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DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

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

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

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

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

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

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

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

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

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

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

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

Thomas Caldwell’s “Storming the Castle” Ploy Succeeds

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Judge Amit Mehta just released Thomas Caldwell to home confinement in the Oath Keeper conspiracy case.

Caldwell’s attorney, David Fischer, made some easily rebuttable arguments about Caldwell’s honesty, which I’ll return to. Fischer also tried to convince Judge Mehta that Caldwell was operating out of a sincere belief that he was defending against Antifa, not arming against the US government; I’ll return to that too (Judge Mehta had no patience for that ploy). While Mehta did come away believing Caldwell had been more cooperative than prosecutors had suggested, that’s not why he released Caldwell.

It’s important background, that in Fischer’s motion to reconsider Caldwell’s detention dismissed several references Caldwell made to “storming” the Capitol as an allusion to the fictional narrative of The Princess Bride.

Some of the lines that the Government cites in its papers are straight from Hollywood. The best example is “storming the castle” and “I’m such an instigator.” These are classic lines from the 1980s classic movie The Princess Bride.

Fischer suggested Caldwell’s own use of the same word everyone else used to describe assaulting the Capitol was just fiction.

The claim is important because the key reason that Caldwell got bailed is because of a feint that Fischer made in his motion for reconsideration. He argued that there is no evidence that Caldwell planned in advance to storm the Capitol.

On January 6th, at the urging of former President Donald J. Trump, hundreds of thousands of disgruntled, patriotic Americans came to Washington to protest what they viewed as an unfair election. Caldwell joined this protest to exercise his First Amendment right, a right he defended for 20 years in military service. Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3 The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.

[snip]

In short, despite having an army of federal agents working around the clock intensively investigating for almost three months, the Government has not provided the Court with a confession, witness statement, or physical evidence backing up their claim that any person or group had a premeditated plan to storm the Capitol. Caldwell asks rhetorically: Doesn’t the Court find it odd that the Government hasn’t outlined the specifics of the premeditated plan? What time was the “invasion” scheduled to begin? Who would lead the attack? What was the goal once the planners entered the Capitol?

[snip]

The Government’s fanciful suggestion that right-wing tactical commandos were waiting in the wings to storm the Capitol is one for the ages.

In response to Judge Mehta’s questions about this claim, AUSA Kathryn Rakoczy conceded that the alleged co-conspirators didn’t have hard and fast plans as to what would happen before the event. This was a plan made of “possibilities,” which included the possibility (the facetious excuse offered by Caldwell) that other groups would resort to violence if Vice President Pence threw out the vote and the Oath Keepers would have to respond with force, or that President Trump would invoke the Insurrection Act and the Oath Keepers would come in to institute martial law. As Rakoczy described, they were “watching and waiting to see what leadership did” to achieve the goal of preventing the vote count, which goal the “government submits was unlawful and corrupt.”

They were waiting to see what leadership did. When leadership did what they referred to as “nothing,” they did take matters into their own hands. They were waiting and watching to see what was happening.

So when asked to respond to Caldwell’s misrepresentation that he was charged with conspiring to storm the Capitol, Rakoczy responded that it wasn’t certain they would storm the Capitol; the group was prepared to act, they just weren’t sure how — given the uncertainties of the day — they would act.

Based on that response and his conclusion that Caldwell actually had never entered the Capitol, Judge Mehta ruled that Caldwell was differently situated than the other defendants insofar as the evidence that he participated in the conspiracy (to storm the Capitol, Fischer said) was weaker given that he never did enter the Capitol.

Only later, after Judge Mehta had announced his decision, did Rakoczy point out the problem with this argument: Caldwell is not charged with conspiring to storm the Capitol. As she noted, the language Fischer kept quoting about storming the Capitol came from a background paragraph of the superseding indictment:

23. As described more fully herein, CALDWELL, CROWL, WATKINS, SANDRA PARKER, BENNIE PARKER, YOUNG, STEELE, KELLY MEGGS, and CONNIE MEGGS, planned with each other, and with others known and unknown, to forcibly enter the Capitol on January 6, 2021, and to stop, delay, and hinder the Congressional proceeding occurring that day.

The actual conspiracy as charged was to impede the certification of the Electoral College vote.

24. [… the defendants] did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, Congress’s certification of the Electoral College vote, and to attempt to do so, in violation of Title 18, United States Code, Section 1512(c)(2).

Purpose of the Conspiracy

25. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is a problem I saw going in (though I doubted that Fischer would be able to confuse Mehta as well as he did).

But the results of this hearing, particularly given Rakoczy’s answers, reveal something about the way this conspiracy is charged (and the ones most of the Proud Boy are charged).

They assume the any action conspirators took would be effectuated on Congress, that that was the only eventuality conspirators were planning for.

The conspiracy is all built off an obstruction charge which itself, while valid, is fairly inapt. It likens the counting of the vote to a trial, which legally holds, but doesn’t get at the scope of what co-conspirators (and Trump) were trying to accomplish. The focus — Caldwell’s, as well as those who actually did storm the Capitol — was all on Congress, because that was the next event in question (just as the previous December mob had been focused on the electoral certifications in the states). But the goal was not (just) to stop the certification of the vote count on Congress. The ultimate goal was to ensure that Trump would remain President, via whatever means. And as Rakoczy acknowledged, one possibility that co-conspirators Kelly Meggs and Jessica Watkins believed might happen was that Trump would declare martial law, and the Oath Keepers would become the glorious army to save their fantastic dreams. That would have had the effect of preventing the certification of the electoral vote, but it would have (if successful) been a more direct route to the actual goal of the conspiracy: to keep Trump in power and prevent the lawfully elected President from taking over.

That’s why Fischer’s ploy worked: because all the planning wasn’t primarily about the Capitol. It was primarily about Trump.

This charge is built like it is, I’ve always been convinced, because no one has yet made the commitment to charge seditious conspiracy (ideally in parallel with this conspiracy). The real goal, after all, was to overthrow the democratic system, and impeding the vote count was just one means to achieve that conspiracy. The conspiring that started even before the election was about overthrowing democracy, not just January 6.

This may not be a fatal weakness for these conspiracy charges. Now that prosecutors have seen Fischer work this feint so well, they’ll be better prepared for it from others.

But one reason it worked is because the real goal of the conspiracy — the one that Caldwell’s lawyer all but conceded to today — was to do whatever it took to prevent the lawfully elected President from taking power.