Posts

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

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.

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

You might not understand this from following just traditional news outlets, but over the course of a year, the news-friendly January 6 Select Committee and even the public parts of the locked-down DOJ investigation have met at a common pivot point in their investigation of January 6: on Trump’s efforts to pressure Mike Pence to violate the Constitution.

Trump did so, first, with personal pressure. Then he sent his mob.

The pressure on Pence is how Trump’s plotting in advance of January 6 affirmatively led  directly to — not just through inaction, but through action — specific steps taken by confessed mobsters to assault the Capitol.

Already in February of last year, both the House Impeachment Managers and I recognized the centrality of Trump’s treatment of his Vice President to his liability for the January 6 insurrection.

Trump had nothing to say in defense of his actions with regards to Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. 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!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

[snip]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

Since that time, Congress has been investigating from the top down, aided by the press and a healthy bunch of Pence staffers horrified by what happened to their boss. DOJ has been investigating (at a minimum) from the crime scene up.

The Select Committee appears to have corroborated stories told by Bobs Woodward and Costa in Peril. After losing all their attempts to challenge the election in the courts and backed by a coup memo from John Eastman, in December 2020, Trump’s people started demanding that Pence refuse the vote totals from a select group of states.

At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

Pence conducted a series of consultations, most notably with his predecessor Dan Quayle, who counseled Pence could only open the ballots. In the hours before the riot, conservative legal stars John Yoo and Michael Luttig backed the Vice President as well.

That led to the remarkable scene on January 5 (as described in Peril, though Keith Kellogg is among the witnesses who cooperated with the Select Committee under a friendly subpoena and Peril’s account relies heavily on him and other Pence aides), as Trump invited Pence to call on unconstitutional power from the mob.

On the evening of January 5, as he waited for Pence to arrive from a coronavirus task force meeting, an aide informed Trump his supporters were gathering near the White House on Freedom Plaza near Pennsylvania Avenue.

Despite the bitter cold, the supporters were cheering loudly and chanting his name. They were waving “Make America Great Again” flags.

When Pence arrived, Trump told him about the thousands of supporters. They love me, he said.

Pence nodded. “Of course, they’re here to support you,” he said. “They love you, Mr. President.

“But,” Pence added, “they also love our Constitution.”

Trump grimaced.

That may be, Trump said, but they agree with him regardless: Pence could and should throw Biden’s electors out. Make it fair. Take it back.

That is all I want you to do, Mike, Trump said. Let the House decide the election. Trump was not ready to give up, especially to a man he maligned as “Sleepy Joe.”

“What do you think, Mike?” Trump asked.

Pence returned to his mantra: He did not have the authority to do anything other than count the electoral votes.

“Well, what if these people say you do?” Trump asked, gesturing beyond the White House to the crowds outside. Raucous cheering and blasting bullhorns could be heard through the Oval Office windows.

“If these people say you had the power, wouldn’t you want to?” Trump asked.

“I wouldn’t want any one person to have that authority,” Pence said.

“But wouldn’t it almost be cool to have that power?” Trump asked.

“No,” Pence said. “Look, I’ve read this, and I don’t see a way to do it.

“We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible. My interpretation is: No.

“I’ve met with all of these people,” Pence said, “they’re all on the same page. I personally believe these are the limits to what I can do. So, if you have a strategy for the 6th, it really shouldn’t involve me because I’m just there to open the envelopes. You should be talking to the House and Senate. Your team should be talking to them about what kind of evidence they’re going to present.”

In spite of Pence’s refusals, Trump released a false statement that the Vice President would, in fact, do Trump’s dirty work.

Late Tuesday evening, January 5, as word dripped out in the press that Pence was holding, Trump directed his campaign to issue a statement claiming that he and Pence were in “total agreement that the Vice President has the power to act.”

This set the expectation with the already enraged mob that their efforts to keep Trump in office might just work.

As the Select Committee revealed last night, the White House Counsel’s Office was objecting to all of this, and threatening to resign if Trump tried it. Sean Hannity learned about those threats as early as December 31 and shared his concerns with Mark Meadows.

We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.

The night of January 5, the same night Trump falsely claimed that Pence would go along with the plan, Hannity again told Mark Meadows he was worried the White House Counsel lawyers would quit.

Pence pressure. WH counsel will leave.

Whether or not Hannity sits for an interview with the Select Committee, the release of texts showing that Trump or Meadows shared privileged advice that the White House Counsel gave to Trump (thereby waiving any privilege claim) may have made the testimony of those lawyers themselves accessible, if not to the Select Committee, then under subpoena from DOJ.

That’s important, because as the DOJ prosecutor guiding DOJ’s use of 18 USC 1512(c)(2) to charge those who participated in the insurrection, James Pearce, has already noted, one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … 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.”

By publicly releasing those Hannity texts, the Select Committee may have made proof that Trump knew his request to Pence was illegal available to DOJ.

Still, any testimony Hannity could offer is important for what came next: because Hannity seems to have known that Trump’s persistence would lead to trouble.

Already knowing that Pence would not reject the vote tallies, already knowing Pence didn’t have that power, Trump riled up his mob in his speech by making it clear everything came down to Pence.

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. 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.

And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

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 Pence. 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.

Congress is currently focused on showing what Trump did during the 187 minutes after his mob had breached the Capitol — aside from his tweet focusing again on Pence.

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!

DOJ is finalizing its understanding of the coordinated effort, using the mobs Alex Jones lured to the Capitol and to a second front, that resulted in multiple breaches of the building and vastly inflated risk to Pence and members of Congress.

But on one point, both investigations have already converged: the motive of a vast many involved, from Trump to his scheming associates to organized militias to unwitting trespassers, was to was pressure Mike Pence to violate his duty.

Update, 3/3/22: In a filing trying to breach John Eastman’s claim of privilege, the January 6 Committee cited three instances of defendants reacting the Pence information.

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

  • Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
  • A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
  • An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
  • Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
  • Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
  • Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
  • A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
  • A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
  • A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
  • A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
  • A law review article on prosecutorial discretion
  • Robert Jackson’s seminal text about the role of a Federal prosecutor
  • The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
  • The quip, “hard cases make bad law”
  • An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “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 College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … 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.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Other Posts

Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.

The Video Authentication Challenge: Aaron Mostofsky

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dabney Friedrich Rejects Challenge to January 6 Obstruction Application

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

Whoever corruptly—

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

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

18 U.S.C. § 1512(c)(2).

[snip]

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation

In preparation for a post about how DOJ might or might not make the move beyond prosecuting pawns who breached the Capitol to those who incited them to come to the Capitol, I want to describe a taxonomy of the January 6 “crime scene” investigation — which I mean to encompass the investigation as it has worked up from the people who actually stormed the Capitol. This is my understanding of how the many already-charged defendants fit together.

DOJ has arrested close to 700 people (probably more than that once you consider cases that haven’t been unsealed). Those defendants generally fit into the following categories, all of which are non-exclusive, meaning lots of people fall into more than one category:

  • Militia conspirators and militia associates
  • Assault defendants
  • Mobilized local networks
  • Other felony defendants
  • Misdemeanants
  • Organizer inciters

In my discussion below, these are all allegations, most of the felony defendants have pled not guilty, and are presumed innocent.

Militia conspirators and militia associates

The most newsworthy prosecutions, thus far, are the militia conspiracies, though not all militia members have been charged as part of a conspiracy.

There are 17 people facing charges in the Oath Keeper conspiracy, plus four cooperators, as well as another cooperator and two more Oath Keepers not charged in the conspiracy.

There are 17 Proud Boys currently charged in various conspiracies, including four, thus far, charged in what I call the Leader conspiracy. I suspect in the near future there will be consolidation of the core Proud Boy cases. In addition, there are a significant number of Proud Boys charged either in group indictments (such as the five men who followed Joe Biggs around that day), or individually, some with assault (such as Christopher Worrell, David Dempsey, and Dan “Milkshake” Scott), and some with just trespassing (such as Lisa Homer or Micajah Jackson).

There is one conspiracy indictment against mostly 3%ers, along with Guy Reffitt, who was individually charged, and a few others whose 3% ties are less well-established in charging papers.

All of which is to say that a small but significant minority of the January 6 defendants have some tie to an organized militia group.

That’s important, because the government is very close to showing that there was a plan — led at the Capitol by the Proud Boys, but seemingly coordinated closely with some members of the Oath Keepers. The plan entailed initiating a breach, surrounding the Capitol, opening up multiple additional fronts (of which the East appears to be the most important), and inciting the “normies” to do some of the worst violence and destruction, making the Capitol uninhabitable during the hours when Congress was supposed to be making Joe Biden President. Until about 4PM — when cops began to secure the Capitol and DOD moved closer to sending in the National Guard — the plan met with enormous success (though I wouldn’t be surprised if the conspirators hoped that a normie might attack a member of Congress, giving Trump cause to invoke harsher measures).

People complain that DOJ has been doing nothing in the 11 months since the riot. But this has been a central focus of DOJ’s effort: understanding how this plan worked, and then assembling enough evidence and cooperating witnesses to be able to lay out several intersecting conspiracies that will show not just that these groups wanted to prevent the certification of the vote (what they’re currently charged with), but pursued a plan to lead a mob attack on the Capitol to ensure that happened.

Proving these interlocking conspiracies would be vital to moving up from the militias, because it shows the premeditation involved in the assault on the Capitol. DOJ hasn’t rolled this out yet, but they seem to be very very close.

Assault defendants

Close to 150 people have been charged with assault (DOJ has a higher number but they’re tracking two different crimes, 18 USC 111, assault, and 18 USC 231, whereas I’m tracking just the former). The assaults charged against these defendants range from pushing a cop once to tasing someone and nearly killing him. Much of this amounted to mob violence, albeit at times the mob violence was pretty finely coordinated.

That said, there are a handful of defendants charged with assaults that were tactically critical to the plan implemented by the Proud Boys (again, these are just allegations and all have pled not guilty and are presumed innocent):

  • After speaking with Proud Boy Joe Biggs, Ryan Samsel kicked off the riot by storming over the first barricade, knocking over a female cop
  • Ronnie Sandlin and Nate DeGrave helped open both the East Door and Senate gallery doors
  • Jimmy Haffner allegedly sprayed something at the cops trying to stave off the crowd on the East side
  • George Tenney pushed cops away from the East door and opened it (he is charged with civil disorder, not assault)
  • Active duty Marine Chris Warnagiris kept cops from closing the East door after Tenney had opened it

It’s important to understand whether those defendants who committed tactically critical assaults were operating with knowledge of the larger plan.

For most of the rest of the assault defendants, though, it’s a matter of identifying them, assembling the video and other evidence to prove the case, and finding them to arrest them.

The FBI has posted close to 500 total assault suspect BOLOs (Be On the Lookout posters, basically a request for help identifying someone), which means there may be up to 350 assault suspects still at large.

I expect assault arrests to continue at a steady pace, perhaps even accelerate as the government completes the investigations required with people who either used better operational security or fled.

Mobilized local networks

Something DOJ appears to be investigating are key localized networks through which people were radicalized.

This is most obvious for Southern California. The 3%er indictment is geographically based (and as I’ll argue in a follow-up, is investigatively important for that geographic tie.) In addition, after months of contemplating what seemed like it might be a larger conspiracy indictment, DOJ recently charged Ed Badalian and a guy nicknamed Swedish Scarf, in a conspiracy with one of the people accused of tasering Michael Fanone, Danny Rodriguez.

Recent arrest affidavits, most notably that of Danean MacAndrews, also show that FBI shared identifiers from the various geofence warrants obtained targeting the Capitol on January 6 and shared them with regional intelligence centers to identify local participants in the mob.

There have been recent case developments, too, which suggest DOJ is letting people from Southern Californian plead down in an effort to obtain their testimony (which I’ll explain more in my discussion of misdemeanants).

Some of this localized investigation feeds back into the larger investigation, as evidenced by the two conspiracy indictments coming out of Southern California. But it also shows how these various radicalized networks fit together.

While it is less visible (and perhaps because there’s not always the same terrorist and drug war intelligence infrastructure as LA has, potentially less formalized), I assume similar localized investigations are going on in key organizing hotspots as well, including at least PA and FL, and probably also the Mountain West.

Other felony defendants

There are other defendants charged with a felony for their actions on January 6, most often for obstruction of the vote count (under 18 USC 1512c2) and/or civil disorder. As of November 6, DOJ said 265 people had been charged with obstruction. A number of those obstruction defendants have been permitted to plead down to a trespassing charge, usually the more serious 18 USC 1752.

It’s hard to generalize about this group, in part because some of the mobilizing networks that got these people to the Capitol would not be visible (if at all) until sentencing, particularly given that few of them are being detained.

But the group includes a lot of QAnoners — which, I have argued, actually had more success at getting bodies into place to obstruct the vote count than the militias (which were busy opening multiple fronts). The PodCast Finding Q revealed that the FBI started more actively investigating QAnon as a mobilizing force in the days after the insurrection. So the FBI may well be investigating QAnon from the top down. But it’s not as easy to understand as — for example — investigative steps targeting QAnoners as it is the militia networks, in part because QAnon doesn’t require the same kind of network ties to radicalize people.

These defendants also include people mobilized in other networks — some anti-mask, some military, some more directly tied to institutional right wing organizations, and some who simply responded to the advertising for the event. Understanding how and why these people ended up at the Capitol is a critical step to understanding how the event worked. But it is harder to discern that from the court filings available.

Aside from better known right wing personalities, it’s also harder to identify potentially significant defendants from this group.

In the days ahead, a number of DC judges will be ruling on DOJ’s application of obstruction. Unless all rule for the government (which I find unlikely), it means DOJ will face a scramble of what to do with these defendants, especially those not otherwise charged with a felony like civil disorder. And until judges rule, there will be a significant number of felony defendants who are deferring decisions on plea offers, to see whether the felony charge against them will really survive.

The fact that most of the least serious felony defendants are delaying plea decisions creates an artificial appearance that the vast majority of those charged in January 6 were charged with trespassing. It’s not that there aren’t a huge number of felony defendants; it’s just that they’re not making the news because they’re not pleading guilty, yet.

Misdemeanants

The most common complaint about the January 6 investigation — from both those following from afar and the judges facing an unprecedented flood of trespassing defendants in their already crowded court rooms — the sheer number of trespassing defendants.

It is true that, in the days after the riot, DOJ arrested the people who most obviously mugged for the cameras.

But in the last six months or so, it seems that DOJ has been more selective about which of the 2,000 – 2,500 people who entered the Capitol they choose to arrest, based off investigative necessities. After all, in addition to being defendants, these “MAGA Tourists” are also witnesses to more serious crimes. Now that DOJ has set up a steady flow of plea deals for misdemeanors, people are pleading guilty more quickly. With just a few exceptions, the vast majority of those charged or who have pled down to trespassing charges have agreed to a cooperation component (entailing an FBI interview and sharing social media content) as part of their plea deal. And DOJ seems to be arresting the trespassers who, for whatever reason, may be useful “cooperating” witnesses for the larger investigation. I started collecting some of what misdemeanant’ cooperation will yield, but it includes:

Video or photographic evidence

Hard as it may be to understand, there were parts of the riot that were not, for a variety of reasons, well captured by government surveillance footage. And a significant number of misdemeanor defendants seem to be arrested because they can be seen filming with their phones on what surveillance footage does exist, and are known to have traveled to places where such surveillance footage appears to be unavailable or less useful. The government has or seems to be using evidence from other defendants to understand what happened:

  • Under the scaffolding set up for the inauguration
  • At the scene of Ashli Babbitt’s killing (though this appears to be as much to get audio capturing certain defendants as video)
  • In the offices of the Parliamentarian, Jeff Merkley, and Nancy Pelosi
  • As Kelly Meggs and other Oath Keepers walked down a hallway hunting for Nancy Pelosi
  • Some of what happened in the Senate, perhaps after Leo Bozell and others rendered the CSPAN cameras ineffective

In other words, these misdemeanor arrests are necessary building blocks for more serious cases, because they are in possession of evidence against others.

Witness testimony

TV lawyers seem certain that Trump could be charged with incitement, without considering that to charge that, DOJ would first have to collect evidence that people responded to his words by invading the Capitol or even engaging in violence.

That’s some of what misdemeanor defendants would be available to testify to given their social media claims and statements of offense. For example, trespasser defendants have described:

  • What went on at events on January 5
  • The multiple signs that they were not permitted to enter whatever entrance they did enter, including police lines, broken windows and doors, loud alarms, and tear gas
  • Directions that people in tactical gear were giving
  • Their response to Rudy Giuliani and Mo Brooks’ calls for violence
  • Their response to Trump’s complaint that Mike Pence had let him down
  • The actions they took (including breaching the Capitol) after Alex Jones promised they’d get to hear Trump again if they moved to the East front of the Capitol

Securing the testimony of those purportedly incited by Trump or Rudy or Mo Brooks or Alex Jones is a necessary step in holding them accountable for incitement.

Network information

Some misdemeanor defendants are being arrested because their buddies already were arrested (and sometimes these pleas are “wired,” requiring everyone to plead guilty together). Other misdemeanor defendants are part of an interesting network (including the militias). By arresting them (and often obtaining and exploiting their devices), the government is able to learn more about those with more criminal exposure on January 6.

Misdemeanor plea deals

In its sentencing memo for Jacob Hiles, the guy who otherwise would probably be fighting an obstruction charged if he hadn’t helped prosecute Capitol Police Officer Michael Riley, the government stated that, “no previously sentenced defendant has provided assistance of the degree provided by the defendant in this case.” The comment strongly suggests there are other misdemeanor defendants who have provided such assistance, but they haven’t been sentenced yet.

This category is harder to track, because, unless and until such cooperation-driven misdemeanor pleas are publicly discussed in future sentencing memos, we may never learn of them. But there are people — Baked Alaska is one, but by no means the only one, of them — who suggested he might be able to avoid obstruction charges by cooperating with prosecutors (there’s no sign, yet, that he has cooperated). We should assume that some of the defendants who’ve been deferring charges for months on end, only to end up with a misdemeanor plea, cooperated along the way to get that charge. That is, some of the misdemeanor pleas that everyone is complaining about likely reflect significant, completed cooperation with prosecutors, the kind of cooperation without which this prosecution will never move beyond the crime scene.

Organizer inciters

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

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

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

In fact, DOJ has made moves towards doing this for months — though at the moment, they seem woefully inadequate. For example DOJ charged Brandon Straka, who had a key role in inciting violence both before and at the event, in January; he pled guilty to a misdemeanor in October (his sentencing just got moved from December 17 to December 22). DOJ charged Owen Shroyer, Jones’ sidekick as the Pied Piper of insurrection, but just for trespassing, not for the obvious incitement he and Jones did. The one case where DOJ has already moved to hold someone accountable for his role in inciting violence is Russell Taylor, who was charged in the 3%er conspiracy, but that conspiracy indictment will test DOJ’s ability to hold those who incited violence accountable.

Back in August, when these three developments were clear, I noted that DOJ had only barely begun to unpack what happened on January 5 (to say nothing of events in DC in December), which played a key role in the success of January 6. It has provided scant new detail of having done so (though there are signs they are collecting such information).

The investigation at the crime scene is not the only investigation into January 6 going on. Merrick Garland made it clear DOJ was following the money. The FBI conducted investigative steps targeting QAnon just days after the riot. Daily Beast broke the news of a grand jury investigation into Sidney Powell’s grifting, an investigation that may be assisted by recriminations between her, Mike Flynn, and Patrick Byrne.

But the investigation building off of the crime scene will proceed, or not, based on DOJ’s ability to build cases against the organizer inciters.

Three Things: A Three-Ring Circus

[NB: Check the byline, thanks. /~Rayne]

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.

Kevin Fairlamb and Jacob Chansley Sentences Affirm Judicial Legitimacy

Today, Judge Royce Lamberth sentenced Jacob Chansley, the QAnon Shaman, to 41 months of prison for obstructing the vote certification on January 6. The sentence comes a week after Lamberth sentenced Kevin Fairlamb to the same 41 month sentence; Fairlamb pled guilty to both obstructing the vote and assault, for punching a cop.

Here’s my livethread of the Fairlamb sentencing. Here’s my livethread of the Chansley sentencing.

Whatever you think of these sentences, there were some themes from both worth taking away.

First, the defense attorneys in both cases spoke at length about how honorably the AUSAs on the case — Leslie Goemaat for Fairlamb, and Kimberly Paschall for Chansley — had acted throughout the prosecution. “The decency of prosecutors like this serve only to elevate the entire criminal justice system,” Fairlamb’s lawyer, Harley Breite stated. Chansley’s lawyer, Al Watkins, welcomed of Kimberly Paschall’s ability to see Chansley as an indivdiual. (Chansley also thanked Lamberth for ensuring he’d have access to organic food in accordance with his shamanic faith.)

In both cases, the defendant spoke about the legitimacy of Lamberth’s judgment. While both claimed they had come to see the error of the ways in pretrial detention, they nevertheless acknowledged that if Lamberth saw fit to send them to prison, they accepted his judgment. “I could not have asked god for a better judge, to judge my character, this is a wise man, who’s going to be impartial, going to be fair,” Chansley said of the judge who had repeatedly deemed him unsafe to release. “I just hope you show some mercy on me, Sir,” Fairlamb said.

In both cases, Lamberth — a Reagan appointee whose past notably independent decisions include presiding over much of the litigation over a Native American Trust lawsuit, Cobell, as well as some of the first rulings to rein in the Executive’s FISA demands — seemed moved by the men’s remorse. In both, he considered but rejected a below guidelines sentence (for both men, the guidelines range was 41 to 51 months). In both cases, he sentenced them men to the guidelines sentence, albeit the lowest one, because of the severity of their actions. “It’s such a serious offense under those circumstances,” Lamberth said of Fairlamb’s actions that day, “an affront to society and the law to have the Capitol overrun and this riot stop the whole functioning of government. I cannot give a below guidelines sentence.” With Chansley, Lamberth similarly judged, “The basic problem I have with a departure downward, what you did here was horrific, as you now concede, and obstructing the functioning of government as you did is a type of conduct that is so, uh, serious that I cannot justify downward departure.”

You may not like either of these sentences. But one thing that both did — whether motivated out of genuine remorse or as part of a cynical ploy to butter up a judge — is reaffirm the legitimacy of the judicial process. By imposing real sentences on two men he seemed to believe exhibited real remorse for their actions, Lamberth emphasized how serious the January 6 attack was. Both these men recognized their actions as crimes. Both recognized the legitimacy of a judge imposing sentence for it. And both defendants recognized the professionalism of those at DOJ working to prosecute the case.

Amid all the efforts to decry any effort to hold January 6 rioters accountable, those are no mean achievements.

Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.