Stan Woodward Thinks Aileen Cannon Is an Easy Mark

There’s a passage in Stan Woodward’s surreply to DOJ’s motion for a conflicts hearing in the stolen documents case that goes to the core of Woodward’s conduct in his representation of multiple witnesses in Trump investigations.

Woodward claims that because Yuscil Taveras testified in a July 20 grand jury appearance that he had not been coached (by Woodward, presumably) to lie about whether he had any conversation with Carlos De Oliveira, it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.

[T]he foregoing Surreply is necessary to correct the record with respect to the Special Counsel’s Office’s conduct in this matter. Specifically, defense counsel played no role in Trump Employee 4’s voluntary testimony before the grand jury resulting in the Superseding Indictment in this action.5 Superseding Indictment (July 27, 2023) (ECF No. 85). Moreover, when Trump Employee 4 testified, for the first time, before a Grand Jury in this District, Trump Employee 4 was unequivocal that, with respect to his prior testimony, he, “wasn’t coached,” and that nobody, “suggest[ed] to [him], influence[d] [him to say that th[e] conversation with Carlos De Oliveira didn’t happen.” G.J. Tr. at 50 (July 20, 2023). To that end, Trump Employee 4 did not retract false testimony and provide information that implicated Mr. Nauta, “[i]mmediately after receiving new counsel.” Reply at 4 (Aug. 22, 2023) (ECF No. 129) (emphasis added). Rather, after the Special Counsel’s Office issued a target letter on June 20, 2023, threatening Trump Employee 4 with prosecution, see Reply at 3 (Aug. 22, 2023) (ECF No. 129) (“[O]n June 20, 2023, . . . [a] target letter . . . identified . . . criminal exposure . . . entirely due to [Trump Employee 4’s allegedly] false sworn denial before the grand jury in the District of Columbia that he had information about obstructive acts that would implicate Nauta (and others).” [my emphasis]

Woodward provided no evidence — not one shred — to support his claim that Taveras didn’t change testimony. All he provided was inconclusive evidence that Taveras did not blame Woodward for his original, allegedly false, testimony.

And based off that unsupported claim, Woodward suggested that dealing with alleged perjury delivered in a DC grand jury in DC to support additional charges amounted to abuse of grand jury rules.

The argument of the Special Counsel’s Office, that it did not use the D.C. grand jury for the purpose of adding to the store of witnesses in the instant case, is unpersuasive.10 The theory the Special Counsel’s Office offers, that having called a witness before a distant grand jury to answer questions about events in this District and having nominally created an additional venue in which to claim that the witness was untruthful, should not be condoned. The approach taken by the Special Counsel’s Office – which unquestionably affected the presentation of evidence in the existing Southern District of Florida case – is a tactic inconsistent with precedent barring the use of a grand jury for trial purposes.

All of this is transparent garbage.

But he’s writing for Aileen Cannon, and so his unsubstantiated claim, on which he builds his renewed demand that Cannon exclude Taveras’ testimony altogether, might well work!

Woodward also plays temporal games by using comments Michelle Peterson and James Boasberg made on June 30, in the first conflict hearing, to claim he did nothing wrong.

5 As both the Chief Judge of the United States District Court for the District of Columbia and the First Assistant Federal Public Defender acknowledged:

[First Assistant Federal Public Defender]: Your Honor, one other thing. I did want to say for the record, I should have started with this, have seen no reason to believe that either Mr. Woodward or Mr. Brand or anyone else associated with this has done anything improper. This just came up at this point in time, and based on the status of the record, I’ve given [Trump Employee 4] my best counsel, and he will be making a decision based on everything he knows now.

THE COURT: Right. And thank you. And certainly my reading of the government’s motion for his hearing did not suggest that Mr. Woodward or Mr. Brand had done anything improper either. The government’s was a prophylactic measure to comply with the law as it exists regarding conflicts and to make sure that [Trump Employee 4] is aware of his rights. Hr’g T. at 6 (June 30, 2023) (Attached hereto as Exhibit C).

Those comments were made after just an hour of consultation between Peterson and Taveras. It’s not a comment Peterson made at the second conflicts hearing, on July 5, where Taveras said he wished to have Peterson represent him, much less after Taveras changed his testimony.

And while the exhibits Woodward included purport to support his false claims, they also reveal that the approach to the conflict hearing before Cannon is similar to what he tried — unsuccessfully — to pull before Judge Boasberg.

In an email to Boasberg’s chamber on June 28, Woodward accused the government — which filed this conflict motion with no advance notice to Woodward — of stalling on a conflicts hearing when Taveras testified in March and then played for more time and briefing.

[I]nsisting on a hearing on such short notice prejudices [Taveras] and any appointed conflicts counsel. Although the government alludes to an ex parte submission, neither the Court nor any potential conflics counsel has had the benefit of any submission on behalf of [Taveras]. Effectively, the government would have Mr. [Taveras] through counsel, present his defense to the government’s puported allegation of perjury in just a few days. Of note, the government filed its motion after meeting with us earlier today — a meeting at which we challenged the government’s evidence contesting the veractiy of [Taveras’] testimony. Among other things, government counsel conceded that the government did not believe [Taveras] engaged in obstructive conduct; and, in the heated colloquy that followed, government counsel blurted out that they believed Mr. Nauta had been untruthful to his colleagues concerning certain events related to [Taveras’] testimony, a fact wholly irrelevant to whether [Taveras] had committed perjury and evidencing the government’s clear motive in filing this motion.

Third, although we do not, as a general matter, oppose the appointment of conflicts counsel to consult with and advise [Taveras,] given the serious nature of the matters under investigation by the government, we also believe he deserves — is entitled to the benefit of — a brief responding to the government’s filing in which dozens, perhaps more than a hundred, cases are cited for the Court. Again, more than three months have passed since [Taveras’] testimony with just days’ notice on the Friday before a holiday weekend when travel to and from South Florida is has already proved problematic this week is not just unnecessary, it is unfair.

Again, none of that makes sense — we know DOJ was still obtaining new evidence, including of Nauta’s phone — that would have led to increased certainty that Taveras’ initial testimony conflicted with known evidence.

In June, Woodward tried to buy time and make his own case (and claimed it benefitted Taveras to make that case).

In August, Woodward bought an entire month. In his first response, he equivocally embraced a conflict review three pages in.

Nevertheless, defense counsel does not now – and would not ever – oppose an inquiry of Mr. Nauta by the Court to assure the Court that Mr. Nauta has been advised of all his rights, including the right to conflict-free counsel, so long as such inquiry is conducted ex parte and under seal.

This time around, having spent another month consulting with Nauta, Woodward led with support for a hearing at which Nauta would be asked if he had been advised of his right to conflict-free counsel.

This Court should hold a hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to conduct an ex parte inquiry1 of Defendant Waltine Nauta as to whether he has been apprised of his rights, including the right to conflict-free counsel.

And in spite of the fact that Woodward bought this delay, in part, by claiming that DOJ had raised new information — they hadn’t; It was in a sealed filing — Woodward didn’t address one of the newly public details in DOJ’s filing: that they had raised his payment by Trump’s PAC in the conflict motion.

That said, this whole process likely isn’t for Woodward’s benefit, or Nauta’s. It is for Judge Cannon.

Among the things Woodward’s exhibits revealed is that DOJ had already alerted Judge Cannon to the conflicts twice before they filed their motion for a Garcia hearing.

We would also note that the court is already aware of the conflicts issue given that the government previously called this to the court’s attention – twice.

Cannon was already aware of these potential conflicfts.

And she did nothing.

Update: DOJ filed a reply in the parallel motion with Carlos De Oliveira, insisting on a hearing even if John Irving has gotten the other witnesses new lawyers.

238 replies
  1. Just Some Guy says:

    ‘…it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.’

    Kinda having difficulty parsing that sentence end. Can you please rephrase or explain, emptywheel? Thanks for the new post, hope you’re enjoying your vacation!

    • Peterr says:

      It goes back to the clause that precedes it. Rearranging a bit, it means “…it’s proof that Taveras’ original grand jury testimony that he did not [have any conversation with Carlos De Oliveira] was not perjurious.”

    • earlofhuntingdon says:

      Reread it a few times. And it helps to use the full context:

      Woodward claims that because Yuscil Taveras testified in a July 20 grand jury appearance that he had not been coached (by Woodward, presumably) to lie about whether he had any conversation with Carlos De Oliveira, it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.

      Marcy is pointing out the fallacy in Woodward’s logic. He claims that Taveras did not say Woodward coached him to lie, therefore, Taveras did not lie – when he told the grand jury about “whether he had any conversation with…De Oliveira.”

      That’s clearly false. Whether or not coached to lie by Woodward, or anyone else, Taveras could have lied or given false testimony to the grand jury. But it’s the sort of twisted logic that seems to appeal to Cannon.

      • David F. Snyder says:

        ‘Contrariwise,’ continued Woodward, er Tweedledee, ‘if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

        • Alan Charbonneau says:

          I always loved his writing…

          “Suppose he never commits the crime?” said Alice.

          “That would be all the better, wouldn’t it?” the queen said, as she bound the plaster round her finger with a bit of ribbon.

  2. Peterr says:

    That said, this whole process likely isn’t for Woodward’s benefit, or Nauta’s. It is for Judge Cannon.

    Given what follows this sentence, I’d say it was intended to be for Judge Cannon, but will actually benefit the government’s appeal in the event that Cannon goes ahead with excluding this testimony. As you rightly conclude,

    Cannon was already aware of these potential conflicfts.

    And she did nothing.

    It increasingly appears that Cannon is in over her head, and Woodward is throwing her anchors.

    • earlofhuntingdon says:

      I’m not as generous. I don’t think Cannon is over her head. She seems more likely to be sympathetic to Trump and looking for ways to find in his favor, which includes making this case take as long as Trump wants it to take.

      • Rugger_9 says:

        As noted in the prior thread, Judge Cannon can only help Defendant-1 as long as she presides over the case. If she is removed following a pattern of specious rulings she can’t help any longer in addition to going as high as she ever will on the bench. SC Smith knows about this kind of tinpot dictator game from the Hague and what to do about it.

        With that said, if Taveras’ testimony is excluded by Judge Cannon, can it still be used by SC Smith in DC in front of Judge Chutkan?

        • timbozone says:

          IANAL, but I can’t think of any reason why the testimonies of Taveras in Chutkan’s court in DC would be effected in any way by Cannon’s ruling in SDFL. What’s your take, Rugger_9?

        • bmaz says:

          Yes, it is different jurisdiction and court. There is little chance, minuscule, that Cannon gets removed. The 11th Circuit is never going to tag a District judge based on the record to date. This is sheer folly. If there is further, maybe, but anybody who thinks it is warranted to date is nuts.

      • BobBobCon says:

        If she is looking for ways to help Trump out, I think she may run into the same types of traps as his attorneys.

        What’s good for him and what he wants are often two different things. And he often tries to punish people who can’t successfully bridge the impossible gap.

        I can believe she might put both thumbs on the scales. But she may end up finding out what arbitrary and vengeful person Trump is if he decides she didn’t go far enough or if her efforts ended up not mattering.

        • Rugger_9 says:

          The SDFL trial is not the only show in town, there are 3 other criminal trials and several civil trials in motion. That means your point about Cannon’s antics not mattering is rather apt.

    • bmaz says:

      Without an underlying conviction, or Congressional action, it is a load of crap. And this is exactly what will happen every day if random citizens and groups can file this. And it is typical of the garbage that CREW and Eisen promote.

        • Peterr says:

          Are you saying any application of the 14th amendment related to J6 is absurd, or that NM did it right and if CO did this without a previous conviction, that would be absurd?

        • Rugger_9 says:

          A conviction makes it clear the deed was done. Otherwise, look out for filings about Biden or any other Dem like we had seen before from the birthers. If the standard is established as ‘convicted’ then there is far less traction to muck things up that if the standard is ‘accused’ or ‘indicted’.

        • Rugger_9 says:

          ‘Than’ not ‘that’.

          I’d also leave out Congressional action as a trigger, given how the crazies are leading McCarthy around by his nose. They are already looking for any excuse to impeach Joe Biden and if ‘impeachment’ or censure does become the standard the MAGA caucus will do it so their hero Defendant-1 doesn’t get thrashed again by Joe Biden.

          They’ll claim Biden is working in cahoots with the Chinese or Ukraine or Sauron or something to attack the USA.

        • jdmckay8 says:

          look out for filings about Biden or any other Dem like we had seen before from the birthers.

          I thought the same, for way to many years. I changed my mind, because, the rabid right wingers do this all day every day anyway.

          My dad did the same thing for decades in his marriage, for the same reasons: keep the peace. She ended up poisoning and killing him for his 92nd bd in a drunken rage. The parallels are striking!!!

        • jdmckay8 says:

          Thx to both of you. That was 12 years ago. It was awful. But… far more deep satisfaction, profoundly so, came out of having Dad with us last 4+ years of his life. I put huge effort beginning about 30 years ago, into recreating my relationship with that guy. Until then, it was just ok. A few years after beginning that endeavor, what became reality was near total joy with him almost all the time. It changed my life in ways I never could have anticipated, or even thought possible. We lived in grace, bigger than the sum of both of us together.

          Miracles came out of it.

        • bmaz says:

          I am saying neither. The thought that non-convicted citizens can summarily be prohibited from their constitutional right to seek office is asinine and repulsive to everything the constitution stands for.

        • wa_rickf says:

          US supreme court likely to determine Trump’s 2024 eligibility soon
          – The Guardian

          “..The US supreme court is likely to soon determine whether Donald Trump is eligible to run for president in 2024, the well-respected former federal judge Michael Luttig said on Sunday…”

          John Castro v. Donald Trump – a 14th Amendment case arguing that Trump’s role in the January 6 Capitol riot should disqualify him from running for public office – was distributed to the court last week for an official conference on September 26, 2023.

        • bmaz says:

          Lol, Castro is a tax attorney, and wanna be presidential candidate, from Texas that filed his crappy complaint in eight states. If SCOTUS is going to take up the issue, they need a better record than this to work from. Even if SCOTUS does take it up at conference, the only remedy should be to remand for a real hearing/trial. It is hard to see them biting off on this thin crackpot record. Luttig and Tribe, supposed keepers of the law, are nuts to be pushing this junk. It is embarassing.

        • icarustpenguin says:

          I agree, this is too important to not follow the rules, we cannot let wishes, nor expediency cause us to become what we are fighting against.

          A conviction in a court of law should be required to implement this section of the 14th amendment. I was told many times during my school years that the Constitution is not law, but provides the foundation for laws.

        • Deadhead says:

          What Constitutional right to seek office? And does this right apply to naturalized citizens? Or those under 35?

        • bmaz says:

          I am not your research law librarian, next time try thinking and looking yourself. But since you asked, here are the requirements to sun for and be President:

          Candidates for president of the United States must meet basic requirements. Learn about the criteria to run for president.

          “The U.S. Constitution states that the president must:

          Be a natural-born citizen of the United States

          Be at least 35 years old

          Have been a resident of the United States for 14 years
          Anyone who meets these requirements can declare their candidacy for president. Once a candidate raises or spends more than $5,000 for their campaign, they must register with the Federal Election Commission. That includes naming a principal campaign committee to raise and spend campaign funds.”

          Note it doesn’t say “people we like” or “people who have never been convicts of a crime” nor any of the other tripe people are clutching their pearls over. And it does not say “people others think may have insurrected or rebelled”. T%rump is absolutely entitled by the Constitution to run for President. The requirement ar not much different for the House and Senate except for age, which is 25 years and 30 years, respectfully.

          Trump has none of those impediments, so he absolutely has a presumptive right to run and serve. If you are going to strip a citizen of such a right, you damn well better do it properly with fairness, due process and opportunity to defend. It better look, and be, proper and not some assumptive e bunk from creaky professors and retired old judges. It is a substantive right, treat it as such lest it spread to all kinds of elections everywhere.

        • Deadhead says:

          So as I thought, this Constitutional right to run for office is pure bullshit. As you point out, people qualify for office. That sounds more like a privilege than a right. BTW: I wouldn’t use you for research, you’re too emotional.
          But thanks for assuming I know nothing because I asked some questions.

        • bmaz says:

          Hi there Tom. You have posted here under three different names. That is not permitted. Most of your 17 items have been aimed at me. Do you not have anything intelligent or substantive to say or do? You have not to date. And, no, citizens have rights, not merely “privileges” at the whim of fools on the internet. Also, too, I very much doubt you could afford me, and if it was a civil case, I would decline because I don’t represent fools, they are to inconsistent and a pain in the ass. If it were criminal, sure, but it would not be cheap.

        • bmaz says:

          Yes. My “issues” are with interlopers with six (6) comments that think they can control this blog, much less that we give a shit about you. Try for substantive comments not confrontations with the principles here. Or run along.

        • Desidero says:

          Could you provide some thoughts on how the 14th Amendment could properly be applied under what conditions by whichever body with standing, etc. including a 2024 context? (I know you’ve addressed in some way via responding to what *isn’t* kosher). Tx.

        • timbozone says:

          To paraphrase: “It shouldn’t and won’t apply.”

          Comparison to the situation just after the Civil War with the present is problematic at best; Court precedence on the matter is very difficult to overturn given the extreme nature of Section 3 of the 14th Amendment sanctions and the historical context in which Section 3 was enacted. It is to be hoped that we have not entered a period where such things will be messed around with heavily, although we apparently are on the cusp…for many decades this little known part of the Constitution has lain dormant in the popular mind…until now. There’s good reason to leave it dormant as enforcement actions risk over broad use of the sanctions in Section 3 of the 14th Amendment.

        • bloopie2 says:

          Right or wrong, it’s one way Trump himself has made his living — suing people. Make him defend it, along with multitudes of other lawsuits. Death (figurative of course) by a million cuts.

        • wa_rickf says:

          Laurence Tribe:

          “Whether you’re convicted or not, that’s a separate matter, but if you engage in an attempt to overturn the government, you shouldn’t be entrusted with power again.”

        • John Paul Jones says:

          That’s a moral argument, not a legal one. Tribe has a right to his opinions, of course, but he’s not claiming a legal status for this one. We should ask ourselves why not? and I suspect the answer is the one bmaz has already supplied.

      • Ebenezer Scrooge says:

        The only Congressional action that Section 3 contemplates is removing the (automatic?) disability imposed by the 14th Amendment. Like the 13th Amendment, it seems to operate directly on persons. So again like the 13th Amendment, it would seem to be enforceable by injunction.

        • bmaz says:

          Bullshit. The full text is this:

          “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

          There needs to be some credible finding, not just manure filed by cranky citizens and the dopes at CREW. Else any action would be bogus. And, yeah a specific finding by Congress could be a basis, but there really should be a criminal conviction for one of the proscribed predicate acts, insurrection or rebellion against the same.

        • earlofhuntingdon says:

          “[T]here really should be a criminal conviction for one of the proscribed predicate acts, insurrection or rebellion against the same.” Yep, given the weight of the penalty, that’s what’s needed and missing from these arguments.

        • jdmckay8 says:

          I saw interview with 2 SOS over the holiday. They said they are already in serious conversations with SOS in a number of other states on this issue. They said, however it gets there, this will have to be decided by SCOTUS.

          Sooner the better AFAIC.

        • Rugger_9 says:

          Or, they take an oath to another power (like renouncing citizenship) which is what the CSA troops did. That’s why an oath to the USA and to emancipation was required to return to citizenship after the Civil War.

          However, I have yet to see any evidence Defendant-1 took any oath to an adversary. Winks and nods don’t count here.

        • jdmckay8 says:

          However, I have yet to see any evidence Defendant-1 took any oath to an adversary.

          “Russia if you’re listening”, “Stand back and “, “Maybe Mike (Pence) deserves it (hanging)”, (and oldie but goodie) “They had love in their hearts”… on and on.

          So you’re saying no way Jose because DJT didn’t fill out the forms? It’s like the only take on reality that counts is what the courts decry.

          This is the same reasoning which, having people who could do something about it, sit on their hands while the planet’s global ecology is coming undone in spectacular fashion.

        • earlofhuntingdon says:

          Poor analogy. And it ought to take clear and convincing evidence that someone has taken an oath to follow a foreign power instead of their own govt. “Russia, if you’re listening,” does not qualify as unequivocal.

        • jdmckay8 says:

          Poor analogy.


          And it ought to take clear and convincing evidence that someone has taken an oath to follow a foreign power instead of their own govt.

          Perhaps. But the statute does not say that. It says:

          (…) shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

          Note all those “or”(s), not “and”(s).

        • earlofhuntingdon says:

          LOL. What process and standard of proof would you use to establish the predicate act?

          Because I said so doesn’t work for the parents of a toddler, it shouldn’t be enough to deprive someone of the right to run for office. Imagine that standard in the hands of a President DeSantis.

        • jdmckay8 says:

          Your last quote was of the Constitution, not a statute.


          LOL. What process and standard of proof would you use to establish the predicate act?

          Whatever the law requires. In this case, there isn’t much other then wording of the amendment. I was just saying: what you said was required (oath to foreign power or ???) is not in the language.

          You get a little condescendingly paternalistic sometimes, my friend.

        • jdmckay8 says:

          Your last quote was of the Constitution, not a statute.

          Yes, you are right. Statute was wrong word.

          Does not change what I’m saying at all, though.

        • Ewan Woodsend says:

          “The BBC ? I’m Irish.”

          Such a declaration does not suffice to say Biden pledge allegiance to a foreign power. Similarly for Trump, you need something more.

        • jdmckay8 says:

          Again, the language does not require a “pledge” or anything else that declares some kind of allegiance with a foreign power. The language describes actions against the U.S.

          (…) shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

        • bmaz says:

          Are you still pushing this bullshit? You are certainly relentless with the same old tripe. Maybe you ought take a gander at Article I of the same 14th Amendment you relentlessly flog. It requires due process. But you blithely seem to not understand the requirements of due process, or just don’t give a damn. I suggest you take a step back.

        • jdmckay8 says:

          I don’t know what’s gotten into you.

          Are you still pushing this bullshit? You are certainly relentless with the same old tripe.

          Thanks for the compliment. What I said: there is nothing in that language that requires the subject having proclaimed (or whatever word you prefer) allegiance to a foreign enemy, as several people suggested.

          Maybe you ought take a gander at Article I of the same 14th Amendment you relentlessly flog. It requires due process.


          But you blithely seem to not understand the requirements of due process, or just don’t give a damn. I suggest you take a step back.

          Taking what I said, and turning it into all that stuff doesn’t garner you much respect. If you want to blacklist me, so be it. No point being pushed around with such nonsense.

          Can’t help noticing you do a lot of this lately. 2 people who had very reasonable comments in this thread… exact same thing: you put words in their mouth and attack for those words. You trash Smith, Willis, and Garland regularly with non-illuminating derogatories. That’s the short list.

          Go read your posts from last night. Full of completely unintelligible sentences. My first thought was looked like someone was liquored up. And that’s not a cheap shot, go read a few. I can’t believe that’s who you want to be.

          I’d really like to get the old bmaz back, I miss him.

        • bmaz says:

          I don’t care if you respect me or not. I do care, however, if the law is respected. By the way assumptive jackass, I have a medical condition that currently prohibits me from drinking, as well as several other things. What is unintelligible is why you keep mumbling the same line, over and over and over, while ignoring every other provision in the 14th and Constitution as a whole document, simply to deny a man eligible to seek office under the Constitution, from doing so. That is literally the taking of a substantial right and should only be done properly, not on an assumptive whim.

          Not to mention what would have to exist as to fundamental fairness before the right of a citizen with no historical convictions, much less of any specified predicate acts, that have been competently established because you hate one man. That is the antithesis of law. Why don’t you worry more about your own feeble and shallow argument than me, I’m fine.

        • boatgeek says:

          So if the Jack Smith J6 trial goes ahead in Q1 2024 and Trump is convicted of the crimes he’s indicted for, would that be sufficient grounds in your mind to disqualify him under the 14th Amendment in a following proceeding? I don’t believe that any of the charges are that Trump engaged in insurrection, though it’s arguable that the charges reflect giving aid and comfort to the insurrectionists.

          Come to think of it, there’s plenty of evidence from criminal convictions and sentencing of various insurrectionists that they thought that Trump was directing them. While the trials weren’t specifically about Trump’s culpability, there’s lots of evidence for aid and comfort.

        • earlofhuntingdon says:

          That amounts to guilt by association, a standard trope of authoritarian govts.

          And it doesn’t take decades in divorce court or on a blog to know that what someone else thinks you think or want ain’t necessarily what you think or want.

        • boatgeek says:

          OK, that’s fair for my second paragraph. What about the first if Trump is convicted on the current Jack Smith J6 charges? Is that enough if he is convicted by proof beyond a reasonable doubt?

        • SteveBev says:

          The alleged offences against Trump are that he conspired with others known and unknown
          1to defraud US
          2 to obstruct official proceedings
          4 conspiracy against rights
          3 obstructed and/or attempted to obstruct an official proceeding

          The statement of offences does not specify that Trump incited violence, but it does specify that he exploited violence,
          See para 10e and elsewhere in the indictment

          It therefore matters not whether his language at the ellipse amounted to incitement. And it is also not a matter of giving aid and comfort.

          The conspiracies that he had been involved in from the outset evolved and adapted in various ways over time and eventually embraced the violent action of the mob.

          Whether or not it is charged as insurrection, the specified facts amount to insurrection embraced and adopted by Trump and his co conspirators

          The mob included individuals who had formed their own seditious conspiracy which involved using force and violence, and inciting others to follow their lead and lend weight of numbers to achieve the ends of their conspiracy : Obstruction of the count.

          Whether or not Trump had any prior knowledge or involvement; At material times around and subsequent to the breach of the Capitol he took overt steps to embrace the mob’s activities and exploit them. These steps and acts go beyond mere aid and comfort, though they include both.

          There was an insurrection in action and he conspired with others to make it a success for him.

        • earlofhuntingdon says:

          That’s an allegation, and I agree it looks like that. But the allegation has yet to be proven by a preponderance of the evidence, let alone beyond a reasonable doubt.

          What standard of proof would you require, provided it applies not just to Trump, but to any Democratic politician and office holder?

        • SteveBev says:

          Well obviously the criminal trial requires proof beyond a reasonable doubt for conviction by the jury.

          Whereas when it comes to imposing punishment and other penalties consequent upon conviction it’s for the judge to interpret the verdict and make determination of the facts found proved on the evidence and other material the law provides which should or may be considered to found the factual matrix for the imposition of applicable and appropriate penalties. You will correct me if I’m wrong, but the standard for that is the preponderance of the evidence I believe.
          If the Art14(3) disqualification is to be regarded as a weighty penalty to be applied only after conviction for appropriately framed charges is there a reason why conviction and sentence on these charges would not or should not suffice?
          I could see an argument that the penalty is so grave that it shouldn’t be merely a matter for the Judge to consider as a matter for sentence , but rather the indictment ought to include a highly specific count so that there is a clear jury verdict, but that is perhaps open to argument either way.
          I am not committed to this view. But pondering the ambit of your suggested requirements of a criminal conviction before Art 14(3) can bite.

        • SteveBev says:

          Though there is no particular reason why it couldn’t be argued that in relation to a penalty of such import the standard of proof the judge ought to operate upon is proof beyond a reasonable doubt and give a reasoned ruling for the findings of fact necessary to support the decision.

          A further refinement could be to have a specific hearing on the issue.

          Ie so procedural and other safeguards could be adopted to deal fully with whatever concerns there maybe regarding process.

        • Fancy Chicken says:

          While I am only about halfway through Baude and Paulsen’s article that has put the wind in many folks sails that section 3 is self-executing and so far it seems quite persuasive, I believe as a non-lawyer that it absolutely needs to go to the Supreme Court in order to get legal, unequivocal definition of what a process for disqualification must follow.
          I agree that as Confederates had taken an oath to a government in direct conflict with the Union that in that instance it was easy for section 3 to self execute by simply proving someone had taken an oath to the confederacy.
          But note, it was “proof”.
          In Trump’s situation or any to follow, some sort of elucidation of applicable “proof” needs to be provided; if not for Trump’s case the certainly for the ethically strained burn-it-all-down-GOP.
          I do recommend reading the piece as it at least provides a little hope that with the right legal wrangling it might be possible to use section 3 if not for Trump then some other on the rise dictator wannabe.

        • SteveBev says:


          What is very well thought out and worded is the indictment.

          My musings are extrapolations and probably overstretch

          There are lots of no doubt good reasons I haven’t thought of why a federal judge presiding over criminal proceedings would and should be dubious and reluctant to carve out the jurisdiction for themselves implied by the thought experiment.

          As I understand it simply from readin articles the case law regarding Art 14(3) is mainly derived from the exercise of ‘quo warranto’ jurisdiction of the courts.

          Perhaps a better view of how to go about imposing Art 14(3) would be to initiate proceedings in a court invoking that or some analogous jurisdiction and plead the conviction and evidence from trial and sentence as the basis for the claim/ petition

          I know that sounds cumbersome but perhaps the process ought to be.

          I am all in favour of Trump getting his just desserts but they must be just and manifestly seen to be just.

        • stillscoff says:

          I am all in favour of Trump getting his just desserts but they must be just and manifestly seen to be just.

          I couldn’t agree more. Anything less will only further tear this country apart.

          As is the repercussions would be fierce, but I think (and hope) Americans would respond positively to the evidence of justice being truly served.

        • SteveBev says:

          And by manifestly just I mean to the reasonable well informed observer acquainted with the relevant facts.

          There is unfortunately no possibility of persuading those who are wilfully blind to the facts, and/or are committed to conspiracy theories as part of their world view, or to manipulative interpretations of democratic norms and due process for partisan ends. Howling by MAGA fanatics is what it is and synthetic grievance concocted by by propagandist should not stand in the way of just accountability.

        • jdmckay8 says:

          I assume you are asking me. This is above my pay grade, but I do have an opinion.

          So if the Jack Smith J6 trial goes ahead in Q1 2024 and Trump is convicted of the crimes he’s indicted for, would that be sufficient grounds in your mind to disqualify him under the 14th Amendment in a following proceeding?

          Not in and of itself. But it would help. The thornier issue IMO is (you use the term: disqualify): who or what entity has or will have the authority to disqualify, and enforce it. I’m encouraged that SOS’s are taking this seriously, and are engaged. They are the ones ultimately who will take action: you’re either on the ballot or you are not.

          And as we’ve seen in Michigan, Georgia, New Mexico and several others: Secretary of States have demonstrated some real backbone, integrity and decisiveness since the election well beyond anything seen from just over 1/2 the congress.

          Even most of Trump appointed judges have been (to my surprise) pretty good. Canon seems like an outlier.

          I don’t agree with EOH at all. Fanny’s RICO case is made into conspiracy because of all the associations amongst the 19 working for a unified purpose. Watching the hearing today deciding in Judge Scott McAfee’s court whether or not Chesebro and Powell’s cases could be severed, really exemplifies this in clear ways.

          The fact of these people’s associations is what makes this non-severable AND a conspiracy, thus RICO. Without it, many charged (including these 2) would only be liable for relatively minor offenses.

          If you look at the video, you can get the gist of what I describe beginning with the prosecutions powerpoint beginning +/- 2/3 of the way through. You can recognize it by the courtroom being in a small window on the top right.

        • Attygmgm says:

          Also, the bar is as to those who “hold any office,” not those who merely run for office. Which seems like another issue.

        • Peterr says:

          Not really.

          This speaks to the breadth of the prohibition. You can’t service in an office — elected or appointed — if you have committed insurrection. If this makes you ineligible for an office, you can’t run for it or ask to be appointed to it unless you get Congress to grant a waiver.

          Which still leaves the “who decides?” question . . .

        • Ebenezer Scrooge says:

          Bullshit back to you. You’re talking evidence and burden of proof, but I raised a procedural point. A court of competent jurisdiction would have the power to issue an injunction, if it finds that a person has engaged in insurrection or rebellion. That obviously requires a finding of fact, but the power is there.

        • Patient Observer says:

          The 14th Amendment gambit is wishcasting.

          There ought to be a more official finding than the report of the January 6 Committee and the criminal referral under 18 USC §2383. Rebellion or insurrection contained within it.

          However, to cite the 14th Amendment following conviction under §2383 would be redundant, as §2383 contains mandatory disqualification as a penalty.

          *****…shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.*****

        • Surfer2099 says:

          In the J6 report section on Findings, it does say they conclude that Trump could be rightfully excluded from the ballot under the 14th amendment. But is that enough to actually exclude him?


        • Alzero53 says:

          Didn’t the Congress in a bipartisan resolution overwhelmingly vote to declare J6 to be an insurrection? It was a Joint resolution honoring the capitol cops, IIRC.

      • Joeff53 says:

        There is congressional action in the form of the record amassed by the J6 committee. It’s far from being the whole ballgame but it’s a pretty good start.

        • SteveBev says:

          Wouldn’t the majority vote on the insurrection article of impeachment after trial afford a better predicate
          At least in the sense of having been a trial.

          There are obvious problems of course
          The Impeachment trial didn’t achieve the requisite majority vote to result in conviction on impeachment
          And there was discussion at the time as to whether Art 14(3) could be used, though no discussion and debate on the floor of the Senate.
          So at best it probably amounts to an opportunity missed.

        • SteveBev says:

          Though it is also true to say that in terms of the decision by those who declined to convict most recorded their reasons and the majority of those expressed it terms amounting to variations of
          ‘I voted not guilty because I didn’t believe that the impeachment process should bite on an ex-president, the matter should be left to the courts’

          Following on from my musings up thread re initiating a process in a court pleading the criminal conviction (assumed arguendo) the pleading perhaps might be strengthened by pleading the findings within and arising from the outcome of the impeachment trial.

          It has the advantage of creating a case record which incorporates the public record from both the Criminal Courts and from Congress which might add to legitimacy and the historical uniqueness. The downside is the potential for the process becoming unwieldy. But that’s always going to be the case.
          Arguing for quick fixes on this matter are almost certainly foolhardy, which is probably the best reason why the proponents of Art 14(3) at the time of the impeachment decided to leave well alone, for the time being.

      • Surfer2099 says:

        I’ve had similar thoughts. How do you keep someone off the ballot without any finding of fact and just on observations.

        However, wouldn’t the J6 report be considered a finding of fact or a congressional action? Or by congressional action are you saying a vote?

        • bmaz says:

          A vote on specific individuals by all of Congress, with opportunity to defend, not a generic committee report. Frankly, I think it should only be on a criminal conviction, but that’s me.

        • Just Some Guy says:

          A conviction in 1918 (under the prior-year-passed Espionage Act) wasn’t enough to keep Eugene V. Debs off the ballot in 1920. Given that slightly less than a million people cast their ballots for him, whether he could hold office was, indeed, a moot point.

        • Just Some Guy says:

          Right. I think some people are confusing different, and competing, questions: whether Trump should be allowed on the 2024 ballot prior to any potential conviction, after any potential convention, or be (somehow) barred from office should he win the 2024 election post-conviction. By not being particularly clear as to which question they’re asking, they’re muddying the waters, so to speak. And the legal theories abounding right now aren’t particularly helpful, but sometimes history is!

        • Patient Observer says:

          It is a paradox, though, is it not, Bmaz?

          A mandatory penalty upon conviction under §2383 is disqualification. Reference to the 14th Amendment would be superfluous.

          The Confederacy formally delared its rebellion. Confederate civilian officials and military officers presumably swore oaths to the rebellion.

          Outside the context of a comparable declared rebellion or insurrection, how could the 14th Amendment ever come into play?

          *****…shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.*****

      • DaBunny says:

        There are few precedents, but not zero. There was no conviction or Congressional action when Eisenhower deployed the 101st Airborne to Little Rock.

        If a bunch of Southern bigots refusing integrate schools is an insurrection, then rioters attempting to murder the Vice President and overturn an election surely qualify.

        Eisenhower didn’t have to meet courtroom standards of proof before he sent in the Army. There weren’t fussy arguments about whether the mayor or the school board or etc were responsible.

        Which is not to say that SCOTUS won’t find some way to twist themselves in knots and slap this down. They have been nothing but egregious and I don’t expect that to change…until they’re egregious enough to trigger some real reform of the court.

        And worrying about what a President DeSantis might do is ridiculous. A Republican president will do whatever the hell he likes, regardless. New York was oh-so-scrupulous about gerrymandering, in part for fear of what Rs might do. Take a look at Ohio, Wisconsin, Alabama, the Carolinas, etc. How much good did that do?

        [Welcome back to emptywheel. SECOND REQUEST: Please use the same username and email address each time you comment so that community members get to know you. “DaBunny” is your second user name; you’ve commented previously as “DaBunny42.” Please give me a break and stick with the same SITE STANDARD COMPLIANT username on every comment. Thanks. /~Rayne]

        • bmaz says:

          Oh, SCOTUS need not twist themselves into knots whatsoever; punting this asinine garbage ought be one of the easiest calls in the history of SCOTUS conferences. There is simply no proper record upon which they can determine anything other than remanding it. Citing Eisenhower and the school board is laughably irrelevant.

        • Just Some Guy says:

          “Eisenhower didn’t have to meet courtroom standards of proof before he sent in the Army. There weren’t fussy arguments about whether the mayor or the school board or etc were responsible.”

          This is not historically accurate. Eisenhower deployed the 101st Airborne at the request of Little Rock’s Mayor Woodrow Wilson Mann, via telegram. Mann’s request was for the 101st to escort the Little Rock Nine to Little Rock High School.

          And the actual crisis was about Arkansas Governor Orval Faubus deploying the Arkansas National Guard to blockade the High School after his associates agitated for a mob to form there — after he’d already agreed to “uphold the Constitution” in a personal meeting with Eisenhower! Little Rock’s School Board and Mayor condemned Faubus. Once Eisenhower nationalized the Arkansas National Guard via the Insurrection Act (!!!!), and the Little Rock Nine could go to school, the crisis precipitated by Faubus with the ANG deployment changed into one primarily focused on the legal system and Faubus’s “referendum,” the results of which gave him political cover to close the schools, resulting in The Lost Year. Faubus was not charged with “insurrection” nor anything else. Nor do I think, despite the odiousness of Faubus and his actions, is the Little Rock Crisis in any way analogous to January 6th.

        • DaBunny42 says:

          Sorry about that, Rayne! Different computer filled in different values. I hopefully I’m set as DaBunny42 on all of ’em now.

      • scroogemcduck says:

        Respectfully, it’s not a load of crap. Someone has to adjudicate on whether potential candidates for office are disqualified. Your position is that this requires a criminal conviction or Congressional action, but this is just your opinion and I can’t see that it is clearly in line with what the law says or how it has been applied historically. For one thing, the Congressional Research Service states that historically, civil actions were brought to disqualify, not just criminal actions. In relation to Congressional action, a majority of both Houses have already found that Trump “wilfully” incited “violence against the Government of the United States” at his second impeachment trial There is certainly an argument that both houses have recorded a finding that Trump engaged in insurrection, albeit not the supermajority required to disqualify him from office under the Impeachment clause. You could obviously construct an opposing argument, albeit a tenuous one; that a failure to convict at impeachment trial is a finding that he did not engage in insurrection.

        Ultimately, this is a matter where the Courts should clarify the law, as Griffin’s Case is fairly obviously bad law and Trump arguably but not clearly engaged in insurrection.

        • bmaz says:

          Oh, yes, it is a load of crap. The argument that those lame hearings, happening on a strictly partisan basis, should or could be sufficient is laughable. It is your argument on this that is “tenuous”, not mine. And if Trump becomes disqualified on this thin reed of bunk half the country plus one (me) will consider completely illegitimate. As any sentient human should.

          Listen, this is not some average politician, it is the former President and presumptive nominee for 2024. There is about zero chance that would stand up in SCOTUS. People need to get their heads out of their asses and do things properly with due process and fairness. Even you, who propounds this argument admits it is not “clear:” Trump personally engaged in insurrection. Don’t you think that is a problem?

        • Just Some Guy says:

          Arguably (oh man that’s gonna get me in trouble probably, LOL) it was the efforts to defend Trump from conviction that was partisan, not the impeachment efforts themselves. Certainly defending Trump at all costs was a matter of putting party before country.

        • bmaz says:

          Oh sure that was, but so too were the completely lamer impeachment efforts by the Dems. A LOT of that is on Pelosi.

        • Just Some Guy says:

          Gonna have to agree to disagree. Both impeachments were justifiable and, I thought, well-managed (though the problem with the second Senate trial came down to Chris Coons wanting to be home for Valentine’s Weekend, which wasn’t Pelosi’s fault). It was just obvious, unfortunately, that the Republicans were going to protect Trump at all costs.

        • bmaz says:

          Well, then, we will indeed have to disagree. You think stunted and Pelosi curbed “impeachment hearings” that were never really hearings, where little, if any, meaningful testimony and/or evidence was allowed, to be sought or presented, was “well presented”? What a complete joke.

          And, no, nothing had anything to do with Chris Coons. That is a straight up lie. Result would have been the same if Coons was there. You are gaslighting people here. And, please, stop.

      • globalguy says:

        “And it is typical of the garbage that CREW and Eisen promote.”

        What’s good for the goose … yaddah, yddah, yaddah …

        “ADF has a history of relying on shady or fictional clients as an excuse to get into court, as Supreme Court litigator Adam Unikowsky has documented. In 2019, ADF claimed to represent a calligraphy company that refused to make wedding invitations for same-sex couples (though it was never asked). The company emerged shortly before ADF filed a lawsuit on its behalf, and disappeared shortly after the Arizona Supreme Court ruled in its favor. Its website was then taken over by an Indonesian casino. ADF also represented a supposed videography company in Minnesota, Telescope Media Group, that did not want to film weddings for same-sex couples. (You guess it: None ever asked.) In 2019, an appeals court issued a preliminary injunction granting it the right to discriminate.”

    • bawiggans says:

      The current attempt to use the ambiguity of some text in the 14th Amendment to disqualify Donald Trump – not yet found guilty by a jury of a predicate offense – from running for president reminds me of the situation after the attacks of 9/11 when the expediency of using torture was justified, given the existential threat we appeared to be facing.

      Secret laws, locked away in safes, were cited as authority for the government to do what most of us thought to be forbidden by international conventions to which we were a party. Our government proceeded to employ torture all over the planet in our name and allegedly on our behalf. That has proven a fateful step on a path that has led to the normalization of transgressions against decency and the rule of law of the sort that we have been experiencing more recently.

      We are at one of those nodes in history where the asymmetrical battle to maintain our national integrity against powerful, entropic, political and cultural forces once again causes us to doubt that being faithful to our hifalutin democratic ideals can prevail against the reality of a foe that recognizes no limits and delights in the destruction and chaos it causes.

      And the question, once again, is: does a little expedient transgressing of the beliefs we are defending better serve our purpose or theirs?

      • hollywood says:

        Yes, I think there is a spirit of the law versus letter of the law argument here. I hope one way or another the spirit prevails.

      • boatgeek says:

        For the record, I agree with you 100% about torture. I would agree with you 100% if a state’s SoS decided unilaterally to disqualify Trump on 14th Amendment grounds without a criminal conviction for insurrection (or other acts named in 14A). I would agree 100% if 14A mentioned a conviction. But it only says that the disqualifying act is to “have engaged in insurrection…”

        In this case, we have a lawsuit to exclude Trump. There will be opportunities to give evidence for and against the notion that Trump has engaged in or supported insurrection. Whatever decision is made will be appealed, and eventually the Supreme Court is going to have to weigh in and make a clarifying decision on what counts as sufficient evidence for disqualification. While I’m not a fan of this Supreme Court, they have the advantage of “only Nixon could go to China” in that they’re conservatives ruling on a (nominally) conservative president, so they’re less likely to take a broad view of disqualification. Maybe they’ll dismiss until and unless Trump has a criminal conviction. Maybe they’ll accept evidence in lieu of a criminal conviction. Maybe not–we’ll have to see.

        I think it is worth noting that the 6 officeholders disqualified under 14A immediately after the Civil War do not appear to have any criminal convictions among them. So at least at the time of passage, evidence other than a criminal conviction was considered adequate.

    • Kick the Darkness says:

      This post engendered a really interesting conversation regarding removing Trump from the 2024 ballot. I generally agree with the argument that there needs to be a very high legal bar for doing so, because of the potential for such maneuvers being used as lawfare. But as a practical matter, I’m interested in how those supporting, say, having Trump removed from the ballot in a number of swing state, see that playing out politically?

    • Doctor My Eyes says:

      Very interesting conversation. Imo, it’s all moot because, as a practical matter, there is no way in hell Trump is going to be removed from ballots. My opinion. Still, the matter of how to execute the language of the Constitution is valuable and interesting. Here are a couple of side thoughts.

      1) Do people understand that Trump is not the primary problem facing our attempts to protect the integrity of the USG, to maintain some semblance of a government that competently represents the best interests of our country? Replacing Trump would be almost a trivial matter for the forces who placed him in office. With or without Trump, we will have lying media and worse-lying social media, compromised officials, authoritarian billionaires, a drug epidemic, etc. In our celebrity culture, we seem to have forgotten how to think about issues instead of personalities. Trump is representative of our serious problems, not their direct cause.

      2) I would like to make a limited point about the argument that those who oppose authoritarians should refrain from doing anything on the grounds that, if we do it, then they’ll do it, too. These authoritarians are already doing anything and everything they can think of to gain power and disempower small d democrats. There is zero chance that a President DeSantis would refrain from taking any action on the basis that his opponents were similarly restrained. That’s just now how these guys work. I believe strongly that there are not sufficient grounds to keep Trump off the ballot, and that it is crucially important that legal processes be observed scrupulously. But the reason for doing so is for its own sake, because this is the kind of country we want to live in., not because we imagine some kind of understood agreement of mutual restraint on both sides. The good guys doing a certain thing does NOT lead to the bad guys not doing so. In fact, the bad guys do it anyway while accusing the good guys of doing it even though they didn’t.

      3) Am I the only person who suspects that the only reason this issue has gained any traction is that the billionaires and corporatists understand that Trump is too toxic to have much chance of winning the presidency? I for one, do not want Trump off the ballot–I want him to be the GOP nominee, CNN’s bullshit polls notwithstanding.

  3. JonathanW says:

    Isn’t Woodward also saying that those dastardly prosecutors only offered a cooperation agreement after an non-conflicted counsel was appointed to Taveras? Isn’t this kind of an admission that he didn’t help Taveras seek out a cooperation agreement for his false testimony, perhaps because such a correction would harm his other clients, but that the conflict counsel did right by his client and sought such an agreement?

    Also, do any of the experts here think that this sur reply is meant to really convince Judge Cannon, or is it more of a classic Trumpian publicity document meant to get a solid headline on Fox News?

    Adding Section 3 also does not contemplate action by random citizens either. But, hey, if that is your jam go for it. And then reap the whirlwind of it being applied everywhere all the time. People that champion this are fools.

    • JonathanW says:

      The last paragraph is my comment doesn’t look like something I wrote! Is it possible that my browser did something weird? I thought my comment ended with “Fox News?” But there’s a whole paragraph about Section 3. Is it possible that that somehow someone else’s comment got merged with mine? Weird!

        • gruntfuttock says:

          Truth is false and logic lost
          Now the fourth dimension is crossed …

          (I don’t know if punaise is a Rush fan but there’s some fun to be had with that one)

        • TonesinCA says:

          Aye -ni nay nanny nye na nye

          [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You had changed your username to “TonesinOC“; pick one of these names and stick with it each time you comment. /~Rayne]

  4. SaltinWound says:

    Meanwhile does the Garcia hearing keep getting postponed? All the nested motions are confusing to me.

  5. 2Cats2Furious says:

    Thanks, Marcy. I’ve bookmarked the Court Listener dockets for both of Trump’s federal trials, and keep checking to see if Cannon has finally gotten around to granting a Garcia hearing for Nauta yet, which she hasn’t. I do note there was an Order entered on 9/1 with no PDF copy attached, which may relate to notations that Docs 139 & 142 are sealed until further notice. Also, there are a lot of other recent docket entries missing, which may also be subject to motions to seal.

    The bottom line for me is that there is no excuse for Cannon to not simply follow what Judge Boasberg did in DC, and appoint independent counsel to advise Nauta as to potential conflicts re: Woodward’s ongoing representation, and at least make certain those conflicts are knowingly waived. Allowing briefing (and specifically directing briefing on the “legal propriety” of the DC grand jury) to drag on for over a month furthers neither the interests of Nauta, nor of justice in general.

    Woodward obviously doesn’t want another of his clients to start cooperating with DOJ. He is taking advantage of this situation to argue that (1) of course he’s fine with a Garcia hearing, as long as it’s ex parte and under seal (meaning the DOJ can’t challenge the adequacy of the proceedings), or (2) heck, just exclude the testimony of IT guy, and there’s no conflict at all! Easy peasy.

    Cannon can use this opportunity to show she has what it takes to be a competent federal judge, or she can continue to be a hack for Trump. If she denies the motion for a Garcia hearing, or excludes the testimony of the IT guy, we’ll have our answer.

      • 2Cats2Furious says:

        Sure. And you understand that Nauta will not be prejudiced in any way if Cannon follows the procedures of a far more experienced federal judge from another district, by appointing independent counsel to explain the potential conflicts and risks to Nauta, right?

        • bmaz says:

          No, not right. Have you ever defended criminal cases? Never put words, in your rant about me, because you do not know me. And, further, you seem ignorant of the actual way things because you have adopted right over I am and trial courts. But, you press on, but don’t bother me with you naive bullshit.

        • 2Cats2Furious says:

          Where in my comments above was I “ranting” about you, bmaz?

          If you believe that anything I said was actually wrong – specifically that Nauta should NOT receive a Garcia hearing, or that he somehow would be prejudiced by receiving advice from independent counsel (such as Judge Boasberg appointed for the IT guy), or if you believe that Cannon should actually exclude the testimony of the IT guy in the interests of justice – then I would honestly appreciate your explanation as to why.

          I’ve never hidden the fact that I was a civil litigator, and not a criminal defense attorney. I don’t claim to have any superior knowledge; just that I read the filings and have a general knowledge of criminal law, evidence, and procedure.

          And yes, I’ve disagreed with you – and agreed with Marcy instead – on certain points in the past. I have also agreed with you on other points. But I honestly don’t know why my having a difference of opinion offends you so. I don’t think anything I’ve said in this thread is offensive towards you in any way, but please correct me if you feel differently. You seem to believe that I’m always trying to start some fight with you, but I’m honestly not.

        • P J Evans says:

          You might need to go get some hydration or something. You’re very prickly this morning, and not in a good way.

        • 2Cats2Furious says:

          As a civil litigator for decades, often appearing in federal court, I have a pretty good idea of when I knowingly say something offensive (which I generally try to avoid), versus saying something that another person inexplicably takes offense to.

          I’m honestly confused as to how anything I’ve said on this thread could be considered offensive to anyone other than perhaps Stan Woodward or Judge Cannon. Yet, I’m somehow accused of being a troll and told to “get lost.”

        • bmaz says:

          Mind your own business. If you keep up your whining and tone policing you may find yourself gone. We have enough going on currently without dealing with you constantly. Give it a rest.

        • bmaz says:

          You were warned. Further comments like you just attempted will never see the light of day. Again, give it a rest. Neither I, nor Rayne, are going to waste another second on your constant whining.

        • earlofhuntingdon says:

          A Pollyannish view of how federal judges operate. Their egos and aspirations are usually fully developed, even if they rein them in to follow binding precedent (except for the Supremes).

          But a district court’s opinion does not bind any other district court, nor do opinions arising from another Circuit, regardless of how persuasive their logic.

        • 2Cats2Furious says:

          I’ve appeared before plenty of federal judges, thanks. And I fully understand the difference between persuasive vs binding authority.

          My question was simply what harm would result from Cannon following Boasberg’s procedures, because I can’t think of any harm it would cause to either Nauta specifically, or the interests of justice generally.

        • earlofhuntingdon says:

          Your earlier comments aren’t consistent with that claim. Otherwise, you’d know that Cannon does not need an excuse not to follow non-binding precedent from another Circuit.

          Regardless, I’m pretty sure Cannon doesn’t give a shit about your framing. She’ll agree with Boasberg’s take or she won’t, but it will be because of the outcomes she wants to promote, not because of the objectively neutral, apolitical career path you envision for her.

        • 2Cats2Furious says:

          Does anyone around here actually bother to read the actual words written, as opposed to ascribing some sinister meaning not actually in the text?

          First of all, the DOJ’s request for a Garcia hearing IS based on binding precedent, as it is based on a 1975 decision from the 5th Circuit. And 5th Circuit decisions prior to 1981 are binding precedent in the 11th Circuit, when the new COA was created.

          Second, I’m certainly aware that Cannon doesn’t give a shit about what some commenter says on a blog. That doesn’t change my original point, which is that the right move for Cannon under these circumstances is to grant to DOJ’s motion for a Garcia hearing, and take all necessary steps to make sure Nauta is fully appraised of the potential conflicts of interest and knowingly waives such conflicts, which can best be accomplished by assigning an independent counsel to advise him.

          None of this should be difficult to understand.

        • 3balls2strikes says:

          I’m not an attorney- just a person of average intelligence who does their best to keep up here- so it probably doesn’t mean much, but what I’m taking away (and if I’m wrong I’m sure I’ll be urged to ‘fuck off and go play in traffic!’) is that your reasonable suggestion would be unlikely to be considered by Cannon because she’s operating in bad-faith from the get-go.

        • earlofhuntingdon says:

          Understanding and agreement are not the same thing, just as what you consider obvious “the right move” is unlikely to be the same thing Cannon considers the right move.

          [Slow down, EoH, you’re typing too fast. You’re also going to kill me with typos like “earlofhuntingdom” which I have now fixed while dying of laughter. sksksksksks /~Rayne]

        • earlofhuntingdon says:

          The one thing I have in common with Donald Trump is frequent use of the royal “we,” which is mandatory in Huntingdom. Thanks for fixing the tippo.

        • Robinhood says:

          We understand and agree.

          [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You’ve commented this time as “Robinhood” which is not the same as your previous username “Robin Hood.” Please also omit adding URLs if you did not include one in your first comment. Thanks. /~Rayne]

        • Rayne says:

          Nothing quite that severe for EoH, just silk scarves, feather floggers, and fur paddles.

          Can’t say that for every commenter, they need to earn it. LOL

        • sohelpmedog says:

          Precedent: the tie that doesn’t always bind. The overwhelming majority of court cases are not major trials and the overwhelming majority of cases are not appealed. So as a practical matter, what is decided in trial courts is what most affects litigants’ lives. So that brings me to a favorite story of how binding precedent is in the nitty gritty of trial courts;
          After one of the SC’s major decision on juvenile rights, an enterprising reporter interviewed the judge in the trial court (somewhere in rural Pennsylvania I think) and asked him how he felt about being overruled by the Supreme Court of the United States. The judge replied it didn’t bother him a bit because he overruled the Supreme Court many times every day.

        • earlofhuntingdon says:

          Entertaining quips aside, one would need to review the judge’s record to verify how many of his decisions do as he says, and how broad their effects were.

  6. Ed Walker says:

    Eric Foner might disagree on the applicability of the 14th Amendment to Trump and other J6 insurrectionists. In his book Second Founding, he says that the point of §3 was to end the slave power in the secessionist states. He seems to think it was self-enforcing then, or enforceable by the national government but offers no mechanism.

    Section 3 has long since faded into history. Section 4, also long forgotten, dealt with contentious financial issues that arose from the war. It guaranteed payment of the national debt and prohibited states or the federal government from paying any part of the Confederate debt, or providing compensation to former owners for the loss of their slave property. Democrats denounced the section as an effort to “change the Constitution for the benefit of the bond-holders.” P. 85.

    FWIW, consistent with my general view of the Reconstruction Amendments, I’m not sure it’s wise to try to apply these provisions, either one of them, to the absurdist tactics of the crazy party. Foner gives us some of the legislative history, and doesn’t offer anything to suggest the applicability of either provision to anything besides the events of that day.

    I recognize that the crazies are dangerous, but so is stretching these ideas to solve our problems.

    • Ed Walker says:

      After I posted this, I found this in The Nation:

      Pulitzer Prize–winning historian Eric Foner has argued that Congress could, with a simple majority, begin a process of invoking Section Three of the 14th Amendment, which allows for the disqualification from public office of supporters of insurrection. “This can be invoked against anyone who has ever taken an oath to support the Constitution, including the president,” Foner has said. “It’s much simpler than impeachment. It is not a judicial proceeding. It’s a political proceeding. It doesn’t involve lawyers or trials. It is simply about qualification for office. You could have one afternoon of debate and a vote.”

      • ThomasPaine says:

        It can be argued that disqualification of a candidate under Amendment, Section 3 is not really a legal issue to be decided in Court, it is fundamentally a political issue. During Reconstruction, disqualification of Confederates running for Federal office was effected by the refusal of the responsible State Govenors to certify their state election results. Conviction or not, that may be how this could also play out in 2024. No certified Electors from a state in question means no EC votes for your candidacy. It would only take actions in a couple swing states by Democratic Governors to prevent Trump from ever regaining Federal office.
        Swing states with Democratic Governors include AZ, MI, WI and PA. Even GA and NV have moderate GOP Governors with no love for Trump.

        • bmaz says:

          Oh, sure, let’s let a bunch of random governors exercise political power to decide who can, and cannot, run for the Presidency. In spite of the few Constitutional provisions enumerated in other parts of the constitution. Because if you adopt this shit, it will be used immediately on Biden, and every Democratic politician for eternity.

          Brilliant plan. Thanh you for the Trump Derangement position. The jackals proffering this thing apparently don’t understand the second it works, it will be used against Democratic politicians across the country. Good to know where you stand though.

        • David F. Snyder says:

          Let’s also note that the SC in announcing each indictment emphasized clearly that the accused is presumed innocent until proven guilty in a court of law.

          An attempt to out-Trumpi Trump is like throwing gas on the fire. Have we ever seen that end well? (Rhetorical question)

        • bloopie2 says:

          Not quite. They don’t need to await this proffer by “the jackals”. The Republicans are already using horrible means to attain their ends; you’re certainly not teaching them anything new by using other means available.

          And stooping to their level, is never justified? Allowing MAGA to take permanent total control and make us live under a MAGA dictatorship, would not justify such? As Vox reports today, “Wisconsin’s legislature is gerrymandered to ensure that Democrats will never win it. Republicans have a plan to keep it that way.” We should countenance that?

      • Rugger_9 says:

        The word ‘political’ is what worries me, because that is exactly what the ‘Freedom Caucus’ will use to go after Biden for the purposes of kneecapping the campaign. After all, McCarthy did the same thing to HRC with Benghazi. That’s why a more substantial predicate is needed for invoking the 14th, Section 3.

      • Rayne says:

        I have to wonder whether the states which Team Trump attacked by way of false electors could invoke this to declare Trump ineligible for the 2024 ballot.

        But this might also depend on what Special Counsel does about January 6 conspiracies; if Smith’s team indicts Trump and co-conspirators as seditious conspirators, this might be possible, but what if they’re only charged with ConFraudUS and obstruction?

        • Rayne says:

          One down, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin to go.

          Let me guess Wisconsin’s legislature won’t support this but their supreme court might, depending on state law.

          Michigan might be the strongest of the bunch.

        • bmaz says:

          It is a shit argument in any of those jurisdictions without due process and conviction. Take a look at Article I of the same 14th Amendment.

        • Rayne says:

          Won’t argue that, but I need to see the charges first from SC. Probably not much to start with if seditious conspiracy isn’t levied against Trump.

        • bmaz says:

          Right. And if Smith stays to form, he won’t charge either predicate. Willis may have been a bigger problem, but I don’t think her indictment, as pleaded, get it there either.

        • Stargazer says:

          The Section 3 criteria include “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. My question is whether Trump’s public promises to pardon J6 defendants who have been convicted on seditious conspiracy (due process, check) can unambiguously be considered as giving “aid or comfort”?

    • paulka123 says:

      FWIW, consistent with my general view of the Reconstruction Amendments, I’m not sure it’s wise to try to apply these provisions, either one of them, to the absurdist tactics of the crazy party. Foner gives us some of the legislative history, and doesn’t offer anything to suggest the applicability of either provision to anything besides the events of that day.

      I recognize that the crazies are dangerous, but so is stretching these ideas to solve our problems.”

      Personally, I think the current anti-democratic movement manifesting in the Republican party is at least as dangerous a threat as that posed by the Confederacy and most people are underestimating the threat that they pose. It seems to me that prohibiting those from public office who have attempted to overthrow our government should be a minimal response.

      • bmaz says:

        Not without due process and fundamental fairness. Which many in this comment section seem to not understand, much less care about it. One man is just a man, despite the aggressive screamers. For pretty much the entire time this blog has existed, people used to dream about absurd police and prosecutors.

        But, now, prosecutors want to boost lame and ambiguous provisions, as more important than the actual Constitution. The hilarious part is that it is not “liberals” that spew that relentlesly.

        • bloopie2 says:

          Some would argue that what is at stake with Trump and MAGA and the Republicans is much greater in magnitude, than the rules you allude to which we profess to admire and which we (admittedly) should live by. They feel that, in this case, democracy is at stake, and one man is not just a man. They would rather use loathsome tactics to stop an evil person, than let him win.

          Fortunately for all of us, we don’t have to make these final decisions; we can just sit here in the peanut gallery and comment away.

        • P’villain says:

          I’d say it puts them precisely on par with the MAGA faction, for whom the ends justify any means available. That way lies ruin.

        • bloopie2 says:

          Worried about showing the Repubs something new to use against the Dems? Not to worry—they already know shit tons more than that ! Witness: U.S. Supreme Court Justice Samuel A. Alito Jr. assumed a new honorary position last year on the advisory board of Catholic University of America’s new law school program exploring the intersection of originalism and Catholicism, a program that was fully funded by an anonymous gift directed by university trustee and Federalist Society Co-Chair Leonard Leo.

          Howzabout that? We should sit by and watch as bad people use whatever means available,to hurt us, and just turn the other cheek? Sorry, no. May bethe screws will turn against them eventually, but it could take generations, and that’s not worth it.

        • Rugger_9 says:

          For a more direct action, see how WI Speaker Vos is trying to impeach the newly elected Supreme Court justice before she even makes a ruling. That’s why 14A Section 3 solutions need to have a high bar.

        • bloopie2 says:

          I’m honestly confused, perhaps I just haven’t been following closely enough. How does making the (possible) 14A result more difficult to achieve, or simply now trying it, affect what is happening in Wisconsin? I don’t believe that Vos would stop his efforts if the 14A folks would withdraw their action.

        • Rugger_9 says:

          It’s an example of how the GOP will abuse any power it gets to keep itself in power. There are many, many more.

        • earlofhuntingdon says:

          Politics is a contact sport, not tea on the vicarage lawn (although Trollope would argue the latter is more vicious).

          But I reject your framing. The alternatives to Republican thuggery are not doing nothing or joining in the thuggery.

        • Doctor My Eyes says:

          I hope I’ll be forgiven for repeating the following point, which I made above. I agree that Dems (for example) would be foolish to avoid taking actions on the grounds that this would embolden the authoritarians to do the same. But this fact does not lead to the conclusion that Dems (for example) should then do whatever they want. Dems should act with integrity because this is the kind of country we want to live in. There is currently no mutual restraint that I can see, but the only hope of continuing the American experiment is to continue operating scrupulously within the legal framework.

  7. David F. Snyder says:

    So it looks a lot like a no-nonsense prosecutor up against a mainly-nonsense defender. And Lady Justice with a finger on the scale? We will see.

  8. hollywood says:

    Yes, I think there is a spirit of the law versus letter of the law argument here. I hope one way or another the spirit prevails. But i suppose the bmaz crowd will allow Trump every technical defense and delay so that right or wrong (obviously wrong) he can skate.

    • bmaz says:

      “The bmaz crowd”? You mean people that actually believe in due process and fundamental fairness? That “crowd”? People who believe the law is bigger and more important than one man? That “crowd”?

      • jdalessandro says:

        Indeed. And why in the world would you pursue this to almost certain defeat in the Sup Ct, creating a ruinous precedent for the next demagogue to exploit? Its not enough to demonstrate that the reconstruction amendments support it; you have to think of the consequences of losing.
        Trump has been so fortunate in his enemies, always overplaying strong hands. But Trump Derangement Syndrome is a real thing, which causes otherwise sensible people to make bad decisions. I was surprised by Lutig here. I have this irrational respect for anti-Trump conservatives; that might be my TDS.

      • ToldainDarkwater says:

        Mark me down as a member of the “bmaz crowd” as you describe it. It is a hard thing for humans to fight an evil without becoming tainted by that evil. This is a major theme of my favorite book (also a set of movies). You may have heard of it? Something something rings? (Oddly enough, many who have engaged with this literature have completely missed this theme and how important it is to the work.)

        Anyway, rule of law has been under assault in the US (along with other Enlightenment values) for a couple of decades. The whole torture thing fell under this rubric, in my estimation.

    • David F. Snyder says:

      Consider your verdict,’ the King said to the jury.

      `Not yet, not yet!’ the Rabbit hastily interrupted. `There’s a great deal to come before that!’

    • drhester says:

      Ianal. Over the past several weeks I’ve barely commented for two reasons. The more important one is that since I am not a lawyer and know shit about the law, I try to learn. What I believe is that bmaz is a vociferous defender of the constitution, the law and fairness. I know what you are talking about vis a vis spirit vs letter of the law. But…The thing is, if Trump is going to be found guilty it has to be the letter of the law. Every. Letter. No spirit. I think the law is applied unequally in the US. I also believe that if the NY DA’s hadn’t been so afraid of Trump, he would have been charged years ago. Banks wouldn’t touch him, so Russians helped him out.

    • theartistvvv says:

      ” But i suppose the bmaz crowd will allow Trump every technical defense and delay …”

      What are you advocating for?

      Abandoning due process and the rule of law?

    • Ithaqua0 says:

      I can hardly wait to read your reaction to “Today the Wisconsin legislature issued the following order: As Joe Biden knowingly benefitted from massive voter fraud in 2020 and thereby won the election, and as we have determined this is tantamount to insurrection against the United States, we have determined that he is ineligible, under the 14th amendment, to run for President. Consequently, he is barred from having his name on the Wisconsin ballot, and no write-in votes for him will be counted.”

      • bloopie2 says:

        Wisconsin’s legislature is gerrymandered to ensure that Democrats will never win it. And the legislature is taking a tortured reading of the state Constitution to try to eliminate the voice of the Democratic (and democratically elected) chief justice. Shall we grant them due process and fairness?

        • earlofhuntingdon says:

          Absofuckinglutely. Everybody gets it or nobody gets it. Otherwise, it’s a might-makes-right, principle-free power play.

          If Democrats are lousy at recognizing and defending themselves in a knife fight, they should get better at it, not walk around with an AK-47.

        • LeeNLP says:

          I’m often reminded of this from Man for all Seasons: “This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

        • LeeNLP says:

          I cannot believe what I just did- wrote a quote just a line above someone else’s rendition of that quote. I need to pay more attention!

          [Welcome back to emptywheel. SECOND REQUEST: Please use the same username each time you comment so that community members get to know you. You published this comment as “LeeNLP” though you have 11 comments as “LeeNLP149” and 48 comments published as “LeeNLP941.” PLEASE PICK A SITE STANDARD COMPLIANT NAME consisting of 8 letters minimum and stick with it. Thanks. /~Rayne]

  9. db_rouse says:

    “William Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

    William Roper: “Yes, I’d cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
    ― Robert Bolt, A Man for All Seasons: A Play in Two Acts

    Sometimes you just got to go with the classics.

    • earlofhuntingdon says:

      Nice shot across the bow by the govt. to both Irving and Woodward:

      “[T]he willingness of an attorney to obtain [conflicts] waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.”

      The corollary of that is that the willingness of a former/client to grant a waiver “may bear an inverse relation to the care with which” a conflicted lawyer “conveys all the necessary information to them.”

      • SteveBev says:

        And “The care and ingenuity devoted by an attorney’s motion to reduce scrutiny of the potential conflicts between his clients/former clients bears…. “

      • RipNoLonger says:

        And assuming that the funding sources for defending all of the trump associates may have some effect on their legal representations.

  10. earlofhuntingdon says:

    Trump again invents a non-legal thing to keep his name in print, a faux pas that CNN fails to note. He’s filed a motion to advise the district court in Georgia that he “may” seek to remove his state court case to federal court. Horse manure. Perhaps the district court will remove it from the docket and wait for Trump to file something recognizable under the Fed. Rules of Crim. Procedure.

    • SteveBev says:

      The Judge that Trump was seeking to tantalise with his will he won’t he “notice” was Scott McAfee in Fulton County Superior Court.

      I don’t suppose he’s going to be any more impressed.

    • earlofhuntingdon says:

      Timely notice, thanks. When cutting and pasting a url, it’s normally good practice to delete the question mark on back. It’s tracking information.

    • earlofhuntingdon says:

      Hope a few light bulbs are coming on, to remind Trump’s cult followers that he eventually throws everybody under the bus. Everybody.

      For a Harvard PhD, Navarro is dumb as a post. His putative defense was that he failed to respond to a Congressional subpoena because he was protecting Trump’s assertion of executive privilege. Trump never asserted it. Even had he done so, he would not have prevailed.

    • Just Some Guy says:


      “To that end, prosecutors summoned just three witnesses: David Buckley, who was the committee’s staff director, and two of the panel’s senior investigative counsels, Daniel George and Marc Harris. Navarro’s lead attorney, Stanley E. Woodward Jr., called no witnesses and cross-examined only George, for 15 minutes…

      “…As for the contempt charge involving testimony, Woodward said Navarro should be acquitted because prosecutors had failed to prove that he ‘willfully’ missed the scheduled deposition. Federal case law holds that an action isn’t willful if it stems from a ‘mistake, accident’ or other innocent occurrence. ‘We don’t know that he wasn’t stuck on the Metro,’ Woodward told the judge.

      • earlofhuntingdon says:

        The prosecution ably responded that it doesn’t matter where Navarro was. It matters where he wasn’t: testifying before a congressional committee.

        • bmaz says:

          But, but, maybe he was stuck on the Metro!

          That’s a joke, but the Metro is sometimes quite unreliable. Don’t know if it is still around, but back in the day there used to even be a social media or blog account for stuck on the metro reports. WMATA hated it.

        • earlofhuntingdon says:

          But, but, but a guy with his resources and experience in DC, with a subpoenaed appearance to get to, could have walked, run, hailed a taxi, called an Uber, rented a limo, asked a friend to drive him, or hired a jetpack. Odd that he chose the least reliable form of transport. :-)

      • Sherrie H says:

        “‘We don’t know that he wasn’t stuck on the Metro,’ Woodward told the judge.”

        That’s hilarious. Did the documents they subpoenaed also get stuck on the Metro?

    • SteveBev says:

      Navarro is speaking on the steps of the court
      A complete shit show. On camera inches behind him, a MAGA flag waver assaulted a woman holding an anti-Navarro placard, by shoving the pole between her legs to move her.
      Which kerfuffle prompts him to say
      “This is the problem with this country. The divide. Between the woke marxist left and everyone else “

      Then goes on to say “this is a landmark case going to the Supreme Court. The first time in the history of our republic that a senior White House advisor, an alter-ego to the president has ever been charged with the alleged crime ….”

      • Peterr says:

        I mean, I guess he’s technically right that this is the first time an advisor to the president was charged with blowing off a subpoena and thus obstructing a congressional investigation. But there are a bunch of folks who appeared before congress and did their obstruction of a congressional investigation that way: folks like WH Chief of Staff HR Haldeman, WH Domestic Policy Advisor John Ehrlichman, and former AG-turned Campaign Chairman John Mitchell.

        Navarro’s posturing notwithstanding, he not that special. He’s just as criminal as Nixon’s convicted cronies, in his own, slightly different, way.

        • earlofhuntingdon says:

          Navarro seems like the kind of guy who’s admired his own uniqueness since birth.

          He imagined he was the only one who could speak at one time on a public street. He imagined he could not be touched, regardless of the nature of his advice to a president. Wrong on both counts. Sad.

        • earlofhuntingdon says:

          Posturing was all Navarro had. He offered no witnesses or documentary evidence, and only cross-examined one of the prosecution’s witnesses. He’s betting the Supremes will help him out – unlikely – because the DC Circuit almost certainly will not.

          Like Giuliani, Navarro went to great lengths not to disclose requested documentary evidence. Wonder why. He says he’s ready to go to jail to “take a stand,” by which he means he will huff and puff, “to obstruct a congressional inquiry.” Good deal. He might spend six months in a real prison. He won’t like it.

        • SteveBev says:

          Navarro’s self description as “an alter-ego to the President” is curious, both as to his presentation of his psychological relationship to Trump, and as to what he presents should be recognised in law as his relationship to the powers of the presidency.

          It strikes me that his deployment of his particular claim of “second selfhood” is akin to certain stages of catholic dogma – Navarro as “The Vicar of Trump” a channel for Trump’s ‘holy spirit’. Judge Mehta gave short shrift to Navarro’s attempt to claim he authentically discerned Trump’s exercise of executive privilege in the evidentiary hearing.

          But that hasn’t stopped Navarro from pushing Trump supporters to swallow this stuff.

          It is alarming the extent to which Trump supporters play with quasi-religious themes on his behalf – Navarro, Bannon, QAnoners, Flynn, and others all do this.

        • earlofhuntingdon says:

          The quasi-religious, often pagan symbolism is at the heart of the fascist appeal. It goes with being in permanent existential crisis, from which only a quasi-divine, all-powerful ruler can renew and save the Volk, and smite their enemies. Textbook stuff even Pete Navarro could follow.

      • P’villain says:

        Navarro continues to be a legend in his own mind. Somehow, he’s been pulling this off for decades. Perhaps incarceration will penetrate his intense self-regard.

    • MsJennyMD says:

      “It’s that evil twin part of me that always comes out at the absolute wrong political moment, like a demon possessing my soul; it exhibits itself as an arrogance or disdain or obnoxiousness or meanness or anger or pettiness – all traits that are lethal in politics.”
      Peter Navarro

  11. bloopie2 says:

    Alex Murdaugh has moved for a new trial, on the basis of jury tampering. He alleges that the Judge’s clerk wanted a guilty verdict, made that known to the jury, and convinced some (?) of them to discredit defense testimony. Huh.

    Fanni Willis has requested Fulton County keep secret (other than to counsel) the identities of the eventual members of the jury pool. This, on the basis of the fact that the grand jurors who issued the indictment were, as we know, harassed afterward.

    Jack Smith is taking actions to limit Donald’s ability to influence the jury pool through public statements, etc.

    There’s the nice Law & Order episode from 1995, “House Counsel”, in which the mob boss’s slimy lawyer (wonderfully played by Ron Leibman) worked through the jury commissioner’s clerk to identify one juror who could be bribed to return a not guilty verdict. (Poor juror thereafter ended up dead for some reason, and the lawyer was nailed for it).

    And, of course, there’s the 1960 election that JFK stole in Chicago.

    Everything old really is new again.

    • bmaz says:

      Willis knew it was the general policy in Fulton County to release the names of grand jurors when the indictment is released. So, if she tried, she did not try hard enough. There were certainly grounds to argue in this case.

    • earlofhuntingdon says:

      It’s a statutory requirement for the names of jurors voting on an indictment to be listed by name in it. O.C.G.A. 17-7-54 (2010)

      Seems perilous to me, but transparency and all that. I can see its utility as a matter of power politics, too. Indicted hoi poloi would have no power to express their irritation, but indicting the great and the good would be another matter.

      • bmaz says:

        Well, it would certainly never happen here.

        There is a more recent 2022 version of OCGA 17-7-54 which contains a blank spot to name grand jurors, but I see nothing in it saying that could not be overridden by the court for safety and the interests of justice.

  12. bloopie2 says:

    Well, maybe everyone’s right and we shouldn’t go to the ends of the earth to stop Trump; perhaps doing small things will earn us our rewards. And there are bigger fish to fry. For example, we apparently now have confirmation that SpaceX cut off Starlink satellite internet service to Ukrainian submarine drones last year just as they were launching an attack on the Russian Black Sea Fleet. Aren’t we lucky to have Elon Musk with the whole world in his hands? The need for perspective is older than all of us; Bogie famously noted over 60 years ago that “it doesn’t take much to see that the problems of three little people don’t amount to a hill of beans in this crazy world.” Good post, good comments, thanks for the opportunity to contribute.

    • ExRacerX says:

      Glad you agree! Maybe you’re being sarcastic, and maybe not, but your first sentence is a loaded statement. Same with your Elon Musk “question”—one would have to swallow your premise before answering it. Or is it a rhetorical question?

      Respecting the rule of law is not a “small thing”—it’s paramount. That point has been made, supported, and repeated multiple times in EW posts and comments, and by many posters. There are no exceptions for Trump or anyone else, and that’s exactly as it should be.

      • bloopie2 says:

        The first sentence is not sarcastic. What I meant is that maybe I don’t have to go and break the rule of law in order to try to obtain a just result (I think that’s with the general consensus here). Just let it go. And the “small things” comment unfortunately conflates a different thought, to wit, that doing something, anything, even if possibly ineffective in the end, is a good in and of itself.

        I don’t get the reference to my Musk comment, please explain. Unless I’m reading the news wrong, it’s clear that Musk chose not to let Ukraine use Musk’s satellite service in aid of Ukraine’s war aims. That, to me, is a big thing, as it raises the issue of putting so much power in one private (not a national leader) individual’s hands. That’s all I was trying to say there. I’m not taking sides for or against Musk or Ukraine or anyone, with that comment.

        I will note that when the Georgia RICO indictment came down, I didn’t see commentary or writings on what the legal alternatives were, to hold accountable those who did the alleged wrongdoings. I haven’t seen that, although I haven’t spent hours searching the Internet to find it. Can someone please point me in the right direction, and I will study up. Thanks.

        • ExRacerX says:

          “I don’t get the reference to my Musk comment, please explain.”

          Your question first posits that Elon Musk holds the world in his hands. Then it asks whether “we” (undefined) are lucky in relation to that false—or at best hyperbolic—claim.

        • bmaz says:

          I will note that when the Georgia RICO indictment came down, I didn’t see commentary or writings on what the legal alternatives were, to hold accountable those who did the alleged wrongdoings. I haven’t seen that, although I haven’t spent hours searching the Internet to find it. Can someone please point me in the right direction, and I will study up. Thanks.”

          You don’t have look very hard, every overt act and putative crime described in the indictment is a statutory crime on its own in Georgia. Without the necessity of the wholly gratuitous and self promoting RICO nonsense. Prosecute the actual crimes, even use conspiracy if you must. Painting it as a giant sprawling RICO case is ludicrous.

  13. Savage Librarian says:

    In the interim, until a future post, here is the unredacted Georgia Special Purpose Grand Jury’s Final Report.

    Interestingly, Mike Roman is not listed in it (at least in my cursory reading,) but he did end up getting indicted.

    Also, on p.9, these people are listed but they did not get indicted. Some of that seems quite understandable, especially related to Speech and Debate issues. But a few beg the question, why weren’t they indicted? Did they provide useful info:

    5. Cleta Mitchell

    10. Lin Wood

    11. Lindsay Graham

    14. Michael Flynn

    16. David Perdue

    17. Kelly Loeffler

    21. Boris Epshteyn

Comments are closed.