Where the Trump Investigations Stand: The January 6 Conspiracies

As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially. I wrote about the Georgia investigation here and the stolen documents investigation here.

On Thursday, Mike Pence testified to the January 6 grand jury for over five hours. Many commentators have suggested — and I agree — that was one of the last major testimonial steps Jack Smith would need to take before deciding whether and if so how to charge Trump for inciting a mob to threaten to assassinate his Vice President.

But — in addition to Smith’s efforts to obtain recordings from Rudy Giuliani and others that former Fox producer Abby Grossberg has in her possession (which are going to make great evidence at trial) — there are still a few pieces that Smith’s prosecutors seem to be working on.

The most important of those may be continued appellate uncertainty regarding the law that Smith is likely to use to charge Trump and others in conjunction with January 6, obstruction of the vote certification, 18 USC 1512(c)(2), a charge successfully used against dozens of other January 6 defendants already. The DC Circuit will have a hearing on that, in an appeal former Virginia cop Thomas Robertson made of his obstruction conviction, on May 11.

To understand its import, let me explain how I think the various things Smith is investigating fit together. I think it likely that, in addition to some charges relating to the obstruction of this or the January 6 Committee’s investigation, Smith’s team is pursuing:

  • Conspiracy to defraud the United States for submitting fake elector certificates to the Archives (18 USC 371)
  • Obstruction of the vote certification and conspiracy to obstruct (18 USC 1512(c)(2) and (k))
  • Conspiracy to commit wire fraud (18 USC 1343; 1349)
  • Aiding and abetting assault (18 USC 111(b) and 2)

This differs from the January 6 Committee’s referrals in that I’ve included wire fraud, for which they provided abundant evidence, in an appendix, but did not include in their referrals. Also, I believe Smith would charge conspiracy tied to January 6 under 1512(k) rather than 371, as DOJ has been doing for over a year, not least because it provides stiffer sentences and more flexibility at sentencing. And I’ve suggested DOJ might use aiding and abetting of Michael Fanone’s assault based off Amit Mehta’s ruling addressing it and the evidence DOJ used in the Ed Badalian trial. I think that’s more likely than a charge for incitement of insurrection (18 USC 2383) unless DOJ built upwards off of still-hypothetical guilty verdicts in the Proud Boys case, but it might take time. I frankly think adding seditious conspiracy charges would be more likely than incitement of insurrection, if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons.

The way these three main charges — conspiracy to defraud tied to the fake elector certificates, conspiracy to obstruct the vote certification, and wire fraud — intersect likely provide some prosecutorial tools for the same reason that some Georgia Republicans are now turning on other ones.

While the fake electors case may seem like a slam dunk, the criminal exposure it presents is quite uneven.

Part of that stems from the fact that the extent to which a fake certificate was fraudulent is tied to state law about the requirements for elector ascertainment. On December 9, 2020, campaign lawyer Kenneth Cheesebro wrote down (!!) where such efforts would be less and more problematic.

Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

That memo marks the moment when Trump’s official campaign lawyers like Justin Clark and Matt Morgan started to distance themselves from the campaign efforts, to be replaced by Rudy Giuliani and his band of merry warriors.

Something similar happened at the states, as smarter people insulated themselves from this stupid legal move. The fake electors in New Mexico and Pennsylvania included caveats that likely protects them from legal exposure; in other states (notably, Wisconsin) the fake electors credibly believed that the certificates would only be used if a court ruled that there was some remaining legal dispute. Fourteen fake electors refused to participate, several of whom had very useful things to say about its dubious legality even to the January 6 Committee.

While there’s lots of documentary record reflecting that Trump approved the plan, proving his knowledge of the legal problems with the fake certificates themselves would likely require witnesses who saw him do so after having been advised of the legal sketchiness of it all (that may have been among the things the two Pats, Philbin and Cipollone, were asked about in their grand jury testimony in December). To include Trump in these charges, you need witnesses. His call to Brad Raffensberger and his assent to a lawsuit using numbers known to be dodgy are related; his pressure on electors to participate is part of the same conspiracy; but to charge him with the conspiracy itself you need those direct witnesses (in addition to the two Pats, Jason Miller, Rudy, Mark Meadows, Epshteyn, and John Eastman are likely those witnesses).

By last June, the subpoenas DOJ sent out asking for communications with those deeply implicated reflected this differential exposure. So do the phone seizures of Mike Roman and Epshteyn in September, both of whom were key gatekeepers of this process. This post shows how the investigation proceeded from there. In other words, the parts of the fake elector investigation we can see reflect awareness from before the first J6C hearing that the scam implicated differential legal exposure.

That kind of differential exposure is the same thing that Fani Willis is using to secure cooperating witnesses in Georgia.

While I’ll come back to it, the same kind of differential exposure exists with the wire fraud case. Just as one example, while Justin Clark claims to have distanced himself from the obviously illegal fake elector scam, he remained in Trump’s employ as he spent the money earned from making false claims about voter fraud between November and January. He already would have had an incentive to provide evidence to prosecutors that he had no part of the fake electors scheme. His incentive to do so increases to the extent that he benefitted from fraudulent fundraising and spending.

But first I want to explain one thing Smith may be waiting on: A clear sense of how the DC Circuit will define “corrupt purpose” under 18 USC 1512(c)(2).

If he charges it, Smith will likely prove that Trump obstructed the vote certification by:

  • Asking Mike Pence to take action to delay the certification that Trump had been told was illegal (Greg Jacob, Mark Short, the two Pats, and Pence are witnesses to this, all of whom have now made Executive Privilege-waived grand jury appearances)
  • Falsely leading the mob to believe that Pence could take that action (changes Trump made to his speech, about which Stephen Miller was likely asked by the grand jury this month, and his tweets are evidence of this)
  • After Pence refused to take that action, using the mob to try to pressure him to take it anyway or to otherwise disrupt the certification (DOJ has spent two years obtaining evidence that this was, in fact, why many people rioted, with specific evidence tied to Danny Rodriguez)

Contrary to what a million TV lawyers have told you, to prove obstruction, Smith won’t have to prove Trump knew he lost. DOJ has repeatedly won convictions of other January 6 defendants who tried to use that as a defense.

DOJ will need to prove he had corrupt purpose in attempting to obstruct the vote certification. And what that means in the DC Circuit won’t be decided until after May 11.

This post provides both a summary of the debate as it existed in January. This post describes how a DC Circuit panel of Florence Pan, Justin Walker, and Greg Katsas ruled that 1512(c)(2) does apply to the vote certification and that obstruction can extend beyond documentary obstruction. It also explains how none of the three of them could agree on what “corrupt purpose” means, from which some January 6 defendants have tried to argue (unsuccessfully in at least two cases) that Walker’s preferred meaning should apply.

Wildly simplified, the three main definitions of what corrupt purpose might mean are:

  • Corrupt benefit
  • Using otherwise illegal means, which in the case of other January 6 defendants has meant trespass or assault
  • Aiming to obtain an unlawful benefit

On May 11, a DC Circuit panel including Pan, Poppy Bush appointee Karen Henderson, and Obama appointee Cornelia Pillard will consider whether former Virginia cop Thomas Robertson had the corrupt purpose required to be convicted of obstruction. As part of that, they’ll decide whether the earlier ruling decided the issue of what corrupt purpose is, and if not, what it is.

As I wrote, to the extent that Smith has proof Trump knew the fake elector certificates were fraudulent, 1512 should apply to Trump in every imaginable case, far more easily than it does with rioters. The attempted delivery of the fake elector certificates to Pence constitutes a documentary attempt to obstruct the vote certification. Trump’s illegal request to Pence, as well as the knowingly fraudulent lawsuit in Georgia and the effort to pressure Raffensperger, to say nothing of any incitement or aid-and-abet liability in the assaults, are illegal means he used to stop the vote certification. And Trump, more than anyone else involved in efforts to obstruct the vote certification on January 6 was seeking an unlawful personal benefit, the ability to remain in power for another term. Mitch McConnell protégé Walker clearly laid out that basis for that case in his concurring opinion in Fischer.

But former Trump White House counsel Katsas didn’t necessarily view the continued election of Donald Trump to be such an advantage, at least not for those accused of assault before him. He sought a stricter definition of “financial, exculpatory, or professional” gain.

Which brings me (back) to the wire fraud investigation, something that DOJ has been investigating since at least September and in which CNN reported DOJ got cooperators after January 6.

[T]he financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

Wire fraud charges would closely resemble the successful Build the Wall prosecution for which Steve Bannon’s co-conspirators just got four year sentences (he was pardoned in for it in one of Trump’s last pardons but faces trial for the same scam in New York State in November). It would follow a similar wire fraud investigation of Sidney Powell that dates back to before September 2021.

If you think of these three prongs of the investigation, the wire fraud prong serves two purposes. First, many of the people who were witnesses but not subjects of the events leading up to January 6 might be subjects of the wire fraud investigation. As I noted, it may provide a tool to get cooperators.

Just as importantly, even under the most constrained definition of corrupt purpose for obstruction, grifting off false claims of election fraud would qualify.

That is, for Trump, a prosecutor should be able to prove corrupt purpose regardless of any conceivable standard that the DC Circuit or even a conservative SCOTUS would adopt, because he attempted to obstruct the vote certification so that he could remain President after losing the election.

But even if you don’t believe getting Trump elected provides an unlawful benefit to his supporters (or, to put it another way, disqualifying the votes of 81 million other Americans so yours counts more), disseminating false claims about voter fraud to get rich and then cashing in on that Big Lie for years afterwards is a different kind of corrupt purpose, the kind of financial corrupt purpose that Katsas is looking for.

If you riled up tens of thousands of Trump supporters who went on to attack the Capitol just so you could benefit financially, you’ve realized the kind of corrupt financial benefit from the riot that would seem to meet Katsas’ most constrained definition of corrupt purpose.

So it’s not just that the wire fraud part of the investigation is a crime that should, like all the other ways Trump and his flunkies have exploited his credulous followers, be prosecuted. It’s a important complement to the two other conspiracies, both because it’s likely to motivate more cooperators, but also because it helps to prove corrupt purpose for all the people who profited off the fraud.

And that may have an impact on the timing.

As I’ve noted, Trump should qualify under the definition of corrupt purpose no matter what the DC Circuit decides, though some of his flunkies might not. And so on top of whatever continued investigation Smith has to do on the wire fraud prong, he may want to wait until at least after that hearing before he makes final charging decisions.

Lots of people are impatient that neither Trump nor his flunkies have been charged thirty months after their crimes. But the likely charge hasn’t even been defined yet.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

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67 replies
  1. Doug R says:

    They don’t have to prove trump knew he lost, but there’s reporting out there where he does admit it.

    • emptywheel says:

      Sure. But it is totally irrelevant to the charges, he and about 20 witnesses would lie on the stand anyway (though it’ll likely be excluded, as it has from all the other obstruction trials), and it distracts TV lawyers from more useful questions.

    • Terry Mroczek says:

      If Trump used the defense that he didn’t know he lost, would that also mean he would plead “not guilty by reason of insanity”?

      • P J Evans says:

        They have witnesses to testify that he did know he lost, and also hat he was told several times.

        • BruceF says:

          More than sixty judges made clear he lost. Most commented in their decision how weak their legal arguments were and that they presented virtually no evidence in support of their argument!

  2. Steve_R_ says:

    I’m never unimpressed by your work. And I absolutely love the thought Trump might be charged with “wife fraud.” The charge proves itself.

  3. jecojeco says:

    Rudy and his band of Merry Warriors = Team Crazy.

    Marcy, thanks for your entertaining and exhaustive analysis!

  4. waban1966 says:

    With a preliminary admission that I was wrong about Trump refusing to go to NYC for Bragg, thus forcing DeSantis to sign an extradition warrant, I have been super-curious (and tin-foil-hat, to be sure) about the Ireland trip Trump is taking.

    I view everything Trump does through the lenses of delay, press spectacle, and claim of persecution. And he has no problem refusing to show up for a court proceeding — e.g., the E. Jean Carroll trial.

    What about this 2-part hypothesis?

    1. Trump thinks there is a decent chance that Smith indicts right after he locks in the Pence testimony. So to delay, Trump leaves the country. Trump has his own resort at which to stay. Likely that Smith would then delay an indictment until Trump returns to the US. And Trump now controls the timing. A preemptive defense side “leak” about an imminent indictment (just like with Bragg) would send the press into a complete lather.

    Even if there is an indictment while Trump is gone and Trump decided to come back for arraignment, there would be day after day of press coverage breathlessly waiting for Trump to decide to return for the arraignment. All while Trump can play golf in Ireland.

    2. And there might even be another ability to delay, although I am far, far, far outside my knowledge. There was no legal exception for extradition from Florida to New York. Although Ireland does extradite to the US, it might take time even for a straightforward extradition if Trump just said the whole thing is political and refuses to come. Even more, there appears to be a “political offense exception” to extradition, recognized in Ireland. That seems exactly the kind of thing that would fit all of Trump’s goals — delay, press spectacle, and asserting a claim of politicized charges. The probabilities of success do not matter one bit. Just the ability to make a legal claim and delay through appeals.

    There would be one massive upside. MTW would be on the scene, first hand.

    As I said at the start, I look at these things from Trump seeking to maximize delay and spectacle. But he already got the “Ford Bronco” coverage (which he judged outweighed putting DeSantis in a bad spot). So now time for a different show?

    • John Paul Jones says:

      It would be difficult to run a credible presidential campaign from outside the country. I would guess too, that various “rally” venues are already booked and planned for. Of course, the man is absolutely barking, so who knows, really?

    • Tech Support says:

      IMO this line of thinking depends on the idea that Pence’s GJ testimony is the thing that finally convinces Trump, after all this time, that he is genuinely exposed to criminal prosecution resulting in conviction and incarceration. Furthermore, this belief would have to be sufficiently strong to overpower his belief that he can in fact be re-elected as President in 2024.

      I have a hard time believing that he believes he is in jeopardy to that degree.

  5. Hope Ratner says:

    With all that is pending where do the co-conspirators in Congress belong in this? Reading your excellent analysis I couldn’t help but think of Ron Johnson running around with his fake elector votes among many other egregious actions by Jordan, Gaetz, etc.

    • emptywheel says:

      Mostly protected by Speech and Debate.

      When all is said and done we’re going to learn that offers criminals the most protection, more than attorney-client or executive privilege.

      • j lintecume says:

        Speech and debate didn’t protect Lindsay Graham. But what about Mark Meadows? He’s just disappeared after 2 courts said he must testify to Smith’s Grand Jury.

        • theartistvvv says:

          He was protected from answering questions re things done as a Senator, i.e., “speech and debate” – not for other stuff, ex., campaign related.

            • theartistvvv says:

              Sorry to confuzz; I wasn’t speaking of the boot licker, Meadows as referenced in the second sentence – I was only referencing the Graham “protect” issue in the first sentence.

      • DrFunguy says:

        Per the Guardian:
        “Still, Boasberg ruled that speech or debate protections did not shield [Pence] from testifying about any instances of potential criminality.”

        Does this statement attributed to Boasberg not apply to other members of Congress? Or do speech and debate protections protect against providing testimony re. potential criminality?

        • theartistvvv says:

          He was protected from answering questions re things done as president of the Senate, i.e., “speech and debate” – not for other stuff, ex., campaign related or other things not related to the Senate position.

          • DrFunguy says:

            Yet, per multiple news reports, Pence is required to testify regarding criminal acts. E.g. ABC (April 27): “Boasberg ordered Pence to testify before the grand jury and to provide records to Smith and, according to sources, Boasberg ruled that Pence should have to provide answers to Smith on any questions that implicate any illegal acts on Trump’s part.” Also the Guardian (above). So there seems to be a ‘crime/fraud’ exception to the speech and debate protections.
            Can any of the smart folk and/or lawyers comment on this?
            Also why are they relying on ‘sources’, is the opinion not available? FWIW I couldn’t find it on the US District Court of DC site… but its my first time searching for such and maybe I missed something.

              • DrFunguy says:

                Thanks Bmaz.
                I’m trying to understand how much, if at all, speech and debate protects from revealing criminal acts. Per Marcy’s comment above that it provides more protection than attorney client privilege. I’m also curious how much speech and debate protects the likes of Jim Jordan and Ron Johnson et al.

  6. KO_26APR2023_0615h says:

    Thank you for laying this out.

    [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username “KO’M” is far too short and the SECOND username you’ve tried (your last was “KO”) it will be temporarily changed to match the date/time of your first know comment until you have a new compliant username. You get one more crack at this because you’re clearly making no effort at establishing a consistent identity here. /~Rayne]

  7. jecojeco says:

    So here are my rainy day thoughts about the Jan6 Conspiracy dragnet. What if Jack’s posse scooped up a half dozen GOP Reps who supposedly asked trump for blanket pardons due to their involvement in Jan6 (Marge, Gaetz and 4 other southern yahoos). And maybe there were others who were too dumb to realize that their participation was criminal.

    And Ron Johnson’s myterious delivery of a package to Pence on Jan6 that kinda sounds like it might have been Wisconsin fake elector docs coming from a Wisconsin attorney involved in the fake electors scheme. (And doesn’t Johnson sound exactly like a drug mule describing not knowing the contents of an envelope full of drugs in his suitcase!)

    My thought is if Garland was timid about pursuing trump because he feared the political blowback of indicting a single disgraced former US President how will he signoff on the indictment if it includes 6+ GOP congressmen and the Senate anchorman? As a bonus Marge might be the VP on the trump Revenge ’24 dream team.

    • emptywheel says:

      Can you reflect how absolutely infuriating it is to write a post that notes BEFORE J6C started hearings, DOJ had already identified which fake electors were at particular exposure, which is pretty good proof you’re parroting bullshit about Garland being timid, to have you then use as a premise that Garland was being timid? Why should I bother spending my weekend writing this all up if people are going to waltz in and make comments that conflict with what is laid out?

      • P J Evans says:

        I am really tired of the potshots at Garland, which all seem to assume he has no job other than “getting” Trmp. Nothing about the rest of DOJ – he’s head of the department, FFS, he has a lot of work going on!

        • emptywheel says:

          Right, but the other problem is that the public record doesn’t support any of these claims about timidity. It’s the same kind of illiberal make-believe as claims about fraudulent elections.

          • Norskeflamthrower says:

            “It’s the same kind of illiberal make-believe as claims about fraudulent elections.”

            Thank you, this can not be said enough but it is ubiquitous because folks who may not be spreading the big lie out of political motivation are, like many journalists and TV lawyers, trying to keep the clicks and eyeballs returning for their own interests to keep the fear and anger boiling.

          • P J Evans says:

            One of them elseweb referred to Garland having been AG for 3 years. I pointed out that it’s TWO years, because it’s still 2023.

      • loveyourstuff says:

        To answer your question, Ms. Wheeler: because the majority of your readers profit from your elucidation of the complex evidentiary facts and how they intersect with the law. Don’t let the one ignoramus discourage your efforts.

        • Troutwaxer says:

          Agreed. I don’t always agree with everything you post, but ALWAYS, ALWAYS see the value of what you write. Please don’t get discouraged.

    • Daniel10x says:

      I’d LOVE to see MTG debate VP Harris. I’d like to think she’d have to answer a question or two in between her offensive tantrums.

  8. Ginevra diBenci says:

    I am so glad to finally see DOJ follow the money. This always seemed like Mueller’s biggest missed opportunity, but Mueller did not have the flagrant grift Smith has to work with. How sweet it would be to see the pot of fraudulently obtained funds Trump used to buy off Meadows (and others) become part of his legal downfall.

    On the DC Circuit defining corrupt purpose: anyone nabbing an unearned term as POTUS by definition gains an “exculpatory” (albeit temporarily so, in theory) advantage. Why can’t that be part of the consideration for the panel? It sure seems to have been for Trump.

    • emptywheel says:

      DOJ started following the money in this investigation AT LEAST by December 2021, and probably by October 2021. And the Sidney Powell investigation following her money was overt by September 2021.

      That you don’t know that is a testament to how long a financial investigation can go without the targets knowing about it.

      • joel fisher says:

        To return to a theme that has gotten me criticized in the past: what part of stop the steal hasn’t been out there in the public sector for all–including Smith–to see since 12/20? I notice the “build the wall” felons were sentenced last week. I don’t get how “give me money and I will build a wall” is different from “give me money and I will stop the steal” are different except that building wall is, at least theoretically, possible, whereas stopping a non-existent steal is not. As Damon Runyon once asked, “Why isn’t someone arrested for something?”

        • Troutwaxer says:

          I know I’m late to this particular party, but… when you take shot at The King, you’d best be careful not to miss! It isn’t Garland in particular, but the whole system is “timid” for this exact reason – they really want to get the guy, but they’re lining up their shot very carefully, taking their time, reading and editing every filing twice, asking the same questions over and over of each witness, consulting the law books, watching any decisions made by the relevant judges very carefully, trying out their legal theories about these seldom-used charges on lesser actors within the conspiracy, and so forth – this is gonna take a long time.

          Would you rather they take the chance of missing the one single shot they’re gonna get?

  9. Leu2500 says:

    Wow. When you see it all laid out like this, you see how “Teflon Don”* has boxed himself in.

    *He’s not teflon. People just ignore all the consequences he’s faced, starting with the consent decree over housing discrimination back in the 70s.

    • Matt___B says:

      “tef-lon”: filing for bankruptcy 6 times, surviving them all in style and arriving on the other side of them with control over a rather significant chunk of change. The ’70s era consent decree was a light slap on the wrist.

  10. theGeoguy says:

    I see the investigations as a tall ziggurat with a broad base; it’s a long way to the top.

  11. FiestyBlueBird says:

    Thanks, Marcy. I can’t imagine that you can imagine not writing. Then again, time has shown my imagination is limited.

    Anyways, thanks for your tireless research, writing, and educating.

    May 1 is second installment of my modest Brandi bonus bucks via Patreon. Then I’ll ratchet it back down, but to double what it had been before Brandi. Because…inflation! And you’re damn good at what you do. The best I’ve found, anyway.

  12. John Herbison says:

    Under 18 U.S.C. § 1512(c)(2), an attempt to corruptly obstruct, influence, or impede any official proceeding is just as criminal as successfully doing so, and subsection (k) prohibits conspiracy to do so. It seems to me that the most difficult conduct for Donald Trump to defend is the January 4, 2021 Oval Office meeting where Trump, John Eastman and others importuned Mike Pence to disregard the Electoral Count Act in regard to Congressional certification of the election result.

    Seeking to hold Trump criminally responsible for the January 6 breach of the Capitol may be more difficult. His address to the crowd on the ellipse is strong evidence of a corrupt mental state, but I am wary of giving the current Supreme Court majority an opportunity to say that his remarks were First Amendment protected under Brandenburg v. Ohio, 395 U.S. 444 (1969). Why not just charge attempt and/or conspiracy based on the January 4 entreaty to Pence?

    • emptywheel says:

      Well, David Carter INCLUDED the incitement in his opinion saying that it was likely Eastman and Trump conspired to obstruct the vote cert. It’s a detail J6C repeatedly flubbed, but an important one.

      The plan always involved the mob. One criticism of what I’ve seen of the Jan6 investigation so far is that it hasn’t focused on the earlier mobs to pressure state legislators, one that included Proud Boy and Stop the Steal involvement.

      And since Carter’s opinion (which adopted the much lower standard for corrupt purpose than any that will be adopted in DC), we’ve gotten more knowledge about Trump’s plan to rile up the mob and his refusal to do anything as they threatened to assassinate Pence. This is not, and has long not been, a Brandenberg question. And that’s before you include the import of Alex Jones leading the mob to the Capitol, with which the Proud Boys coordinated.

  13. Kick the Darkness says:

    Regarding the idea that Smith may be building upward/through the Proud Boy case to ultimately reach Trump for using the mob as a tool to obstruct the vote certification…there’s a clause “if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons”.

    Is the intervening case envisioned here another steppingstone between PBs and Trump-or is the PB case the intermediate?

    And the constitutional reasons? Is it that a president can’t be seditious against their own office?

    Finally, given Bmaz’s preceding post, I’m wondering whether the PBs would need to be found guilty of seditious conspiracy per se to pursue the “mob as a tool” idea forward? Or would a guilty verdict for some of the other charges work just as well?

    Thanks as always to the whole team.

    • emptywheel says:

      Yes; since the President is the govt, the bar to proving he’s attacking it is particularly high.

      Especially given Trump’s Stand Back and Stand By comment (which featured heavily at trial), you could argue that Trump and PBs entered into an agreement to keep him in office. And there is just one degree of separation between the PBs and Trump, via Alex Jones and Roger Stone.

      So one outcome of this trial could be to charge Jones and Stone with conspiracy, and then after they’re found guilty ,charge Trump. But that process would (and will, if Smith does it) take another year.

      One thing I find really interesting is the Oath Keeper treated the Friends of Stone list as a vehicle of that conspiracy. The Proud Boys did not, even tho Biggs and Tarrio were both on it.

      • harpie says:

        re that last paragraph: hmmm…now that IS an interesting observation, which had not occurred to me. I’m looking forward to when you write about that…[unless I’ve already missed you writing about it, which wouldn’t be surprising to me in the least. :-/ ]

        • Kick the Darkness says:

          It would be interesting if Stone was actually the ultimate target of the whole “tools” theory. That would be a remarkable trial. There’s that documentary video of him packing his bags to scamper out of town. Like he knew that since Trump didn’t show at the capitol he didn’t hold up his end of the bargain and the whole thing was destined to fizzle. The fake elector side of it has a certain “retreat into vast carelessness” quality to it. But Stone, Jones those guys definitely seem like a different facet. Part joke, part not joke. Bringing the tip of the spear to the rear of the rat because…well, maybe it’s hard to know their motivation exactly.

  14. Bobster33 says:

    I would be curious about any timing of future judicial proceedings. Suppose Jack charges Trump tomorrow. Expect initial proceedings to take 4-6 months, delays by Trump X months, and finally the trial. Does anyone have an idea on the timeframe for Trump after he is charged?

    • Rwood0808 says:

      With all the various charges and venues they may have to get the FAA involved. Trump Force One will be spending all of its time running from courtroom to courtroom.

  15. Glen Tomkins says:

    Are the 14 senators and the majority of the R House caucus who voted at the joint session to reject Biden EV tallies guilty of fraud?

    • emptywheel says:

      No. Sadly most are in the clear, because of Speech and Debate protections, as far as I know from the evidence.

  16. tryggth says:

    Sounds right. The Electors stuff sounds about open and closed as the documents stuff. And it has the advantage of a large N prisoner’s dilemma.

    You write “Trump’s illegal request to Pence,…” My guess is that part of the Pence questioning is around defenestrating an “advice of counsel” defense.

  17. was_Alan K says:

    If the requirement is to prove some kind of benefit — would Trump staying in office give him the benefit of the “pardon”?

  18. WilliamOckham says:

    I’m going to object to the notion that the Speech and Debate clause limits the legal exposure of Republican senators and representatives in any material way. The government would be barred from using their votes, their speeches on the floor, and actions taken in the performance of their official duties. That’s all. It’s not a get out of jail free card.

    Every single one of the elected representatives who voted against the Biden electors had already openly entered into a conspiracy with Donald John Trump and others, known and unknown, to defraud the United States. They all took overt actions in support of that conspiracy. Many of them actively participated in the fundraising graft. Trump considered them his co-conspirators (when he was trying to bully the DOJ into supporting his coup, he expected his Republican allies in Congress to do his bidding). More than 120 House Republicans signed onto an amicus brief of Krazy Ken Paxton’s lawsuit trying to get the Supreme Court to overturn Biden’s election by throwing out the electoral votes of Pennsylvania, Georgia, Wisconsin, and Michigan. The text of their brief shows clearly that they were participating in the coup in search of a justification.

    The best way of thinking about this is to compare it to a bribery case. In a bribery case, the corrupt action is taking the bribe, not voting the way you were bribed to vote. In this case, the corrupt action is entering into an agreement to steal a Presidential term, not in voting to steal it.

    What’s really going to save these coupsters is that the conspiracy is simply too big to prosecute. Speech and Debate’s got nothing to do with it.

  19. Bay State Librul says:

    Objection sustained.
    I’m looking at a great legal awakening to counter the great unraveling that occurred circa 2015-2021.
    We need to put a dagger into stochastic terrorism, currently doing business as protected speech.
    If you are furthering a crime, hiding behind privileges will not work.

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