Posts

Brandon Straka’s Cell

I first published this post on the revelations about Brandon Straka’s misdemeanor plea on August 5 at 2:10PM ET.

I posted it about 29 hours after Judge Dabney Friedrich ordered the Probation Office to provide a report by September 30 about Straka’s compliance with probation; during a status hearing a day earlier, Friedrich admonished Straka about saying things publicly that conflicted with what he had said to the FBI in interviews and said to her at his plea colloquy.

I posted it about 28 hours after FBI Director Christopher Wray responded to one of the only questions raised in an SJC oversight hearing about January 6 that, “And then, of course, I have to be a little bit careful about what I say here but we are continuing to develop some of the more complicated parts of the investigation in terms of conspiracy charges and that sort of thing.”

I posted it minutes before a CPAC panel (sponsored, in part, by a Viktor Orbán-tied NGO) featuring Andy Biggs, Straka, and Kash Patel warning that  “Soros prosecutors” were instituting a “Democrat Gulag.”

Straka spent most of the rest of that day, Friday — the day after the judge overseeing his probation ordered more scrutiny into the sincerity of claims he made under oath and to the FBI — in a cage, performing the role of a jailed January 6 defendant counting the days until his release, crying.

Some spectators wept. Some threw money into the cage. Others came up close to mutter words of comfort and support to the emotionally distraught man inside, who was alternating sitting on a bare cot with his head in his hands, and writing sad slogans on a blackboard like “Where is Everyone?” Among those in the audience was Zuny Duarte, mother of Enrique Tarrio, the jailed ex-chairman of the Proud Boys facing seditious conspiracy charges for his role in the Capitol. One man, wearing a T-shirt saying “Correctional Officers for Trump 2020” pointed at his chest, making sure the “jailed” activist saw, and said “”I know how it works, man.”

During Thursday’s performance in the J6 cage, the man in the prison had been an actor. But on Friday, the man was none other than Brandon Straka, a self-proclaimed former liberal who founded #WalkAway, a social media campaign encouraging Democrats to ditch their party for the GOP. Straka was a vocal Stop the Steal proponent and activist, and landed in hot water with the feds when he filmed himself from the steps of the Capitol building on Jan. 6.

All of which makes me really glad that, in that post, I reiterated all the concerns I’ve raised in the past about Straka’s treatment, including that the deal given to Straka would backfire.

Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

[snip]

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

Even in December, there was good reason to question whether DOJ had made a decent deal when it traded information about Stop the Steal organizers in exchange for a misdemeanor plea, rather than building their case, including Straka in a conspiracy to obstruct the vote certification, and then flipping him.

Now, with Straka openly mocking the entire DOJ investigation, there should be real questions at DOJ whether Straka is replaying the Mike Flynn or Jerome Corsi play, reneging on purported cooperation to sabotage the investigation into Trump and his associates.

As a reminder, in Corsi’s case, in an initial interview with Mueller’s prosecutors, they caught him making claims that conflicted with communications records DOJ already obtained. Then, they got him to admit to a grand jury that Stone had asked him to establish a cover story for his “Podesta time in a barrel” tweet in real time, just days after Stone tweeted it. But then — at a time when, Corsi claimed, he was in communication with Trump’s attorney Jay Sekulow, Corsi went on his podcast and amid a dramatic meltdown not dissimilar from the drama we’ve seen from Straka, revealed that prosecutors were trying to force him into a cooperation plea deal with the government. After that point, his interviews with Mueller were a conflicting mishmash that, whatever else they were, made his prior testimony largely useless in any prosecution. It’s likely that an investigation against him was among those referred by Mueller. But he’s also such a batshit crazy person, it’d be hard to hold him accountable for deliberately blowing up interviews with the government.

In Mike Flynn’s case, his competent Covington lawyers negotiated a ridiculously lenient plea deal (in my opinion, one of Mueller’s three greatest mistakes), one that would have gotten the retired General no jail time. During the period he was supposed to be cooperating, he remained in touch with SJC staffer Barbara Ledeen and her husband Michael and Nunes aide Derek Harvey, all of whom kept him apprised of Sara Carter-backed propaganda efforts and Republican Congressional efforts to discredit the investigation. In 2018, Flynn even sent Matt Gaetz a text pushing for more pressure on Mueller. Then, once Bill Barr was confirmed, Flynn fired his competent lawyers and replaced them with Sidney Powell, who with Barr’s collusion, invented a slew of reasons that undermined the investigation against Flynn (in the process, protecting Trump from any Flynn-related obstruction charges). The outcome for Flynn was probably worse. But in the process, Flynn convinced a lot of people who only too late came to understand that both he and Sidney Powell are completely unhinged when they claim that the investigation against him was not a sweetheart deal, but instead a gross abuse of prosecutorial authority.

In both cases, Trump associates or movement operatives identified a cooperating witness and instead turned them into a chaos agent undermining an ongoing investigation. Here, Straka is appearing on a panel with suspected participants in the coup attempt, Andy Biggs and Kash Patel, and cozying up with someone who called for “Marshall Law,” all at a time when DOJ seems to be working on charges arising out of his so-called cooperation.

Given Straka’s recent trajectory, two details of his case from after the time his limited cooperation was made public are noteworthy. First, while Stuart Dornan, a former FBI Agent located (like Straka) in Nebraska remains on Straka’s team, in January, Straka added Bilal Essayli to his legal team, who appears to have taken the lead since, with it striking a far more confrontational tone.

Additionally, Straka’s team specifically — and successfully — objected to the Probation Office’s recommendation that Straka’s social media be monitored.

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

Thus, while Dabney Friedrich ordered the Probation Office to conduct a review of what Straka has been up to while he has been engaging in deceitful performance art attacking the case, when she sentenced Straka, she specifically declined to include review of Straka’s social media. Straka has spent the last six months making a mockery of what he said to Friedrich back in January, most often on social media.

Mike Flynn, especially, has become a movement hero for tanking his own case to create havoc for any case against Trump. And Straka seems intent on pursuing just that kind of notoriety.

And it’s not clear what tools DOJ has retained to prevent that from happening.

The Accidental Exposure of DOJ’s Misdemeanor Plea Deals

I’ve written a fair amount about the way DOJ is using misdemeanor cooperation deals with the January 6 defendants. The vast majority of misdemeanor plea deals, most often for parading, require the defendant to share their social media and sit down for an interview with the FBI. To the extent such interviews get described in sentencing documents, some result in the defendant lying more (DOJ has yet to charge anyone for doing so), some seem to provide the FBI a deeper sense of the organizing networks that contributed to convincing people to travel to DC and participate in a riot, and some seem to provide insight about what transpired in offices or other locations that weren’t well-surveilled. Every defendant was also a firsthand witness, and so some of these interviews appear to have been really important for a larger understanding of the event.

There’s another kind of misdemeanor plea offered to key defendants who could be charged with a felony (usually obstruction or civil disorder), but who instead get charged with one of the misdemeanor charges, often after a long delay. The understanding is that such defendants offer some cooperation on the front end, effectively working their way into a misdemeanor plea. There are two people who we can say, with high confidence, have received one: Brandon Straka and Anthime “Baked Alaska” Gionet. Some Proud Boys appear to have either received one or be working on them, with Zach Rehl co-traveler Jeff Finley the most prominent. I’ve got suspicions that maybe ten other defendants got such pleas. But beyond that, it is virtually impossible to distinguish someone who benefitted from really good lawyering from someone who got such a plea.

I’m sure the government loves that part of such plea deals: it accords their investigation extra secrecy and may provide cooperation sooner rather than later.

However, particularly given that there are just a handful of people tracking the cases who have a sense of the relative importance of some of these defendants, such plea deals likely add to the distrust of DOJ’s investigation. To those who know about important movement operatives getting misdemeanors, it looks like conspirators in a larger plot aren’t getting charged; to those who have no clue that movement operatives were arrested for their role in the attack, it feeds the mistaken belief that DOJ isn’t investigating anyone but trespassers. Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

That’s why I’m interested in what transpired with Brandon Straka’s cooperation in recent weeks.

Straka, as I’ve covered in the past, was a key player in the Stop the Steal movement, most famously in his role riling up the crowd outside the Wayne County vote count in Michigan. He was a speaker at one the January 5 events, got stripped of his January 6 speaking spot as Katrina Pierson tried to cut out the crazies, and then watched Trump’s speech from his VIP seat right next to Mike Flynn. Straka stopped off at the Willard Hotel on his way to what he claims to have believed was another speaking slot on the East side of the Capitol, where he joined in the mob. He was originally charged with civil disorder for his role in encouraging others to steal a shield. But by the time he was first formally charged in September, he was charged just with the less serious parading count. His plea agreement — the standard misdemeanor one — lacked the standard cooperation paragraph (which has at times reflected such an interview already took place), though that in no way confirmed that his was a cooperation misdemeanor. It wasn’t until December, with a joint motion to continue the sentencing citing new information provided by Straka, that it was clear something more was going on.

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 PreSentence Report.

That was the first mistake; a recently unsealed filing revealed a belated request to put the filing under seal. After Judge Dabney Friedrich denied that request, the government tried again, citing contacts Straka had gotten in response to reports of his cooperation and concerns about his safety.

The government respectfully requests sealing because the motion to continue referenced the fact that the government was requesting a continuance of the sentence to evaluate newly discovered information provided by the defendant. Since the filing of the joint motion to continue, the defendant has been contacted by individuals who believe that he is cooperating with the government. Additionally, media outlets have also reported that the defendant is indeed cooperating with the government. The government has attached exhibits that have been provided to the government by defense counsel.

The United States respectfully submits that filing this pleading under seal is necessary because it references sensitive information related to sentencing. The request for sealing is based on the government’s desire to maintain the integrity of this investigation and protect the safety of the defendant.

The court filings associated with the delayed sentencing, in January, similarly requested sealing. The government’s public sentencing memo described three cooperative interviews — with the initial ones on February 17 and March 25, 2021 — and cited a sealed cooperation memo.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6.

After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka folloup questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

On July 26, the press coalition that does these things moved to have Straka’s sentencing records unsealed. That day, Judge Friedrich issued an order to unseal the motions to seal, but (we subsequently learned) an error in the clerk’s office led Straka’s memo supporting substantial cooperation to be filed briefly in unsealed form.

At first, Judge Friedrich set a hearing to further unseal the docket, but what must be further sealed filings informed her the parties need to further delay any unsealing — the kind of thing that reflects ongoing cooperation or upcoming charges. At a hearing on Wednesday, Judge Friedrich (having already ceded to the request to delay further discussions of unsealing) worked out that the Straka filing had been released accidentally, then she basically blamed all parties — the government, Straka, herself, the clerks — for not taking better care of sensitive records describing cooperation.

She did, however, read Straka the riot act for comments he continues to make publicly that directly conflict with his comments to her at sentencing; she ordered semiannual reports from the Probation office on whether Straka continues to say things that might merit a False Statements charge.

In short, even a judge who presided over one of the most obvious of these pleas was pretty oblivious to the difference between the normal misdemeanor cooperation and this “substantial cooperation” one. And all the people complaining that DOJ wasn’t investigating organizers — they would know, the TV lawyers said — had absolutely no idea that FBI was getting information on key organizers with advance knowledge of Trump’s plans within weeks of the riot.

The one person who caught and wrote about the accidentally unsealed cooperation memo, Jordan Fischer, described what it said here (wayback version for those behind the GDPR wall).

In the memo, Dornan said Straka provided “significant information” to federal investigators over three interviews with the FBI following his arrest. In one interview on March 5, 2021, Straka, according to Dornan, provided information about “individuals who were inside of Nancy Pelosi’s office; individuals who were inciters at the Capitol; and organizers of the Stop the Steal movement.” He also listed the names of individuals Straka spoke to the FBI about. Those names include rally organizers Amy and Kylie Kremer, Cindy Chafian and Ali Alexander — who Dornan described as the “preeminent leader of the Stop the Steal movement.”

[snip]

Straka also gave contact information and other details about members of a “Stop the Steal” text thread that included, according to Dornan’s memo, Alexander and other right-wing personalities with large social media followings. As well, Dornan said, Straka provided unspecified information about Tea Party Patriots co-founder Jenny Beth Martin and anti-vax Dr. Simone Gold, who are both affiliated with America’s Frontline Doctors. Gold, like Straka, was charged in connection with the riot and pleaded guilty to a misdemeanor count of entering and remaining in a restricted building. She was sentenced in June to 60 days in jail and a $9,500 fine. Martin posted a picture of herself on social media in the audience of the “Save America March” on Jan. 6 and public video shows her using a megaphone on the west lawn of the Capitol later in the day urging protestors not to climb on scaffolding. She has not been charged in connection with the riot.

As Fischer noted, the Kremers, Alexander, and Chafian were the key organizers for the parts of the rally that fostered violence; the January 6 Committee has quoted especially the Kremers for their foreknowledge of Trump’s plans to march to the Capitol.

In short, Straka’s attorneys at least claimed that he offered details — in March 2021 — about precisely the Stop the Steal and rally organizers and other influencers whom virtually all TV commentators claim DOJ hadn’t been investigating.

While we know that Baked Alaska got one of these deals because he blathered his mouth, from the outside, these deals are presumably supposed to look like just another trespasser plea.

One more comment about this: Perhaps a quarter of the overt cooperating plea deals came with witness protection language. The concerns about Straka’s safety are not hypothetical. The riot was created by people who already had threatened violence, including the militias Roger Stone cooperated with and QAnoners like the Mike Flynn fan who threatened DC judges presiding over earlier Trump-related cases.

Consider, Randy Credico’s first contact with the FBI in 2018, before he was interviewed by agents, was a Duty to Warn contact because they had learned the militias associated with Roger Stone — the same ones that have both been charged with seditious conspiracy in relation to January 6 — were discussing action against him.

Here, someone closely networked into the same crowd like Straka threatened to expose the literal overlap between those militias and some of the most powerful people in the country.

I’m still not sure whether Straka is a liar who provided limited cooperation to avoid prison time or whether his information was as useful as the government claimed at sentencing.

What I am sure is that my assertions that such misdemeanor plea deals exist has been confirmed, even if the government has learned how costly sealing mistakes can be for the secrecy of such cooperation.

Update: As Sandwichman suggests, there are reports that Straka is doing a performance of being a Jan6er in jail. This feels a lot like Jerome Corsi’s apparently successful efforts during the Mueller investigation to make his testimony useless.

In Upholding His Decision to Rule “Otherwise” Than His Colleagues on Obstruction, Judge Nichols Worries [about] “Corruptly”

While I was buried in the Michael Sussmann trial last Friday, former Clarence Thomas clerk Carl Nichols, issued a ruling denying the government’s request that he reconsider his earlier outlier ruling against DOJ’s application of 18 USC 1512(c)(2) to January 6.

Having only addressed one of his colleagues’ opinions in his initial order, in this one, Judge Nichols dismisses the unanimity of his colleagues in this go-around by pointing to the differences in their arguments.

1 The Court notes that those decisions reach the same conclusion but for different reasons. For example, some opinions do not consider the relevance of the word “otherwise” in the statute at all, see United States v. McHugh, (“McHugh I”), 2022 WL 296304, at *12 (D.D.C. Feb. 1, 2022) (omitting “otherwise” even from its quotation of the statute); others mention the word but essentially omit any serious discussion of it, see United States v. Nordean, 2021 WL 6134595, at *6-7 (D.D.C. Dec. 28, 2021); and others suggest that it presents the key interpretive question, United States v. McHugh, (“McHugh II”), 2022 WL 1302880, at *4 (D.D.C. May 2, 2022) (concluding “the meaning of ‘otherwise’ is central to the meaning of § 1512(c)(2)”). Other decisions appear to have concluded that § 1512(c)(1) acts as something of a carveout from § 1512(c)(2)’s otherwise broad terms, see United States v. Reffit, 2022 WL 1404247, at *8 (D.D.C. May 4, 2022), see also United States v. Sandlin, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021); United States v. Caldwell, 2021 WL 6062718, at *12 (D.D.C. Dec. 20, 2021), reconsideration denied, 2022 WL 203456 (D.D.C. Jan. 24, 2022); United States v. Mostofsky, 2021 WL 6049891, at *11 (D.D.C. Dec. 21, 2021); United States v. Bingert, 2022 WL 1659163, at *8–*9 (D.D.C. May 25, 2022), while others interpret “otherwise” to require a link between the subsections that is provided through the requirement that the illegal conduct be targeted at an “official proceeding,” see United States v. Montgomery, 2021 WL 6134591, at *12 (D.D.C. Dec. 28, 2021); United States v. Grider, 2022 WL 392307, at *5–6 (D.D.C. Feb. 9, 2022).

This is … just weird, though it may be intended to help someone like fellow Clarence Thomas alum DC Circuit judge Neomi Rao uphold his own opinion. The reason these opinions differ is because the defendants didn’t argue the same points — and just two of the opinions he cites address his own opinion.

Particularly given that, last year, Nichols explicitly asked whether this application of 1512 might apply to the former President — and the abundant evidence that Ginni Thomas might have exposure for obstructing democracy as well — I’m most interested in the long footnote in which Nichols complains that there are many ways one might obstruct the vote certification.

3 Other Judges in the District have concluded that the word “corruptly” limits the scope of § 1512(c)(2). See, e.g., Sandlin, 2021 WL 5865006, at *13; Final Jury Instructions, United States v. Reffitt, No. 21-cr-32, ECF No. 119, at 25 (“To act ‘corruptly,’ the defendant must use unlawful means or act with an unlawful purpose, or both.”); Montgomery, 2021 WL 6134591, at *21 (“The predominant view among the courts of appeals is that the ‘corruptly’ standard requires at least an ‘improper purpose’ and an ‘intent to obstruct.’ ”). But this limitation goes to the mens rea required by the statute; it does not limit the types of conduct that are made criminal. But see 18 U.S.C. § 1515(b) (defining “corruptly” in § 1505 as “acting with an improper purpose” but specifically “including” only acts with an evidentiary nexus); United States v. Poindexter, 951 F.2d 369, 385 (D.C. Cir. 1991) (interpreting “corruptly” in a transitive sense, requiring acts directed towards others). And much like the different opinions on the scope of the statute, see supra note 1, while all Judges to have considered the issue have concluded that the statute’s use of the term “corruptly” does not render it unconstitutionally vague, those decisions have not landed on a consistent approach. For example, some have suggested that “corruptly” means acting “voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with hope or expectation of . . . [a] benefit to oneself or a benefit to another person,” Montgomery, 2021 WL 6134591 at *22 n.5 (quoting Aguilar, 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part)), while others have suggested it means, at least, acting with “consciousness of wrongdoing.” Bingert, 2022 WL 1659163, at *6 (quoting Arthur Anderson LLP v. United States, 544 U.S. 696, 706 (2005)). In any event, the government has not argued that “corruptly” meaningfully clarifies or limits the conduct charged in the Indictment here. Although the Court does not now interpret “corruptly” as used in § 1512(c), the Court concludes that the common meanings of “corruptly” are sufficiently capacious so as not to limit or clarify the actus reus charged in the Indictment.

Nichols is not wrong to lay out these distinctions. I’ve done so myself! But there’s no reason to believe that the most circumscribed of the opinions — Dabney Friedrich’s holding that applied just to conduct that included otherwise illegal activities — couldn’t provide a common baseline for all the decisions.

Plus, his citation to Poindexter, which has been addressed legislatively in any case, seems to concede his point.

The opinion feels strained and may not sustain review as a dismissal at the motion to dismiss stage.

But along the way Nichols is saying quite a bit about corruption.


Other 1512 opinions

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 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, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 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

DOJ’s Reply Motion for Carl Nichols’ Reconsideration on 1512: Other Judge Other Judges Other Judges

I’ve written two posts on former Clarence Thomas clerk Carl Nichols’ outlier ruling rejecting DOJ’s use of 18 USC 1512(c)(2) to January 6. (one, two)

Yesterday, they submitted their reply motion. It reads like this:

Reconsideration of the substantive ruling in Miller is appropriate because that ruling is inconsistent with decisions from every other judge on this Court to have considered the issue. That inconsistency means proving a violation of Section 1512(c)(2) requires additional facts in this case (and other Section 1512(c)(2) cases in front of this Court) but not in any case before any of the other judges of this Court. Moreover, with one exception, the Court’s ruling in Miller did not address the opinions from other judges of this Court, some of whom have explicitly disagreed with this Court after Miller issued.

[snip]

As noted in the government’s reconsideration motion, every other judge of this Court to consider this issue has concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” United States v. Sandlin, No. 21-cr-88, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021) (Friedrich, J.); see ECF 75 at 5-6 (citing cases). At the time the reconsideration motion was filed, one judge had disagreed with Miller in a footnote, United States v. Puma, 21-cr-454, 2022 WL 823079, at *12 n.4 (D.D.C. Mar. 19, 2022) (Friedman, J.), and another judge indicated her disagreement with Miller orally when delivering a “brief ruling” denying a defendant’s post-trial motion for judgment of acquittal, see United States v. Reffitt, 21-cr-32, Trial Tr. 1498, 1502-05 (Mar. 8, 2022) (Friedrich, J.) (attached as Exhibit A to the reconsideration motion). Since the reconsideration motion was filed, judges have continued to reject Miller’s reasoning. See, e.g., United States v. Hughes, No. 21-cr-106, Minute Order denying motion to dismiss count charging Section 1512 (D.D.C. May 9, 2022) (Kelly, J.) (rejecting the “narrow reading” of Section 1512(c)(2) and agreeing with an opinion that “directly responded to and rejected the logic employed in Miller”); United States v. Hale-Cusanelli, No. 21-cr-37, Transcript of motion to dismiss hearing at 4-8 (D.D.C. May 6, 2022) (McFadden, J.)(attached as Exhibit D);United States v. Reffitt, No. 21-cr-32, 2022 WL 1404247, at *7-*10 (D.D.C. May 4, 2022) (Friedrich, J.); United States v. McHugh, No. 21-cr-453, 2022 WL 1302880, at *2-*13 (D.D.C. May 2, 2022) (Bates, J). Although none of those rulings represents “controlling law,” McAllister v. District of Columbia, 53 F. Supp. 3d 55, 59 (D.D.C. 2014) (internal quotation marks omitted), it is surely “significant” that this Court stands as the sole outlier among all the judges on this Court to have ruled on the issue both before and after Miller issued.

Two related factors militate in favor of reconsideration of the Court’s substantive conclusion about the scope of Section 1512(c)(2). First, the Court in Miller addressed only one of the contrary opinions from judges on this Court. See Mem. Op. 16, 18 n.8, 22, 26 (citing United States v. Montgomery, No. 21-cr-46, 2021 WL 6134591(D.D.C. Dec. 28, 2021)). Reconsideration would permit the Court the opportunity to consider in full the “persuasive authority” issued by other judges of this Court. See United States v. Drummond, 98 F. Supp. 2d 44, 50 n.5 (D.D.C. 2000) (noting that within-Circuit district court cases are not binding but “[o]f course” are “persuasive authority”). Second, reconsideration resulting in an interpretation consistent with other judges of this Court would ensure that all defendants charged under Section 1512(c)(2) are treated alike until the court of appeals has an opportunity on post-conviction review to consider the merits of their challenges to the statute’s scope.

[snip]

Second, Miller argues (Opp. 10-18) that the government “misunderstands” (id. at 10) this Court’s textual analysis of Section 1512(c)(2). But the issue is not one of misapprehension; rather, the government (and every other judge on this Court to have considered the issue) understands but disagrees with the Court’s (and Miller’s) interpretation of Section 1512(c)(2)’s reach. [my emphasis]

It uses Garret Miller’s response to implicitly attack Carl Nichols and emphasize the degree to which even Nichols’ Trump appointed colleagues — first Dabney Friedrich, then Tim Kelly, and finally, the judge most likely to agree with Nichols, Trevor McFadden — have disagreed with Nichols’ thinking.

Guy Reffitt’s prosecution is now ripe for appeal, if he still plans on doing that. Or Nichols will choose to adhere to his outlier opinion.

Here’s the current tally on obstruction opinions, with McFadden added.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 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, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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


Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

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

 

Judge David Carter Confirms Trump Could Be Prosecuted for [A Lower Standard of] Obstruction

As you’ve no doubt heard, Judge David Carter issued an order releasing 91 documents from the days before and the day of the insurrection to the January 6 Committee. Chapman University professor John Eastman had attempted to withhold them from the 6 Committee under privilege claims. Judge Carter allowed Eastman to withhold just ten documents, most pertaining to then-ongoing lawsuits.

The headline finding from his opinion is that Judge Carter found it more likely than not that Trump committed the crime hundreds of other insurrectionists have been charged with — obstruction of an official proceeding — and Eastman and Trump (and others) entered into a conspiracy to do so.

On August 19, I laid out that if Trump were to be prosecuted, it would be for conspiring to obstruct the vote count. At the the time, TV lawyers ignored me, thinking they knew better. In December, after Liz Cheney argued that Trump had obstructed an official proceeding, those same TV lawyers started adopting the theory as if they had come up with it. Now a judge has agreed that it is likely that Trump did commit that crime that I laid out back in August.

Sometimes I hate to say I told the TV lawyers so. This is not one of those times.

Especially since, of the three kinds of overt acts that Carter cites to substantiate his decision, two — Trump’s pressure on Mike Pence and his mobilization of his mob to march on the Capitol — are Trump actions about which DOJ has been accumulating piles of evidence. In my opinion, by including the mobilization of the mob in his opinion, Carter showed a better understanding of Trump’s legal exposure than the Committee.

There are five elements Carter needed to establish to make his finding. First, to find Trump may have obstructed a vote count, Carter pointed to:

  • Proof the vote certification was an official proceeding
  • The actions Trump took to obstruct that official proceeding
  • Proof of Trump’s corrupt intent

Then, to show that Trump and Eastman (and others) entered into a conspiracy to obstruct the vote count, he pointed to:

  • An agreement to defraud the US
  • Eastman’s own dishonest actions

Carter didn’t spend much time on the official proceeding prong. Instead he relied on the ten existing DC rulings on the issue finding the vote certification was an official proceeding cited in the committee brief (there are now at least 13 opinions finding it to be an official proceeding, though Carter did not address the issue on which Judge Carl Nichols had differed from his colleagues, whether obstruction required destroying of documents).

Carter pointed to three kinds of acts that amounted to Trump’s effort to obstruct the election: two meetings before January 6 where they discussed pressuring Pence, several appeals on the morning of January 6 to Pence (including on Twitter), and “galvanizing the crowed to join him in enacting the plan,” by walking to the Capitol.

President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short.209 At that meeting, Dr. Eastman presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.210 When Vice President Pence was unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice President’s counsel on January 5.211 Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.212

On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan.213 At 1:00 am, President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”214 At 8:17 am, President Trump tweeted: “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”215 Shortly after, President Trump rang Vice President Pence and once again urged him “to make the call” and enact the plan.216 Just before the Joint Session of Congress began, President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.”217 President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

Together, these actions more likely than not constitute attempts to obstruct an official proceeding. [my emphasis]

It is public that DOJ has spent months focusing on the second (pressure on Pence) and third (mobilizing his mob) actions. Indeed, as I have shown, DOJ has laid out proof that many of the conspiracies had the specific goal of pressuring Pence.

To show that this met obstruction’s requirement of corrupt intent, Carter relied on a Ninth Circuit precedent that, for where he is in California, adopts a lower threshold for corrupt intent than the one adopted by the DC District judges so far.

The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

There is no such precedent in DC and, as I’ve argued, Judge Dabney Friedrich’s adopted standard is actually higher than this, finding corrupt intent in the commission of otherwise illegal actions. So Carter’s opinion, on top of meeting a lower standard than DOJ would need to charge, dodged two legal issues already before the DC District judges, whether obstruction required the destruction of evidence and whether it required otherwise illegal actions. It’s not clear that the actions that he lays out would, by themselves, meet Friedrich’s standard.

Carter pointed to two kinds of proof that Trump knew the plan to obstruct the vote count was wrong. He pointed to the 60 court losses as proof that their claims of voter fraud were false. He also pointed to Trump’s demand from Brad Raffensperger for exactly the number of votes he needed to win, which Carter presented as proof that Trump cared about winning, not voter fraud (As I have repeated over and over, this is one Trump action that is otherwise illegal).

President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

Carter then points to the two meetings (bolded above) as the moment when Eastman and Trump — and others — entered into a conspiracy to obstruct the vote count. Notably, this may put everyone else who was in that meeting on the hook for the conspiracy as well, members of an enormous conspiracy already charged against sixty people, including some seditionists.

He then pointed to Eastman’s awareness that his theories were bullshit and Pence’s repetitive insistence they were to find Eastman acted dishonestly.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.”232 The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.”233 In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.234

[snip]

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

So on top of getting some documents, this opinion lays out a framework that envisions Trump being charged for the same crimes that DOJ has been working towards charging him and others on for over a year.

In several ways, though (the standard of proof and two legal standards he adopted on obstruction), Carter has only found Trump may have obstructed the vote count at a much lower standard than DOJ would need.

The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

There’s a telling error in the January 6 Committee’s filing aiming to overcome John Eastman’s claims his emails are covered by Attorney-Client privilege. In the section asserting that Trump had probably violated 118 USC 1512(c)(2) — the same obstruction statute used to charge over 200 of the other January 6 defendants — the filing asserts that six judges “to date” have “refused to dismiss charges against defendants under the section.”

That number is incorrect. As of March 2, at least ten judges had upheld DOJ’s application of 18 USC 1512(c)(2), and a few more have as much as said they would.

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

When I first made this observation, I thought I was being a bit churlish in making it. But on reflection (and after reading the quotes from lawyers in this Charlie Savage article), I think it’s an important point. All the more so given how TV lawyers have claimed that, because the January 6 Committee has claimed Trump could be charged with obstruction, then damnit DOJ should already have done so.

The fact that the Jan 6 Committee isn’t even aware of all the obstruction rulings suggests they’ve been insufficiently attentive to what the rulings actually say, aside from the baseline holding of all of them that the vote certification was an official proceeding.

While ten judges have upheld the application, there are some differences between these opinions, particularly with regards to their formulation of the corrupt mens rea required by the statute. The most important differences from my review (but I’m not a constitutional lawyer and so I should not be the one doing this analysis!!!!!), are:

  • Whether “corrupt” intent requires otherwise illegal action
  • Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself)

Dabney Friedrich argued (and I laid out briefly here) — and has repeatedly warned in pretrial hearings for Guy Reffitt — that as she understand this application it must involve otherwise illegal actions. Amit Mehta ruled (as I wrote up here) that, at least for the Oath Keepers, this corruption may be just intransitive.

On both these issues, the Jan 6 Committee’s argument is a bit muddled. Here’s how they argue that Trump’s actions (and, less aggressively, Eastman’s) demonstrate that corrupt intent.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes — for any reason. Any such effort by the presiding officer would violate hte law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6. Plaintiff acknowledge that the Supreme Court would reject such an effort 9-0. And the Vice President made this crystal clear in writing on January 6: [1] any attempt by the Vice President to take the course of action the President insisted he take would have been illegal

Nevertheless, pursuant to the Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he universally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various states.

[snip]

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but [2] the President nevertheless sought to use the Vice President to manipulate the results in his favor.

[snip]

[T]he President and the Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. [3] Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result. [numbering and bold mine]

As I said, I think this is a bit of a muddle. For starters, the Jan 6 Committee is not arguing that the delay actually caused by Trump’s mob amounted to obstruction. Rather, they’re arguing (at [3]) that had Eastman’s efforts to get Pence to himself impose a delay would be obstruction.

They make that argument even though they have evidence to more closely align their argument to the fact pattern ten judges have already approved. The emails included with this filing show Pence Counsel Greg Jacob twice accusing Eastman of convincing Trump of a theory that Trump then shared with his followers, which in turn caused the riot.

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

That is, Jacob argued, in real time, that Eastman’s knowingly impossible theory, amplified by the President, caused the riot that ended up putting Pence’s life at risk and delaying the vote certification. But the Jan 6 Committee argues instead that the attempted persuasion of Pence the was the obstructive act.

Perhaps as a result, the agency (transitive versus intransitive) involved in this obstructive act is likewise muddled. In one place (at [1]), the Jan 6 Committee argues that the obstructive act was a failed attempt to persuade Pence to take an illegal action. I’m not sure any of the failed attempts to persuade people to do something illegal (to persuade Pence to do something he couldn’t do, to persuade members of Congress to challenge the vote with either good faith or cynical challenges, to persuade Jeffrey Clark to serve as Acting Attorney General) would sustain legal challenges.

If the Commander in Chief ordered his Vice President to take an illegal act, that would be a bit different, but that’s not what the Jan 6 Committee argues happened here.

Elsewhere, this filing (and other attempts to apply obstruction to Trump) point to Trump’s awareness (at [2]) that he lost the election, and so his attempts to win anyway exhibit an intransitive corrupt intent.

As Charlie Savage noted in his story and a thread on same, to some degree the Jan 6 Committee doesn’t need to do any better. They’re not indicting Trump, they’re just trying to get emails they will likely get via other means anyway (and as such, the inclusion of this argument is significantly PR).

But to the extent that this filing — and not, say, the opinion issued by Judge Mehta after he had approved obstruction, in which he both ruled it was plausible that Trump had conspired with two militias and, more importantly (and to me, at least, shockingly), said it was also plausible that Trump may be liable under an aid and abet standard — is being used as the model for applying obstruction to Trump, it is encouraging a lot of unicorn thinking and, more importantly, a lot of really sloppy thinking. There are so many ways to charge Trump with obstruction that don’t require an inquiry into his beliefs about losing the election, and those are the ones DOJ has laid a groundwork for.

Plus, there are a few more realities that TV lawyers who want to talk about obstruction should consider.

First, it is virtually guaranteed that Friedrich’s opinion — the one that holds that “corrupt” must involve otherwise illegal actions — will be the first one appealed. That’s because whatever happens with the Guy Reffitt trial this week and next, it’s likely it will be appealed. And Reffitt has been building in an appeal of Friedrich’s obstruction decision from the start. First trial, first appeal. So TV lawyers need to study up what she has said about otherwise illegal action and lay out some rebuttals if their theory of Trump’s liability involves mere persuasion.

Second, while ultimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

I’m convinced not just that Trump could be prosecuted for obstruction, but that DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.

Questions for Bill Barr about His Cover-Ups Pertaining to Ukraine and Russia, Starting with: Who Withdrew the Red Notice for Yevgeniy Prigozhin?

Billy Barr’s effort to launder his reputation with a book tour has started, kicked off with a supine WSJ review that includes just one “some said” clause treating as debatable the provably false claims he made in his book about intervening to eliminate all consequences for Trump’s top associates for lying to cover up their interactions with Russia during the 2016 election.

During much of Mr. Barr’s time in the Trump administration, some said he protected the president at the expense of the Justice Department’s independence, especially over his handling of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Mr. Barr issued his own summary of Mr. Mueller’s investigative report depicting the results in a way that Mr. Mueller and others described as misleading or overly favorable to Mr. Trump. He also worked in the ensuing months to undermine some of the prosecutions spawned by the Mueller investigation. An example was his decision to drop the criminal case against Michael Flynn, Mr. Trump’s former national security adviser.

Mr. Barr has said that he intervened to correct what he saw as overreach by the prosecutors and flaws in the department’s approach to those cases, a stance he maintains in his book.

Barr’s book tour happens at the same time, the Times reports, as 400 Wagner mercenaries sent by Putin to Kyiv are trying to hunt down the elected President of Ukraine.

More than 400 Russian mercenaries are operating in Kyiv with orders from the Kremlin to assassinate President Zelensky and his government and prepare the ground for Moscow to take control, The Times has learnt.

The Wagner Group, a private militia run by one of President Putin’s closest allies and operating as an arm-length branch of the state, flew in mercenaries from Africa five weeks ago on a mission to decapitate Zelensky’s government in return for a handsome financial bonus.

Information about their mission reached the Ukrainian government on Saturday morning and hours later Kyiv declared a 36-hour “hard” curfew to sweep the city for Russian saboteurs, warning civilians that they would be seen as Kremlin agents and risked being “liquidated” if they stepped outside.

This makes me wonder whether Viktor Medvedchuk — the guy Putin would like to install as a puppet — had help escaping from house arrest.

People’s deputy from the Opposition Platform – Pri Life party, Putin’s godfather Viktor Medvedchuk, escaped from arrest.

Source : information from the ZN.UA edition , obtained from the Office of the Prosecutor General, Advisor to the Minister of Internal Affairs Anton Gerashchenko

Details : According to sources, on February 26, the Prosecutor General’s Office instructed the National Police to check the presence of Medvedchuk at the address where he is under house arrest.

The National Police fulfilled the order: Medvedchuk was not at the scene.

The coincidence of Putin’s invasion with Barr’s attempt to launder his reputation led me to put together a partial list of questions Barr should be asked (hopefully by Lester Holt) as he attempts to pretend he didn’t pervert justice — in part — to protect Trump from his attempt to extort Ukraine. For example:

  • Why didn’t Barr recuse himself from the review of the whistleblower complaint against Trump given that Trump told Zelenskyy Barr would contact him during the Perfect Phone Call? (This post provides more details of how Barr’s DOJ mishandled that referral.)
  • Why did Barr only refer the transcript of the call, and not the entire whistleblower complaint, the latter of which would have led Public Integrity to see the tie between Trump’s call and Rudy’s successful effort to get Maria Yovanovich fired (for which Rudy remains under active investigation)?
  • Why did OLC, first, write a memo refusing to share the whistleblower complaint and, once they did, overclassify passages of the call to hide Barr’s own role?
  • Why did Barr personally warn Rupert Murdoch before Sean Hannity got on a plane to fly to Vienna as part of Rudy’s grift?
  • Why did Barr try to fire Geoffrey Berman at a time it was investigating Rudy Giuliani’s role in all this?
  • Why did Barr ask one of his most politicized US Attorneys, Scott Brady, to serve as an intake point for Russian disinformation from Andrii Derkach?
  • Why did Barr separate the investigation into Derkach from the one in which Rudy, who met with Derkach after he had been IDed as a Russian agent, was already under investigation?

Had Barr not intervened in all these ways, the US would have been better able to protect its own democracy from Trump (and Giuliani’s) attempt to corrupt Ukraine’s democracy. Instead, Ukraine is schooling America about what it takes to defend democracy.

But given the assassins hunting down Zelenskyy even as Barr attempts to launder his reputation, there’s perhaps a more urgent question. Why did Bill Barr’s DOJ let the Red Notice for Yevgeniy Prigozhin’s arrest drop in September 2020?

In March 2020, DOJ dismissed the case against two of Prigozhin’s companies that had interfered in the 2016 election, but not Prigozhin himself. As I wrote, the decision was not as suspect as some of Barr’s other interventions in Mueller prosecutions (though it happened at the same time). Because Prigozhin’s corporate persons, but not his biological person, showed up to contest the charges, the Prigozhin defense became substantially an effort to learn FBI’s sources and methods. A Dabney Friedrich decision on the protective order exacerbated that, and another required DOJ to start naming US persons affected. Dropping the case against two corporate persons was not, itself, suspect. DOJ did not drop the case against Prigozhin or his trolls.

Even though the charges against the biological person Prigozhin had not been dropped, in September 2020, Interpol removed Prigozhin from the list of those who could be arrested, citing the dismissal against his corporate persons. This allowed Prigozhin to make several trips to jurisdictions, including Germany, from which he could have been extradited.

It’s certainly possible Billy Barr had no role in this decision and that DOJ tried to point out that, in fact, the charges against Prigozhin remained (and still remain). But given that he gave a screed that seemed to attack the prosecution as a whole at the time, perhaps DOJ affirmatively let Prigozhin slide.

But as his book tour takes place against the backdrop of assassins hunting for Zelenskyy, it seems like a good time to ask him if he did intervene to let the owner of Putin’s paid killers travel free from any risk of direct legal consequences for his intervention in America’s own democracy.

The Half of Trump’s Conspiracy to Obstruct JustSecurity Left Out: Inciting an Insurrection

Two days after Judge Amit Mehta ruled that it was plausible that Trump conspired with the Oath Keepers and Proud Boys, JustSecurity has posted an imagined prosecutor’s memo laying out the case that Trump, John Eastman, and Rudy Giuliani (and others known and unknown) conspired to obstruct the vote count that almost entirely leaves out the militias.

It has gotten a lot of attention among the TV lawyer set, who imagine that it would save Merrick Garland time.

With this obnoxious tweet, Laurence Tribe betrays (yet again) that he has completely missed what DOJ has been doing for the past year. What Barb McQuade did is lay out the theory of prosecution that DOJ has long been working on — as I laid out in August. Except that McQuade (of whom I’m a great fan both personally and professionally) misses great swaths of public evidence, and in so doing, makes her case far weaker than it would need to be to prosecute a former President.

Start with McQuade’s argument substantiating that Trump corruptly tried to obstruct the vote count.

Here, attempting to prevent the certification of the votes for president is illegal only it is wrongful or for an improper purpose. It would be wrongful or improper for Trump to seek to retain the presidency if he knew that he had been defeated in the November election. His public statements suggest that he genuinely believed that he had won the election, but, as discussed above, by Jan. 6, it was apparent that there was a complete absence of any evidence whatsoever to support his belief, which at this point had become merely a wish. The statements from Krebs, Barr, Rosen, Donoghue, Ratcliffe, and Raffensperger, and the memo from his own campaign team all permit a fair inference that Trump knew that there was no election fraud, and that his efforts to obstruct the certification was therefore corrupt.

Independently, regardless of his knowledge or belief in election fraud, it was an improper purpose to hold into power after the 50 states had certified their election results, the Electoral College had voted, and litigation had been exhausted after an across-the-board rejection by the federal courts.

This is the theory of prosecution where an obstruction case against Trump would succeed or fail. And I’m not sure it meets the understanding of obstruction already laid out by the judges who would preside over the case.

Defendants have been challenging DOJ’s application of 18 USC 1512(c)(2) to the vote certification since at least April, and so there’s a great deal of background and seven written, one oral, and one minute opinions on the topic:

  1. Dabney Friedrich (my post on it and the obstruction application generally)
  2. Amit Mehta (my post on his intransitive application of it to the Oath Keepers)
  3. Tim Kelly (my post on its application to the Proud Boys)
  4. Randolph Moss (my post situating his application with his past OLC opinion on charging a President)
  5. John Bates
  6. James Boasberg
  7. My livetweet of Beryl Howell’s oral opinion
  8. Colleen Kollar-Kotelly
  9. Richard Leon by minute order
  10. Christopher Cooper

One of the central issues addressed in these — and something any prosecution of Trump under 18 USC 1512(c)(2) would need to address — is how you establish that the effort to obstruct the vote count is “corrupt.” While thus far all judges have upheld the application, there’s some differentiation in their understanding of corruption (something that a site like JustSecurity might productively lay out).

Two key issues are whether corruption, under 18 USC 1512(c)(2) must be transitive (meaning someone tried to coerce another to do something improper) or intransitive (meaning someone exhibited corruption with their own actions), and the extent to which corruption is proven by doing acts that are otherwise illegal.

Importantly, Judge Friedrich’s opinion, and so the first jury instructions, only extends to illegal actions. In a recent hearing, she warned the Guy Reffitt prosecutors (both of whom also happen to be prosecuting cases charged as a conspiracy) that they will not prove him guilty of obstruction without first proving him guilty of other crimes at the riot.

Trump acted both transitively and intransitively corruptly

McQuade’s formulation is unnecessarily weak on the transitive/intransitive issue. There are at least two things that are missing.

First, citing some tax precedents, defendants wanted the application of obstruction to apply only to those who were obtaining an unfair personal advantage. That’s not the standard adopted in the opinions thus far, but it is a standard that some Justices one day might try to uphold. And while that standard was doable for the charged rioters (because they were attempting to make their own votes count more than the votes of the 81 million people who voted for Biden), it is a slam dunk for Trump. It’s not just that Trump was trying to win an election he knew he lost, he was trying to retain the power of the Presidency for himself. My complaint here, though, is mostly stylistic. McQuade could rewrite this paragraph easily to take advantage of the fact that, for Trump, obstruction of the vote count really was an attempt to gain personal advantage.

It’s in leaving out Trump’s transitive obstruction — even in a piece that focuses closely on the pressure of Pence — where McQuade’s memo could and I think might need to, to pass muster given the existing opinions on it — be vastly improved. That’s because it’s in Trump’s corruption of others where he clearly conspired in illegal acts.

Trump didn’t just do things an ethical President shouldn’t do (intransitive corruption). He carried out an extended campaign to pressure Pence to do something that violated Pence’s Constitutional obligations. That is, he tried to corrupt Pence (transitive corruption).

Trump transitively corrupted by conspiring with people who committed crimes

And it’s in the means by which Trump’s tried to corrupt Pence on the day of the insurrection that McQuade largely leaves out, and in the process forgoes an easy way to meet Friedrich’s current requirement (that those charged with obstruction commit a crime in attempting to obstruct the vote count).

Bizarrely, McQuade’s overt acts on January 6 are focused largely on John Eastman.

T. Trump Speaks at the Ellipse

On Jan. 6, 2021, Trump addressed a crowd of his supporters at approximately 1 p.m. on the Ellipse outside the White House.[129] During his remarks, Trump said, “If Mike Pence does the right thing we win the election.”[130] He explained, “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”[131] Trump then spoke directly to Pence: “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now. I’m not hearing good stories.’”[132]

Giuliani, a former United States Attorney, also spoke at the rally. He declared that it would be “perfectly appropriate” for the Vice President to “cast [] aside” the laws governing the counting of electoral votes, and “decide on the validity of these crooked ballots or he can send it back to the state legislators, give them five to ten days to finally finish the work.”[133]

Another speaker at the rally was Eastman. “All we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not!” Eastman told the crowd. [134] “We no longer live in a self-governing republic if we can’t get the answer to this question!”[135]

According to reports, Trump was directly involved in planning the speaker lineup.[136]

U. Pence Issues Public Letter Rejecting Eastman’s Theory

On Jan. 6, at 1:02 p.m., Pence posted to Twitter a letter stating that as Vice President, he lacked “unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress.”[137] His duties, the letter stated, were “merely ministerial,” and were limited to counting the votes. The letter further stated that he would instead follow the Electoral Count Act, permitting members of Congress, as “the people’s representatives,” to resolve any disputes.[138] The letter had been drafted with the help of two conservative legal experts — former federal Judge J. Michael Luttig and former Justice Department official John Yoo.[139] Both have confirmed that they advised Pence’s staff and outside counsel that there was no basis for the vice president to intervene in the counting of electoral votes on Jan. 6. “I advised that there was no factual basis for Mike Pence to intervene and overturn the results of the election,” said Yoo, who now teaches law at the University of California at Berkeley. “There are certain limited situations where I thought the Vice President does have a role, for example in the event that a state sends two different electoral results. . . . But none of those were present here.”[140]

Luttig wrote subsequently that “Professor Eastman was incorrect at every turn of the analysis,” including his suggestion that the vice president could delay the electoral vote count.[141]

V. U.S. Capitol Attack Begins

At about 2 p.m., protestors broke a window at the U.S. Capitol and climbed inside.[142] The Senate and House of Representatives soon went into recess and members evacuated the two chambers.[143] At 2:24 p.m., Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”[144] The Capitol would not be secured again until about 6 p.m.[145]

Her discussion here doesn’t explicitly mention a single one of the 750 people already being prosecuted for crimes for their actions on January 6. She mentions neither Alex Jones (whom Trump ordered to take the mob on an unpermitted march to the Capitol and two of whose employees are already among those 750 being prosecuted) nor Roger Stone (who has ties to the two militias that orchestrated events that day and who has been a subject in the Oath Keeper investigation from its early days).

It’s not just or even primarily that Trump grasped John Eastman’s crackpot theory and used it to pressure Pence (which is not  itself a crime). It’s that he incited thousands of people to take an unpermitted walk to the Capitol to physically threaten Pence and other members of Congress directly.

As I laid out last month, DOJ has already collected a great deal of evidence that those who did break the law at the Capitol did so in response to Trump’s incitement with the motive of pressuring Pence.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.’”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President KePence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

I would add (because Amit Mehta did in his oral ruling that Stewart Rhodes should be detained pre-trial), in addition to the explicit attempt by Kelly Meggs to hunt down Nancy Pelosi, the other group of Oath Keepers appears to have tried to find those in the Senate, presumably including Mike Pence. If prosecutors can prove that, then, the militia that was checking in with Stone the day of the riot took overt steps to physically threaten Mike Pence.

Importantly, with the exception of QAnoner Chansley, all of the January 6 defendants I’ve laid out here were part of a conspiracy (Colt and Bisignano, because they flipped on co-conspirators, are not charged with one). All of these Jan6ers are accused of conspiring with others to carry out Trump’s will to transitively corrupt Pence by physically pressuring him to violate his Constitutional duty.

And Judge Mehta has now ruled it plausible (though he was careful to note he was addressing the lower standard of a civil suit) that Trump’s incitement amounts to entering into a conspiracy with all of these people who acted on his incitement to pressure and in some cases physically hunt down Pence.

McQuade’s theory of corruption may not meet Judge Friedrich’s standard for corruption (which we should assume as a baseline of one that Brett Kavanaugh might find palatable).

Which is why you cannot ignore the other half of the conspiracy: Trump entering into an agreement with Roger Stone to coordinate with the militias, entering into an agreement with Alex Jones to lead the mob to the Capitol, and Trump entering into an agreement with those he incited to directly pressure Pence to violate his Constitutional duty.

750 people have been charged with committing crimes at the Capitol. And the easy way to demonstrate that Trump employed illegal means in his effort to obstruct the vote certification is to point to the mountains of evidence that he conspired both via his close associates Stone and Jones but more directly via incitement with a vast number of those 750 people who allegedly broke the law.

Update: One thing McQuade does focus on (she’s a Michigander who does a lot of work on voter protection) are the fake electors. That’s another illegal act that probably should be brought in any statement of corrupt intent for the same reason Trump’s ties to the rioters should be.

Update, 2/25: Added link to Kollar-Kotelly’s opinion and noted that Leon and Cooper have now ruled.

Brandon Straka Assures MAGAts That He Didn’t Share Evidence of Any Pre-January 6 Crimes

Brandon Straka released a post-sentencing statement announcing that he is self-deplatforming to Rumble and GETTR and claiming that the “left wing media” turned DOJ’s discussion of Straka’s cooperation into a narrative that “Trump Ally Turning Over Significant Information About January 6th.” [emphasis Straka’s] The closest to that phrase I can find (aside from Straka’s own comments posted to 4chan) is Politico, which is owned by right wingers, as well as the gay press.

Straka may in fact be more worried that the right wing press labeled him a snitch, not least because he uses the phrase later in his own statement.

The statement is interesting for several reasons.

First, Straka doesn’t deny the obstruction of the vote count that he should have been charged with. He explains asking his followers to “HOLD. THE. LINE” after he had been instructed by Ali Alexander, ““Everyone get out of there … The FBI is coming hunting,” that this was just about a peaceful protest, not physically occupying the Capitol to prevent Joe Biden’s win from being certified.

Some of my comments on January 6th and the following days have been highly scrutinized and my intent speculated. In particular, one stated to “HOLD. THE. LINE.” in addressing the people at the Capitol. You should all know that I was present on the East side of the Capitol and never witnessed any of the violence taking place on the West side that day. I shot video of the thousands of peaceful protestors standing on the East side singing songs and holding signs. This was the scene when I left the grounds. My statement was to encourage the thousands of peaceful protestors to stand their ground- after all, peaceful protests are still protected by our constitution, right?

Straka doesn’t deny being told about the violence on the west side. He falsely claims to have filmed only peaceful activities, when he in fact filmed himself encouraging rioters as they stole a cop’s shield.

More importantly, he doesn’t address that he was encouraging these “protestors” to continue to obstruct the vote certification.

And, again, he was doing so after he himself had left after having been warned about an incoming FBI presence.

Particularly given something that Straka said to Trump appointee Dabney Friedrich at sentencing (which I’ll return to once I find the best video), I find this comment from Straka of particular interest.

In the three and a half years that I have been working in the world of politics, I have not attained ANY INFORMATION of ANY KIND about any criminal wrongdoing of any person in the MAGA movement. That includes every person from the very bottom of up to Donald Trump and every person in between. It would be impossible for me to “snitch” or “turn people over” because I have NOTHING to share.

I do not believe that there was any kind of plot or scheme to initiate violence on January 6th. I do not believe that any kind of plot or plan or scheme will ever be discovered because I feel 100% certain no such thing exists. Like most of you, I’ve employed common sense and come to the conclusion that a very small percentage of people did some very bad things that day, and that this was a spontaneous riot that broke out without planning. If any evidence of anything ever comes to light, I will be as shocked as anybody else.

I have NO INFORMATION of any kind of share about any crime others in the MAGA movement have committed at any point, even prior to January 6th.

Straka denies there was a scheme to initiate violence. That’s not the accusation though. The scheme — laid out in writing by Ali Alexander’s associates in the Proud Boys — was to spark others to commit violence, and then blame Antifa for starting things.

But he, again, does not deny there was a plot to obstruct the vote certification.

More interesting, given DOJ’s apparently belated discovery of Straka’s activities leading up to January 6, is his statement denying knowledge of crimes “prior to January 6th.”

Particularly given the way Straka sees what came earlier as separate from January 6th, Straka’s plea deal might not cover crimes he committed in that earlier period.