January 21, 2022 / by 

 

How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

  1. The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.
  2. The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.
  3. Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.
  4. The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.
  5. After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.


Two Months after Insinuating Ali Alexander Should Be Held Responsible for January 6, Jonathan Moseley Claims To Be His Lawyer

Like Mark Meadows and John Eastman before him, Ali Alexander has sued Verizon in an attempt to keep evidence about a coup out of the hands of Congress.

The lawsuit seems significantly intended to provide information to others involved in the coup, both by identifying which texts Alexander shared with Congress and which (by omission) he did not, but also by communicating that everything he did provide to Congress constituted telephony communication. That seems to suggest that Alexander did not share any communications involving Signal, Telegram, or other messaging apps.

On November 24, 2021, Mr. Alexander provided the Select Committee with over one thousand and five hundred (1,500) mobile messages sent and received by him and people he corresponded with. All of these were using his Verizon phone service. Mr. Alexander expressed his concerns to the Select Committee about compromising the privacy rights of uninterested parties, and members of political group(s), and productions that exceeded the scope of H. Res. 503.

More importantly, Alexander provided the Select Committee with a privilege log of his text messages noting where the subject matter of the text was not pertinent to the Committee’s scope of inquiry or otherwise privileged but did not identify the party or the phone number of the sender or recipient of the text unless it was Mr. Alexander.

[snip]

At Alexander’s December 9, 2021 deposition, he testified that he had a few phone conversations with Representative Paul Gosar and no verbal phone conversations with Representatives Andy Biggs or Mo Brooks that he recalls. The Select Committee asked him about all three Members of Congress. Mr. Alexander testified that he had phone conversations with Rep. Brooks’ staff about a “Dear Colleague” letter and how his activists could be helpful. Mr. Alexander believes he exchanged a text message with Rep. Brooks, contents which he provided to the Committee. He also testified that he spoke to Rep. Biggs in person and never by phone, to the best of his recollection. In January, Mr. Alexander held an organizing call where Members of Congress might have been present and some were invited. He doesn’t recall who was in attendance because there was no roll call of attendees because the call was so large.

On January 6, 2021, it was reported that Mr. Alexander had a call with fundraiser Ms. Kimberly Guilfoyle. Mr. Alexander volunteered this information on a radio show that early morning. The Select Committee asked him about this call. He stated that it was a short and pleasant call. Ms. Guilfoyle thanked Mr. Alexander for being a leader on voting rights and creating the “Stop the Steal” movement. The two spoke about the ongoing Georgia election and the GOP primaries that would take place in 2022. The Select Committee seemed satisfied with Alexander’s explanation of that short call.

The more remarkable part of the lawsuit, however, is his legal team.

As I previously noted, Alexander is represented by Paul Kamenar, the lawyer who played a key role in attempting to cover-up Roger Stone’s role in coordinating with Russia in 2016 by delaying the testimony of Stone’s aide, Andrew Miller. Alexander had at least two other lawyers at his deposition last week, including Baron Coleman and Joseph McBride, who recently told Ryan Reilly (in regards to his representation of a different January 6 defendant) that he doesn’t give a shit about spreading bullshit conspiracy theories.

But as HuffPost went into more detail explaining why the idea that Rally Runner was some sort of undercover law enforcement agent was absurd, McBride shifted a bit. He said his job was to defend his client, and he didn’t “need to be right” in everything he claimed.

“If I’m wrong, so be it, bro. I don’t care,” McBride said. “I don’t give a shit about being wrong.”

McBride said he was simply “theorizing things” and “not publishing conclusive findings,” and he said his appearances on Carlson’s show were a part of his effort to combat the narrative being given about his Jan. 6 clients.

“If this guy turns out to be some, some guy who runs around the Cardinals’ stadium with his face painted, then that’s great,” he said. “If that’s the truth, then so be it, and God bless America.”

McBride is not on Alexander’s lawsuit, though Kamenar — Alexander’s Roger Stone cover-up specialist — is (Kamenar cc’ed Coleman on the letter he sent to Verizon alerting him to this suit).

The surprising appearance, however, is from Jonathon Moseley. Moseley currently represents Kelly Meggs — one of the Oath Keepers with ties to Roger Stone — and until Tuesday, also represented Zach Rehl, one of the Proud Boys accused of conspiring with Stone associate Joe Biggs to mastermind an attack that encircled the Capitol and involved Stone associate Alex Jones, using the excuse of permits obtained using covers by Alexander, luring unwitting Trump fans to the East doors just before they opened from inside.

Moseley’s legal promiscuity among these coup plotters is itself notable.

Crazier still is his claim to be representing Alexander just over two months after — back when he was ostensibly representing Rehl — filing a motion suggesting that Alexander (whom he repeatedly called “Ari”), not Rehl, should be the one held accountable for any crimes arising from the riot.

The one person who claims to have been the National Organizer of the “Stop the Steal movement” through events across the country and the “Stop the Steal rally” in Washington, D.C., is Ali Alexander, born Ali Abdul-Razaq Akbar. See Allam, Hannah; Nakhlawi, Razzan (May 16, 2021). “Black, Brown and extremist: Across the far-right spectrum, people of color play a more visible role”. The Washington Post, accessible at: https://www.washingtonpost.com/national-security/minorities-far-right-visiblerole/2021/05/16/e7ba8338-a915-11eb-8c1a-56f0cb4ff3b5_story.html

The mob that stormed the U.S. Capitol on Jan. 6 was overwhelmingly White,1 but the official speaker lineup for the rally that day was more diverse. Vernon Jones, a Black former Georgia state lawmaker, and Katrina Pierson, a Black adviser and former spokeswoman for the Trump campaign, were among the speakers parroting the baseless assertion that the 2020 election was stolen from Trump. Another familiar face was main rally organizer Ali Alexander, born in Texas as Ali Abdul-Razaq Akbar, of mixed Black American and Middle Eastern descent.

Id. (emphasis added).

Ari [sic] Alexander is – as far as Defendant Zachary Rehl knows – entirely innocent of the crimes committed on January 6, 2021. Surely, the FBI is busy identifying and charging those who actually attacked police officers. We are confident that the FBI will complete that important task of bringing to justice those who actually battled with police before silencing parents who are petitioning for the redress of grievances in school board meetings, thus alienating suburban mothers.

However, without undermining Alexander for exercising his rights as a citizen, the one person who CLAIMS credit for organizing the “Stop the Steal” rally and movement including in Washington, D.C. on January 6, 2021, 2 is being basically ignored while Zachary Rehl who DID NOT organize anyone or anything but himself, and tell his friends that he would be there, too, is sitting in a jail cell for things he did not do. Zachary Rehl did not get to see his child being born while being locked up since March. His wife with a newborn is struggling arrange a forbearance on the mortgage on their modest rowhouse.

See, video interview with Ali Alexander, with Jenny Chang, “Ali Alexander on What Will Happen on January 6,” NTD News, December 31, 202[sic], https://www.ntd.com/ali-alexander-on-what-will-happen-on-january-6_547084.html. Ari [sic] Alexander is presented as the “National Organizer of ‘Stop the Steal.’

Without question, some idiots and brawlers also showed up who committed criminal acts of brawling with police, apparently initiated violent assaults on police, and reportedly (though counsel has not seen it directly) there were calls before the rally that were for a variety of violent acts that are not peacefully expressing a message under the First Amendment. [all emphasis Moseley’s]

Even ignoring the overt racism suggesting that one of the few brown people involved in the riot should be the one held accountable for it, Moseley as much as says that Alexander more responsible than Rehl for any violence that happened.

Now, Moseley claims it will badly harm Alexander if Congress learns even just the phone numbers of people Alexander engaged in telephony communications with.

It has long seemed as if there was a concerted effort to ensure certain January 6 defendants receive the kind of representation that might not protect their own interests, but would firewall those they had close ties to. But Moseley’s sudden conversion to representing Alexander strains credulity.


In Their Bid for Special Master, Project Veritas Provided Evidence of Possible Extortion

The warrants targeting James O’Keefe and two other Project Veritas figures list “Conspiracy to transport stolen property across state lines and conspiracy to possess stolen goods” and “Interstate transportation of stolen property” as the primary crimes under investigation.

That raised real concerns for me about the propriety of this search, because Bartnicki says that it is not illegal for journalists (or anyone else, including rat-fuckers like PV) to receive stolen information if they had nothing to do with the theft. This seemed like it might be a backdoor way to go after PV’s “journalism.”

A NYT story that fills in many of the details about the investigation into PV explains why such charges might not be unreasonable in this case: as PV had explained in multiple filings, PV appears to have had the diary transported from New York back to Florida to “return it” to law enforcement. It’s how (and when) they did so that is of interest. They did so only after being told they should treat the diary as stolen, and after Joe Biden had been declared the winner of the election last year.

Mr. O’Keefe’s lawyers said in a court filing last month that Project Veritas arranged for Ms. Biden’s items to be delivered in early November to the police in Florida, not far from the house where she had left them. As the investigation came to light last month, Mr. O’Keefe said in a statement that “Project Veritas gave the diary to law enforcement to ensure it could be returned to its rightful owner.”

But a Delray Beach Police Department report and an officer’s body camera video footage tell a somewhat different story. On the morning of Sunday, Nov. 8 — 24 hours after Mr. Biden had been declared the winner of the election — a lawyer named Adam Leo Bantner II arrived at the police station with a blue duffel bag and another bag, according to the police report and the footage. Mr. Bantner declined to reveal the identity of his client to the police.

Project Veritas has said in court filings that it was assured by the people who sold Ms. Biden’s items to the group that they were abandoned rather than stolen. But the police report said that Mr. Bantner’s client had told him that the property was “possibly stolen” and “he got it from an unknown person at a hotel.”

The video footage, which appears to be a partial account of the encounter, records Mr. Bantner describing the bags as “crap.” The officer can be heard telling Mr. Bantner that he is going to throw the bags in the garbage because the officer did not have any “information” or “proof of evidence”

“Like I said, I’m fine with it,” Mr. Bantner replied.

But the police did examine the contents of the bag and quickly determined that they belonged to Ms. Biden. The report said the police contacted both the Secret Service and the F.B.I., which later collected the items.

This lawyer, who is not listed among the close to forty lawyers with whom PV is claiming privilege, told Del Ray cops a story — that his client obtained the diary from a hotel — that doesn’t match any of the details PV is now using for their cover story. So if he weren’t already in trouble for telling cops a false story unprotected by privilege, PV may have created some problems for him.

The FBI included several kinds of evidence pertaining to location in their warrants (which, among other things, will help them determine who traveled with the diary back and forth from Florida).

Evidence of the location of Ashley Biden’s property and the location of the user of the Subject Accounts at times relevant to the Subject Offenses, such as communications that reference particular geographic locations or refer to the property being located in a particular place.

[snip]

Evidence of the identity, locations, knowledge, and participation in the Subject Offenses of potential co-conspirators, such as communications with other individuals—including, but not limited to, Jennifer Kiyak, Tyler Moore, Elaine Ber, Anthony Wray, Jackson Voynick, Leon Sculti, Robert Kurlander, Aimee Harris, Stephanie Walczak, and Elizabeth Fago—about obtaining, transporting, transferring, disseminating, or otherwise disposing of Ashley Biden’s stolen property, including but not limited to communications reflecting the knowledge of coconspirators that the property obtained from Ashley Biden had been stolen, and communications that contain personally identifiable information of co-conspirators and references to coconspirators’ places of residence or locations at particular points in time.

[snip]

Evidence reflecting the location of other evidence with respect to the Subject Offenses, such as communications reflecting registration of online accounts potentially containing relevant evidence of the scheme. [my emphasis; redaction fail PV’s]

Bartnicki protects journalists from possessing stolen property if they didn’t have a role in stealing it. But it doesn’t protect journalists from transferring stolen property that they choose not to publish back across state lines in a ploy to ensure it no longer remains in their possession in case of investigation.

The crime under investigation, then, may not be transferring the diary from Florida to New York, but transferring it back after Biden won, something that PV seems to be spinning as a do-gooder effort to reunite Ms. Biden with her property.

Investigating this shady attempt to unload the diary may be a way to obtain evidence of a more typical crime that PV (as opposed to their co-conspirators) may have committed: extortion, which is not among the listed crimes but which would show up in plain view in a return of the materials being sought. The FBI sought information on communications to Ms. Biden and her family.

Evidence of communications regarding or in furtherance of the Subject Offenses, such as communications with or relating to Ashley Biden (and representatives thereof) and/or Ashley Biden’s family, friends, or associates with respect to her stolen property.

[snip]

Evidence of steps taken in preparation for or in furtherance of the Subject Offenses, such as surveillance of Ashley Biden or property associated with her, and drafts of communications to Ashley Biden, President Biden, and Ashley Biden’s associates regarding her stolen property and communications among co-conspirators discussing what to do with her property.

Such communications would be necessary, of course, to confirm that (and when) PV and its alleged co-conspirators affirmatively learned that Ms. Biden considered the diary stolen. But it will also return details of this type of communication, as reported by NYT:

On Oct. 16, 2020, Project Veritas wrote to Mr. Biden and his campaign that it had obtained a diary Ms. Biden had “abandoned” and wanted to question Mr. Biden on camera about its contents that referred specifically to him.

“Should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter,” Project Veritas’ chief legal officer, Jered T. Ede, wrote.

In response, Ms. Biden’s lawyers accused Project Veritas of threatening them as part of “extortionate effort to secure an interview” with Mr. Biden in the campaign’s closing days.

Ms. Biden’s lawyers refused to acknowledge whether the diary belonged to Ms. Biden but told Mr. Ede that Project Veritas should treat it as stolen property — the lawyers suggested that “serious crimes” might have been committed — and that any suggestion that the diary was abandoned was “ludicrous.”

As I previously noted, when O’Keefe made a flopsweat video to try to spin his actions, he offered up that PV had made no threats.

In his heavily-edited flopsweat video, O’Keefe states PV “never threatened or engaged in any illegal conduct.” It would be unusual for PV not to try to confront anyone with a valuable document; their schtick is misrepresenting the response of their targets. And in all of PV’s communications, they emphasize efforts to validate the diary, which might be a way to spin other kinds of communications. [my emphasis]

Calling up a Presidential candidate and demanding an interview on threat of publication of the diary sure seems like a threat.

Both Spencer Meads

One could argue that utilizing federal law enforcement resources to investigate whether the personal diary of a then-presidential candidate’s daughter was stolen – a task that almost certainly be given low priority treatment by a local police detective if the diary’s owner was an average American – should be beneath the Department of Justice’s purview.

And PV mock the idea that the FBI would investigate a mere stolen diary.

If a person not named Biden had misplaced her diary and overnight bag, would the FBI investigate at all, much less raid the home of one of America’s most influential journalists? The case of the abandoned diary (or the case of the abandoned overnight bag) is an investigation better suited for the Hardy Boys than the DOJ and FBI.

The notion might be funny, except that the actions of the United States Attorney’s Office for the Southern District of New York inflict serious violence not just on the credibility of that office, but on the First Amendment to the Constitution of the United States itself.

But if the diary were valuable enough to extort a Presidential candidate over, it would surely merit the attention of the FBI.

And this is where PV may have really fucked themselves. Purportedly as part of an effort to prove PV’s journalistic ethics (but possibly in an effort to coordinate stories with co-conspirators), PV attorney Paul Calli produced an email dated October 12, 2020, which he claims shows PV’s decision, already made, not to publish the diary.

Although there was compelling evidence of the diary’s authenticity, James O’Keefe and Project Veritas’s newsroom staff ultimately found that the evidence of authenticity did not rise to a level sufficient to satisfy their journalistic ethical standards for news publishing. This remains fully consistent with their internal belief that the diary was genuine – the sordid nature of the diary’s contents required that a high threshold be satisfied prior to running a story on it. As James O’Keefe summarized the editorial concerns in an October 12, 2020, email:

Team, I’ve thought carefully on whether to release this so-called ‘Sting Ray’ story which involve entries in a personal diary to a very public figure.

My thinking and analysis in short is this:

To release means the action is less wrong than the necessary wrongs that would follow if the information were not utilized and published. But in this case even more harm would be done to the person in question and Project Veritas if we were to release this piece. We have no doubt the document is real, but [i]t is impossible to corroborate the allegation further. The subsequent reactions would be characterized as a cheap shot.

Whereas the great novelist Ernest Hemingway said[,] “[W]hat is moral is what you feel good after and what is immoral is what you feel bad after,” the great novelist Thomas B. Morgan paraphrased thus[:] “Morally defensible journalism is rarely what you feel good about afterward; it is only that which makes you feel better than you would otherwise.[”]

Using the Hemingway analysis, this very private entry related to a public figure’s family is not worth it, and it’s indefensible to publish what we currently have. I’m not worried about things we look into allegations but not publishing. Our actions so far are entirely defensible.

We are launching Colorado and CT tapes this week, which are unquestionably stronger and will make waves much bigger.

Ex. B. If James O’Keefe is a “political spy,” as his politically motivated detractors (such as those in corporate competitors like the New York Times) falsely allege, he could have simply published a salacious news story regarding Ashley Biden’s diary. But he did not. James O’Keefe’s and Project Veritas’s fidelity to their journalistic ethics include high editorial standards. To the extent they harbored any doubt that the diary was authored by Ashley Biden, the United States Attorney’s Office for the Southern District of New York and the FBI have removed all doubt. Nothing could be better confirmation of the diary’s authenticity and the claims therein than the government’s use of federal law enforcement to invade the homes of journalists who did not even run a story on the diary, but only considered doing so, and then turned all material provided to it by sources over to law enforcement. [my emphasis]

See my discussion (and, in comments, William Ockham’s) of signs that this email may have been crafted by lawyers as a CYA here.

Calli presents this email as reflecting a final decision from the outlet’s Editor-in-Chief not to publish this diary. Which means PV would have no journalistic purpose calling Biden after October 12. They weren’t going to publish the diary.

That would mean PV would have no journalistic purpose in calling Biden on October 16 to try to even ask for — much less extort — an interview.

There seems to be good reason why O’Keefe was flopsweating. Given how heavily edited that video is, I can’t believe they left in the mention of threats.

Because at least according to the NYT, PV made a threat to a Presidential candidate after already deciding that they weren’t going to publish. And only then did they allgedly transport the stolen property back across state lines.

Update: In an obnoxious pretense of responding to (Maddow’s coverage of) the NYT story, O’Keefe posted the second page of the letter to Biden. It reads, in part:

Should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter.

That doesn’t sound much like journalism to me.


These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.


The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters

In a post laying out what I called my “taxonomy” of the DOJ investigation of the January 6 crime scene, I noted that the next step in holding those who orchestrated January 6 responsible was to start holding the “organizer-inciters” responsible.

 I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

Though you might not know it from the coverage, DOJ has charged several people who played a key role in creating and mobilizing the mob that seized the Capitol. This is where, however, the obscurity of the investigation and First Amendment protections raise real questions about whether DOJ will be able to move up the chain of responsibility.

I’d like to look at the prospects of accountability at three nodes of organizer inciters:

  • Walkaway founder Brandon Straka
  • SoCal anti-maskers Russell Taylor and Alan Hostetter
  • Alex Jones, Owen Shroyer, and Ali Alexander

The import of January 5 in January 6

Before I do so, though, a word about January 5. Though the general outline of the January 6 attack kicked off in November 2020 and was fine-tuned in December (the MAGA events in both months were critical both as dry runs and for networking among participants), the final outline of plans took place in the days before the riot. There seems to have been an intra-militia meeting planned on January 3 in Quarrysville, Pennsylvania where groups, “[got] our comms on point with multiple other patriot groups.”

After Proud Boy Enrique Tarrio got arrested on January 4, the Proud Boys frantically tried to regroup. As late as 9PM on January 5, Joe Biggs and Ethan Nordean were meeting with some unnamed group, out of which came their plan for the 6th.

There were rallies organized for January 5 at which a number of leaders gave incendiary speeches. There’s some reason to believe that members of what I’ve called a “disorganized militia” conspiracy, Ronnie Sandlin, Nate DeGrave, and Josiah Colt, learned key details of the plan for the next day at that event, which allowed them to be tactically important in the breach. Other disorganized attendees, like Jenny Cudd, came away from those Janaury 5 speeches persuaded a revolution was inevitable.

On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”

As Robert Costa and Bob Woodward have described, Trump ratcheted up the pressure as the mobs formed the night of January 5 by falsely claiming that Mike Pence agreed he could ignore the true vote counts.

Yet, even in spite of the import of January 5 to what happened on January 6, DOJ has included remarkably few details about what January 6 defendants did that day.

The organizer-inciters called for revolution on January 5

The three organizer-inciters are a notable exception. As I noted in this post, DOJ focused on the January 5 speeches of Straka, Shroyer, and Taylor in their arrest affidavits. Straka’s described how he called for revolution on January 5.

STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

The SoCal 3%er conspiracy described how Russell Taylor called for violence.

[T]hese anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

And Owen Shroyer’s arrest affidavit described him calling for revolution, too.

Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!

But the treatment of these three organizer-inciters, both in their charges, and the development of their prosecution so far, has been very different.

Brandon Straka

Originally, Brandon Straka was charged with trespassing and 18 USC 231, civil disorder, for egging on rioters as they stripped a cop of his shield.

At around the 3:45 mark of the video, an officer from the United States Capitol Police holding a protective shield could be seen in the crowd. As individuals pushed past the officer toward the entrance of the U.S. Capitol, the officer held his shield up in the air. At around the 3:59 mark of the video, STRAKA stated, “Take it away from him.” STRAKA and others in the crowd then yelled, “Take the shield!”

As several people in the crowd grabbed the officer’s shield, STRAKA yelled, “Take it! Take it!” The crowd successfully pulled the shield away from the officer as the officer appeared to be trying to move back toward the entrance of the building.

After his early arrest, his case was continued without indictment several times, first in February, then in May, then in August, each time invoking fairly standard boilerplate about a plea. “The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.” In September, Straka was finally charged, with just the less serious of the two trespassing misdemeanors. After a tweak in October reflecting that he never entered the Capitol itself, he pled guilty on October 6. His statement of offense says only this about January 5:

Brandon Straka flew to Washington D.C. to speak at a rally protesting the election results on January 5 and January 6, 2021.

It focuses entirely on his role in egging on rioters at the Capitol.

This plea could be one of the ones in which someone cooperating was able to plead to a misdemeanor (the only confirmed one of which, so far, was Jacob Hiles, who cooperated in the prosecution of Michael Riley). After all, he could provide valuable information not just on the plans for January 5, but also explain what he learned about why the scheduled rally on January 6, at which he was also supposed to speak, got canceled. And in fact, he posted the kind of self-justification in advance of pleading that might reflect cooperation.

[O]n Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

“Hang on tight,” Straka wrote on the site, where he has asked for financial support and plugged a forthcoming “grand relaunch” of his campaign. “Let it come, and let it go. It means nothing. It’s just pointless noise. The best is yet to come. We’re almost there.”

But his plea agreement includes the boilerplate cooperation language that generally gets taken out when someone has already cooperated, which is one reason to believe his plea may just reflect good lawyering.

We may find out whether his plea included a cooperation component when we see the filings regarding his sentencing. He was originally supposed to be sentenced on Friday December 17, but that got bumped back (as many things are, these days) to December 22. His sentencing memos were due on December 15. But unless something happened with PACER overnight, they’re not there (PACER was particularly unreliable yesterday on account of the AWS outage, but the filings could also be sealed).

Update: The two sides have asked for 30 more days to make sense of some stuff that has recently come up.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final Pre- Sentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

The government is currently ordered to file its sentencing memorandum and any video evidence in support of its memorandum on December 17, 2021. The government respectfully requests that this deadline be extended based upon the reasons stated.

3%er SoCal Conspiracy

Calling the indictment against Alan Hostetter et al the “3%er SoCal conspiracy” is actually a misnomer, because it has more to do with how two men calling for violence helped organize Southern Californians largely mobilized around anti-mask politics.

The indictment provides evidence that some of the men charged–Erik Warner, Tony Martinez, Derek Kinnison, and possibly Ronald Mele– are 3%ers. Though the indictment shows Hostetter invoking the language of 3%ers in one place, he is the head of the American Phoenix anti-mask group and his anti-mask activism is one of the places Hostetter met Russell Taylor (the other is the QAnon conference in Arizona in October 2020). Hostetter and Taylor repurporsed a Telegram chat Hostetter was already using to sow violence to organize Southern Californians to travel to DC for the rally, then created a new one on January 1 called “The California Patriots-DC Brigade.”

Much of the conspiracy involves the planning of alleged conspirators for the trip, including discussions of how to bring weapons to DC.

Just one of these men, Warner, entered the Capitol; the rest skirmished around the West Terrace. Not all of the January 6 defendants whose arrest documents show them to be members of the California Patriots-DC Brigade Telegram chat are included as part of this conspiracy; Jeffrey Scott Brown and Ben Martin, who were each charged individually, are described to have been part of the chat, and it’s likely that Gina Bisignano and Danny Rodriguez and his co-conspirators were also part of that chat (among others). In addition, there’s a Person One described in the indictment, whom Hostetter has identified as big GOP donor Morton Irvine Smith, who wasn’t charged, though Irvine Smith’s actions appear distinguishable from Hostetter’s only in that he didn’t climb onto the West Terrace on January 6. So it’s not entirely clear why DOJ included the six people they did in this conspiracy.

As I laid out before, in addition to being charged individually with obstructing the vote count, the men were charged with conspiracy under the obstruction statute rather than the conspiracy statute, as most other January 6 conspiracies were charged (though a Patriot-3%er two person conspiracy unsealed the other day uses 1512(k) as well). Taylor was charged for civil disorder for an interaction with cops and his trespassing charges were enhanced because he was armed with a knife. Warner and Kinnison are separately charged for efforts to hide the Telegram chat.

In other words, this conspiracy ties together two guys publicly calling for violence with members of a militia who discussed arming themselves.

Hostetter says he wants no part of it, though. After getting permission to represent himself in October, earlier this month the former cop filed a motion to dismiss the entire indictment because of alleged government misconduct. The entire thing is the kind of batshit conspiracy theory you’d expect from Tucker Carlson or Glenn Greenwald, spinning what appears to have been inappropriate coddling of him by an Orange County Sheriff’s Sergeant into an FBI plot (that started in spring 2020) to get him, involving Yale’s Secret Society Skull and Bones, the Freemasons, Scientologists, Mormons, and a talented artist named Bandit who likes to mock him. (Read this thread if you want to laugh along.) In the wild yarn Hostetter spins, he argues both Irvine Smith and Taylor must be FBI informants and therefore he can’t be held accountable for any of the actions they induced him to take.

He asks to be severed from the other defendants and/or have his case thrown out because, he claims, he “has never knowingly met, nor has he ever knowingly communicated with, four of the co-defendants,” the 3%ers, and according to his feverish conspiracy theory, Taylor is an FBI informant who set him up (Taylor is Mormon, which is where that part of Hostetter’s conspiracy theory stems from). In a filing asserting as fact that, “the election of 2020 was actually stolen from a duly elected President whom was elected in one of the biggest landslide victories in the history of our country,” Hostetter complains that his actions to prevent the vote count of the actual winner do not amount to a crime.

On January 6, 2021 defendant did not commit one act of violence. Defendant did not commit one act of vandalism. Defendant never entered the U.S. Capitol Building. Defendant never conspired with anyone to do anything illegal, immoral or unethical. The government has not provided anything, that defendant has yet seen in discovery, that contradicts these claims by defendant. Yet, defendant is charged with federal felonies that could result in his imprisonment for up to twenty years.

Particularly given the scope of Dabney Friedrich’s ruling on the application of obstruction, with its caveats regarding whether legal activities can be deemed part of an effort to obstruct the vote count, Hostetter’s claims may have some success (Royce Lamberth is presiding over the case).

His motion to dismiss doesn’t, however, mention a number of overt acts described in the conspiracy to obstruct the vote count:

  • His participation in the November 14, 2020 MAGA event in DC
  • His own November 27, 2020 call to execute “traitors”
  • A December 12, 2020 Stop the Steal rally in Huntington Beach
  • His own calls for people to travel to DC starting on December 19, 2020

Rather than addressing most of the overt acts alleged against him, Hostetter provides what appear to be cover stories for two key December 2020 events in this timeline.

After Taylor and Hostetter spoke at an Orange County event on December 15, they met with Irvine Smith the next day, and Taylor gave both axes.

On December 15, 2020, defendant and co-defendant Russell Taylor both spoke at an Orange County Board of Supervisor’s Meeting. This was only three weeks prior to January 6th. As usual at the Board Meeting, the topics to be discussed related to Orange County issues to include Covid-19 related issues, which is what we typically spoke out about. For some reason, while Taylor was speaking during this particular board meeting, he made the following comment to the Board which was completely unrelated to any of the topics on the agenda: “Week after week, I and others are with thousands in the street all up and down the state of California. You know what they are saying? Revolution. Storm the Capitol.”

[snip]

On December 16th, the day following Taylor’s comments to the Orange County Board of Supervisors, co-defendant Russell Taylor met defendant and “Person One” Morton Irvine Smith at a Mexican restaurant in San Clemente, CA called “El Ranchito.” Taylor was the organizer of this meeting and had requested, planned and organized it a few days prior. While at the restaurant, Taylor told defendant and Irvine Smith that he had purchased gifts for them. Taylor reached under the table and pulled out two boxes and gave them to defendant and Irvine Smith.

Inside these boxes were the axes that have been referred to in the indictment as proof of defendant’s nefarious intent to attack the Capitol using the axe as a weapon of some sort. Until receiving this “gift,” defendant had never personally owned an axe in his life. As he gifted it to us, Taylor described the axe metaphorically as a “battle axe” representing the battles we had already fought in support of freedom and the many battles yet to come.

Upon leaving the restaurant, either (informant) Taylor or (informant) Irvine Smith requested one of the restaurant employees take our photograph in front of the restaurant holding the axes. Defendant liked the photograph and thought it looked quite masculine and “tough” so he posted the photograph to Instagram with a somewhat provocative comment attached to the photograph. Defendant’s comment was, “The time has come when good people may have to act badly, but not wrongly.” Defendant continued in this post with, “Thank you @russ.taylor for the gift of the #thebattleaxe representing the many battles yet to come.”

Defendant had read this quote about good people possibly having to act “badly but not wrongly” in a meme very close in time to when Taylor gifted the axe to him. Defendant had no thought whatsoever about January 6 or the U.S. Capitol when creating this Instagram post. Defendant had been making public speeches regarding the fact that the U.S. was and had been “at war” with the Chinese Communist Party and domestic enemies for approximately 8 months prior to receiving this axe from Russell Taylor

Hostetter posted the photo not as a call for war, he claims, but because it made him look manly. And his caption to the photograph wasn’t a prospective call to war on January 6 in response to Taylor’s call for revolution, but to the prior 8 months of political unrest.

Particularly given Hostetter’s description of the December 16 meeting, which he helpfully tells us was actually planned, “a few days prior” (and so possibly the same day that Irvine Smith, but not Hostetter, returned from the DC MAGA March), I find the description Hostetter gives for his involvement in the January 5 event of interest. He learned of it from Irvine Smith at around the same time as that same December 16 meeting at El Ranchito and before — the indictment alleges but Hostetter ignores — he started recruiting people to attend the event.

January 5, 2021: Defendant’s non-profit organization, American Phoenix Project (APP), cohosted a rally with a group called Virgina Women for Trump. The VWT group was headed by Alice Butler-Short, a well-known and well-connected woman in the DC area.

This event, and APP’s ability to co-host it was brought to defendant’s attention in mid-December after informant Morton Irvine Smith returned to California after attending the December 12, 2020 Stop the Steal rally in Washington DC. Defendant did not attend this event. Irvine Smith claimed to have met Ms. Butler-Short for the first time at this 12/12/2020 event and the two of them agreed to APP becoming involved in co-hosting the event together.

Irvine Smith arranged for defendant to participate in a conference call with Ms. Butler-Short and two members of another group identified as Jericho March as they were a nationally known group also supporting election integrity. Once this conference call was completed, defendant told Irvine Smith that he was not interested in having American Phoenix Project co-host the event as it was too far away from California to be able to properly assist in putting it together and defendant had also gotten a bad vibe / feeling from some of the other participants in the conference call.

Irvine Smith was highly disappointed and notified defendant that he, Irvine Smith, would then just continue to help Butler-Short on his own time as they had developed a good relationship and he wanted to be personally helpful to her. Within a week or two, Irvine Smith notified defendant that Butler-Short had lined up some very big-name and popular conservative speakers for the event to include Roger Stone, Alex Jones, General Michael Flynn’s brother Joe Flynn, among several others. Irvine Smith notified defendant that ButlerShort was continuing to hold out the invitation for APP to co-host this event with her group, to include flying the APP banner at the event. Irvine Smith told defendant the only thing Butler-Short requested of APP was to help her with finding security staff to cordon off an area in front of the Supreme Court because it was a “first come, first served” policy as far as finding a location to set up a stage and microphone.

[snip]

After hearing from Irvine Smith about the high-quality speakers involved and the relative ease with which APP could co-host such a high-profile event, defendant agreed to co-host the event under the APP banner. Were it not for the individual efforts of Morton Irvine Smith, neither defendant nor APP would have been involved with this event at all.

Irvine Smith’s role in getting him this gig certainly raises more questions about why he wasn’t charged, but it doesn’t change Hostetter’s own exposure.

Hostetter adds to the questions about Irvine Smith’s treatment by revealing that Irvine Smith was not searched until the day before this indictment (Hostetter also makes much of what appears to be FBI’s choice to image Irvine Smith’s devices rather than seizing them).

On 1/27/2021 when Taylor and defendant had search warrants served on them, Irvine Smith did not. It wasn’t until nearly five months later, on June 9, 2021 that Irvine Smith finally had a search warrant served on him. This was one day before defendant’s indictment was unsealed. The timing of Irvine Smith’s “raid” is transparently obvious and laughable. It was intended to “clean him up” as an informant.

Hostetter’s questions about Irvine Smith, who funded much of his actions, are as justified as questions from the Oath Keepers about Stewart Rhodes not being charged yet. But I expect this crazypants motion to be dismissed and the conspiracy prosecution to continue to hang on whether all six members of the conspiracy entered into an agreement to help stop the vote count on January 6.

But Hostetter’s motion does suggest that the conspiracy indictment uses the involvement of the 3%ers as a way to raise the stakes of both Hostetter and Taylor’s own public calls for violence. That is, DOJ seems to have charged these organizer-inciters (but not the guy funding it all, yet) by exploiting their ties to an organized militia.

Alex Jones, Owen Shroyer, and Ali Alexander

The way that DOJ appears to have used militia ties to charge organizer-inciters Alan Hostetter and Russell Taylor makes their treatment of far more important organizer-inciters, Alex Jones, Owen Shroyer, and Ali Alexander, more interesting.

Ignore for a moment Ali Alexander’s crucial role in setting up explicitly violent protests.

It is a fact that the guy leading the coup, Donald Trump, asked Alex Jones (personally, as Jones tells it) to lead the mobs Trump had incited at the Ellipse down the Mall to the Capitol. As Jones was doing this, his former employee, Joe Biggs, was kicking off the entire riot. It is also a fact that Jones lured rioters like Stacie Getsinger to the East side of the building, to where Biggs and the Oath Keepers were also gathering, by promising a second speech from Trump.

There’s reason to believe that Jones and Biggs remained in contact that day, evidence of which DOJ would presumably have from Biggs’ phone, if not his phone provider (based on whether the contact was via telephony or messaging app). If it was the latter, getting it may have taken a while. While DOJ obtained Ethan Nordean’s phone when they searched his house (because his spouse provided the FBI the password), and obtained the content of Biggs’ Google account quickly (which included some videos shared with his co-travellers), it may have taken until July 14 to exploit Biggs’ phone (this Cellebrite report must pertain to Biggs because it is not designated Highly Sensitive to him). While the content of any calls Biggs had with his former boss would not be captured, some of it is also likely available from videos shot of him. If his co-travellers wanted a cooperation deal they might be able to provide Biggs’ side of any contacts with Jones too, though several of Biggs’ co-travelers are represented by John Pierce, who may be serving as a kind of firewall for Biggs or even Enrique Tarrio.

Nevertheless, if DOJ has in its possession evidence that one of the guys accused of masterminding the plan to breach the Capitol from two sides was in contact during that process with Jones, who lured unwitting rioters to the second breach by lying to them, then DOJ would appear to have far more evidence tying Jones to militia violence than they used to charge Hostetter in a conspiracy with 3%ers. And Jones got just as far inside the restricted area of the Capitol — to the top of the steps on the East side — as Hostetter did.

Of course, two things have made it harder to charge Jones: he is a media figure, one who very quickly disseminated a cover story claiming his intent for joining the Proud Boys and Oath Keepers at the site of the second breach was to de-escalate the situation, not to escalate it.

DOJ has been chipping away at both those defenses. It already arrested two of Jones’ employees, videographer Sam Montoya and on-air personality Owen Shroyer.

DOJ arrested Montoya for trespassing on April 13 and charged him with misdemeanors on April 30. The arrest warrant cited a number of things Montoya said that were captured on his own footage making it clear he viewed himself as part of the mob.

We’re gonna crawl, we’re gonna climb. We’re gonna do whatever it takes, we’re gonna do whatever it takes to MAGA. Here we go, y’all. Here we go, y’all. Look at this, look at this. I don’t even know what’s going on right now. I don’t wanna get shot, I’ll be honest, but I don’t wanna lose my country. And that’s more important to me than—than getting shot.

And DOJ noted that Montoya had no press credentials for Congress (a really shitty distinction for an event where legitimate journalists chased mobsters inside).

At times during the video, Montoya describes himself to others inside the Capitol Building as a “reporter” or “journalist” as he attempts to get through crowds. The director of the Congressional press galleries within the Senate Press office did a name check on Samuel Christopher Montoya and confirmed that no one by that name has Congressional press credentials as an individual or via any other organizations.

Montoya’s case has been continued on his own initiative since then. Given the discovery notices he has gotten — from AUSA Candice Wong — he had been treated as part of the mob most closely involved in the scene at Ashli Babbitt’s shooting. On December 10, Montoya got discovery from the Statutory Hall Connector that other defendants in that group did not get, and a different prosecutor, Alexis Loeb, took over his case. Loeb’s January 6 caseload is eclectic, but in October she started taking over the case of Proud Boys Joshua Pruitt, and Nicholas Ochs and Nicholas DeCarlo, and she has always been in charge of the prosecution of the pair that played a key role in opening the East doors from the inside, George Tenney and Darrell Youngers.

In August, Shroyer was arrested. His arrest was opportunistic, relying on the fact that he had a still-unsatisfied Deferred Prosecution Agreement arising from his attempts to disrupt Trump’s first impeachment making his loud presence inside the restricted are of the Capitol uniquely illegal. He filed a motion to dismiss his case, which was basically the cover story about de-escalation that Jones offered up immediately after the riot and Ali Alexander prepared to deliver to Congress last week. In a filing debunking that cover story, the government noted that calling for revolution — as Shroyer and Jones did from the top of the East steps — does not amount to de-escalation.

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Shroyer let the due date to reply to this debunking, November 22, pass without filing anything. A status conference that had originally been scheduled for Tuesday, December 14 has been rescheduled for Monday December 20.

As I said in my taxonomy post, the government seems to be very close to being able to demonstrate how that the breach of the second front worked, an effort on which the Proud Boys, Oath Keepers, and Alex Jones seemed to coordinate.

Doing so will be very important in demonstrating how the militia conspiracies worked. But if DOJ finds a way to charge Alex Jones for his role as the Pied Piper of insurrection, the organizer-inciter who provided the bodies needed to fill that second breach, it would bring the January 6 investigation up to an order issued directly by the former President.

The investigation of three InfoWars figures — Montoya, Shroyer, and Jones — who all have legitimate claims to be media figures happens even as DC judges are getting more insistent that DOJ adhere to Merrick Garland’s own media guidelines. In November, for example, Chief Judge Beryl Howell required prosecutors to acknowledge the media guidelines if they sought orders and warrants targeting news media.

Of course, Alexander has no such press protection, and his decision to go mouth off to Congress for seven hours last week may prove as self-destructive as the similar decision by his mentor, Roger Stone, four years ago.

The government seems to have a pretty good case about how the multi-front breach of the Capitol worked. The question is whether First Amendment protections will shield those who made that breach possible from prosecution.


Finally, Everyone Is Talking about Trump’s Obstruction on January 6

Twice in the last 24 hours, Liz Cheney has read from texts that Mark Meadows already turned over to the January 6 Committee, showing that everyone from Sean Hannity to Don Jr were desperately contacting Meadows begging him to get Trump to do something to halt the assault on the Capitol.

After reading the names of all the people who’ve protected Trump since, Cheney then described that Meadows’ testimony is necessary to determine whether Trump, “through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes.”

Hours passed without necessary action by the President. These privileged texts are further evidence of President Trump’s supreme dereliction of duty during those 187 minutes. And Mr. Meadows’ testimony will bear on another key question before this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?

With her forceful comments Cheney was, as TV lawyers have finally discovered, invoking the clause of the obstruction statute that DOJ has used to charge hundreds of the most serious January 6 rioters. Liz Cheney was stating that Trump’s actions on January 6 may demonstrate that he, along with hundreds of people he incited, had deliberately attempted to prevent the vote count.

Even as she was doing that a second time today, the judge presiding over most of the Proud Boys cases, Tim Kelly joined his colleague Dabney Friedrich in rejecting the challenge that Ethan Nordean had taken to that same application.*

Again, this issue is not over. There are 2 other ripe challenges to the application, and plenty more pending.

But for the moment, it seems that all three branches of government — prosecutors charging obstruction, judges affirming the viability of the application, and senior members of Congress invoking it as part of the January 6 investigation — agree that the events of the day may amount to obstruction.

Back when I begged TV lawyers to start focusing on this application, I laid out the things that Trump had or may have done, that might be proof of obstruction.

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

The January 6 Committee has already collected evidence demonstrating many of these issues, for example, the efforts to sow the Big Lie, including coordination with Congress, reveling in the collecting mobs, directing Guard deployment in ways that would support the insurrection, the unbelievable pressure on Mike Pence to violate his oath to the Constitution. In the interim four months, the press and Committee have identified other potential means of obstruction, such as ordering Alex Jones to bring his mob to the Capitol.

This is not a guarantee that Trump will be prosecuted. But all three branches of government now agree on the framework with which he might be held accountable.

*As I now understand it, Kelly announced yesterday that he will be denying the motion to dismiss later this week. He has not done so formally yet, but announced it yesterday in conjunction with his denial of renewed bail motions from three defendants.


The Video Authentication Challenge: Aaron Mostofsky

As January 6 trials move towards sentencing, the government has started submitting motions in limine, which are basically arguments before the trial about the scope of what will be permitted at trial. DOJ seems to have standard motions to prevent people from arguing Trump made them riot and attempting to nullify the jury.

But a motion submitted in Aaron Mostofsky’s case is worth reading in detail for the way it deals with a difficult aspect of the January 6 investigation: how to authenticate all the video that will be used against a defendant at trial. Probably because Mostofsky (whose father is a judge) dressed in pelts and donned a police vest, there’s a lot of video evidence against him. But that’s one thing they plan to use to authenticate the video against him: because so many people (including two journalists) caught him as he moved through the Capitol.

The distinctive characteristics of the defendant’s attire, combined with the distinctive characteristics of other rioters depicted captured on USCP and MPD footage, will further help support authentication of these exhibits.

Mostofsky also traveled much the same path as Kevin Seefried, whose Confederate flag similarly made him a common subject of video (but whom it doesn’t name).

The government wants to use video from cops, from other rioters, from journalists, and from one or two innocent bystanders against Mostofsky:

  • US Capitol Police Surveillance video
  • Metropolitan Police Department bodyworn camera video (remember that Capitol Police were not outfitted with cameras on Jan 6)
  • Publicly posted video from other rioters, including
    • A YouTube posted to the Buggs Media Network showing his approach
    • Videos posted to Parler:
      • Parler video time-stamped at 12:56 p.m, marked near Capitol
      • Parler video time-stamped 2:15 p.m marked inside the Capitol (note: because the person who filmed this was among the first in the Capitol, DOJ must have a good idea of who filmed this, but it doesn’t disclose that nor source it from that person)
      • Parler video time-stamped at 2:22 p.m., marked inside the Capitol
    • A video recorded by a person using the moniker “@statuscoup” live-streamed by JeffMAC Press (replicated in an HBO documentary) showing his approach
    • John Sullivan’s video; the filing notes that it is available on YouTube, but at least one arrest affidavit describes the FBI receiving a copy from an anonymous source on January 8; DOJ relies on Sullivan’s video to show what Mostofsky did under the scaffolding outside
  • HuffPo reporter Igor Bobic’s video of the rioters chasing Officer Goodman
  • An interview with Mostofsky with a NY Post reporter
  • A video captured by a person present at the riot and uploaded to TikTok and Twitter
  • A video, which the filing calls the “upstairs video,” filmed by a person inside the Capitol immediately before it was breached; the person was one or more floors above the Senate Wing Door

The government plans to have a Capitol Police and an MPD witness authenticate those videos (it sounds like, for defendants captured in multiple scenes in MPD video, they’ll need multiple witnesses). As for the video from other sources, it plans to authenticate it by correlating it with the surveillance video:

The government also intends to offer numerous video clips from sources other than USCP and MPD. Some of these were taken from reporters who were present in the Capitol that day. Others were taken by the defendant’s fellow rioters or other members of the crowd. Many were obtained through open-source means and are publicly available. For these videos, as described further below, the government will establish authenticity by asking the jury to compare them with other, authenticated exhibits: USCP and MPD footage.

The filing notes that it will draw on otherwise inadmissible evidence, such as Parler’s labels for where it took videos, to help authenticate the videos posted as the site.

In deciding preliminary questions about the admissibility of these videos, “[t]he court is not bound by evidence rules, except those on privilege.” Fed. R. Evid. 104(a). In other words, the government may rely upon otherwise inadmissible evidence in establishing the authenticity of the video evidence described in this motion. See, e.g., United States v. White, 116 F.3d 903, 914 (D.C. Cir. 1997).1

1 This matters, for instance, in analyzing Parler videos publicly available through ProPublica, and discussed infra at 8-9 and 13-17. The government’s argument for authentication of these videos relies in part on hearsay statements by ProPublica which the government does not intend to elicit at trial. Similarly, the government bases the John Sullivan video, discussed infra at 11-12, in part on portions that are confirmed by USCP footage elsewhere in the building but are unrelated to this defendant.

None of this relies on calling the known defendant-source of video (John Sullivan) or the video from other rioters most of whose identities DOJ must know. Nor does the “upstairs video,” which appears to have been filmed from one of the people legally present in the Capitol as it was stormed.

DOJ only mentions the prosecutions of Jacob Chansley and Sullivan; it does not name Kevin Seefried or Doug Jensen, whose presence in videos DOJ also uses to correlate the videos.

As I said above, both because he was so distinctively dressed and because much of the available video is so clear, Mostofsky is among the easiest defendants to do this with. This process will get more difficult as DOJ moves towards prosecuting people for things that happened where no police footage was available to correlate a person’s actions.


Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

Back in June, I noted that Ethan Nordean’s lawyers were staking his defense on getting all the crimes charged against him thrown out — from the obstruction charge applied in an unprecedented manner, to the civil disorder tainted by its racist past, all the way to trespassing.

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

[snip]

[T]actically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

[snip]

[I]f any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

As I noted, on Friday Dabney Friedrich became the first DC District judge to uphold the obstruction application. The decision comes as — predictably — DOJ seems to be closing in on a much more substantive description of the Proud Boy-led plan to assault Congress. All the while, Nordean has been sitting in SeaTac jail, and even got thrown into SHU (solitary) last week for as yet undisclosed reasons.

To be clear: Friedrich’s is in no way the last word. Judges Randolph Moss, Amit Mehta, and the judge presiding over Nordean’s case, Tim Kelly, are all due to rule on the issue as well, with a number of the other judges facing such challenges as well. I’d be surprised if all the judges ruled for DOJ.

And because these judges are likely to rule differently, as all the parallel challenges have been briefed, some of the lawyers in the key cases have kept the judges apprised of what was going on in other challenges. For example, after getting leave first, the government submitted filings they made in Nordean and Guy Reffitt’s challenges to obstruction in the Brady Knowlton docket. Defendants have occasionally used that opportunity to respond.

Yesterday, without first asking for leave to file it, Nordean submitted what was billed as a “notice of new authority” in the case, but which was, in fact, a 23-page point by point rebuttal of and which didn’t actually include Friedrich’s opinion. As part of that, purportedly to take issue with the grammatical claims that Judge Friedrich made but actually in an effort to attack an example Friedrich used rather than the law itself, Nordean lawyers David and Nick Smith use an Emily Dickinson poem to — they claim — make a point about line breaks and semicolons.

And the Court did not explain how a semicolon and line break somehow altered the meaning of (c)(2)’s “otherwise” phrase which, as the Court correctly noted, “links” it to the meaning of (c)(1). As Nordean has previously explained, the question of meaning involves grammar, not page format. Subsection (c)(2) is a clause dependent on (c)(1) for its meaning because the predicate “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to. . . .” is not a complete sentence.

[snip]

As the Court will see, each of the provisions in the case relied on by the Sandlin Court is a complete sentence, unlike subsections (c)(1) and (c)(2) of § 1512. Thus, they are grammatically independent in a way that (c)(1) and (c)(2) are not. The same grammatical point distinguishes Justice Scalia’s finding in United States v. Aguilar, on which the Sandlin Court relies, that the ejusdem generis canon did not apply to § 1503’s “omnibus clause.” 515 U.S. at 615-16 (finding that the omnibus clause is “independent” of the rest of § 1503 in a grammatical sense: it stands alone as a complete sentence).

Contrary to the Sandlin Court’s understanding, line breaks and semicolons do not necessarily alter the meaning of the clauses that follow in a sentence. One simple example would seem to suffice:

The reticent volcano keeps
His never slumbering plan;
Confided are his projects pink
To no precarious man.

In the sentence above, the line break between “The reticent volcano keeps/His never slumbering plan” does not indicate that the second line’s meaning is “independent” of the first line’s. To the contrary, the phrase containing the pronoun “his” cannot be understood without reference to its antecedent in the first line. Similarly, the same pronoun following the semicolon cannot be understood without reference to the first line. Just so with (c)(2)’s “; or otherwise obstructs . . .” We are concerned with meaning, not the surface of the page.

This is poetry!! It is fairly insane to liken poetry, much of the power of which stems from breaking the rules of grammar and which often strives to obscure meaning, to US Code, which aspires to use grammar in ways that clarify meaning.

There’s one more problem, too.

There’s some dispute, because there is no final manuscript for this poem, about whether Dickinson used a semicolon or a dash after “slumbering plan.” And Dickinson’s dashes — literary experts say with all the certitude that drove me from literary academics — put great stake in the ambiguity introduced by such punctuation.

“The dash is an invitation to the reader to make meaning,” Dr. Smith said. “It can also be a leap of faith.”

Moreover, these were handwritten works, and so dashes would not even be regular lines. The variation in such lines has been interpreted with various meanings as an immediate expression of Dickinson’s intent. [Note: I owe this observation to several people on Twitter but have lost those Tweets; h/t to them]

That is, Dickinson’s poem is not so much an apt comment on Friedrich’s examples. Rather, it’s an example of the uncertainty embodied by the artistic expression of another individual, almost the opposite of laws codified by Congress.

Bizarrely, the citation of Dickinson is among the parts of Smith’s brief that Brady Knowlton’s attorneys lifted and replicated in their own unsolicited notice and reply. Carmen Hernandez, who is Donovan Crowl’s attorney, not only remembered to include Friedrich’s opinion, but she didn’t include the Dickinson poem.

There have been many aspects of my own literary training that I’ve used in my coverage of the January 6 investigation. Reading Emily Dickinson (about which I have no expertise) is not one I’d expect to need.

Update: In a hearing today, Judge Kelly joined Friedrich in rejecting the challenge to the obstruction application.


Mark Meadows Promised the Kind of National Guard Protection that Proud Boy Charles Donohoe Seemed to Expect

I argued last week that any contempt report for Mark Meadows will serve as much as a draft warrant affidavit for the FBI as it would the basis for a criminal contempt indictment.

The committee released their report last night and, as I expected, it describes some of the more damning evidence already obtained regarding Meadows. It includes 12 bullet points (included below), many derived from documents already turned over, describing Meadows’ role in sowing disinformation about the election and his early knowledge of the violence that might result.

As Politico reported, one of those bullets described Meadows emailing someone and saying that the National Guard would “protect pro Trump people.”

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

Former Acting Secretary of Defense Christopher Miller told Congress that’s what Trump ordered him to do on January 3. But if Meadows passed on that privileged order the President gave to Miller, either directly or indirectly, to people involved in the riot, it might have helped them to plan.

And that’s interesting, because when Proud Boy Charles Donohoe saw a public report about the Guard being called in at 3:45 PM of on the day of the riot (these texts reflect the Washington State time zone in which Ethan Nordean’s phone was seized), he responded with surprise that the Guard would “attack … Trump supporters.”

If Meadows had a hand in alerting the Proud Boys that they would not face any response from the Guard, it would go a long way to explaining how they planned their operation in the way they did.

It also might explain why, minutes after Donohoe had just reported, minutes earlier, that “we are regrouping with a second force,” that second assault was abandoned.

As some of the bullets make clear, Mark Meadows had advance warning from organizers that things would get violent on January 6. And as the riot developed, he was in constant communication with Kash Patel, the Chief of Staff at the Defense Department that proved unwilling to deploy to protect the Capitol.

And it’s just possible he shared information that was central to the expectations of and plans by the militia that organized the assault.


Mr. Meadows was one of a relatively small group of people who witnessed the events of January 6 in the White House and with then-President Trump. Mr. Meadows was with or in the vicinity of then-President Trump on January 6 as he learned about the attack on the U.S. Capitol and decided whether to issue a statement that could stop the rioters.28 In fact, as the violence at the Capitol unfolded, Mr. Meadows received many messages encouraging him to have Mr. Trump issue a statement that could end the violence, and one former White House employee reportedly contacted Mr. Meadows several times and told him, ‘‘[y]ou guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die.’’29

Moreover, Mr. Meadows reportedly spoke with Kashyap Patel, who was then the chief of staff to former Acting Secretary of Defense Christopher Miller, ‘‘nonstop’’ throughout the day of January 6.30 And, among other things, Mr. Meadows apparently knows if and when Mr. Trump was engaged in discussions regarding the National Guard’s response to the Capitol riot, a point that is contested but about which Mr. Meadows provided documents to the Select Committee and spoke publicly on national television after President Trump left office.31

Beyond those matters, the Select Committee seeks information from Mr. Meadows about issues including the following:

  • Mr. Meadows exchanged text messages with, and provided guidance to, an organizer of the January 6th rally on the Ellipse after the organizer told him that ‘‘[t]hings have gotten crazy and I desperately need some direction. Please.’’32
  • Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.33
  • Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34
  • Mr. Meadows forwarded claims of election fraud to the Acting leadership of DOJ for further investigation, some of which he may have received using a private email account and at least one of which he had received directly from people associated with Mr. Trump’s re-election campaign.35
  • He also reportedly introduced Mr. Trump to then-DOJ official Jeffrey Clark.36 Mr. Clark went on to recommend to Mr. Trump that he be installed as Acting Attorney General and that DOJ should send a letter to State officials urging them to take certain actions that could affect the outcome of the November 2020 election by, among other things, appointing alternate slates of electors to cast electoral votes for Mr. Trump rather than now-President Biden.37
  • Mr. Meadows participated in meetings and calls during which the participants reportedly discussed the need to ‘‘fight’’ back against ‘‘mounting evidence’’ of purported voter fraud after courts had considered and overwhelmingly rejected Trump campaign claims of voter fraud and other election irregularities. He participated in one such meeting in the Oval Office with Mr. Trump and Members of Congress, which he publicly tweeted about from his personal Twitter account shortly after.38 He participated in another such call just days before the January 6 attack with Mr. Trump, Members of Congress, attorneys for the Trump re-election campaign, and ‘‘some 300’’ State and local officials to discuss the goal of overturning certain States’ electoral college results on January 6, 2021.39
  • Mr. Meadows traveled to Georgia to observe an audit of the votes days after then-President Trump complained that the audit had been moving too slowly and claimed that the signature-match system was rife with fraud.40 That trip precipitated Mr. Trump’s calls to Georgia’s Deputy secretary of state and, later, secretary of state.41 In the call with Georgia’s secretary of state, which Mr. Meadows and an attorney working with the campaign also joined, Mr. Trump pressed his unsupported claims of widespread election fraud, including claims related to deceased people voting, forged signatures, out-of-State voters, shredded ballots, triple-counted ballots, Dominion voting machines, and suitcase ballots, before telling the secretary of state that he wanted to find enough votes to ensure his victory.42 At one point during the call, Mr. Meadows asked ‘‘in the spirit of cooperation and compromise, is there something that we can at least have a discussion to look at some of these allegations to find a path forward that’s less litigious?’’43 At that point, Mr. Trump had filed two lawsuits in his personal capacity and on behalf of the campaign in Georgia, but the United States had not filed—and never did file—any. Mr. Meadows used a personal account in his attempts to reach the secretary of state before.44
  • Mr. Meadows was chief of staff during the post-election period when other White House staff, including the press secretary, advanced claims of election fraud. In one press conference, the press secretary claimed that there were ‘‘very real claims’’ of fraud that the Trump re-election campaign was pursuing and said that mail-in voting was one that ‘‘we have identified as being particularly prone to fraud.’’45

29Documents on file with the Select Committee (Meadows production); Carol Leonnig and Philip Rucker, I Alone Can Fix It, (New York: Penguin, 2021), p. 476.

30 Adam Ciralsky, ‘‘‘The President Threw Us Under the Bus’: Embedding with Pentagon Leadership in Trump’s Chaotic Last Week,’’ Vanity Fair, (Jan. 22, 2021), available at https:// www.vanityfair.com/news/2021/01/embedding-with-pentagon-leadership-in-trumps-chaotic-lastweek.

31Documents on file with the Select Committee (Meadows production); Transcript, ‘‘The Ingraham Angle,’’ Fox News, (Feb. 11, 2021), available at https://www.foxnews.com/transcript/ biden-warns-china-could-eat-our-lunch-after-phone-call-with-xi; Transcript, ‘‘Hannity,’’ Fox News, (Feb. 12, 2021), available at https://www.foxnews.com/transcript/new-yorker-who-lostmother-in-law-in-nursing-home-blasts-disgrace-cuomo; Testimony of Hon. Christopher C. Miller, U.S. House of Representatives Committee on Oversight and Reform, (May 12, 2021), available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Miller%20Testimony.pdf.

32Documents on file with the Select Committee (Meadows production).

33Documents on file with the Select Committee (Meadows production).

34Documents on file with the Select Committee (Meadows production).

35Documents on file with the Select Committee.

36Michael Bender, Frankly, We Did Win This Election: The Inside Story of How Trump Lost, (New York: Grand Central Publishing, 2021), p. 369.

37Documents on file with the Select Committee.

38Marissa Schultz, ‘‘Trump meets with members of Congress plotting Electoral College objections on Jan. 6,’’ Fox News, (Dec. 21, 2021), available at https://www.foxnews.com/politics/members-of-congress-trump-electoral-college-objections-on-jan-6; Tweet, @MarkMeadows, (Dec. 21, 2020 at 6:03 p.m.) (‘‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned.’’).

39 Caitlin McFall, ‘‘Trump, House Republicans held call to discuss Electoral College rejection: Brooks,’’ Fox News, (Jan. 2, 2021), available at https://www.foxnews.com/politics/gop-splits-electoral-college-certification; Tweet, @RepMoBrooks, (Jan. 2, 2021 at 7:17 p.m.) (‘‘Our fight for honest & accurate elections gains momentum! @JimlJordan & I co-lead conference call w 50+ Congressmen who join & fight for America’s Republic! . . . President Trump & CoS Mark Meadows speaking. Morale is HIGH! FIGHT!’’); Paul Bedard, ‘‘Exclusive: Trump urges state legislators to reject electoral votes, ‘You are the real power’,’’ Washington Examiner, (Jan. 3, 2021), available at https://www.washingtonexaminer.com/washington-secrets/exclusive-trump-urges-statelegislators-to-reject-electoral-votes-you-are-the-real-power.

40Linda So, ‘‘Trump’s chief of staff could face scrutiny in Georgia criminal probe,’’ Reuters, (March 19, 2021), available at https://www.reuters.com/article/us-usa-trump-georgia-meadows-insight-idUSKBN2BB0XX.

41 Id.

42 ‘‘AP FACT CHECK: Trump’s made-up claims of fake Georgia votes,’’ Associated Press, (Jan. 3, 2021), https://apnews.com/article/ap-fact-check-donald-trump-georgia-elections-atlantac23d10e5299e14daee6109885f7dafa9; ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3- 322644d82356—story.html.

43 ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-calltranscript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356—story.html.

44Documents on file with the Select Committee.

45Transcript of November 20, 2020, White House Press Conference, available at https:// www.rev.com/blog/transcripts/press-secretary-kayleigh-mcenany-white-house-press-conferencetranscript-november-20.


The Virgin Birth of Sidney Powell’s Fraud Fund

On the list of things those whinging about Merrick Garland seem to have missed is this Daily Beast story reporting that a grand jury is investigating Sidney Powell’s grift.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said. According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The story is most amusing because it airs the entertaining feud between Powell, Lin Wood, Patrick Byrne, and the Flynns. The story airs the claims of those feuding with Powell who say, at a time this is under criminal investigation, that they were uninvolved with the grift.

Powell created Defending the Republic with great fanfare in December 2020 and listed a who’s who of pro-Trump election conspiracy world on its incorporation paperwork. The group’s board originally included former Trump national security adviser Mike Flynn, his brother Joe, and QAnon enthusiast Lin Wooda fellow Trump-connected lawyer who recently started feuding with Powell.Attorneys for Defending the Republic claim that Wood was mistakenly listedas a board member and subsequently removed from registration filings.

Overstock.com founder Patrick Byrne, who briefly served as Defending the Republic’s CEO, says he had his own concerns about the group’s finances.

In a phone call with Wood that Wood surreptitiously recorded, Byrne claimed that Byrne, Michael Flynn, and Flynn’s brother Joseph Flynn quit the group in April after Powell refused to allow an audit of Defending the Republic’s accounts.

“I gave her a laundry list of things she had to clean up and told her she had to get an auditor,” Byrne told Wood on the call.

[snip]

While working as Defending the Republic’s CEO, Byrne said he became concerned that Powell was using the money for herself and may have potentially violated the law in the process. Byrne said he had determined that he faced no legal liability himself, but had been tempted to “drop a dime on” Powell and alert law enforcement.

“Sidney’s just running this as a scam,” Byrne told Wood.

The Daily Beast story on the criminal investigation into Powell then turns to some details laid out in the Dominion lawsuit against the Kraken lawyer. Powell had her Defending the Republic site up and running on November 23, before she incorporated it on December 1, 2020; and she advertised it falsely as a 501(c)(3), donations to which are tax deductible, rather than a 501(c)(4), which are not.

Defendant Defending the Republic, Inc. (“Powell’s fundraising website”) is the corporate form that was belatedly incorporated to solicit “millions of dollars” online at https://defendingtherepublic.org/, a website created shortly after the 2020 election. The separate corporate entity for Powell’s fundraising website was not created until December 1, 2020, after Powell had appeared on television to solicit donations to the website and after the website began representing to potential donors that it was a 501(c)(4) organization.8

18. On or before January 7, 2021, defendingtherepublic.org began representing to potential donors that it is a “501c3 (Status Pending) Non-Profit.”9

19. Unlike contributions to 501(c)(3) organizations, contributions to 501(c)(4) organizations are not tax deductible.

20. As of January 7, 2021, Defending the Republic, Inc. did not appear in a search of 501(c)(3) organizations or 501(c)(4) organizations on the IRS website.10

8 Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegationsregarding-the-computerized-voting-systems-on-election-night (last visited Jan. 4, 2021) (Ex. 5); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (last visited Jan. 4, 2021) (Ex. 6); Defending the Republic (Nov. 23, 2020), available at, https://web.archive.org/web/20201123034128/https://defendingtherepublic.org/ (Ex. 7).

9 Defending the Republic Contact Page, available at, https://defendingtherepublic.org/?page_id=15 (last visited Jan. 7, 2021).

10 Compare November 23, 2020 capture of https://defendingtherepublic.org/ (Ex. 7) with IRS Tax Exempt Organization Search, available at, https://apps.irs.gov/app/eos/allSearch (Ex. 8).

Daily Beast presents this as further evidence supporting claims from Byrne (who should not be trusted either) that this money was going to support Powell, not sowing conspiracy theories.

But I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

It was always the case that Flynn’s pardon was wrapped up in propaganda to get elected. As I’ve noted, Trump used the alteration Bill Barr’s DOJ made to Peter Strzok’s notes, along with Powell’s false claims about it, to launch a prepared debate attack on Joe Biden.

But now the details of how Powell took overt steps to help Trump try to overthrow the election before Trump gave her something in value are before a grand jury.


Dabney Friedrich Rejects Challenge to January 6 Obstruction Application

I have written — a lot — about the application of obstruction (18 USC 1512(c)(2)) at the heart of the way DOJ has approached the January 6 prosecution. (July; July; August; August; September; September; December; December)

The government has, thus far, chosen not to charge January 6ers with Seditious Conspiracy (18 USC 2384), a crime which carries a sentence of 20 years but requires the government show specific intent to overthrow the government. DOJ has a history of spectacular failure when trying to charge white terrorists with sedition, in part because the bar to proving the elements of the offense is quite high, and in part because white terrorists have long known how to package their extremism in heroic terms. Sedition would be particularly hard to prove with regards to January 6, since it was an attack launched by one branch of government on another.

Instead, the government has charged those Jan6ers against whom they had solid evidence of a specific intent to stop the vote certification with obstruction of an official proceeding under 18 USC 1512(c)(2). Like sedition, that crime can carry a 20 year sentence. But the base offense carries a range closer to 18 months (or the eight months to which Paul Hodgkins was sentenced). To get to stiffer sentences, DOJ would have to demonstrate any of a number of exacerbating behaviors, most notably, the threat of violence or an attempt to assassinate someone, but also destruction of evidence. That’s how DOJ got to very different guideline ranges for five men, all of whom pled guilty to the same obstruction offense:

That is, using obstruction offers the possibility of the same sentence as sedition for the more serious perpetrators, without the same political blowback and legal risk, while giving DOJ more flexibility in punishing different kinds of actions that day as felonies.

Only, using obstruction in this fashion is without precedent, in part because no one has ever tried to prevent the vote certification by violently attacking the Capitol before.

Because of that, January 6 defense attorneys have launched a concerted legal attack on the application, variously claiming:

  • This application of obstruction can’t be applied to the vote certification because 18 USC 1512(c)(2) is limited to those proceedings for which there is some kind investigation and adjudication of evidence (like an impeachment)
  • If DOJ wanted to charge obstruction, they should have used some other part of the law (that didn’t carry a potential 20 year sentence)
  • A recent Supreme Court ruling in Yates v United States that ruled fish could not be evidence of obstruction, which pivoted largely on grammar and conjunctions, would apply to using a mob to stop a vote certification
  • January 6 rioters had no way of knowing that the vote certification counted as an official proceeding the obstruction of which would carry a felony charge
  • The same confusion about what “corruptly” means that saved John Poindexter exists here

Yesterday, Judge Dabney Friedrich denied Ronnie Sandlin and Nate DeGrave’s motion to dismiss their conspiracy to obstruct and obstruction charges. The opinion is succinct, step-by-step dismissal of each of those challenges (I’ve put the bullets above in the order she addresses them to make it easier to read along).

There are three other major efforts (by Brady Knowlton before Randolph Moss, by Proud Boy Ethan Nordean before Tim Kelly, by Thomas Caldwell before Amit Mehta in the Oath Keeper case) and a slew of other more minor efforts to overturn this application. So the viability of this application of obstruction is by no means a done deal. If any of those other judges ruled against the government, it would set off interlocutory appeals that could upend this decision.

But one judge, at least, has now sanctioned DOJ’s novel application, at least as used with these two defendants.

It’s significant that Friedrich has ruled against this motion (she’s facing a similar one from 3%er Guy Reffitt), for a number of reasons. That’s true, for one, because she’s one of four Trump appointees in the DC District. While all four are (unlike some Trump appointees on the DC Circuit or Supreme Court) quite serious judges, Friedrich is, with Trevor McFadden, one of the judges who might be more sympathetic to the Trump-supporting defendants before her.

Friedrich had also raised questions as to why DOJ hadn’t used a different clause of the obstruction statute, 1512(d)(1) that might also apply to January 6, but which carries just a three year sentence. That makes her sustained treatment of how the law works — citing a Scalia opinion that defendants have raised repeatedly — of particular interest, because it’s the question she seemed to have the most doubt about.

Indeed, § 1512(c)(2) is more akin to the omnibus clause in 18 U.S.C. § 15035 than it is to “tangible object” in § 1519. The specific provisions in § 1503 cover actions related to jurors and court officers and the omnibus clause “serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice.” As such, it is “far more general in scope.” United States v. Aguilar, 515 U.S. 593, 598 (1995). The ejusdem generus canon does not apply to limit § 1503’s omnibus clause to acts directed at jurors and court officers, because the clause “is not a general or collective term following a list of specific items.” Aguilar, 515 U.S. at 615 (Scalia, J., concurring in part and dissenting in part) (emphasis omitted). Instead, “it is one of the several distinct and independent prohibitions contained in § 1503 that share only the word ‘Whoever,’ which begins the statute, and the penalty provision that ends it.” Id. So too here.

[snip]

Nor does the plain text of § 1512(c)(2) create “intolerable” surplusage. Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). To be sure, interpreting subsection (c)(2) to include any and all obstructive, impeding, or influencing acts creates substantial overlap with the rest of § 1512, and with other provisions in Chapter 73. But the Court does not find that it creates intolerable overlap.

To start, a broad interpretation of § 1512(c)(2) does not entirely subsume numerous provisions with the chapter. For instance, § 1512(a)(1)(C), (a)(2)(C), (b)(3), and (d)(2)–(4) proscribe conduct unrelated to an “official proceeding.” Sections 1503 and 1505 prohibit obstructive acts related to the “due administration of justice” and congressional inquiries or investigations, respectively, which may have no relation to an official proceeding. Section 1513, meanwhile, prohibits retaliatory conduct that occurs after a person participates in an official proceeding. Section 1512(c)(2), on the other hand, concerns obstructive conduct that occurs either before or during such proceedings.

It is true that killing a witness to prevent his testimony at an official proceeding, see § 1512(a)(1)(A), or intimidating a person so that he withholds a record from the proceeding, see § 1512(b)(2)(A), among others, could be charged under § 1512(c)(2). But the fact that there is overlap between § 1512(c)(2) and the rest of § 1512, or other provisions in Chapter 73, is hardly remarkable; “[i]t is not unusual for a particular act to violate more than one criminal statute, and in such situations the Government may proceed under any statute that applies.” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (internal citations omitted); see also Loughrin, 573 U.S. at 358 n.4.

In the Reffitt case, Friedrich had made DOJ provide a Bill of Particulars to explain how they understand Reffitt to have obstructed the vote certification, which was a different approach than other judges have taken. Moss and Mehta, for example, seem most concerned about limiting principles that distinguish obstruction as charged here from otherwise protected political speech (which also might give them a different basis to reject this application, particularly given that Donovan Crowl attorney Carmen Hernandez has focused on the First Amendment in the Oath Keeper case).

One other factor that makes Friedrich’s quicker decision on this issue (this challenge came before her after all the others I’ve listed as major above) interesting is that her spouse, Matthew Friedrich, was an Enron prosecutor. And — as Judge Friedrich’s opinion makes clear — Congress passed this specific clause in response to lessons learned in Enron.

In 2002, following the collapse of Enron, Congress enacted a new obstruction provision in Section 1102 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 807: “Tampering with a record or otherwise impeding an official proceeding.” It was codified as subsection (c) of a pre-existing statute, 18 U.S.C. § 1512. Section 1512(c), in full, states:

Whoever corruptly—

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

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

18 U.S.C. § 1512(c)(2).

[snip]

As noted, Congress enacted § 1512(c) as part of the Sarbanes-Oxley Act of 2002 following “Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.” Yates, 574 U.S. at 535–36. That Congress acted due to concerns about document destruction and the integrity of investigations of corporate criminality does not define the statute’s scope. Statutes often reach beyond the principal evil that animated them. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).

She has personal reason to know this history and the import of the statute well.

Friedrich looked to the Enron history to map how “corruptly” might apply in this case, too.

In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted).

[snip]

The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.

All in all, this was a no-nonsense opinion that didn’t rely on distinct aspects of this case, such as that Sandlin encouraged others in the Senate to look for and seize laptops and papers, the kind of destruction of evidence that makes the question easier.

Her opinion laid out just one limiting factor, though given how DOJ has charged conspiracy to obstruct the vote certification in all the conspiracy cases, an important one. This case was easy, Friedrich suggests, because so much of what else Sandlin and DeGrave are accused was obviously illegal (even moreso than Reffitt, who didn’t enter the building and whose resistance to cops was not charged as assault).

The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line. It alleges that the defendants obstructed and impeded the congressional proceeding to certify the election results. Superseding Indictment ¶ 37. And it further alleges that the defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber. Id. ¶¶ 15-33. This alleged conduct is both “independently criminal,” North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) and “inherently malign,” Arthur Andersen, 544 U.S. at 704. And it was allegedly done with the intent to obstruct the congressional proceeding, see Friske, 640 F.3d at 1291. Assuming that the government can meet its burden at trial, which is appropriate to assume for purposes of this motion, the defendants were sufficiently on notice that they corruptly obstructed, or attempted to obstruct, an official proceeding under § 1512(c)(2).

The Court recognizes that other cases, such as those involving lawful means, see, e.g., Arthur Andersen, 544 U.S. at 703, will present closer questions.14 But the Court need not decide here what constitutes the outer contours of a “corrupt purpose.” Because the indictment alleges that the defendants used obvious criminal means with the intent to obstruct an official proceeding, their conduct falls squarely within the core coverage of “corruptly” as used in § 1512(c)(2). See Edwards, 869 F.3d at 502 (“While the corrupt-persuasion element might raise vagueness questions at the margins, the wrongdoing alleged here falls comfortably within the ambit of the statute.”). The Court will address further refinements of the definition of “corruptly” with jury instructions.

14 As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.

Whether Sandlin and DeGrave corruptly attempted to halt the vote count is easy, Friedrich suggests, because they are accused of so much else that was clearly illegal, including both trespassing and assaulting cops. Whether this application of obstruction holds for overt acts that are not, themselves illegal, will be a much harder question, but it was not one before her in this case.

This question is already before other judges though, significantly (for DOJ’s efforts to hold what I’ve termed, “organizer inciters” accountable) in the 3%er SoCal conspiracy. And, as the AUSA dealing with the legal application of all this, James Pearce, responded in yet another challenge to this application of obstruction, it goes to the core of whether this application of obstruction could be used with the former President.

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

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

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

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

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

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

If Trump honestly believed that Mike Pence could blow off the vote certification when he ordered him to do so on January 6, this application of obstruction would be far more problematic, as even DOJ’s expert on this application concedes. But if Trump knew the demand violated the law (or the Constitution), then it would meet the definition of “corruptly” under this application of the statute.

The entire course of the January 6 prosecution has been waiting on these decisions about DOJ’s use of obstruction. And while Friedrich’s opinion does not decide the issue, DOJ has notched one significant opinion in support for the approach they’re using. If a few other judges match her opinion, we could begin to see a wave of plea deals to felony convictions.

Update: Here’s the order Friedrich issued in Reffitt’s case, deferring the 1512 question until trial unless he gives her a good reason not to:

MINUTE ORDER. Before the Court is the defendant’s [38] Motion to Dismiss Count Two of the Indictment on multiple grounds, including that Count Two is unconstitutionally vague as applied. On a motion to dismiss, the Court “is limited to reviewing the face of the indictment,” United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009), and it must assume the truth of the indictment’s factual allegations, United States v. Bowdoin , 770 F. Supp. 2d 142, 149 (D.D.C. 2011). The question for the Court at this stage of the proceedings is “whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.” Id. at 146.

A criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489, 497 (1982). And “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy , 417 U.S. 733, 756 (1974). Numerous courts have rejected vagueness challenges the word corruptly as used in obstruction statutes. See, e.g.United States v. Shotts , 145 F.3d 1289, 1300 (11th Cir. 1998); United States v. Edwards, 869 F.3d 490, 50102 (7th Cir. 2017); see also Mem. Op. issued December 10, 2021 in United States v. Sandlin , 21-cr-88, Dkt. 63 (holding that § 1512(c)(2) is not unconstitutionally vague as applied to defendants who allegedly forcibly breached the Capitol and assaulted Capitol police officers with the intent to impede the official proceeding).

In contrast to the indictment at issue in Sandlin, the Indictment in this case does not allege any facts in support of the § 1512(c)(2) charge. Count Two merely alleges that Reffitt “attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.” [34] Second Superseding Indictment at 2. The government proffers in its brief, however, that “[w]hile at the Capitol, the defendant, armed with his handgun in a holster on his waist, confronted U.S. Capitol Police officers on the west side stairs, just north of the temporary scaffolding. The defendant charged at the officers, who unsuccessfully tried to repel him with two different types of less-than-lethal projectiles before successfully halting his advances with pepper spray. The defendant encouraged other rioters to charge forward at the officers, which they did. The officers were forced to fall back, the Capitol was invaded.” [40] Gov’t Opp’n at 1. Reffitt disputes this in his briefing. [38] Def.’s Mot. to Dismiss at 13-15.

Because it is unclear, based on the indictment alone, what actions Reffitt allegedly engaged in to obstruct and impede the official proceeding, the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him. For this reason, the Court is inclined to defer ruling on his vagueness challenge until the facts have been established at trial and the jury has had an opportunity to consider that evidence. See United States v. Kettles , No. CR 3:16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (finding that pretrial as-applied challenge to § 1591(a) was premature because “[t]he court cannot determine the nature and extent of [defendant’s] conduct in this case and, therefore, also cannot determine whether § 1591(a) is void for vagueness as applied to that conduct”); United States v. Raniere , 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019).

Accordingly, the defendant is directed to file, on or before December 15, 2021, a supplemental brief of no more than 5 pages in length explaining why the Court should not defer ruling on his motion until the evidence has been presented at trial. Upon review of the defendant’s supplemental brief, the Court will consider whether a response from the government is necessary.

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