On Ginni Thomas’ Obstruction Exposure and Clarence’s Former Clerk, Carl Nichols

In a motions hearing for January 6 assault defendant Garret Miller on November 22, former Clarence Thomas clerk Carl Nichols asked the appellate prosecutor for the January 6 investigation, James Pearce, whether someone asking Mike Pence to invalidate the vote count could be charged with the obstruction statute, 18 USC 1512(c)(2), that Miller was challenging. Pearce replied that the person in question would have to know that such a request of the Vice President was improper.

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

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

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

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

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

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

At the time (as Josh Gerstein wrote up in his piece), we knew that former Clarence Thomas clerk John Eastman had pressured Pence to throw out legal votes.

But we’ve since learned far more details about Eastman’s actions, including his admissions to Pence’s counsel, Greg Jacob, that there was no way SCOTUS would uphold the claim. In fact, those admissions were cited in Judge David Carter’s opinion finding that Eastman himself likely obstructed the vote count by pressuring Pence to reject the valid votes, because he knew that not even Clarence Thomas would buy this argument.

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice,37 would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.39


Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed.254 More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,”255 including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes.257 Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.258

We’ve also learned more details about Ginni Thomas’ role in pressuring Mark Meadows to champion an attempt to steal the election, including — after a gap in the texts produced to the January 6 Committee — attacking Pence.

The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

In that message, Thomas expresses support for Meadows and Trump — and directed anger at Vice President Mike Pence, who had refused Trump’s wishes to block the congressional certification of Biden’s electoral college victory.

“We are living through what feels like the end of America,” Thomas wrote to Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!”

“Amazing times,” she added. “The end of Liberty.”

Ginni Thomas famously remains close with a network of Clarence’s former clerks, so much so she apologized to a listserv of former Justice Thomas clerks for her antics after the insurrection.

Any former Thomas clerk on that listserv would likely understand how exposed in efforts to overturn the vote certification Ginni was.

As I said, little of that was known, publicly, when former Justice Thomas clerk Carl Nichols asked whether someone who pressured Pence could be exposed for obstruction. We didn’t even, yet, know all these details when Judge Nichols ruled in Miller’s case on March 7, alone thus far of all the DC District judges, against DOJ’s application of that obstruction statute. While we had just learned some of the details about Jacobs’ interactions with former Thomas clerk John Eastman, we did not yet know how centrally involved Ginni was — frankly, we still don’t know, especially since the texts Mark Meadows turned over to the January 6 Committee have a gap during the days when Eastman was most aggressively pressuring Pence.

DOJ may know but if it does it’s not telling.

But now we know more of those details and now we know that Judge Carter found that Eastman and Trump likely did obstruct the vote certification. All those details, combined with Nichols’ treatment of the Miller decision as one that might affect others, up to and including Ginni Thomas and John Eastman and Trump, sure makes it look a lot more suspect that a former Clarence Thomas clerk would write such an outlier decision.

Which brings us to the tactics of this DOJ motion to reconsider filed yesterday in the Miller case. It makes two legal arguments and one logical one.

As I laid out here, Nichols ruled that the vote certification was an official proceeding, but that the statute in question only applied to obstruction achieved via the destruction of documents. He also held that there was sufficient uncertainty about what the statute means that the rule of lenity — basically the legal equivalent of “tie goes to the runner” — would apply.

DOJ challenged Nichols’ claim that there was enough uncertainty for the rule of lenity to apply. After all, the shade-filled motion suggested, thirteen of Nichols’ colleagues have found little such uncertainty.

First, the Court erred by applying the rule of lenity. Rejecting an interpretation of Section 1512(c)(2)’s scope that every other member of this Court to have considered the issue and every reported case to have considered the issue (to the government’s knowledge) has adopted, the Court found “serious ambiguity” in the statute. Mem. Op. at 28. The rule of lenity applies “‘only if, after seizing everything from which aid can be derived,’” the statute contains “a ‘grievous ambiguity or uncertainty,’” and the Court “‘can make no more than a guess as to what Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)) (emphasis added); see also Mem. Op. at 9 (citing “‘grievous’ ambiguity” standard). Interpreting Section 1512(c)(2) consistently with its plain language to reach any conduct that “obstructs, influences, or impedes” a qualifying proceeding does not give rise to “serious” or “grievous” ambiguity.


First, the Court erred by applying the rule of lenity to Section 1512(c)(2) because, as many other judges have concluded after examining the statute’s text, structure, and history, there is no genuine—let alone “grievous” or “serious”—ambiguity.


Confirming the absence of ambiguity—serious, grievous, or otherwise—is that despite Section 1512(c)(2)’s nearly 20-year existence, no other judge has found ambiguity in Section 1512(c)(2), including eight judges on this Court considering the same law and materially identical facts. See supra at 5-6.


Before this Court’s decision to the contrary, every reported case to have considered the scope of Section 1512(c)(2), see Gov’t Supp. Br., ECF 74, at 7-9, 1 and every judge on this Court to have considered the issue in cases arising out of the events at the Capitol on January 6, 2021, see supra at 5-6, concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” Sandlin, 2021 WL 5865006, at *5. [my emphasis; note, not all of the 13 challenges to 1512(c)(2) that were rejected made a rule of lenity argument, which is why AUSA Pearce cited eight judges]

Among the other things that this argument will force Nichols to do if he wants to sustain his decision, on top of doubling down on being the extreme outlier on this decision, is to engage with all his colleagues’ opinions rather than (as he did in his original opinion) just with Judge Randolph Moss’.

The government then argued that by deciding that 1512(c)(2) applied to the vote certification but only regarding tampering with documents, Nichols was not actually ruling against DOJ, because he can only dismiss the charge at this stage if the defendant, Miller, doesn’t know what he is charged with, not if the evidence wouldn’t support such a charge.

Although Miller has styled his challenge to Section 1512(c)(2)’s scope as an attack on the indictment’s validity, the scope of the conduct covered under Section 1512(c)(2) is distinct from whether Count Three adequately states a violation of Section 1512(c)(2).6 Here, Count Three of the indictment puts Miller on notice as to the charges against which he must defend himself, while also encompassing both the broader theory that a defendant violates Section 1512(c)(2) through any corrupt conduct that “obstructs, impedes, or influences” an official proceeding and the narrower theory that a defendant must “have taken some action with respect to a document,” Mem. Op. at 28, in order to violate Section 1512(c)(2). The Court’s conclusion that only the narrower theory is a viable basis for conviction should not result in dismissal of Count Three in full; instead, the Court would properly enforce that limitation by permitting conviction on that basis alone.

The government argues that that means, given Nichols’ ruling, the government must be given the opportunity to prove that Miller’s actions were an attempt to spoil the actual vote certifications that had to be rushed out of the Chambers as mobsters descended.

Even assuming the Court’s interpretation of Section 1512(c)(2) were correct, and that the government therefore must prove “Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede[,] or influence Congress’s certification of the electoral vote,” Mem. Op. at 29, the Court cannot determine whether Miller’s conduct meets that test until after a trial, at which the government is not limited to the specific allegations in the indictment. 7 And at trial, the government could prove that the Certification proceeding “operates through a deliberate and legally prescribed assessment of ballots, lists, certificates, and, potentially, written objections.” ECF 74, at 41. For example, evidence would show Congress had before it boxes carried into the House chamber at the beginning of the Joint Session that contained “certificates of votes from the electors of all 50 states plus the District of Columbia.” Reffitt, supra, Trial Tr. at 1064 (Mar. 4, 2022) (testimony of the general counsel to the Secretary of the United States Senate) (attached as Exhibit B).

Those are the two legal arguments the government has invited Nichols to reconsider.

But along the way of making those arguments, DOJ pointed out the absurd result dictated by Nichols’ opinion: That Guy Reffitt’s physical threats against members of Congress or the threat Miller is accused of making against Alexandria Ocasio-Cortez would not be obstruction, because neither man touched any documents.

Any such distinction between these forms of obstruction produces the absurd result that a defendant who attempts to destroy a document being used or considered by a tribunal violates Section 1512(c) but a defendant who threatens to use force against the officers conducting that proceeding escapes criminal liability under the statute.


Finally, an interpretation of Section 1512(c)(2) that imposes criminal liability only when an individual takes direct action “with respect to a document, record, or other object” to obstruct a qualifying proceeding leads to absurd results. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (rejecting interpretation of a criminal statute that would “produce results that were not merely odd, but positively absurd”). That interpretation would appear, for example, not to encompass an individual who seeks to “obstruct[], influence[], or impede[]” a congressional proceeding by explicitly stating that he intends to stop the legislators from performing their constitutional and statutory duties to certify Electoral College vote results by “drag[ging] lawmakers out of the Capitol by their heels with their heads hitting every step,” United States v. Reffitt, 21-cr-32 (DLF), Trial Tr. 1502, carrying a gun onto Capitol grounds, id. at 1499, and then leading a “mob and encourag[ing] it to charge toward federal officers, pushing them aside to break into the Capitol,” id. at 1501-02, unless he also picked up a “document or record” related to the proceeding during that violent assault. The statutory text does not require such a counterintuitive result.

The mention of Reffitt is surely included not just to embarrass Nichols by demonstrating the absurdity of his result. It is tactical.

Right now, there are two obstruction cases that might be the first to be appealed to the DC Circuit. This decision, or Guy Reffitt’s conviction, including on the obstruction count.

By asking Nichols to reconsider, DOJ may have bought time such that Reffitt will appeal before they would appeal Nichols’ decision. But by including language about Reffitt’s threats to lawmakers, DOJ has ensured not just the Reffitt facts and outcome will be available if and when they do appeal, but so would (if they are forced to appeal this decision) a Nichols decision upholding the absurd result that Reffitt didn’t obstruct the vote certification. Including the language puts him on the hook for it if he wants to force DOJ to appeal his decision.

I said in my post on Nichols’ opinion that DOJ probably considered themselves lucky that Nichols had argued for such an absurd result.

They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

By including Reffitt in their motion for reconsideration, DOJ has made it part of the official record if and when they do appeal Nichols’ decision.

This would be a dick-wagging filing even absent the likelihood that Nichols has some awareness of Ginni Thomas’ antics and possibly even Eastman’s. It holds Nichols to account for blowing off virtually all the opinions of his colleagues, including fellow Trump appointees Dabney Friedrich and Tim Kelly, forcing him to defend his stance as the outlier it is.

But that is all the more true given that there’s now so much public evidence that Nichols’ deviant decision might have some tie to his personal relationship with the Thomases and even the non-public evidence of Ginni’s own role.

Plus, by making any appeal of this opinion — up to the Supreme Court, possibly — pivot on how and why Nichols came up with such an outlier opinion, it would make Justice Thomas’ participation in the decision far more problematic.

Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin
  2. Amit Mehta, December 20, 2021, Caldwell
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma


170 replies
  1. harpie says:

    Marcy, I’m just running out and can’t even finish reading, but have you seen this NEW 1/3/21 TEXT from the J6 Committee that may be of interest to your topic here?:

    1:48 PM · Apr 1, 2022

    A January 3 [1/3/21] text to Mark Meadows: “I have details on the call that Navarro helped convene… to delay certification… including that the president participated…”

    Peter Navarro must speak to the Select Committee about his role in the attempt to overturn the election. [screenshot]


    [TEXT MESSAGE January 3, 2021] Mark – – I am reaching out because I have details on the call that Navarro helped convene yesterday with legislators as part of his effort to get Pence to delay certification of the election for 10 days, including that the president participated. Were you on the call when the president spoke?

  2. Rapier says:

    Would Nichols have been expected to recuse from this case if he was on this listserv. Not that anything to do with courts can ever be simple but just pretend. No sense weighing down a thread by heading into the weeds. Assuming Nichols stands firm with the decision can his conduct vis a vis the listserv. or other contacts with pro insurrection groups, or whatever term you choose, be part of the governments appeal? As a law dufus I would guess no, and that there is no possible sanction of Federal Judges other than impeachment.

    At one point perhaps Thomas might have found against the Eastman plan but these people at some point are going to have to grow some balls and just say, FU, we’re doing it and you can’t stop us. Which is more and more the case on so many issues, like the Navy vax cases now.

      • Fenix says:

        I have to beg forgiveness for my ignorance once again, I’m genuinely looking for an education here…

        Please explain the sanction possibilities. And what’s the likelihood that sanctions may ultimately be levied? (Although I grant that’s probably asking too much by way of reading tea leaves.) From a layperson’s perspective there seems to be a lot of judicial misconduct or obstruction enabling these events or covering them up. All the wrangling back and forth really makes one cynical, especially as the midterms are fast approaching.

  3. Yogarhythms says:

    If JCN’s reading GT’s list serve his visceral reaction to DOJ’s motion to reconsider will afford him a stellar opportunity for expounding upon his unique interpretation.

  4. joel fisher says:

    My head approaches exploding when I think about how a defendant’s behavior–according to Nichols–might or might not be criminal depending on whether any documents were destroyed. What about the necessary intent? Suppose the Congressman who is being dragged out by his heels with his head banging on the steps starts bleeding and, entirely unbeknownst to the defendant, has official documents on his person which as a result of the bleeding–I really wanted to say, “exsanguination”; how often can you work that into a sentence?–are disfigured or destroyed. Could the Defendant even be charged with obstructing when they didn’t know they were destroying documents? Defense in Judge Nichols’ courtroom: “When I stabbed, shot, beat, gored, kicked, tased, gassed, or trampled the victim, I didn’t know he had documents on him or, if I did know, I didn’t think I was destroying them.”

    • JVO says:

      What if the blood only gets on the document a little and the text is still fully legible? If the document is fully damaged by blood and is then reprinted, does lenity require the same?

      • Doctor My Eyes says:

        The proceeding was obstructed because, after passing through the Speaker’s heart, the bullet grazed an official document blotting out a period.

    • joel fisher says:

      Seriously, wouldn’t Nichols’ opinion would require intent to destroy the documents? Pretty easy to tell what you’re up to when you break down a door while “yelling stop the steal.” But your typical peckerwood can, quite honestly, say, “I don’t know nuffin’ ’bout no docamunts”.

  5. OldTulsaDude says:

    Is it possible there was contact with Nichols prior to his decision, that his decision in essence was lobbied?

      • OldTulsaDude says:

        Good question. I was thinking about something direct but indirect via his wife is just as likely if not more so.

        • bmaz says:

          It was not a rhetorical question! And I do not have the answer. But the answer is almost certainly more slippery than we would hope. Which sucks.

        • Ravenclaw says:

          Given that Ginni Thomas maintains contact with Justice Thomas’s former law clerks (including Eastman and Nichols), was in close touch with Eastman during the coup plotting period, and let them all know something of her involvement in the events of 1/6/21, it is reasonable to suppose that The Honorable Nichols had some inkling of her possible exposure in the case – not to mention that of his fellow ex-clerk. But proof before a court would call for more than just the bits of string connecting their pictures on the corkboard in a prosecutor’s office, I reckon.

          • Commentmonger says:

            Subpoena Ginni Thomas’s phone. There will probably be a thread there to unravel.
            literally and figuratively

      • Charles Wolf says:

        “What constitutes “contact”?”

        Among other ways, “Russia if you’re listening …”
        ,,, Well – it used to work

  6. Chirrut Imwe says:

    Another Pulitzer-worthy explainer from Dr. Marcy. How you stay focused and cut through the bullsh*t so consistently is truly awesome. Thank you!

  7. BobCon says:

    “he knew that not even Clarence Thomas would buy this argument.”

    “Nichols’ deviant decision might have some tie to his personal relationship with the Thomases and even the non-public evidence of Ginni’s own role.”

    An obvious question is how did Eastman come to this understanding? He’s a wishful thinker and bad at legal analysis. Was Ginni Thomas working as a back and forth between Trump’s legal group and Clarence Thomas to get serious intel on what might fly with the rest of the Supreme Court, rather than fanciful theorizing?

    Were their votes on things like the Archives decision attempts to distance themselves from conversations they had with Clarence Thomas as they figured out what was going on?

    A few years ago I’d dismiss this as too far fetched, but now I start to wonder. I’d love to know what has been dug up on Ginni Thomas and how extensively her communications have been analyzed, although I realize this would probably be an incredibly closely held secret by DOJ if they have gone there.

    • John Forde says:

      “Was Ginni Thomas working as a back and forth between Trump’s legal group and Clarence Thomas to get serious intel on what might fly with the rest of the Supreme Court, rather than fanciful theorizing?”
      Wow BobCon. Just wow.
      If evidence of this emerges will it feel more like boiling frog? I can see Hannity saying this is just normal free speech.

      • BobCon says:

        I will add that there are absolutely First Amendment issues here, and things may have stayed at a morally bad but not illegal level.

        There was a lot of above board communication going on for sure between Thomas and the lawyers. Simply giving a reading into the twisted soul of her husband would be legal. I just can’t shake the potential that it went further to the point where he may have been actively engaged.

        • John Forde says:

          Hannity spin : Thomas wasn’t “actively engaged”. He was just engaging in conversation.
          First amendment threshold is very boiling frog.
          I suppose a superb prosecutor can prove to a jury that not only was the line crossed, it was knowingly crossed. First by Ginni, the by Clarence.

        • Operandi says:

          Honestly, so much of the ancillary plotting surrounding this coup attempt seems to sit in the wide gulf between “not quite so damning the government can lock you in a cage just for articulating it” but “utterly morally disqualifying for holding a position of public trust”.

          Unfortunately, our impeachment mechanism is absurdly broken and judicial ethics are a joke, so the higher standard is basically unenforceable and we have to hope these bozos were dumb enough to do something overtly criminal if there’s to be any accountability.

          [Welcome back to emptywheel. Thanks for using a more differentiated username. /~Rayne]

          • bmaz says:

            “Unfortunately, our impeachment mechanism is absurdly broken and judicial ethics are a joke”

            What a load of whiny shit. What do “you” propose as the alternative? All governance, in any system of democracy depends on the participation of the citizens and those they elect. I will await your suggestions.

      • Krisy Gosney says:

        All of this line of thought and inquiry makes me think of the Steven Hassan video that’s on his Twitter feed showing Ginni Thomas, from the late 1980s, talking about how she’s struggling to find her way to mental health after leaving the Lifespring cult. (Seeing her facial expression at the end of her comment tugs at my compassion, for that person on the clip not the one of today.) Did Ginni Thomas go on to create her own cult? Or perhaps like she thought she had created a cult in which she could join and be a leader. And she thought she convinced Trump to be the cult’s messiah (There is a report that she had been after Trump to run for President for awhile.). The cult would be the good, godly people who would extinguish the evil, godless people through the work and example of the imperfect, but heaven sent, messiah. I too would have rolled my eyes at this kind of speculation even just a couple of years ago but astonishingly, to me at least, this speculation seems plausible today.

      • Troutwaxer says:

        Not just the Supreme Court, given that at least one of Thomas’ law clerks is now a judge.

  8. John Forde says:

    “Was Ginni Thomas working as a back and forth between Trump’s legal group and Clarence Thomas to get serious intel on what might fly with the rest of the Supreme Court, rather than fanciful theorizing?”
    Wow BobCon. Just wow.
    If evidence of this emerges will it feel more like boiling frog? I can see Hannity saying this is just normal free speech.

  9. johno says:

    One certainly wonders what kind of pillow talk happens between Ginni “no rules” Thomas and her ultimate rules decider husband.

    • Paulumba says:

      I like your question better than what I was thinking: what is the is the dinner conversation like at the Thomas household. Well honey, how was your day? What kind of good trouble did you stir up today (sarcasm intended)?

  10. Riktol says:

    The former law clerks of Justice Thomas reportedly maintain close contact. Wikipedia conveniently has a list of them, (this is not unique to JT, it has a list for each seat on the court) but it’s pretty long with 135 entries.

    For curiosity’s sake, I cross referenced it with the list of serving judges on the DC District court. Judge Nichols is the only person who appears on both lists. (I only checked Republican appointees and I ignored matches for previous clerkship).

    I then did the same for the DC Appeals court, that has 2 matches, Circuit Judge Gregory G. Katsas and Circuit Judge Neomi Rao.

    So if you were looking for people who might have been influenced by Ginni Thomas and her network, and are likely to have contact with Jan 6th cases, those are the people to check on.


      • Rugger9 says:

        IIRC Rao’s confirmation was a farce, for which her standards of jurisprudence were basically FedSoc membership, as opposed to Judge Jackson who as we know is still being smeared (i.e. the New York Post headlines and the RWNM) by an horrific lie.

        I’m surprised the GQP at Jackson’s hearing didn’t bring up Rao as a POC ‘unfairly’ targeted by the Ds, the ABA, etc.

  11. viget says:

    I still think the strongest argument against Judge Nichols’ position is a symbolic logic one.

    The relevant text in 18 USC 1512(c) is:

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

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

    The “or otherwise” conjunction is equivalent to the XOR operator in symbolic logic, meaning (A OR B) AND NOT (A AND B).

    That is, in a Venn diagram, the statement encompasses all that is unique to A and all that unique to B, but not the overlap area between A and B. In this case, a violation arises from subparagraph (c)(1) OR (c)(2), but it doesn’t have to be both. In fact, the way the text is constructed, there is no possible way a single violation could be both

    Thus the limitations on (c)(1) conduct don’t apply to (c)(2) conduct, since the “or otherwise” implies exclusivity.

    And here I thought lawyers had to do well on the logic section of the LSAT….

    • LizzyMom says:

      The logical operator OR is inclusive — that is, it includes the case where both conditions are met. You are describing the “exclusive OR” or XOR…

      • viget says:

        Yes, I know.

        My argument is that “or otherwise” is the same as XOR. Which means that (c)(1) and (c)(2) are mutually exclusive possibilities. And as such, (c)(2) cannot depend upon the limitations placed on (c)(1), such as the violation needing to involve a document, record or other object.

        Sorry if that didn’t come across as clearly as I meant it.

          • Ravenclaw says:

            You’re correct. “Or otherwise” does not imply that if both criteria are met, the case is void. It’s the standard inclusive “or.”

        • civil says:

          You’re correct that “a violation arises from subparagraph (c)(1) OR (c)(2), but it doesn’t have to be both,” but mistaken that “In fact, the way the text is constructed, there is no possible way a single violation could be both.” (c)(1) and (c)(2) aren’t mutually exclusive, as it’s possible for someone to do both, and LizzyMom is correct that it’s an inclusive “or.” The “otherwise” in “or otherwise obstructs, influences, or impedes” indicates that the actions listed in (c)(1) can also be interpreted as a form of obstructing, influencing or impeding.

          • nord dakota says:

            I agree, plus this would surely be an absurd result if the bullet both pierced Pence’s heart AND obliterated a period in the document yet led to a determination there was on obstruction.

            I think it’s more like,
            if (condition 1 = true)
            obstruction = true; / you don’t have to also test condition 2
            elseif (condition 2) = true

    • earlofhuntingdon says:

      A standard reading of this common form of legislative drafting is that the two classes of conduct are alternatives, each of which is meant to be a violation of the statute. If both were true, it would amount to separate violations, but either alone would be a violation.

      Structurally, it also fits the standard use of separating two different circumstances into subparagraphs, separated by a semicolon. If the statute’s drafters meant to include an offense tied solely to destruction of documents, they would have incorporated their language into a single paragraph.

      In a holding regarding a statute punishing conduct with up to 20 years imprisonment, reading that language to apply exclusively to documents or records is errant and appears to be intellectually dishonest.

      • viget says:

        Thank you earl. This is exactly what I was trying to say. Each violation is either subpara 1 or 2, but not both.

        Thus, Nichols’ argument is intellectually dishonest and flies in the face of the basic understanding of logic, as DOJ’s brief shows by presenting absurd examples of applying his framework.

        • bmaz says:

          It really doesn’t matter, it would always be one consolidated offense for sentencing, even if a defendant was convicted on both. And a jury would likely treat them as the same.

          People are overthinking this.

    • Tom R. says:

      Here’s my take on the excellent point raised by Viget. Given two categories, there are only three possible arrangements relevant to the present discussion:

      A) ○○○○○○⊗⊗⊗⊗×××××× overlap (inclusive OR)
      B) ○○○○○○○○×××××××× adjacency (exclusive OR)
      C) ○○○○○○ ​ ​ ​ ​ ​ ​ ​ ​ ​ ×××××× loophole (incomplete coverage)

      In our case each circle represents something that violates paragraph 1512(c)1 and each cross ditto for 1512(c)2.

      For purposes of the motion to dismiss, scenarios (A) and (B) are equivalent. That is, it suffices that the two paragraphs completely cover the space; we do not care whether they are minimally complete (B) or overcomplete (A).

      I have an opinion about (A) versus (B) but let’s not go there. The only thing that matters is that there is no loophole (C). There is no gap in the coverage. The word “otherwise” scrubs away the possibility that 1512(c)2 inherits any restrictions from 1512(c)1.

      You could call this a matter of symbolic logic, or you could call it matter of grade-school reading comprehension.

      Nichols opined on page 12

      this interpretation does not give meaning to the word “otherwise.”

      Stop with the pettifoggery already. You already used the meaning to set up the clean-break interpretation. That was the whole point. Did you think we weren’t going to notice? That’s like using a theater ticket and afterwards complaining that the ticket is now worthless.

      As for the rule of lenity: Are we seriously supposed to believe that on Jan. 6th Miller assumed, based on his reading of the statute, that it was OK to mount a frontal assault on Congress so long as he didn’t touch any documents?

      The rest of the 29-page opinion doesn’t get any better. I see it as paralleling the structure of the overall Big Lie: Stir up a bunch of groundless uncertainty, and then use the “uncertainty” in ways that advance right-wing axe-grinding objectives.


      • Ravenclaw says:

        Now I really want all the nifty little symbols we used in symbolic logic class to appear on my keyboard. Yeah, I’m sure they’re in the character map somewhere, but that’s such a nuisance to use…

        • WilliamOckham says:

          If you can live with just the ones that are also APL operators (which covers most of the basic symbolic operators, IIRC), you can get a Windows IME (Input Method Editor) that remaps keys for you. If you’re really hard core, one of the APL vendors sells a physical keyboard that displays the remappings. https://www.dyalog.com/uploads/images/Business/products/us_rc.jpg
          (The Windows IME itself is free and should work with almost any Windows app these days.)

    • Douglas Erhard says:

      You’re getting muddled by the form of the statute.

      Here is how you read the (c)(2) part of that statute (leaving out the a’s b’s c’s, etc.):

      “Whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so,
      shall be fined under this title or imprisoned not more than 20 years, or both.”

      No or’s and’s or but’s needed…………

    • Charles Wolf says:

      I don’t think Boole is a SCOTUS precedent.
      US law has its own logic (or lack thereof) and has many competing sources for supremacy.
      How much “logic” can there possibly be in a stack of 5-4 decisions.

  12. viget says:

    Yes, I know.

    My argument is that “or otherwise” is the same as XOR. Which means that (c)(1) and (c)(2) are mutually exclusive possibilities. And as such, (c)(2) cannot depend upon the limitations placed on (c)(1), such as the violation needing to involve a document, record or other object.

    Sorry if that didn’t come across as clearly as I meant it.

  13. Ed Walker says:

    This case is a nice example of textualism in action. I dissed this absurd idea in my last post, https://www.emptywheel.net/2022/03/30/the-right-wing-plan-to-rig-scotus/

    Nichols allows as how he plans to apply “…the traditional tools of statutory interpretation—text, structure, and the development of the statute over time…” to working out the very confusing language of the law. Specifically he plans to examine the word “otherwise” used in the statute:

    (c) Whoever corruptly—
    (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent to impair the object’s integrity or availability for use in an official proceeding; or
    (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

    Nichols says that “otherwise” is used “adverbially”, and that he must use an interpretation that gives meaning to every word including “otherwise”. He finds some dictionary definitions that he claims he has to pick from. He picks one that he claims will give meaning to the word otherwise. It’s sad that in doing so he has to find an interpretation of the word that destroys the meaning of the law and ignores the plain meaning of the statute, but that’s textualism for you.

    Let’s pretend as Nichols claims that “otherwise” is used adverbally. Adverbs modify verbs. Otherwise must modify influence and the other three verbs in clause 2. The plain meaning is that you can violate the statute by influencing without destroying records.

    This is how you recognize that judges are creating a rationale for the outcome they want: they ignore simple explanations and create long chains of pseudo-reasoning. Textualists like Nichols and his intellectually dishonest mentor Scalia get the results they want by creating new meanings out of excess verbiage, inartful drafting, and clumsy logic.

    • P J Evans says:

      That’s how I’m reading clause 2: you can obstruct etc is ways that don’t involve destroying or changing a document. And AFAIK the electoral vote certification is an official proceeding, and trying to stop it or change the results to suit you is covered by clause 2, plus clause 1 if the certificates are messed with.

    • christopher rocco says:

      Agreed. A plain reading of the text would suggest that clauses 1 and 2 are independent and that “otherwise,” in its plain meaning “in an other or different manner” (Old English obre wisan, Middle English othre wise) simply means “by other means” or in a “different way/manner.” This would point to any and all other actions besides document tampering, destruction, altering or concealment, that would obstruct, influence or impede an official proceeding. That statute is written in pretty plain English and to subject it to this chop logic indeed seems absurd.

      • notjonathon says:

        “”Obre wisan”–I suspect that’s not a “b” but a voiced thorn, “othre wisan.”

        • christopher rocco says:

          No doubt, and you can see that in the Middle English version. My Old English is quite rusty!

      • Doctor My Eyes says:

        This parsing of the language of the law is interesting and seems to be proving Nichols wrong from more than one approach. Is it not also appropriate to notice that, according to his logic, part two serves no purpose. Did legislators indulge in mentioning behaviors that may accompany destruction of records just for fun, or as idle speculation, without making it a violation to do so?

        According to Nichols, the only possibilities are a violation of the first part or a violation of both parts with their being no legal distinction between the two. In that case, why is the “or otherwise” included in the statute?

        Yes, absurd.

          • jhinx says:

            Yes, well done and succinct. Nichols’ logic sounds like it belongs in a Monty Python movie.

            “And if the paper on which the word ‘otherwise’ is printed weighs the same as a duck”?

    • J R in WV says:

      So Judge Nichols doesn’t think seizing Mike Pence, subduing him, dragging him from the Capitol building, and hanging him on the pre-fab gallows the insurrectionists built on the grass outside — that wouldn’t be obstruction of the electoral process?

      This opinion is absurd on its face, and can’t be the actual meaning of the statute. If killing the people assigned roles in the electoral process is not obstruction of that process, the judge is insane, or a fascist who doesn’t care about the literal meaning of the law of the land. Certainly they should not be allowed to participate in judicial actions relating to obstruction of the electoral process.

    • Ginevra diBenci says:

      Thanks, Ed. I would say the self-dubbed textualists go beyond torturing language into the realm of declaring it has the distorted meanings they assign it. This distorture applies especially to syntax, which seems to be the limb Nichols perched himself on, although it’s hard to parse.

      I’ve read a lot of case law for the book I’m working on. What I’ve found remarkable is the clarity and readability of judges’ prose–across all spectra, appellate courts to SC dating back years. That marvelous tradition seems to have been twisted, if not aborted, by these “textualists.” Barrett can write. The others? Go ahead: see if you can make it through an opinion by Thomas or Kavanaugh, with the understanding that you should not need a law degree to do so.

  14. Termagant says:

    “gives meaning to every word” seems like the wrong way to clarify the structure. Better to remove words to lay the structure bare:

    (c)Whosoever […] (1) alters […]; or (2) otherwise obstructs […], shall […]

    Of course, that’s not the result he was reaching for.

      • Doctor My Eyes says:

        I was recently given a gift of postcards consisting of the opening sentences of famous novels diagrammed. Best present ever.

    • Douglas Erhard says:

      It appears that Nichols was applying the Eastman approach to legal analysis.

      1. Make your decision
      2. Find any and all arguments, no matter how ridiculous, to argue your decision
      3. WIN!

      The grave mistake that Eastman made, was in admitting, IN WRITING, that his arguments were legally unsupportable.

      As far as Nichols is concerned, we’ll have to just wait for an appeals court to laugh him out of the room.

  15. Savage Librarian says:

    Nichols & Crimes

    I sit on a bench in a courthouse where mob cases are filed,
    And I’ll say by sidebar the thing that the mobsters have styled,
    The dockets are crowded,
    But I’ll double down just because I love that I’m
    spending my time, spreading the grime,
    I’m slinging for Nichols and crimes.

    Nichols and crimes,
    A con at a time for Nichols and crimes,
    I’d lighten their day as they go on their way,
    And they’d lighten mine,
    A sidebar rehearsal for schemes that I hold in my mind,
    I know that someday in my own special way,
    I’ll parlay far more Nichols and crimes


    “Nickels And Dimes Lyrics by Dolly Parton”

  16. harpie says:

    These are the direct quotes [in order] of G. THOMAS from the 2/2/21 article Marcy links to at “[THOMAS] apologized to a listserv of former Justice Thomas clerks for her antics after the insurrection.”:

    Ginni Thomas apologizes to husband’s Supreme Court clerks after Capitol riot fallout https://www.washingtonpost.com/politics/courts_law/ginni-thomas-apology-clarence-thomas-clerks-trump-rally/2021/02/02/a9818cce-6496-11eb-8c64-9595888caa15_story.html Robert Barnes February 2, 2021

    [THOMAS] [to J. THOMAS law clerk “family”; between 1/6/21 and 2/1/21]:

    “I owe you all an apology. I have likely imposed on you my lifetime passions” []

    “My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.” []

    “Many of us are hurting, after leaving it all on the field, to preserve the best of this country” []

    “I feel I have failed my parents who did their best and taught me to work to preserve liberties.” []

    “I would ask those of you on the contrary side to have grace and mercy on those on my side of the polarized world, and feel free to call and talk to me individually about where I failed you as a friend here. I probably need more tutoring” []

    “Otherwise, on behalf of both of us, be assured of our love for each of you.”

    • harpie says:

      Former clerk Wendy Stone Long, in discussion with another clerk:

      “Many of my friends and I had been praying our knees off that January 6 would see light and truth being shed on what we believe in our hearts was likely a stolen election,” []

      [and that eventually ] “President Trump would be determined to be the legitimate winner” []

      “Many of us marched peacefully and yes, many also prayed and shared another important message, ‘Jesus saves’ ”

    • harpie says:

      Former Clerk John EASTMAN in discussion with other Clerks:

      “Rest assured that those of us involved in this are working diligently to ascertain the truth.”

      RESPONSE to EASTMAN from Stephen F. Smith, a law professor at Notre Dame:

      “If by ‘truth’ you mean what actually happened, as opposed to a false narrative, then I agree” []
      “I hope (and trust) that you — and everyone on this list — agree that the search for truth doesn’t in any way justify insurrection, trying to kidnap and assassinate elected officials, attacking police officers, or making common cause with racists and anti-Semites bent on wanton violence and lawlessness.”

      • emptywheel says:

        That’s one reason I think DOJ may know if Nichols is on that list. Because obviously Ginni pissed off enough people that they have leaked about it. They might be willing to tip off DOJ if Nichols did something unethical — there might even be former clerks at DOJ.

    • harpie says:

      Also from this article, I learned about:

      […] This summer, [2020] [THOMAS] tried to get the small Virginia town of Clifton to take down a Black Lives Matter banner. “Let’s not be tricked into joining cause with radical extremists seeking to foment a cultural revolution because they hate America,” she wrote to town leaders.

      That quote is from:
      A small, mostly white Virginia town put up a ‘Black Lives Matter’ banner. Ginni Thomas denounced it. [harpie: It’s NOT EVEN HER town.] https://www.washingtonpost.com/local/virginia-politics/ginni-thomas-black-lives-matter-clifton/2020/07/09/c7b3bb98-c1f5-11ea-9fdd-b7ac6b051dc8_story.html Patricia Sullivan July 10, 2020

      […] THOMAS: [6/24/20] “BLM is a bit of a dangerous Trojan Horse and they are catching well-meaning people into dangerous posturing that can invite mob rule and property looting,” []

      “Let’s not be tricked into joining cause with radical extremists seeking to foment a cultural revolution because they hate America.”

      Anybody see ANY indication there that GINNY has “learn[ed] to speak more gently and knowingly across the divide” in her seven decades of life?

      • harpie says:

        Anybody see any indication that GINNY has, in her seven decades of life, showed ANY ability or desire “to speak more gently and knowingly across the divide.”

  17. Douglas Erhard says:

    “Nichols ruled that the vote certification was an official proceeding, but that the statute in question only applied to obstruction achieved via the destruction of documents.”

    How on earth did he come to that conclusion? What in the statute explicitly limits itself to destruction of documents?

    To take this to its logical conclusion, is he saying that an armed mob could come into the joint-session of congress, point guns to the heads of the officials, and order them to stop counting electoral votes, and this wouldn’t be considered to be obstructing that proceeding???

    This guy appears to be in the pocket of Trump. This is clearly an outrageous argument.

  18. Douglas Erhard says:

    So, three men in masks carrying AR-15’s, barge into Nichols’ courtroom during a trial of their friend, point their guns at Nichols’ head and demand that he adjudicate their friend, the defendant, not guilty, and the case dismissed, or they’ll spray his brains all over the court walls.

    According to Nichols, those men could not be charged with 1512(c)(2) because they didn’t destroy any of the documents on his desk?

    This “ruling” will be laughed out of any appeals court, and he KNOWS this.

    So, why make it?

    Could there be any more indication that this judge made this ruling, SOLELY to give temporary political cover to Trump and his minions?

  19. Honeybee says:

    So would a 7 hour and 37 minute gap in White House phone records on the day in question count as a case when someone potentially “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding”? Just asking.

        • What Constitution? says:

          Exactly right. Why there will be people who pretend to bemoan the fear that maybe this somehow makes it less likely to prove Trump’s “intent” boggles the mind. Is this level of malignancy somehow tolerable as a characteristic of a public servant — let alone a president — because he somehow claims not to grasp why the rules exist?

      • civil says:

        The PRA requires that the Presidential Daily Diary list all calls involving the President, regardless of whether they were made through the WH Switchboard and automatically logged. It’s clear that the Jan. 6 PDD — web.archive.org/web/20220329115911/https://www.washingtonpost.com/wp-stat/graphics/politics/jan-6-call-logs-white-house/daily-diary-of-president-donald-trump.pdf?itid=lk_interstitial_manual_9 — doesn’t have all of the calls that should have been included. The PDD is created by the Presidential Diarist, who works for the National Archives, and that person is supposed to get info from multiple sources.

        CNN says the J6 Committee interviewed the diarist a couple of weeks ago, that there was “a noticeable drop-off in information provided by Oval Office staff leading up to January 6,” and the Committee is trying to gather info that should have been included in the PDD but wasn’t (cnn.com/2022/04/01/politics/white-house-diarist-january-6-committee-interview/index.html). This article discusses some of the other people who’d be involved in documenting things: news.yahoo.com/white-house-diaries-7-hour-100022183.html Also see the Axios article it links to. If Trump’s executive assistant, Molly Michael, was gone for most of the day, and she’s normally responsible for some of the record-keeping that gets passed to the diarist, that makes me wonder if she’s been questioned about why she was absent for “personal reasons” that particular day (coincidence? being “encouraged” to take the day off to interrupt record keeping?). Still an open question whether Trump attempted to conceal calls or other info that he might not want on the PDD.

      • harpie says:

        To add to civil, above, a couple of days ago, CNN reported this:

        Trump’s presidential diarist tells Jan. 6 committee White House officials provided less detail about his activities days before riot
        Updated 8:56 AM ET, Sat April 2, 2022

        Just days before the US Capitol riot, White House officials started providing fewer details about then-President Donald Trump’s calls and visits, the person in charge of compiling those activities for the official record told the House select committee investigating January 6, 2021, according to two sources with knowledge of the probe.

        The committee interviewed Trump’s presidential diarist roughly two weeks ago. That interview has not been previously reported, nor has the testimony describing a noticeable drop-off in information provided by Oval Office staff leading up to January 6. […]

        And as PJ Evans reminded on another thread, there’s this from 1/3/21:

        8:20 PM · Jan 3, 2021

        This is a new addition to the President’s daily schedule
        “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings. “ [screenshot]

        The final [and only other] sentence of the schedule:

        “The President will depart the White House at 6:10PM for a victory rally in Dalton, GA.”

        • P J Evans says:

          I noticed it then because it’s the explanation you’d give a small child. Or you’d give if you thought like a small child. Srsly, that’s a piece-o-crap.

          • harpie says:

            It was an in-your-face way to let everyone know that they would no longer even try to seem transparent.

        • nord dakota says:

          I think I remember that being reported at the time.

          And it does sound like a page out of a Little Golden Book, “Daddy is the President”.

  20. harpie says:

    Here’s Zoe TILLMAN from the day NICHOLS’ nomination was voted on:

    7:26 AM – 11 Oct 2018

    Happening now: The Senate Judiciary Committee is voting on a slate of nine lower court nominees, incl. 8th Circuit nominee Jonathan Kobes, who got a “not qualified” rating from the ABA, and DC district court nominee Carl Nichols. […]

    8th Circuit nominee Jonathan Kobes has been approved by the committee along party lines, 11-10, ditto for WD-NC nominee Kenneth Bell

    Here are the other committee votes on judicial nominees today:
    Stephanie Gallagher, MD: 20-1 (Lee voted no)
    Mary McElroy, RI: 19-2 (Lee and Kennedy voted no)
    Carl Nichols, DC: 11-10 (party line)
    Martha Pacold, ND-IL: 18-3 (Hirono, Booker, Harris voted no) […]

    Here’s Senator Mazie Hirono on that day:
    2:59 PM · Oct 11, 2018
    She talks about both Kobes and NICHOLS.

    Today the Judiciary Committee considered four more nominees who are products of the Republican Party’s crusade to pack the federal courts with ideologically-driven, partisan judges. Our federal courts and the American people deserve better. [VIDEO]

    • harpie says:

      And here’s a partial TL of what we know about
      what Ginny THOMAS was up to around that time:

      XX/XX/XX Ginny THOMAS tries for months to arrange a meeting with TRUMP about hiring certain people.
      XX/XX/XX Ginni and Clarence THOMAS dine with TRUMP/Melania

      [NYT]: […] The meeting was arranged after months of delay, according to the three people. It came about after the Thomases had dinner with the president and the first lady, Melania Trump, the people said.

      1/24/19 Ginni THOMAS hands a memo of names [The GROUNDSWELL Memo] directly to TRUMP [Note, these were HIRING recs, not JUDICIAL]

      • Doctor My Eyes says:

        [I’m not sure what’s going on with my comments. I’m trying to post the following again. Apologies if this appears twice.]

        Bill Moyers used Ginni Thomas as an example in his terrific lecture as part of the Howard Zinn lecture series at Boston University. Entitled “Welcome to the Plutocracy”, this is from 2010. I hope it’s not too OT; it looks more at the big picture, but I think it’s still part of what is happening here.


        Something else is going on here, too. The Koch brothers have contributed significantly to efforts to stop the Affordable Care Act – the health care reforms – from taking effect. Justice Clarence Thomas has obviously been doing some home schooling, because his wife Virginia claims those reforms are “unconstitutional,” and has founded an organization that is fighting to repeal them. Her own husband on the Supreme Court may one day be ruling on whether she’s right or not (“Play the cards fair, Reuben; I know what I dealt you.”) There’s more: The organization Virginia Thomas founded to kill those health care reforms – also a goal of the Koch brothers, remember – got its start with a gift of half a million dollars from an unnamed source, and is still being funded by donors who can’t be traced. You have to wonder if some of them are corporations that stand to benefit from favorable decisions by the Supreme Court. Now guess the name of the one Supreme Court justice who voted against the disclosure provision. I’m not telling, but Mrs. Thomas can tell you – if, that is, she’s willing to share the pillow talk.

        This truly puzzles me. It’s what I can’t figure out about the conservative mindset. The Kochs I can understand: messianic Daddy Warbucks who can’t imagine what life is like for people who aren’t worth 21 billion dollars. But whatever happened to “compassionate conservatism?” The Affordable Care Act – whatever its flaws – extends health care coverage to over 40 million deprived Americans who would otherwise be uncovered. What is it about these people – the Thomases, the secret donors, the privileged plutocrats on their side – that they can’t embrace a little social justice where it counts – among everyday people struggling to get by in a dog-eat-dog world? Health care coverage could mean the difference between life and death for them. Mrs. Thomas is obviously doing okay; she no doubts takes at least a modest salary from that private slush fund working to undermine the health care reforms; her own husband is a government employee covered by a federal plan. Why wouldn’t she want people less fortunate than her to have a little security, too? She headquarters her organization at Jerry Falwell’s Liberty University, a reportedly Christian school aligned with the Moral Majority. How is it she’s only about “Live and Let Live?” Have they never heard there the Old Time Religion of “Live and help live?” Why would this cushioned, comfortable crowd, pious crowd, resort to such despicable tactics as using secret money to try to turn public policy against their less fortunate neighbors, and in the process compromise the already tattered integrity of the United States Supreme Court?

        I don’t get it.

        You be the judge (Because if you don’t, Justice Thomas will.)

  21. earlofhuntingdon says:

    Pithy snark about much of the writing in the NYT OpEd columns – and the rest of the newspaper – from a critique of Ross Douthat and earlier work by the execrable, Samuel P. Huntington:

    One of the encouraging tips I give to young writers who lack self-confidence is that however bad they may think their writing is, there is no way it can possibly be worse than the opinion columns printed in the New York Times.


    • BobCon says:

      “The error is worth noting mainly because Douthat does not seem to have glanced at the vast literature critiquing the idea before writing a newspaper column endorsing it.”

      The dirty secret of most major opinion columnists is that they don’t really write their columns. They take pitches from PR sources ranging from lists of talking points all the way to essentially fully written columns, edit for style, and submit them as their own work.

      Errors constantly creep into their writing — Bret Stephens inaugural column on climate change was a notorious example — because they’re basically playing a game of telephone and passing on fourth hand versions of bad information.

      Editors know about the PR pitch game and typically encourage it. They have their own favored PR sources and they like columnists who are willing conduits.

      A few, like Jamelle Bouie, do their own work, but most of them differ only in the degree of rewriting they do. It’s not much different from the way Louis Mayer would drum up publicity for a coming movie by getting a friendly columnist to rehash a few paragraphs about an invented romance involving Mickey Rooney.

    • FL Resister says:

      This about sums it up:
      Jeffrey Haynes of London Metropolitan University concludes likewise in a retrospective evaluation of the thesis that “anyone who takes seriously the idea of a world divided into seven or eight major civilizations lacks capacity to have any possible understanding of our fascinating mosaic of a world filled with myriad ideas, norms, beliefs and conceptions of how the world is.”

      Wonderful piece by Nathan J. Robinson in Current Affairs. Pithy finish.

  22. Cosmo Le Cat says:

    From https://legaldictionary.lawin.org/otherwise

    Meaning of Otherwise:
    That which is different from what precedes the same. That which is distinct from what has already been mentioned.

    Otherwise Alternative Definition:
    A different manner; In another way differently; in other respects in a different manner; in different respects; in a different manner or way; differently; in other respects.

    From a common dictionary (deleting examples and synonyms)
    1. in circumstances different from those present or considered; or else.
    2. in other respects; apart from that.

    I utterly fail to understand how Judge Nichols can find even a hint of ambiguity created by the word otherwise. Perhaps he follows the Thomas/Trump Rules of Statutory Construction: words mean whatever I want them to mean. It’s interpreting law by the rules expounded in Alice in Wonderland.

  23. WilliamOckham says:

    Other potential exposures to obstruction for Virginia Thomas:

    1. Her long-time close association with Cleta Mitchell.
    2. Her board membership of CNP Action (too many pro-Insurrection actions to list here) – here’s an interesting tidbit. As far as I can tell, Mike Flynn has never been a member of CNP or CNP Action. However, on Nov. 26, 2020, he started showing up in ZoomInfo as being associated with CNP Action. (h/t Brent Allpress). And it doesn’t appear to be a mistake. Flynn’s still listed there today.
    3. Her history of palling around with militia types. In 2010, she endorsed Larry Pratt’s Gun Owners of America. Pratt was one of the “intellectual” leaders of the ’90s militia movement, a White Nationalist, and an apologist for Timothy McVeigh. In the same year, she spoke at an event which included a speaking slot for an up-and-coming militia guy named Stewart Rhodes, leader of the then newly founded Oathkeepers. I wonder, has she kept in touch with him all these years?

  24. Savage Librarian says:

    In addition to the Thomas clerks’ listserv communications, some people Ginni gave Impact Awards to may also be problematic: Mark Meadows, Cleta Mitchell, and James O’Keefe (Project Veritas.)

    Mark Meadows became Trump’s Chief of Staff shortly after he received the award from Ginni. Cleta Mitchell is a close friend of Meadows, participated in Trump’s notorious phone call to GA, and spoke with Trump in the evening of 1/6. And James O’Keefe is currently involved in legal processes relative to his shady acquisition of Ashley Biden’s diary. All of this casts a long shadow over the Supreme Court.


    “Meadows, Freedom Caucus wives’ PAC increases legal spending”| Raleigh News & Observer, 3/30/22, Danielle Battaglia


  25. harpie says:

    In relation to the #J6TL, I’ve been pulling together some information from previous years. I’m just going to post those BAREBONES lists, here. I hope others will suggest improvements, corrections and additions, including missing dates.

    8/XX/18 [SCOTUS spouse] Ginni THOMAS [Grounswell; Liberty Consulting] and allies assemble detailed lists of “disloyal” government officials for TRUMP to remove, and trusted pro-Trump people to replace them
    10/6/18 KAVANAUGH confirmed to SCOTUS
    10/10/18 PHOTO: Clarence THOMAS [SCOTUS], TRUMP, Don McGAHN [WH Counsel], Bob McEWEN [United in Purpose], [unidentified man], Justice Anthony KENNEDY [SCOTUS] https://twitter.com/visionsurreal/status/1221848027973017600
    10/11/18 Carl NICHOLS [C. THOMAS clerk] confirmed to DC District Court
    10/17/18 Don MCGAHN’s last day as WCHO temporarily replaced by FLOOD]
    XX/XX/18 [bet. 8/XX/2018 – 1/24/19] Ginni and Clarence THOMAS dine with TRUMP/Melania at WH
    12/10/18 Pat CIPOLLONE becomes WH Counsel

  26. harpie says:


    1/XX/19 [Ronna] MCDANIEL is reelected as chair of the RNC, with Trump’s endorsement. Two days earlier, her PAC paid $5,000 to [future “alternate elector” for TRUMP] Kathleen BERDEN, a voting member of the RNC, a volunteer position.
    1/24/19 At a WH meeting with TRUMP and 6 AIDES, Ginni THOMAS hands TRUMP a list of her preferred Administration appointments. Also at the meeting: Frank GAFFNEY [Center for Security Policy], Rosemary JENKS [NumbersUSA], Connie HAIR [GOHMERT CoS, “a fact apparently concealed ahead of the meeting”], [possibly] Crystal CLANTON [Groundswell].
    5/XX/19 Cleta MITCHELL addresses Council for National Policy [CNP]

    [MAYER]: warn[ing] that Democrats were successfully registering what she sarcastically referred to as “the disenfranchised.” […] “They know that if they target certain communities and they can get them registered and get them to the polls, then those groups . . . will vote ninety per cent, ninety-five per cent for Democrats.”

    MID-2019 BANNON hires Cleta MITCHELL as legal counsel for his non-profit 501(c)(4) [“dark money”] group, Citizens of the American Republic [COAR], that “seeks to advance the ideals of Economic Nationalism and American Sovereignty,” which Bannon says he uses to “protect the identity of his contributors and […] to stay in the good graces of President Donald Trump.”
    7/25/19 TRUMP’s “perfect” call with President ZELENSKYY of UKRAINE
    [TRUMP: “We’d like you to do us a favor, though”.]
    7/XX/19 REPUBLICANS sue to block MICHIGAN redistricting commission. Future [2020] “Alternate Elector” BERDEN, is a plaintiff
    8/2/19 Republican National Lawyers Associatiion [RNLA] holds two day “National Election Law Seminar” in Charlotte, NC. Cleta MITCHELL co-chairs a high-level working group with [Arizona State Representative] Shawnna BOLICK. Justin CLARK [Senior Counsel to TRUMP’s re-election campaign focused on compliance and election day operations] is a speaker.
    8/6/19 ALEC creates a working group chaired by “outside counsel” Cleta MITCHELL and Arizona State Rep. Shawnna BOLICK, which would address redistricting, ballot measures, and election law. The secretive group does not appear anywhere on ALEC’s website.
    10/XX/19 Lt. Col. Alexander VINDMAN testifies at TRUMP IMPEACHMENT hearing “that [Michael] ELLIS and EISENBERG were the ones who decided to move the record of Trump’s phone call with Ukrainian president Volodymyr Zelenskyy into the NSC’s top-secret codeword system—a server normally used to store highly classified material that only a small group of officials can access.” VINDMAN is fired from NSC by ELLIS in February 2020. ELLIS worked for FLYNN at NSC in 2017. Previously worked for NUNES.
    11/XX/19 ELLIS does not appear for his scheduled IMPEACHMENT probe deposition
    11/XX/19 Republican National Lawyers Association [RNLA] holds a conference in Wisconsin. Justin CLARK [Senior Counsel to TRUMP’s re-election campaign focused on compliance and election day operations] speaks in a closed-door session.

    “Wisconsin’s the state that is going to tip this one way or the other … So it makes EDO really, really, really important” [] “Traditionally it’s always been Republicans suppressing votes … [Democrats’] voters are all in one part of the state, so let’s start playing offense a little bit. And that’s what you’re going to see in 2020. That’s what’s going to be markedly different. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program, and we’re going to need all the help we can get.” [] “first and foremost is the consent decree’s gone” [] “huge, huge, huge, huge deal”

    12/9/19 Alleged Hunter Biden laptop is shared with the FBI

    • Molly Pitcher says:

      Harpie, you continuously astound me with your encyclopedic aggregation of information. Thanks for all of your hard work.

      • harpie says:

        Thank you! …looks like 2017:

        While two hundred thousand dollars was being passed from Trump backers to Gaffney to Ginni [SCOTUS spouse] Thomas, the Supreme Court agreed to hear legal challenges to Trump’s travel restrictions. In August, 2017, Gaffney and six other advocates submitted an amicus brief to the Court in support of the restrictions, arguing that “the challenge of Islam must be confronted.”

        That December, as the case was still playing out, Ginni [SCOTUS spouse] Thomas bestowed one of her Impact Awards on Gaffney, introducing him “as an encourager to me and a great friend” but giving no hint that his group was paying her firm. The Impact ceremony was held at the Trump International Hotel, and, according to another guest, Jerry Johnson, Justice Thomas was in attendance. Johnson later recalled that the Justice sat in front of him and was a “happy warrior,” pleased to be watching his wife “running the meeting.” […]

        Finally, in June, 2018, Thomas and four other Justices narrowly upheld the final version of the restrictions.

        So that SCOTUS decision gets filed between
        “BANNON hires CLETA” and “TRUMP’s “perfect” call”.

        • harpie says:

          ^^^^^ THAT would be INCORRECTLY filed! UGGGGG!!!

          That would be the NEW FIRST ENTRY in the 2018 TL…just before:
          8/XX/18 [SCOTUS spouse] THOMAS makes PURGE LISTS for TRUMP.

          • Eureka says:

            Of course. It’s always them behind the scenes.

            Also — the payment came not only just before the remarkable unjoined concurrence, but before GT et al.’s WH meeting where Ginni also advocated for Trump admin to hire Gaffney (per DB reporting QRT’d in Mayer tweet above)


            “Missing from that [DB] report is that Ginni Thomas’s consulting firm was paid over $200,000 by Frank Gaffney’s organization- so was she a paid lobbyist when she promoted him for a job?”
            8:30 PM · Apr 1, 2022

            • harpie says:

              From the way-back machine:

              10/4/16 STONE to BANNON “

              “[…] Tell Rebecca to send us some $$$”

              • Eureka says:

                And their 2016 primary support of Cruz was front of mind as Cruz performed during the KBJ hearings. [I’ve supposed in the past that had they (ALL the involved interferers election commandeerers) gotten Cruz elected back then we’d be even more screwed. Patina of acceptability / smooth-talking the supremacist/ anti-democratic plots vs. the Trumpist-bore approach. i.e. they could better maintain a pretense for the true “parlor game”.]

      • Eureka says:

        Those (@ 1:37 AM) are two different entries (FYI to harpie @ 11:35 AM). So about the first one (subsequent to GT et al.’s WH meeting):

        Feb 19, 2019 Thomas went out of his way to make a statement on 1964’s NYT v. Sullivan in his concurrence declining to take a Cosby accuser’s case (McKee v. Cosby). No one joined Thomas’ concurrence.

        In arguing to revisit the “actual malice” standard, Thomas’ concurrence also concorded (in ~ FedSoc-ese) with Trump’s longstanding press comments and anti-democratic goals.

        It was widely seen at the time as a strange solo project / appeal to Trump (and his “loosen up the libel laws” kick) — and potentially very dangerous to crucial press freedoms.

        Nice write-up here which links to CT’s concurrence:


        The media for decades has depended on New York Times v. Sullivan as a shield for reporting on public figures.

        Here’s another helpful thread with perspective, also links article re Trump 2016 campaign statement (#12: “We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”):

        Jason M. Shepard
        10:50 AM · Feb 19, 2019

        • harpie says:

          Thank you! I just hadn’t gotten to it yet. It SHOULD definitely be in the TL…How would you word that entry?

          2/19/19 SC Justice THOMAS […???…]

          • Eureka says:

            In declining to take a defamation-related case before SCOTUS (McKee v. Cosby), Thomas issues a remarkable unjoined concurrence challenging the Court’s reliance on the “actual malice” standard in 1964’s NYT v. Sullivan [cf. Trump’s repeated pleas to “loosen up libel laws”]

            • harpie says:

              That’s AMAZING! Let It BE!

              2/19/19 In declining to take a defamation-related case before SCOTUS (McKee v. Cosby), Thomas issues a remarkable unjoined concurrence challenging the Court’s reliance on the “actual malice” standard in 1964’s NYT v. Sullivan [cf. TRUMP’s repeated pleas to “loosen up libel laws”]

              • Eureka says:

                I had started an ETA and LOST IT — UGH — so am glad you like it and will let it be (but for self-correction nit):

                See my next comment: while there are lots of references to Trump and “loosen up libel laws” (and he may have said that exact string at some point), perfectionist nit says we have to move the quotation marks on that to: “loosen [] up” libel laws.

                [Early on, he said “loosen them up” wrt libel laws, following his statement that, if he wins, “I’m going to open up our libel laws”…”We’re going to open up those libel laws”. So many variants.]

              • harpie says:

                And, as MAYER writes:

                Last fall, [2021] Justice Clarence Thomas, in an address at Notre Dame, accused the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, he said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”

                Also, I did answer above, but it’s in the pokey.

          • harpie says:

            That’s right between

            1/24/19 At a WH meeting, Ginni [SCOTUS Spouse] THOMAS hands TRUMP a political purge and replace list.


            5/16-18/19 Ginni [SCOTUS Spouse] THOMAS and her friend [“I’m not asking you Cleta, honestly”] MITCHELL make plans with CNP to steal the 2020 Presidential election.

        • Eureka says:

          NYT v. Sullivan started coming up repeatedly during the 2016 Trump campaign. As cited in thread above, Trump used the phrase “open up” wrt libel laws at a Fort Worth, Texas rally on 02/26/2016. See additional rally quotes and discussion as relates to the decision also here:


          In a meeting with the Washington Post editorial board 3/21/2016, Trump said he would “loosen them up”:

          HIATT: But just – given the Supreme Court rulings on libel — Sullivan v. New York Times — how would you change the law?

          TRUMP: I would just loosen them up.

          RUTH MARCUS: What does that mean?


          TRUMP: I’d have to get my lawyers in to tell you, but I would loosen them up. I would loosen them up. If The Washington Post writes badly about me – and they do, they don’t write good – I mean, I don’t think I get – I read some of the stories coming up here, and I said to my staff, I said, “Why are we even wasting our time? The hatred is so enormous.” I don’t know why. I mean, I do a good job. I have thousands of employees. I work hard.

          I’m not looking for bad for our country. I’m a very rational person, I’m a very sane person. I’m not looking for bad. But I read articles by you, and others. And, you know, we’ve never – we don’t know each other, and the level of hatred is so incredible, I actually said, “Why am I – why am I doing this? Why am I even here?” And I don’t expect anything to happen–

          RYAN: Would that be the standard then? If there is an article that you feel has hatred, or is bad, would that be the basis for libel?

          TRUMP: No, if it’s wrong. If it’s wrong.

          RYAN: Wrong whether there’s malice or not?

          TRUMP: I mean, The Washington Post never calls me.[…]

          I mean, Bob Costa calls about a political story – […]

          RYAN: The reason I keep asking this is because you’ve said three times you’ve said we are going to open up the libel laws and when we ask you what you mean you say hatred, or bad–


          • Eureka says:

            BONUS Ukraine snippet from that 3/21/2016 meeting with WaPo ed. board.

            To Trump, a question about NATO is a question about Ukraine [and Germany, Russia, and the US — and *US* agency in “leading” potential WWIII “with” (vs.) Russia over Ukraine (which is NATO)]:

            JACKSON DIEHL, DEPUTY EDITORIAL PAGE EDITOR: Back to foreign policy a little bit, can you talk a little bit about what you see as the future of NATO? Should it expand in any way?

            TRUMP: Look, I see NATO as a good thing to have – I look at the Ukraine situation and I say, so Ukraine is a country that affects us far less than it affects other countries in NATO, and yet we are doing all of the lifting, they’re not doing anything. And I say, why is it that Germany is not dealing with NATO on Ukraine? Why is it that other countries that are in the vicinity of the Ukraine not dealing with — why are we always the one that’s leading, potentially the third world war, okay, with Russia? […]

    • harpie says:

      Here’s info on the 5/16/19 -5/18/19 CNP meeting where
      BOTH Ginni [SCOTUS spouse] THOMAS and Cleta MITCHELL spoke:

      7:29 PM · Mar 25, 2022

      On May 18, 2019 [5/18/19] Ginni Thomas was a guest speaker at an invitation only Council for National Policy event with an audience of GOP donors in McLean Virginia. [link] [screenshot]

      [5/16-18/19] CNP May 2019 Agenda

      The Ritz-Carlton, Tyson’s Corner
      McLean, Virginia
      May 16-18, 2019
      2020 Vision […]

      • harpie says:

        – Gold Circle Evening Exclusively for Members and Spouses of the Gold Circle and Executive Committee

        Sacred Duty
        – Tom Cotton [Senate]
        – Elaine Chao [USDOT]

        1] Was spouse Clarence [SCOTUS] THOMAS there for 2020 VISION?
        2] How about USDOT spouse Mitch MCCONNELL [-SENATE]?

      • harpie says:

        5/17/19 2020 VISION
        Board of Governor’s and New Members Brunch
        [Exclusively for Members, Spouses and Official Visitors of the Gold Circle, Board of Governors and Executive Committee as well as New Members and Spouses]

        Edwin Meese III Award for Originalism & Religious Liberty
        to Sam BROWNBACK
        [Sponsors – Mike Farris + Alan Sears
        – Allaince for Defending Freedom]

        General Session
        – SPEAKERS
        – David BOSSIE – Citizens United / and CU Foundation
        – Mark MEADOWS – HOUSE Freedom Caucus Update
        – Lawrence KUDLOW – TRUMP asst, WH Nat. Eco. Council
        – Peter SZIJJARTO – Foreign & Trade Minister – Hungary
        – Alexander ACOSTA – US DOL
        – Ben CARSON – US HUD
        – Mike POMPEO – US DOS

        Evening Session
        Interview – Sarah SANDERS – TRUMP WH Press Secretary
        Featured Presentation – Josh HAWLEY – SENATE

      • harpie says:

        5/18/19 2020 VISION
        Award Presentation and Candidate Introductions
        Patrick Henry Lantern of Liberty Award
        to Jerome CORSI [In recognition of a life devoted to vision, inspiration, organization and leadership of fellow countrymen in the defense and promotion of founding principles]

        General Session
        – Speaker – Charlie KIRK – Turning Point USA

        Conservative Action Project (CAP) Update
        – Speakers
        – Cleta MITCHELL – Foley & Lardner; CAP Co-ord Comm
        – [GINNI] THOMAS – Liberty Consulting; CAP Co-ord Comm

        General Session
        – Speaker – Peter NAVARRO – TRUMP WH Trade/Manuf. Off.
        Panel Discussion
        [How to Win:
        Untapped Strategies for Igniting the Right’s Resources
        – Joan LINDSEY – Lindsey Communications
        – William WALTON – Rappahannock Ventures
        – Chad CONNELLY – Faith Wins

        Action Session I [Sponsor: CNP Action, Inc.]
        China: The Present – and Growing – Danger
        Facilitator – Bob MCEWEN – CNP Action
        – Capt. James FANELL – USN(ret); Geneva Centre for Security Policy
        – Frank GAFFNEY, Jr. – Center for Security Policy
        – LTG Steven KWAST – USAF; Training/Ed. Comm S.Antonio
        – Roger ROBINSON, Jr. – RWR Advisory Group

        Action Session II [Sponsor: CNP Action, Inc.]
        Addressing the Border Emergency
        Facilitator – Tom FITTON – Judicial Watch
        – Rachel BOVARD – Conservative Partnership Institute (CPI)
        – Matt SCHLAPP – American Conservative Union (ACU)

        – Catholic Caucus Meeting
        – CNP Action, Inc. Board Meeting
        – Catholic Mass – Father Frank PAVONE – Priests for Life

        Evening Session
        You’ll Never Walk Alone
        – Jonathan ALEXANDRE – Liberty Counsel Action

        Presentation – Mark LEVIN – Mark Levin Show
        interviewed by Edwin MEESE III – Heritage Foundation

      • harpie says:

        5/19/19 2020 VISION
        Worship Service
        – Nancy EPPERSON – Delmarva Ed Ass./Chesapeake-Portsmouth Broadcasting

        Country – BBQ and Fish Fry [Thanks to
        -Richard VIGUERIE – American Target Advertising
        -Stu EPPERSON / Chesapeake-Portsmouth Bdcstg Corp

        – At Edgemonte, home of Richard and Elaine VIGUERIE

  27. harpie says:

    Continuing from this thread of comments describing the 5/16/19 -5/18/19 CNP meeting where BOTH Ginni [SCOTUS spouse] THOMAS and Cleta MITCHELL spoke on Saturday at
    “Conservative Action Project (CAP) Update

    One speaker at the Saturday General Session was:
    Mark MEADOWS who spoke about the HOUSE FREEDOM CAUCUS [which he co-founded] Update

    MEADOWS and his spouse, Debra, are now in a little pickle about
    voter registration irregularities of their very own.

    • harpie says:

      [Thanks William Ockham!]
      Legal spending significantly increases at PAC run by Mark Meadows’ wife
      MARCH 31, 2022 5:32 PM

      […] Debra Meadows is the executive director of Right Women PAC, an organization founded for the 2020 election that helped fund the primary and winnable general election campaigns of conservative, pro-Trump candidates seeking U.S. House seats — including Marjorie Taylor Greene and Lauren Boebert, who both won their races and joined the House Freedom Caucus that Meadows co-founded as a congressman.

      Debra Meadows created the PAC. Its advisory board is made up of Freedom Caucus members’ wives [But NOT husbands?] […] Since its inception the PAC employed Cleta MITCHELL as its attorney and paid her $500 monthly, according to Federal Election Commission reports. […]

      Oh, yeah..:
      3/31/20 Mark MEADOWS becomes TRUMP’s Chief of Staff

      • harpie says:

        On 2/27/20, the website Church Militant dot com posted:
        Rallying Conservative Women quoting Debbie MEADOWS: “Where are our conservative female voices in Congress to answer AOC and the socialist squad?”

        See some comments here:
        Ginni Thomas pressed for GOP lawmakers to protest 2020 election results The conservative activist and wife of a Supreme Court justice said in a Nov. 2020 email that Republicans weren’t doing enough to help Trump and needed to be “out in the streets.” [link]

        • harpie says:

          From that ^^^ article:

          […] Thomas told an aide to incoming Republican Study Committee Chairman Jim Banks, R-Ind., that she was more aligned with the far-right House Freedom Caucus, whose leaders just two months later would lead the fight in Congress to overturn the results of Democrat Joe Biden’s victory.[…]

    • harpie says:

      Josh [FIST PUMP] HAWLEY [SENATE] gave the Saturday evening
      Featured Presentation at 2020 VISION

      It always astounds me that HAWLEY gave that famous FIST PUMP to the crowd on the EAST Side of the CAPITOL one minute before VP PENCE arrived on the EAST Side of the CAPITOL with his family.

      • Rayne says:

        One day soon I hope someone puts together an animation of the key players as they approach the Capitol and the insurrection begins and continues. Hawley needs to be part of that.

      • Rugger9 says:

        It was almost like he knew what was coming, like Mo Brooks and his body armor and other similarly curious preparations. I’m pretty sure Hawley was one of the 300 or so legislators in the newly reported briefing.

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