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Chief Justice John Roberts Just Invited President Biden to Pardon Nicholas Roske

Since Republicans on the Supreme Court voted to make Presidents king yesterday, I’ve been thinking about ways to reverse the decision.

Some of those ways (like expanding the court) are structural, long term, and involve winning both the presidency and Senate in November by good margins.

But another way is to get the court to recognize how insane their ruling was in practice, to encourage them to moderate their order, as they did by using the Rahimi decision to moderate their Bruen insanity.

Another way is to use the pretrial hearings on what counts as official and unofficial conduct as a way to demonstrate the problem with the decision. Since any decisions Tanya Chutkan makes will come back to SCOTUS, they will have to review their handiwork.

But the one I keep thinking of is action President Biden can take that would demonstrate to the Justices the problem with their decision.

Some such actions would be symbolic: Biden can order the military to use military planes to fly women needing abortions in states where it is banned for necessary medical care, for example. Acting as Commander in Chief, his power would be at its zenith.

On Bluesky, someone recommended selling Willie Nelson a pardon — one guitar — for smoking marijuana in a National Park in a state where pot is legal.

But the most symbolic way that President Biden could convey the insanity of yesterday’s decision would be to pardon Nicholas Roske. Roske is the suicidal man who, in June 2022, flew to Maryland with vague plans but real weapons to assassinate Brett Kavanaugh. Since he filed a suppression motion for admissions he made after his arrest, he and the government have been discussing a plea.

Let me be clear: I don’t think it would be wise to pardon Roske. Biden has the unreviewable authority to do so, but it would be stupid to do so. While Roske seems he is mentally ill, he nevertheless armed himself and took steps that put Justice Kavanaugh in danger.

But Roske is exactly the kind of menace that John Roberts just immunized yesterday.

The weapons Roske armed himself with — including a Glock, pepper spray, zip ties, a hammer, a screw driver, a nail punch, a crow bar, and duct tape — were precisely the kinds of things with which January 6ers armed themselves when they attacked the Capitol and threatened to kill Mike Pence, Nancy Pelosi, and Mitch McConnell. Many January 6ers, like Roske, suffer from mental illnesses. Like Roske, many Jan6ers were trying to give their life meaning.

The only thing that makes Roske different is that he wasn’t sent by a political candidate trying to get elected.

Still, Roske is always used, especially by Congressional Republicans, to describe the unique danger the Justices face.

There would be no better way for Biden to make it clear to the Justices what kind of danger they have blessed than to pardon Roske (for which, again, I’m not advocating).

With their ruling yesterday, the Justices have said that Members of Congress, Biden voters, and democracy itself must face similar threats without recourse. And one way to make that clear would be to pardon Roske.

Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was

There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.

Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.

Did the President weigh in? he asked. The Attorney General?

JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?

MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.

The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —

JUSTICE KAVANAUGH: So it’s the solicitor general?

MR. DREEBEN: Yes.

Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —

MR. DREEBEN: Yes.

JUSTICE KAVANAUGH: — in their view —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —

Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.

MR. DREEBEN: Mm-hmm. Yes.

JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]

Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.

JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.

This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.

JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.

JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.

JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.

But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.

Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —

MR. DREEBEN: So —

JUSTICE KAVANAUGH: — after he leaves office?

None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.

After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).

This is not a Morrison v. Olson issue.

Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.

It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.

Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.

Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.

Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.

But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.

The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)

In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.

Normally, this would never work and it’s unlikely to work here.

But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.

For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.

The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.

The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.

That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.

Except, of course, it involves Democrats.

SCOTUS Takes Up January 6 Obstruction Challenge — But with Unknown Scope

Today, SCOTUS granted cert to one of the initial challenges to 18 USC 1512(c)(2), that of Joseph Fischer.

Depending on what they do with the appeal, the review could have significant effect on all the January 6 cases charging obstruction — over 300 defendants so far, including Trump.

But no one knows how broadly they will be reviewing this appeal.

On its face, the only thing being appealed in Fischer is whether this statute requires document tampering.

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

If SCOTUS upheld the DC Circuit opinion (and all the underlying District opinions), nothing would change. If it overturned the DC Circuit opinion, then hundreds of cases of rioters would be thrown out.

Remember that defendants have always likened the January 6 attack with the interruption by protestors of Brett Kavanaugh’s confirmation hearing (there are significant differences, starting with the fact that all the protestors who disrupted Kavanaugh’s hearing were in the building legally). So I wouldn’t even rule out some set of Republicans rejecting this application on those grounds.

But it’s not clear that would affect the charges against Trump. That’s because Trump’s obstruction does involve document tampering: the forged elector certificates.

It’s possible, though, that SCOTUS will also review a more contentious issue: the definition of “corrupt purpose” in the statute. Fischer addresses that deeper in the petition.

While some courts have limited Section 1512(c)(2)’s scope by a particular definition of the critical mens rea element—“corruptly”—they have not defined it uniformly. See Miller, 605 F. Supp. 3d at 70 n.3. And the D.C. Circuit’s lead opinion declined to define it all, even while stating that “corrupt intent” limited Section 1512(c)(2)’s reach. Compare Pet. App. 17a-18a with Pet. App. 20a. The lead opinion nonetheless acknowledged three potential definitions:

1. Corruptly means conduct that is “wrongful, immoral, depraved, or evil.” Pet. App. at 18a (quoting Arthur Anderson LLP, 544 U.S. at 705, discussing 18 U.S.C. § 1512(b)).

2. Undertaken with a “corrupt purpose or through independently corrupt means, or both.” Pet. App. 18a-19a (quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021) (citing United States v. North, 910 F.2d 843, 942-43 (D.C. Cir. 1990) (Silberman, J., concurring and dissenting in part)).

3. Conduct that involves “voluntarily and intentionally [acting] to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Pet. App. 19a (quoting Aguilar, 515 U.S. at 616-17) (Scalia, J., concurring).

Here, SCOTUS could adopt the more restrictive definition of corrupt benefit, option 3.

In that case, it’s not clear what would happen with the crime scene defendants: at the DC Circuit, Justin Walker argued that Trump supporters might have obtained a corrupt purpose if Trump were unlawfully retained.

But for Trump, there’s no question: He was attempting to retain one of the most valuable jobs in the world through unlawful means.

All of which is to say, SCOTUS’ decision to review the case is huge — though not entirely unexpected.

But we won’t know what to make of the review for some time.

Update: I had been anxiously waiting to see what Steve Vladeck had to say about this. He notes that SCOTUS took Fischer but not Miller and Alam, which had been joined to it.

All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated.

 

On January 19, 2022, SCOTUS Upheld Judge Tanya Chutkan’s Decision Rejecting Trump’s Executive Privilege Claims

On November 9, 2021, Judge Tanya Chutkan — the judge who randomly got assigned to Trump’s January 6 prosecution — rejected Trump’s request to enjoin the Archives from turning over documents to the January 6 Committee.

Chutkan held that because the incumbent President had waived Executive Privilege and the January 6 Committee had a legislative interest in preventing another attack on the peaceful transfer of power, she had no reason to second guess the political branches of government about the import of the investigation.

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining— the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

On December 9, 2021, the DC Circuit upheld Chutkan’s ruling. Patricia Millett repeated Chutkan’s argument that the agreement of Congress and the Executive provided no basis for the courts to intervene. But she also described that even by a heightened standard — even if Trump were withholding these documents while still President — the need for the documents would overcome his privilege claim.

While former President Trump can press an executive privilege claim, the privilege is a qualified one, as he agrees. See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even a claim of executive privilege by a sitting President can be overcome by a sufficient showing of need. See United States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a former President certainly enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S. at 454; see United States v. Nixon, 418 U.S. at 706, 713. 12

In this case, President Biden, as the head of the Executive Branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees. So the tests that courts have historically used to police document disputes between the Political Branches seem a poor fit when the Executive and Congress together have already determined that the “demonstrated and specific” need for disclosure that former President Trump would require, Appellant Opening Br. 35, has been met. A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.

But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege. Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.

[snip]

Keep in mind that the “presumptive privilege” for presidential communications “must be considered in light of our historic commitment to the rule of law.” United States v. Nixon, 418 U.S. at 708. In United States v. Nixon, the particular component of the rule of law that overcame a sitting President’s assertion of executive privilege was the “right to every [person]’s evidence” in a criminal proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). Allowing executive privilege to prevail over that principle would have “gravely impair[ed] the basic function of the courts.” Id. at 712.

An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would “gravely impair the basic function of the” legislature. United States v. Nixon, 418 U.S. at 712.

On January 19, 2022, the Supreme Court upheld Chutkan’s ruling. With only Clarence Thomas dissenting, Justice Kavanaugh noted that the DC Circuit’s ruling that Trump’s appeal would have failed even under more stringent standards made any review of this decision unnecessary.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

I have written repeatedly about how Merrick Garland set up a framework in July 2021 by which Congress’ investigative requests would provide an opportunity for President Biden to waive Executive Privilege without violating DOJ’s contacts policy. That is, in July 2021, Garland solved a tricky problem with investigating the former President: how to obtain privilege waivers while keeping the existing President entirely walled off from the criminal investigation.

But this legal background, in which, with just one dissent, SCOTUS upheld a Tanya Chutkan opinion pertaining to an investigation into Donald Trump, will prove critically important in the days ahead, for two reasons that go to the screeds the former President is engaging in on his failed social media platform.

Along with making a venue complaint that has failed the dozens of times other January 6 defendants have made it (here’s a Roger Parloff post from before the Riley Williams and Oath Keepers trials showed that juries will rule against the government on precisely the same charges), Trump is preparing to claim that Judge Chutkan is biased and must be recused.

And Trump has been claiming that DOJ could have brought this case years ago, before the election season.

As to the first point, on a topic directly pertinent to this investigation, eight Justices have already upheld Judge Chutkan. Three Trump appointees, with Justice Kavanaugh writing the decision, have already ruled with Judge Chutkan.

That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

More importantly, that Judge Chutkan decision in November 2021 led to a SCOTUS decision, on January 19, 2022, upholding the DC Circuit’s opinion that the peaceful transfer of power is a sufficiently important basis to overcome an Executive Privilege claim, even if only for a congressional investigation, which litigation in the stolen documents case noted was a significantly lower standard than a criminal investigation.

Yet, even in spite of that decision on January 19, 2022, Donald Trump continued to make Executive Privilege claims that delayed DOJ’s investigation. He did so to stall DOJ’s interviews with Mike Pence’s advisors in summer 2022. He did so to stall DOJ’s interviews of Trump’s White House Counsel later that summer. He did so to stall DOJ’s interviews with other top aides in January 2023. And he did so to stall Mike Pence’s testimony.

Donald Trump continued to stall DOJ’s investigation using Executive Privilege claims for 463 days after a Justice that he himself had appointed had already rejected such claims. At the very least, these frivolous Executive Privilege invocations were critically responsible for any delay from July 2022, when Greg Jacob and Marc Short first refused to answer some questions because of Trump’s privilege claims, until April 2023, when Mike Pence testified — nine months.

Nine months, Trump kept making Executive Privilege claims that it was clear SCOTUS wouldn’t uphold.

Indeed, Trump’s frivolous Executive Privilege claims are responsible for even more of any delay than his own Special Master demand in the stolen documents investigation caused — in that case, three months.

Donald Trump is complaining that he wasn’t charged for his attempt to overthrow the peaceful transfer of power in 2020 until during his campaign to regain the presidency.

But he is personally responsible for much of that delay.

How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly 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.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

Six Weeks: The Tactics of Sammy Alito’s Abortion

Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

In August, I wrote about how one of Brady Knowlton’s lawyers got up to claim that because there could be no miscarriage of justice in the January 6 vote certification, his client could not have obstructed it under the statute DOJ is using to charge the more serious January 6  perpetrators, 18 USC 1512. I noted that the lawyer, Brent Mayr, was actually suggesting that Joe Biden and the 81 million voters who voted for him would suffer no injury if Biden’s vote certification had never taken place.

Up until that moment, the hearing before Judge Randolph Moss was an admittedly close question. Knowlton’s other lawyer made a robust argument that vote certifications weren’t the kind of official proceeding that could be obstructed. And AUSA John Pearse focused on the word “corruptly” distinguishing other First Amendment protected activities, such as those who protested the Brett Kavanaugh hearing, from those who stormed the Capitol.

Something similar just happened in the Oath Keeper case. After David Fischer made the same argument that Knowlton’s lawyers made — that this was not an official proceeding, to much skepticism from Judge Amit Mehta — Carmen Hernandez got up to argue that her client could not have known that he would risk a 20 year sentence for forcing his way into the Capitol as part of a stack.

Before I explain what happened next, four details are worth noting. First, Hernandez is, in my opinion, a smart and passionate lawyer. Her briefs on this case (surely helped by other public defenders, as they have so many clients facing this charge) were probably the most cogent I’ve read, and I’ve read virtually all of these challenges. That said, Hernandez submitted a 30-page brief, this morning which (Judge Mehta made a point of telling her) he had read by the time of the 2PM hearing. Also, she interrupted Mehta several times. Those things really pissed him off. Finally, of all the Oath Keepers, I think Donovan Crowl may have the best argument that he did not willfully enter into a conspiracy and did not intend to interrupt the vote count. That is, I think Crowl might beat the obstruction charge Hernandez was challenging in court, even if his co-defendants might not, but that’s an evidentiary issue, not a constitutional one.

Still, it was a robust argument. Hernandez made as good a First Amendment argument as has been made about this, that this was just about influence Congress. “Influencing Congress, going to Congress and shouting and making a fool of yourself? That’s what Americans do.”

Mehta challenged prosecutor Jeffrey Nestler why under Yates v. US, in which SCOTUS ruled that destroying fish to avoid prosecution for catching undersized fish was not tantamount to obstruction for a statute envisioning the destruction of documents, this kind of obstruction is not obviously obstruction.

Nestler also made a point that hasn’t been made enough by DOJ — one I noted in my post on Knowlton’s challenge. To argue that the rioters obstructed justice, rather than Trump or those who orchestrated the mobs, you really need to argue that it’s a kind of witness tampering, an attempt to terrify members of Congress not just to flee, but also to vote against the lawful winner of the election. There is abundant evidence that not only occurred on the day of the vote certification, but that the terror of the event led some Republicans to vote against impeachment. This is a classic case of witness tampering, a case where Congress was held hostage in an attempt to terrify them to not do their jobs. And it nearly succeeded. And the after effects remain.

So Nestler argued that the object of the conspiracy was to scare Congress to stop the proceedings. Judge Mehta rightly responded, “Where do I look in the indictment for that?”

But like the Moss hearing, this one ended up with a hypothetical. If someone burst into his courtroom with the specific intention of preventing these proceedings from taking place, Judge Mehta asked Hernandez, would that amount to obstruction. Yes, she responded, resorting immediately to the far weaker argument that Fischer had tried to make, that the vote certification is not an official proceeding.

That may ultimately be the hook on which Mehta starts to unravel this question.

Whatever happens, that will not be the end of this question, because until DOJ makes a much stronger argument, both about how the terror was designed to function here and what distinguishes not only January 6 defendants from Kavanaugh protestors, but also the January 6 obstruction defendants from those charged with parading, judges will continue to face this difficult question. And at some point, a defense attorney will avoid providing the judge the obvious way to answer the question.

The Government Screws Up Attempt to Distinguish between January 6 Insurrection and Anti-Kavanaugh Protests

The government is obviously getting fed up with some of Ethan Nordean’s legal challenges. I can’t blame them for being impatient with Nordean’s claims that, so long as cops at one of four barricades he passed on his way to insurrection weren’t knocked down, it means he had no way of knowing he wasn’t welcome.

But they fucked up, badly, in what would otherwise be an important argument to make. In his reply brief to his motion to dismiss his entire indictment (here’s the government’s response), Nordean made an argument that right wingers love to make, that the Kavanaugh protests were just like the insurrection, yet those protestors weren’t charged with the same felony charges that January 6 insurrectionists are being charged with.

About two years before the January 6 events, in October 2018, Congress held confirmation hearings for now Justice Kavanaugh. Of course, confirmation hearings are not ceremonial functions like the Electoral College vote count but are rather inquiries held pursuant to Congress’s investigatory power. Subpoenas are issued, sworn testimony is given. See, e.g., United States v. Cisneros, 26 F. Supp. 2d 24, 38 (D.D.C. 1998). As on January 6, Vice President Mike Pence was present and presiding over the confirmation vote.4 Hundreds of protestors broke through Capitol Police barricades.5 They burst through Capitol doors and “stormed” the Senate chamber. N.Y.Times, Oct. 6, 2018. There, they disrupted and delayed the Senate proceedings by screaming and lunging toward the Vice President and other people. As a report described the day, Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?” N.Y. Times, Oct. 6, 2018. Here are some of the images of protestors who broke through Capitol Police barricades and entered Congress that day, about 26 months before January 6:

Roll Call, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

NBC News, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

Though they intentionally delayed the congressional proceedings, these protestors, numbering in the hundreds, were not charged with “obstruction of Congress” under § 1512(c)(2). Certainly, if the lack of case law supporting the government’s interpretation of “official proceeding,” the absence of any legislative history pointing towards that interpretation, and the DOJ’s own internal inconsistent position do nothing to provide “fair notice” to an “ordinary person” that such political protests constitute “obstruction of official proceedings,” the fact that hundreds of protestors were charged with no offense at all for conduct for which the indictment here charges Nordean does not provide that notice either. Moreover, the naked charging disparity between the episodes—legally similar, according to the government here—also implicates the vagueness doctrine’s concern for arbitrary and discriminatory law enforcement enabled by vague, shifting standards that allow “prosecutors and courts to make it up,” particularly in the context of the rights of free speech, assembly and petitioning of the government. Dimaya, 138 S. Ct. at 1212 (Gorsuch, J., concurring); United States v. Davis, 139 S. Ct. 2319 (2019) (Gorsuch, J.) (residual clause of § 924(c) unconstitutionally vague); Johnson v. United States, 576 U.S. 591 (2015) (residual clause of Armed Career Criminal Act unconstitutionally vague).

4 Kavanaugh is sworn in after close confirmation vote in Senate, N.Y. Times, Oct. 6, 2018, available at: https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supremecourt.html.

5 See, e.g., Kavanaugh protestors ignore Capitol barricades ahead of Saturday vote, Roll Call, Oct. 6, 2018, available at: https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore[-]capitol-barricades-ahead-of-saturday-vote/.

[my italics]

Nordean is conflating two different things in an attempt to draw this parallel. There were the protestors who were in the actual hearing room, who briefly yelled and then were removed. And then there were protestors who broke through a barricade at the Capitol (there were also protestors who broke through a police line at the Supreme Court and knocked on the door). The “hundreds” of protestors Nodean mentions were watching from below and then were on the steps.

Protesters broke through Capitol Police barricades and rushed up the steps to the Capitol Rotunda Saturday afternoon amid large demonstrations ahead of a Senate vote on Supreme Court nominee Brett Kavanaugh.

The metal barricades were erected Thursday to keep demonstrators on specific areas of the Capitol grounds.

[snip]

As each batch of arrestees walked down the stairs, the cheers rose from the hundreds assembled below on the east front stretching out to the street.

In an effort to conflate the two, Nordean invented things that weren’t in the NYT story he claimed to rely on, both that the people inside the hearing had “stormed” the Senate chamber and that those protestors were “lunging” at the Vice President.

As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

[snip]

Republicans are now painting Democrats and their activist allies as angry mobs. Senator John Cornyn, Republican of Texas, delivered a speech on Saturday assailing what he called “mob rule,” while the majority leader, Senator Mitch McConnell of Kentucky, told reporters that “the virtual mob that has assaulted all of us in this process has turned our base on fire.”

The bitter nomination fight, coming in the midst of the #MeToo movement, also unfolded at the volatile intersection of gender and politics. It energized survivors of sexual assault, hundreds of whom have descended on Capitol Hill to confront Republican senators in recent weeks.

[snip]

Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?”

The government makes some of these points in their surreply, notably pointing out that the protestors who actually interrupted the hearings were all legally present in the public gallery, and had all gone through security to get there.

Defendant’s attempts to manufacture a parallel between the criminal activity during confirmation hearings for Justice Kavanaugh and the events of January 6 should remain on the Internet—they do not fare well when included in a legal brief. Among the distortions of fact and law in his brief, Defendant claims that on October 6, 2018, protestors “burst through Capitol doors and ‘stormed’ the Senate chamber” during confirmation hearings for Justice Kavanaugh. That is not accurate.2 The confirmation hearings were public, and the gallery of the Senate Chamber was open to the public on the day of the vote to confirm Justice Kavanaugh. See C-SPAN, Final Confirmation Vote for Judge Brett Kavanaugh, Oct. 6, 2018 available at https://www.cspan.org/video/?452583-11/final-confirmation-vote-judge-brett-kavanaugh. Indeed, Vice President Pence twice reminded the “guests” in the Gallery that expressions of approval or disapproval were not permitted. Id. Protestors who demonstrated inside the Senate Chamber on October 6 did so after lawfully accessing the building and being subjected to security screening. 3 See, e.g., Public seating at Kavanaugh hearing cut in half, then restored again, PBS News Hour, Sept. 5, 2018, available at https://www.pbs.org/newshour/politics/public-seating-at-kavanaugh[-]hearing-cut-in-half. No serious parallel can be drawn between the two events.4

[snip]

3 Those entering the earlier confirmation hearings reportedly had to pass through multiple identification checks. Members of the public were required to “first wait in line outside the building to go through an initial screening” before being “escorted in small groups to a holding area outside the committee room itself.”

The government twice mocked Nordean for using the wrong pictures in his brief.

While Defendant can claim to have “images of protestors who broke through Capitol Police barricades and entered Congress” on October 6, 2018 (Id. at *14), the Court will immediately recognize that one of the images depicts protestors on the steps of the Supreme Court.

[snip]

2 In his Reply, Defendant included two pictures of protestors who had “stormed” the Capitol. The pictures alone underscore the frivolous nature of Defendant’s argument. But there is another problem—the protestors in the second photograph were on the steps of the Supreme Court.

It would be a great gotcha if it were true.

It’s not. While there were protestors that day at the Supreme Court, and while the story Nordean mistitles and doesn’t include a URL for does describe protestors storming past a police line on the Supreme Court stairs, the picture Nordean used was, indeed, from the Capitol steps.

Here’s what the view of those same steps looked like after mobsters occupied them on January 6 (from the NYT documentary on it); by this point several windows were already broken:

I can think of no instance where rioters who only occupied those East steps were even arrested (there were several people who occupied the more violent West Terrace who were arrested, most commonly in association with a conspiracy or assault charge), suggesting the equivalent January 6 “protestors” were in fact treated more leniently than the protestors — some of whom were arrested — from the Kavanaugh protests. For example, Proud Boy Ricky Willden may never have entered the building from the East stairs, but he is accused of spraying cops with some toxin.

Here’s what the protest at the Supreme Court looked like (again, from the same NBC article), with the caption that makes this incidence of “storming” seem quaint by comparison:

It’s an unbelievably embarrassing error to make — to accuse Nordean of an error when in fact the government was in error, especially while suggesting that Judge Kelly would immediately recognize the Supreme Court. All the more so given that Joe Biggs’ re-entry through the East door is charged in this indictment. Getting this wrong is a testament that the government didn’t spend as much thought responding to Nordean’s comparison as they need to, not just to rebut his argument, but to reflect seriously on what the line between the civil disobedience of the Kavanaugh hearings and the terrorist attack of January 6 is such that the former resulted in over a hundred misdemeanor arrests onsite whereas the latter resulted in delayed arrests and felony charges.

There are clear differences, differences that go beyond the fact that the entire Capitol was shut down on January 6 whereas (as the government notes) protestors were legally present when they interrupted the Kavanaugh hearing. There’s no evidence any of the Kavanaugh protestors were armed, whether with baseball bats or bear spray or guns. There were no reports that protestors assaulted police, much less continued to march past them after causing injuries that required hospitalization. Contrary to Nordean’s invention, protestors did not lunge at Pence, and certainly didn’t threaten to assassinate him. In general, protestors were more compliant upon arrest than January 6 rioters (which is one of many reasons why the police succeeded in arresting them, whereas several charged January 6 defendants escaped or were forced to be released by other rioters). While protestors definitely criticized Kavanaugh’s alleged actions (and his own screaming), I’m not aware of any who threatened to injure much less assassinate him onsite. The threats against Senators — most notably, Susan Collins — were electoral, not physical.

This surreply brief provided the government an opportunity to make that case, make it soberly, and make it in such a way to respond to legitimate questions that right wingers who aren’t aware of these real differences might raise. The surreply also provided the government an opportunity to explain why Neil Gorsuch won’t find this to be a charging disparity when he eventually reviews this challenge — because he almost certainly will, which is obviously why Nordean put that nod to Gorsuch right there in his brief. How do you screw something like that up???

But the government didn’t do that. Instead, in rebutting Nordean, the government tried to dick-wag. And failed, badly.

I’m tired of some of Ethan Nordean’s bullshit arguments myself. But the legal question about what makes the insurrection bad enough to treat its masterminds as terrorists is a very serious one, one that needs to be treated with more care than the government did here.

Update: I’ve updated the comparison image for the East stairs and added the observation that few if any January 6 protestors who only climbed the East stairs were charged.

Update: emptywheel gets results.

The United States files this notice of correction along with the refiling of its Surreply to Defendant Nordean’s Motion to Dismiss. In its original filing, the United States asserted that Defendant Nordean had misidentified a photograph of the protests on October 6, 2018. Such assertion was incorrect and has been removed from page 1 and footnote 2 of the corrected filing.

Election Day Countdown: 6 Days

Six days. Less than a week to Election Day.

If you haven’t yet voted and were planning on voting early/absentee, please make a plan which doesn’t rely on U.S. Mail especially if you live in a large city. There are too many reports of First Class mail taking longer than five days to arrive.

Judge Emmett Sullivan — same judge handling the Flynn case — seems a bit tetchy about the U.S. Postal Service handling of ballots:


Worth your time to read the highly-detailed order linked in the Politico article, particularly this bit about the U.S. Mail:

FURTHER ORDERED that by no later than 9:00 AM on October 29, 2020, Defendants shall distribute, in the same form and to the same individuals who were previously advised about the need to “ensure that completed ballots reach the appropriate election official by the state’s designated deadline,” a list of state-specific statutory ballot receipt deadlines, so that the USPS managers and employees can implement the Election Mail guidance that Defendants have recently issued. The parties shall confer and agree and substance of the list. …

You can bet there’s squealing and scrambling going on right now even as I type this at 4:00 a.m.

Will these suits against the USPS be the first cases the new Barrett-added SCOTUS hears if current Postmaster Louis DeJoy refuses to comply and contests Sullivan’s directive?

~ ~ ~

There’s another problem with the SCOTUS already, though this is the pre-Barrett/post-RBG version. Seems Justice Kavanaugh has demonstrated what a hack he is making absurd errors in an opinion on voter suppression:

One of his errors goes right to the problem with the U.S. Mail:

Mistake No. 5: No one thinks they can return their ballot by Election Day if they request it by Oct. 29.

Kavanaugh wrote: “No one thinks that voters who request absentee ballots as late as October 29 can both receive the ballots and mail them back in time to be received by election day.” He cites no support for this assumption, probably because it’s wrong. Many states explicitly allow voters to request absentee ballots even closer to Election Day and instruct them to mail their ballots back. A large number of voters do wait until the last minute to ask for a ballot, which is why a strict deadline disenfranchises so many people. In August, the Postal Service encouraged 46 states to change their deadlines, warning them that ballots requested and returned in accordance with state law might not make it back in time. The Postal Service would not have sent out this warning if “no one” thought the states’ existing deadlines were unrealistic. …

I know there’s been a lot of talk about rejiggering the formulation of the SCOTUS including expansion of the number of justices to ensure improved representation reflecting a center-left country.

But I think we need to have a chat about reformulation including corrections of the existing justices. This opinion by Kavanaugh is so shoddy Congress should consider impeaching and removing him under a Biden presidency. Because it’s ridiculous that Chief Justice John Roberts let this out of his court, Roberts needs to feel a little sting for this as well.

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Trump’s super spreader campaign rally in Omaha, Nebraska was a disaster Tuesday night. A number of elderly attendees had to be taken by ambulance for treatment of hypothermia due to temperatures in the 20s and the distance from the rally site to the parking lot.

It’s bad enough Trump is making campaign stops in places which Trump won by double digits in 2016 — 25 points, to be more specific. But to do so at physical risk to voters who may not yet have cast a vote?

Utterly stupid.

The capper: the campaign is desperate not only for votes but money.

That’s one way to clean up that $421 million dollars of personal debt.

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If you’ve already voted, thank you. Please help get other voters to the polls and make this election a massive blue tsunami — a wave so big they can’t steal this election.