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Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

  • Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
  • Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
  • Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
  • Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
  • Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
  • Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
  • Reconfirmation that Trump never called Pence to check on the Vice President’s safety
  • Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

House January 6 Committee: Public Hearings – Day 3

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 16, 2022 at 1:00 p.m. ET.

Any updates to this post will appear at the bottom.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s direct stream: https://january6th.house.gov/legislation/hearings/061622-select-committee-hearing

House J6 Committee’s YouTube page: https://www.youtube.com/c/January6thCmte

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520944-1/president-trumps-campaign-influence-vice-president-pence

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

C-SPAN’s YouTube stream for this hearing: https://www.youtube.com/watch?v=8zkZHb2kA2c

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter will carry multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1536343313325821952

ABC, NBC, CBS will carry the hearings live on broadcast; MSNBC and CNN will carry on their cable networks.

Twitter accounts live tweeting the hearing today:

Marcy’s thread: https://twitter.com/emptywheel/status/1537481194299920385 thread broke, second portion at: https://twitter.com/emptywheel/status/1537482856330858496

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1537479772502204417

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1537479344116875266

Jennifer Taub: https://twitter.com/jentaub/status/1537481664821174278

If you know of any other credible source tweeting the coverage, please share a link in comments.

An agenda for this hearing has not yet been published on the committee’s website and may not be as it didn’t publish one in advance for the last two hearings.

Expected to testify today:

Greg Jacob, former Vice President Mike Pence’s counsel

J. Michael Luttig, retired federal judge, U.S. Court of Appeals-Fourth Circuit, and informal advisor to Pence  (opening statement available online)

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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~ ~ ~

ADDER — 12:58 P.M. ET —

Worth reading or re-reading: Michael Luttig published an op-ed in CNN on April 27 this year, Opinion: The Republican blueprint to steal the 2024 election which contained this warning:

As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.

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

 

All the Scheming at the Willard Only Matters because of the Bodies Occupying the Capitol and Threatening Pence

In a post wondering whether DOJ hasn’t opened an investigation into Donald Trump for his role in obstructing the vote count, Ben Wittes provides this description of Judge David Carter’s opinion ruling that John Eastman and Trump had likely conspired to obstruct the vote certification.

The opinion’s first section—entitled “A. Facts”—begins on page three of Judge Carter’s opinion and runs through the middle of page 12. In a footnote attached to the word “Facts” in the subhead leading the section, Judge Carter notes in a fashion characteristic of the section’s understatement, “In this discussion, the Court relies solely on facts provided by Dr. Eastman and the Select Committee in their briefing and attached exhibits.”

He is not exaggerating. The section contains no judgments, no legal interpretations, no conclusions. It contains virtually no rhetoric at all. What’s more, the section does not contain a whole lot of new facts. The story of Eastman and Trump’s efforts to overturn the 2020 election, the relationship between that effort and Trump’s concurrent plot to decapitate the Justice Department, and ultimately to the insurrectionary activity of January 6, 2021, has dribbled out bit by bit over the months already. And to the extent the current litigation has revealed new material, that mostly emerged in the committee’s briefing and the accompanying exhibits a few weeks ago.

What makes Judge Carter’s account so powerful is that it is linked tightly to record evidence, that it tells the story in an end-to-end fashion crisply and efficiently, and that it thus assembles the evidence into a coherent account of the big picture. I cannot do Judge Carter’s account justice; please do read it. For present purposes, let me just say that it leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government.

As Ben tells it, Carter’s description of the conspiracy to obstruct the vote certification focuses on attempts to overturn the election, his attempt to “decapitate” DOJ, and only then to the “insurrectionary activity” on January 6 that included using “violence directed against a coordinate branch of government.”

Mike Pence’s name not only doesn’t appear in this passage, it appears nowhere in Ben’s piece. Pence is named 24 times in those nine pages of Carter’s narrative. I think the difference in emphasis is instructive.

It’s not that the things Ben focuses on — lawsuits attempting to discredit the electoral outcome and the attempt to install Jeffrey Clark to pursue more efforts to discredit the electoral outcome — didn’t appear in Carter’s narrative. It’s that they serve a different function than Ben accords them, not as independent criminal behavior, but as actions in the first of a three-part plot all of which ends up in an attack on the Capitol.

  1. Election fraud claims
  2. Plan to disrupt electoral count
  3. Attack on the Capitol

As noted, in Carter’s description of the attack on the Capitol, the pressure on, followed by the verbal attacks on and physical threats to Mike Pence are central.

President Trump returned to the White House after his speech. At 2:02 pm, Mark Meadows, the White House Chief of Staff, was informed about the violence unfolding at the Capitol.50 Mr. Meadows immediately went to relay that message to President Trump.51 Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”52

During the riot, Vice President Pence, Members of Congress, and workers across the Capitol were forced to flee for safety.53 Seeking shelter during the attack, Vice President Pence’s counsel Greg Jacob emailed Dr. Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day.”54 Mr. Jacob continued, “[a]nd thanks to your bullshit, we are now under siege.”55

I point this out because I think it is the easiest way to point out what I think is problematic with Ben’s search for an investigation — a separate investigation just for Trump, with leaks about grand jury subpoenas — like so many others. Even in portraying a document of which Ben claims, “the history of the United States has never seen an account of a president’s conduct quite so devastating,” Ben appears to misread the subject described, though later in his piece, he fully recognizes the question of Trump’s criminal liability discussed here is just about obstructing the vote certification.

Carter’s is not a story of an attempt to overturn the election. Judge Carter tells the story of an attempt to obstruct a vote certification. All the lawsuits matter because (on top of proving mens rea) the election fraud claims are what Eastman used to pressure Pence to throw out the vote and what Trump used to incite his mob. In fact that’s what, in my opinion, Carter laid out far better in his opinion than the Committee did in their brief, which argued that had Pence taken the steps Eastman wanted, the vote count would have been obstructed, and not that the false claims of fraud themselves led to a “siege” that in fact did obstruct the vote count.

There are, surely, other crimes that Trump might be investigated for — most notably his attempt to pressure Brad Raffensperger. But the way DOJ has been conceiving of the crime of January 6 from the start was as that successful (but temporary) obstruction of the vote count. All the people who seem to think an investigation into Trump would be somehow separate from that seem to be conceiving all that other corruption as separate from the dual effort to pressure Mike Pence with literal death threats and to occupy the Capitol and prevent the vote certification from taking place. This is why the people who claim you’ll never get to Trump through Alex Jones and Roger Stone are so mistaken: because it’s the actions Jones took leading the mob to add bodies to the attack and Stone took coordinating with the militias that most directly tie Trump to the actual effect on the official proceeding.

I am certain, and have been since well before August, that DOJ is investigating the ways that Donald Trump played a central role in getting bodies to the Capitol that had the effect of threatening the life of his Vice President (and Nancy Pelosi and even Mitch McConnell) and temporarily obstructing the vote certification. The overt signs of that investigation are not, as Ben has been looking for, subpoenas to witnesses in the Willard (in part because Roger Stone would never be subpoenaed). Rather, it is in getting sworn testimony that after Donald Trump sent out tweets about the riot in December, people took that as an order from Trump, and set themselves to buying plane tickets and buying body armor. It is in getting cooperating witnesses about the ways that militias that gave structure to the mob were working in tandem with Trump’s rat-fucker. It is in developing evidence that Trump’s false claim that he would join them at the Capitol — repeated by his Pied Piper Alex Jones — convinced people who otherwise would never have gone to the Capitol to do so. It is in getting sworn testimony that after Trump attacked Pence in his speech, people responded by decrying Pence while still at the rally and then continued to threaten Pence once they had moved to the Capitol.

I’m less certain DOJ is investigating Eastman but if they are, it would be for the reasons that Greg Jacob laid out: that Eastman’s lies played a part in getting bodies to the Capitol to threaten Pence’s life and that Eastman and Trump had the intent of using such threats to convince Pence to throw out the legal votes. It’s not his bad faith legal arguments that are illegal, it’s the way those bad faith legal arguments served to get bodies to the Capitol on January 6.

As Greg Jacob described it in real time, “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 the crime under investigation. And because it involves mobilizing a mob, the investigation necessarily focuses on the means by which Trump orchestrated the mob.

Most of that evidence is not in the Willard Hotel, but in actions members of the mob took in direct response to Trump’s actions.

The rest of the commentariat has finally caught up to the point I made in August, that DOJ is investigating the obstruction of the vote certification. But I’m not sure they understand that everything, therefore, works backward from the bodies at the Capitol.

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.

“Thanks to your bullshit we’re now under siege”

As numerous outlets have reported, a January 6 Committee challenge to John Eastman’s attempt to shroud his communications regarding the attempted coup under a privilege claim laid out three crimes they want the judge to use to consider crime-fraud exceptions to the claims. Two of the crimes they say they’ve got solid evidence Trump committed are the ones I said Trump would be prosecuted for back in August.

A. Obstruction of an Official Proceeding

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly. Id. (emphasis added). To date, six judges from the United States District Court for the District of Columbia have addressed the applicability of section 1512(c) to defendants criminally charged in connection with the January 6th attack on the Capitol. Each has concluded that Congress’s proceeding to count the electoral votes on January 6th was an “official proceeding” for purposes of this section, and each has refused to dismiss charges against defendants under that section.75

[snip]

B. Conspiracy to Defraud the United States

The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). The conspiracy need not aim to deprive the government of property. See Haas v. Henkel, 216 U.S. 462, 479 (1910). It need not involve any detrimental reliance by the government. See Dennis v. United States, 384 U.S. 855, 861

In spite of the fact I laid this all out in August, TV lawyers continue to assume I don’t know what I’m talking about with respect to this prosecution.

I’m starting my read of the filing with the exhibits — most notably some emails exchanged between John Eastman and Mike Pence’s Counsel, Greg Jacob, the day before and day of the insurrection. While it’s not always clear what time zone these are, I’ve tried to place these times in ET.

What they show is how even after the riot had kicked off, Eastman was badgering Pence (through Jacob) to violate the Electoral College Act. Twice, Jacob noted that Eastman’s shitty advice had led to the “siege,” emphasizing that his wife and kids were panicked about his own safety. As rioters were breaking in, Eastman badgered Jacob saying that he was wrong that Pence could not adjourn.

And then, as we know, Pence had to adjourn, so he could be rushed to safety, which Jacob reiterated was caused by Trump, “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.”

Then, after Congress had reconvened, Eastman seemingly pointed to the delay caused by the mob Trump sent as proof that the ECA is not sacrosanct, and asked Pence outright to violate the ECA some more.

There’s abundant evidence that Trump used the mob in utilitarian fashion to intimidate Pence and others and — as I have laid out — equally abundant evidence that it was the intent of many of the rioters to maximize the degree to which they would intimidate him, if not to kill him.

But this suggests another utilitarian motive: that Eastman, at least, figured that by forcing the Congress to adjourn, they would effectively force Pence into breaking the ECA, which Eastman shamelessly used to demand Pence further violate the law.

Update: Fixed the typos, I think. Thanks for the help!


January 5, 9:29PM: Eastman emails Jacob referencing a “good talk earlier tonight,” attaching a commitment from PA state senators to “recertify” their vote if Pence “implements the plan we discussed” (which Jacob’s testimony makes clear was a request to throw out the certificates).

January 6, 10:44AM: Jacob responds to the email from the night before saying, “Will call,” with some legal questions.

January 6, 1:33PM: Eastman respond “this is small minded” and claims Jacob is “sticking with minor procedural statutes while the Constitution is being shredded.” He cites a law George W Bush ignored during the Iraq War.

January 6, 2:14PM: Jacob responds and notes that no Justice or Circuit Judge would approve Eastman’s plan and explains that the role for States ends as soon as they certify their vote. He ends by saying,

I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.

And thanks to your bullshit, we are now under siege.

January 6, 2:25PM: Eastman responds saying,

My “bullshit” — seriously? You think you can’t adjourn the session because ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming. The “siege” is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.

January 6, 3:05PM: Jacob responds to Eastman’s complaint about bullshit by pointing out he’s being moved to a secure location.

I do apologize for that particular language, which was unbecoming of me, and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, “mostly peaceful” as CNN might say, who believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.

But the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.

For the record, we were in the middle of an open, widely televised debate that was airing every single point that you gave members of Congress to make when all of this went down and we had to suspend.

[snip]

Respectfully, it 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.

January 6, 6:09PM: Eastman claims that Pence only addressed the most outlandish option and didn’t address a more moderate one.

January 6, 6:29PM: Jacob asks Eastman whether he advised Trump that “the Vice President DOES NOT have the power to decide things unilaterally.”

January 6, 6:45PM: Eastman claims Jacob was on the call when he did provide that advice, but then declines to,

discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.

January 6, 11:44PM: Eastman responds to the most recent Jacob email stating that because the House and Senate had “debated the Arizona objections for more than 2 hours” (which may account for the time Congress had been hiding from the mob) and observed that that and other things were violations of the Electoral Count Act. He then asks that, “now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed,” he should adjourn the vote for 10 days “to allow the legislatures to finish their investigations.”