole new rash of arrests, mostly of assaulters and people on the periphery of the militias. If FBI is still following its rationale of prioritizing arrests of people whose devices, and perhaps testimony, can reveal more of the activities of the organized groups, there may be deeper revelations forthcoming.

            • CD54 says:

              We’re not lawyers — we just watch them on TV.

              But the size of the mob moving to the Capitol was critical to overwhelming the Capitol Police presence.

              More interesting: Who at/affiliated with the White House was aware of the Capitol Police plan of deployment before Jan. 6th?

        • bawiggans says:

          We have ample evidence that Trump had conspired with the militias to disrupt the vote certification with an assault on the Capitol. I have seen nothing that indicates that the commencement of the assault while the rally on the Ellipse was still in progress was anything but deliberate. Trump inciting the crowd at the rally to break the law by moving as a body to the Capitol was essential to the success of the battle plan. Trump would have been confident of his ability to do this and it was unlikely that many in the crowd would be aware that such a procession would be illegal in any important sense. He even implied that he would be marching with them. Moving the crowd to the Capitol grounds was to supply the “normies” counted on by the militias to reinforce and sustain the assault they had initiated. The rally crowd constituted a strategic reserve whose deployment would add mass and momentum to the effort to disrupt that was already in progress. Trump’s incitement was the catalyst to bring that reserve into play and it was, again, an essential element of the conspiracy to overturn the results of the election.

          • bmaz says:

            Oh you do now, do you? You ever had to admit evidence in a federal criminal trial, and then argue it? It is not as easy as commenting on the internet.

              • earlofhuntingdon says:

                If commenting on the Internet is as easy as playing backyard lawn tennis, commenting here is like playing Wimbledon.

                • Kit Traverse says:

                  Which is why I’m here and not on Twitter (not that I liken myself to the textual equivalent of Nidal and Federer, LOL).

                  I got sent to Twitmo for 12 hours because I was maliciously reported. Perfectly willing to take the suspension, but Twitter had to get back to me (answer my appeal) and tell me to my face (as it were) that my post violated their ToS (spoiler alert: it didn’t at all).

                  They didn’t and it’s been months, so I’m like eff Twitter ;) I don’t have much to offer, not being a legal nerd, but I learn tons from Marcy and everybody and am honored to be welcomed into this community.

                  • Alan Charbonneau says:

                    Last week I posted Marcy’s appearance on Morning Joe to about 50 Twitter threads discussing Durham. I got suspended and I still am, though I appealed. I guess that much posting was considered spamming? Live and learn.

                    Thankfully, I still have another account and can post snark, but what about my 50 followers? :)

                    • Rayne says:

                      If you have to hunt down places to share a link you’re spamming, sorry to say, and an easy target for the accounts that don’t like Marcy. Better to work on follower count and quality of followers and share once with them.

                • Leoghann says:

                  Wimbledon is all well and good, M’Lord, but your lordship has completely omitted lawn darts, and where they stand in the hierarchy.

        • emptywheel says:

          I agree with that.

          But I disagree that treating his speech as part of the incitement is at cross purposes with obstruction.

          Does that make sense?

          • Paul Sturm says:

            Yes that makes sense. I do agree that it’s doable to combine conspiracy/obstruction along with incitement. I just think it gets messy. Mine is more of a tactical argument that the indictment would be better over all if it were streamlined by excluding incitement — keeps you from having to tangle with Brandenburg, for one thing, and lets you tie everything to pre-planning and execution rather than having to split off certain bits as spontaneous reactions to the Ellipse speech.

    • Leoghann says:

      Indeed violence had been planned days or weeks in advance, by the militias that conspired among themselves. And most of those people didn’t attend the rally at the Ellipse; instead they took up positions around the Capitol, and in some cases began fighting with the police or breaching the outer barriers that had been placed. But it took “the normies” to actually make their breach of the building happen. Trump’s incitement was what provided the momentum for that crowd to walk down Pennsylvania and “fight like hell.”

  3. Kit Traverse says:

    In Mehta’s ruling, which granted is just a motion to proceed in a civil case, he certainly allowed it was plausible that Trump directly caused the violence as an actionable tort.

  4. Leu2500 says:

    “ His public statements suggest that he genuinely believed that he had won the election”

    Nope. Trump started questioning the election results if he didn’t win well b4 Election Day.

    & we just found out in the latest Eastman filing that there was a team working on “election integrity” no later than Sep 2020, when Cleta Mitchell recruited Eastman.

    [FYI – link edited to remove tracking. /~Rayne]

    • Rita says:

      According to the Politico article about Eastman’s filing, Trump retained Cleta Mitchell in August, 2020 to work on election issues. She then recruited Eastman. Trump’s internal polling must have been showing some really bad numbers.

      If the Campaign had been so sure that the election machines were suspect and election procedures rigged against Trump why didn’t they do a “full court press” before the election?

    • Rugger9 says:

      Cleta’s a good friend with Ginni Thomas. As noted above the campaign lost all but 1 of the 5 dozen cases filed (they one they did win was a procedural point in PA IIRC) and in many of those cases the campaign’s lawyers refused to state in court they were alleging fraud (because it was under oath) even when specifically asked by the court. It was merely to provide cover for the moles (like GSA head Murphy) to throw sand in the gears for the transition (‘Oh golly, we’re not sure who won yet…’).

      • Leoghann says:

        Speaking of Ginni Thomas, I noticed her name associated with problems while I was scanning the news during lunch today (Wednesday), but Ukraine pulled me in before I could follow the link.

        • Ginevra diBenci says:

          Leoghann, saying Ginni Thomas is “associated with problems” is like saying our public health system might have issues with vax deniers. (In addition to everything else, Thomas has fueled that fire too; if it’s divisive, rightwing and fringe–or once so–she’s right in the middle of it.) She is on the board of CNP, a major nexus of money and power on the right, where “traditional family” adherents join with anti-tax conglomerates to deprive vast majorities of wealth and the freedom to vote, or exercise any personal choice when it comes to their bodies.

          For what it’s worth, which is nothing, she believed Anita Hill’s motivation for coming forward in 1991 was that “she [Hill] was in love with him [Clarence Thomas, Ginni’s husband].” Because a little unhingyness always sweetens delusion, G Thomas followed this up a few years later by leaving a long rant on Professor Hill’s answering machine. Despite (or because of) this embarrassing behavior, Thomas has risen to be a major reactionary power broker–paralleled by hubby’s new position on SCOTUS as fringe-no-longer veteran.

  5. WilliamOckham says:

    Marcy has laid this out repeatedly. To quote:

    The plan required six types of participants to make it work:

    People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
    Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
    People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
    Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
    Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    “Smash some pigs to dust”

    • Kit Traverse says:

      Yep. Very compelling synopsis when I read it initially.

      Turning the NPCs / normies into an easily manipulatable weapon (with plausible deniability in a conspiracy for said normies) is where incitement meets obstruction.

  6. bawiggans says:

    Put this in the context of a “battle plan” for January 6:
    • An initial assault kicked off by the militias while the rally at the Ellipse was in progress.
    • Congressional collaborators carrying on legal procedural measures to delay certification
    • Trump and others winding up the crowd at the rally
    • Trump inciting the crowd to march as a body to the Capitol, which was explicitly prohibited by the permit to hold the rally.

    The crowd at the Ellipse constituted the strategic reserve that would supply the normies to sustain the assault initiated by the militias. Trump’s role was to deploy this reserve to the battlefield from the rally. He exhorted them to move there en masse and even gave them the impression that he would be with them. Engagement of this crowd in the assault was essential to its success in every sense and Trump demonstrably did his part to get them engaged.

    • bawiggans says:

      “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.”


      “So let’s walk down Pennsylvania Avenue.”

      These words in Trump’s J6 speech at the Ellipse make emphatic the importance of this action to his cause and his commitment to it. They strongly imply his own inclusion in his repeated use of forms of “we”. For those who might have been aware that what he was imploring them to do was explicitly prohibited in the permit for the rally, his participation in the march would surely serve as legal cover for all. Once the march began, in a crowd that big, it is easy to be unaware of whether he was actually among them or not, and given their demonstrated credulousness, many may have believed that he was there. They all had reason to believe he was “with them”.

    • bawiggans says:

      Here’s more and even more to the point:
      “Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down.

      Anyone you want, but I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.”

      Trump’s task was to get them to the Capitol. The militias would take it from there. He did his part by means of inciting them to commit an unlawful act.

      • Paul Sturm says:

        “walking down to the Capitol” is not an “unlawful act”.

        The missing link here is that a prosecutor would need to present evidence that Trump knew about intended criminal or corrupt actions.

        • bawiggans says:

          Agreed. It might be difficult to make the distinction between a stroll down the avenue and an unlawful march. The more important part of this will be proving that Trump knew that the plan to obstruct certification required him to cause a substantial part of the crowd at the rally to move from the Ellipse to the Capitol grounds where others would be waiting to engage some portion of them in the ongoing assault. Trump wound the crowd up and pointed out a target for their rage just down the street and he went so far as to tell them that he would be there with them to get them to go there. Trump’s knowledge that there was a plan to disrupt Congress and that this was his part in it is what would make his incitement actionable. It looks more and more as if a convincing case for this is being built.

          • Paul Sturm says:

            You’re building a conspiracy case, not an incitement case. There’s no point in trying to make this a bank shot off of incitement.

            • Rayne says:

              Look, I’m kind of annoyed that some dude in Canada who isn’t a lawyer thinks he’s going to school us all on the case against Donald J. Trump.

              Take a look at the definition under 18 USC 2102(b):

              (b)As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

              Trump has participated in one or more conspiracies which relied upon a riot to further the corrupt aims of the conspiracies. He wasn’t merely expressing his First Amendment rights but participating in the organization, encouraging participation, and promoting the crowd to riot, both before January 6 and on January 6 at the Ellipse, and again by refusing to take any action to halt the violence which was within his duties and obligations.

              Furthermore, Trump wasn’t just a lame duck president. He was commander-in-chief at the time, conferring more than performative status on his acts.

              This isn’t just a matter of a conspiracy charge but MORE charges, including 18 USC 2101(a)(1) because he used the internet repeatedly to encourage participation in an event which his co-conspirators intended to be riotous — in other words, incitement to riot.

        • obsessed says:

          “walking down to the Capitol” is not an “unlawful act”.

          This post argues that it was unlawful in this particular case because there was no permit to march, right? So if I’m getting it right, everyone agrees that incitement could be charged but the argument against it is that it’s messier than only charging conspiracy/obstruction?

  7. Aneela says:

    Re. this statement:
    “Alex Jones (whom Trump ordered to take the mob on an unpermitted march to the Capitol and two of whose employees are already among those 750 being prosecuted) ”
    I’m confused about how we can be confident that Alex Jones was telling the truth when he said that Trump asked him to lead the march & lead it to the Capitol.
    I’m probably just missing a piece of the puzzle.
    We know the march was unpermitted. We know Trump himself asked rally-attendees to march to the Capitol. We know that Trump campaign people (Katrina Pierson) tried to block Ali and Jones from attending the Ellipse rally and that Caroline Wren insisted on them attending, got them VIP passes, and escorted them out to lead the march.
    And then we know Jones said Trump personally asked him to lead the march.
    But do we know for certain that either Trump personally asked him, or that Wren was in touch with Trump when she did her insertion of Ali/Jones into the rally/march?
    Thanks, appreciate very much all you do.

    • Hoping4Better_Times says:

      Alex Jones put out a video in which he said “the White House” asked him to lead the March. Jones does not name any specific person in the “White House” in the video. At the Capital on Jan 6th, Jones urged people to move to the East side where trump would give another speech (sic). Did Jones fantasize about his own importance on Jan 6th? One of his ardent fans donated the money to fund the Jan 6th rally. (Grocery store heiress). If we are lucky, the Jan 6 Select committee hearings will tell us what happened vis-a-vis Alex Jones and the March.

    • Leoghann says:

      Alex Jones is a serial, perhaps pathological, liar, so it’s doubtful he told the exact truth, no matter what he said. If Trump asked him on a previous day, or White House staffers asked him for Trump, that’s just one more brick in the conspiracy wall. But there are two facts we know–that march had never been permitted, and Alex Jones was indeed trudging down Pennsylvania Avenue (I love Pennsylvania Avenue) at the head of the crowd, voice blasting through his bullhorn.

  8. Silverolf says:

    I saw Trump being interviewed on tv by fox a long time before the election and he was asked about violence , and his responce was , perhaps , we’ll see. I believe it was with Chris Wallace at the White House lawn. Am i correct or was i dreaming?

    • P J Evans says:

      IIRC, he wouldn’t even answer when asked if he’d concede a loss. He was so invested in winning that losing wasn’t possible.

      • Ginevra diBenci says:

        So invested in winning? He already knew he would probably lose; internal campaign polling was clear on that.

        He was laying the groundwork for the rejection of the results. He did this in 2016 too. Should Trump lose momentum while playing Monopoly, he would heave the game board in the air.

    • MB says:

      He wasn’t asked about violence, per se. Wallace asked him whether he would voluntarily concede if the election results clearly showed that he lost. To that, he said “perhaps, we’ll see…”

  9. Molly Pitcher says:

    An interesting and tangential OT:

    “North Carolina officials reject Cawthorn claim that Constitution’s insurrectionist ban no longer applies”

    “The North Carolina attorney general’s office says a constitutional prohibition on insurrectionists seeking federal office could be applied to GOP Rep. Madison Cawthorn if a state board determines he aided or encouraged the Jan. 6, 2021, attack on the Capitol.”

    • bmaz says:

      Yeah, those are huge losses. And they are not saying much, but clearly were fed up and did not believe it was going to ramp up and go anywhere. And, make no mistake, Leticia James civil investigation is nothing compare to what these criminal pros could do.

      • Marinela says:

        These prosecutors resign, but the criminal investigation still on-going? I am so confused.
        Is this affecting the investigation of Allen W.?

        On the other hand, John Durham still collecting fat paychecks from DOJ, to what end? He is not resigning any time soon I take it. Upside world?

        • MB says:

          The NYT article cited above seems to imply that the new Manhattan DA is leaning toward shutting down the criminal case altogether, for whatever reasons (personal? political? pressure from outside?) and because of that, the 2 prosecutors are resigning. Everybody is tight-lipped at the moment, but the empaneled grand jury apparently has not been used by Bragg since he took office in January.

            • Kit Traverse says:

              Here’s what I do: Delete cookies (I use Clean All from the Google app store).

              You can’t defeat hard paywalls, but you can defeat free article limits.

              And people should be deleting cookies regularly as a matter of basic Internet hygiene, anyway.

              • MB says:

                My experience with NYT is that it was until recently possible to delete cookies and thereby read articles, but no more. They’ve seemingly erected a hard paywall nowadays. I gave in and now subscribe at their $4/month promotional rate.

                Washington Post has always been impossible, cookie-and-paywall-wise.

                L.A. Times still allows deletion of cookies and you still get rewarded for doing that, kinda. Only one article at a time, and then you have to do it again…

                • Kit Traverse says:

                  For a couple years the NYT tried a method of doling out two articles a month without linking it to cookes and you couldn’t even delete your Internet data to defeat it. But in the past few weeks, I tried just deleting cookies and it works again. Doubtless they update their SW regularly and have a new system. I assure you it works now and I’ll get two free articles (one with my free registration) per every cookie massacre.

                  WaPo’s my go-to read and I always found their article limits annoying but defeatable. But I got a subscription two years ago and a renewal for Christmas. Funnily though, I haven’t needed to use my renewal this year and can read as many articles as I want. Is the old subscription still valid? I have no idea. I have my new sub to fire up in case this stops.

      • Leoghann says:

        That really leaves me with a queasy feeling of corruption. Trump played his games in New York for decades, with no apparent attempts to investigate him. “Oh, everyone just saw him as a colorful character” doesn’t fly with me as a reason, or even an excuse. Has the same set of events just happened again?

  10. Riktol says:

    With respect to your critique that Ms McQuade only address one angle for a potential prosecution, as far as I can see she never claimed to address more than that specific one. Given how long the article is I’d say a separate article for each other angle would be both necessary and appropriate. And if she or her editor has decided that addressing each and every one of them is not a good use of time then at least she covered this one well.

    I was struck by this line near the end of her article “Even those who voted for Trump are harmed when they are deprived of a president who was elected by legitimate means”. It reminded me of when you wrote about some bad lawyering, which argued that no-one would be harmed if Biden’s election was not certified, to which the rejoinder was that 80 million Biden voters would be harmed.
    But this misses the harm to both Trump voters and non-voters if their government is not legitimate.

      • timbo says:

        At least there was some effort expended to get something out? Maybe we shouldn’t drink it but it’s good sometimes to see a glass that looks like it might have some good in it…

        • bmaz says:

          Meh, draft indictments are vanity projects for clickbait. They mean nothing. I’ll wait for the real thing, if it ever comes.

          • Kit Traverse says:

            There’s the rub; the entire Internet is a vanity project for clickbait. Without the Internet, would we have Trump? Would we have 30s-grade ethnonationalism making a resurgence thanks to The Big Fake Truth?

            On the flipside, you have good peeps like Barb McQuade (and Marcy, and you) making an honest stab at helping the rest of us mere mortals at least begin to understand this stuff. Which is small compensation, but still.

  11. Tom R. says:

    Part of the story is being left out, and I don’t understand why.

    By way of background, (a) note many of those who committed the most serious crimes didn’t even attend the speeches at the Ellipse. Long before Jan. 6th they had already reached an agreement to attack. In such cases the speeches are not relevant.

    Furthermore, (b) even if they had attended, the words “fight like hell” on Jan. 6th are not sufficient grounds for prosecuting the speaker, nor should they be. Not even close. Politicians say things like that all the time, and usually it refers to squabbling, not assassinations. In particular, we should keep in mind the Chicago 7 case. Those convictions were thrown out on appeal, and IMHO the charges should never have been brought.

    Here’s what’s (a) relevant and (b) not metaphorical: On Nov. 1, 2020, TFG tweeted out high praise for his supporters who forced cancellation of a Biden campaign event, by swarming a Biden campaign bus and trying to run it off the road. Then on Nov. 14th he praised his supporters who “aggressively fought back” against “antifa SCUM”. These are just two of many well-documented instances of calling for political violence in general, and praising specific incidents. If this is not evidence of intent, I don’t know what is.

    The Brandenburg criterion (“inciting or producing imminent lawless action”) makes no sense in this context. He expresses approval immediately after each instance, so it is not causative with respect to instance N and not imminent with respect to instance N+1. Even so, the people who attacked on Jan. 6th absolutely knew they were doing his bidding.

    Brandenburg keyed off the earlier Noto decision: “the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” It seems to me that the present case is clearly on the illegal side of the Noto criterion. It is far, far beyond mere abstract advocacy. It is a long-running pattern of actual violence, and an agreement to continue the pattern.

    Brandenburg threw out a law that criminalized mere abstract teaching. But if you look at the totality of the evidence, that’s not what’s going on here. Not even close. Speech in furtherance of a criminal conspiracy is not protected by the first amendment. I don’t understand why the long-running conspiracy does not figure more prominently into the discussion.

    • Rayne says:

      The violence was intended and planned ahead of January 6, and in multiple layers:

      The Proud Boys met at the Washington Monument and were already at the Capitol before Trump finished addressing thousands of supporters near the White House. Listening to the president’s speech wasn’t part of their plan, prosecutors say.

      Nordean led the way with a bullhorn while they wore headgear marked with orange tape. Pezzola appeared to have an earpiece in his right ear. Biggs had what looked like a walkie-talkie device on his chest.

      Nordean was spotted having a brief exchange near the Capitol with Robert Gieswein, a bat-wielding Colorado man. Proud Boys planning for Jan. 6 had discussed using non-members, or “normies,” like Gieswein to “burn that city to ash” and “smash some pigs to dust,” prosecutors said.

      Excerpt, US narrows in on organized extremists in Capitol siege probe, AP March 10, 2021

      As for Trump’s pattern of calling for physical acts of violence: he did it repeatedly throughout his four years in office and during his campaign. Trump’s rhetoric may have influenced Cesar Sayoc’s 16 aborted pipe bombs, Christopher Hasson’s targeted assassination plans, while his proxies may also have amplified his rhetoric influencing the Capital-Gazette mass shooting. The perceived permission for violence escalated over time.

  12. timbo says:

    I keep coming back to McQuade’s point P, how the Trump Campaign (and do we know who specifically was behind that as yet?) tweeted that Pence and Trump were in agreement and would act in the interest of Trump the following day, posted late evening of Jan 5. This set up Pence to be the target of wrath if the VP did not act in Trump’s interest on Jan 6. It basically created a public cause for anger at the VP, as if he had somehow reneged on a promise to Trump if he didn’t do the corrupt thing that Trump hoped would keep Trump in office. It gave Trump’s supporters at The Ellipse rally a sense that they would have to act to stop the vote count a the VP had betrayed their buoyant hope, a false hope that Trump’s campaign had stoked the night before.

    • RobertaM says:

      I figured that the Trump tweet may have been an additional way to pressure Pence. By somehow if Trump said it was happening, that Pence would change his mind. Your comment gives me additional avenues to think about!

  13. Vinnie Gambone says:

    Timbo, release of the WH “Pence is with us” J5 lie letter is a interesting point in that Pence already informed WH he was not going along with plan because it was not legal. So Trump knew/ignored this fact that what they were proposing was not legal and therefore all his actions after had corrupt intent.
    You folks are amazing!

  14. matt fischer says:

    Dr. Wheeler, did you mean “…and the extent to which corruption is proven by doing acts that are otherwise illegal”? Aren’t illegal acts inherently corrupt?

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