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Why That Peter Navarro Interview Isn’t Enough To Charge Him with Sedition

A slew of people have asserted as fact that an interview that Peter Navarro did on his book offers adequate proof to charge him with sedition. The interview (and I assume the book) lays out a plan called the Green Bay Sweep that, Navarro hoped, would result in Trump remaining in power. It entailed:

  • Recruiting “over 100 congressmen, including some senators” to raise objections to the vote count, setting off 24-hours of news coverage on false claims about the election
  • Increasing public pressure — unrelated to threats of violence — to lead Mike Pence to send the electoral vote back in six swing states
  • Using that delay, getting those states to change their vote results

Navarro’s role was to invent the false claims members of Congress would use to fill up 24-hours of “debate.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

I’d like to talk about why this book and interview are not enough to charge Navarro with sedition, and in fact the current media frenzy into is is actually counterproductive to the legal investigation.

A book and an interview are not evidence

The most important reason why this book and Navarro’s interviews on it are not enough to charge him is that books are probably not admissible evidence.

This is retroactive telling about what, Navarro claims, he and Steve Bannon and others planned to do. While the book might be part of a conspiracy to cover up what Navarro and Bannon planned, in and of itself, it’s not clear it would be admissible at trial (though it could be useful at trial for other reasons, such as challenging any testimony Navarro gave).

Instead, you’d need to get all the texts and memos Navarro says documents this effort, the former of which may require seizing his phone with a probable cause warrant.

Although the bipartisan House committee investigating the violence on Jan. 6 has demanded testimony and records from dozens of Trump allies and rally organizers believed to be involved in the attack on the nation’s democracy, Navarro said he hasn’t heard from them yet. The committee did not respond to our questions about whether it intends to dig into Navarro’s activities.

And while he has text messages, phone calls, and memos that could show how closely an active White House official was involved in the effort to keep Trump in power, he says investigators won’t find anything that shows the Green Bay Sweep plan involved violence.

You’d likely need cooperating witnesses that were willing to tell this story, perhaps Navarro himself and Steven Bannon (the same guy refusing to testify to the Jan6 Committee right now).

As such, this interview is at most an investigative blueprint that, months down the road, might lead to evidence that could be used to prosecute Navarro.

Much of this is not illegal

Another reason why this interview and book are not a smoking gun is that, as Navarro describes it, much of it is not illegal.

It is not illegal to invent false claims about an election, as Navarro said he did. It might be sanctionable for a lawyer to make those same false claims to a court (as it finally became for Sidney Powell). I might be illegal to raise money off promises of electoral changes you knew to be false, which seems to be one of several premises for the investigation of Sidney Powell. But it’s not illegal to lie.

It’s also not illegal for members of Congress to raise objections on the floor, which was a central part of this plan. As Republicans never tire of reminding, Jamie Raskin did so himself in 2017.

Unlike Raskin’s challenge, the plan here was to base electoral challenges off bullshit. But even if you could prove that members of Congress knew it was all bullshit (and you would need to prove that), it’s also not illegal for members of Congress to push bullshit in Congress. Indeed, that is pretty aggressively protected under Speech and Debate. To criminalize this behavior you’d have to distinguish it from what lobbyists do all the time when they push members of Congress to adopt storylines that are factually false.

All this only becomes illegal in the context of a plan to violate the law. DOJ has been using 18 USC 1512(c)(2) to charge deliberate efforts to prevent the certification, but at least as stated, Navarro didn’t want to obstruct the proceeding in question, he wanted that process to occur, albeit stretched over 24 hours according to the very rules that judges have pointed to to affirm that it is an official proceeding. So if you were to charge it, you’d need to charge something else, perhaps trying to get Pence to violate his duty.

Much of this is probably a lie

Crazier still, people claiming that this book and interview are the smoking gun in a prosecution are treating it as a truthful description, which it would need to be to serve as admissible evidence for any crime itself (which is why it would have limited evidentiary value short of getting a whole lot of texts and testimony).

Peter Navarro is a noted liar and Steve Bannon is an even more accomplished one. And we know — because BuzzFeed fought to liberate Mueller materials — that Bannon is all too happy to tell serially false stories to protect himself from criminal exposure. At a very similar time in the Mueller investigation, Roger Stone got the press to chase his false claims like six year olds chasing a soccer ball, and to this day, the overwhelming majority of the press believe his claims about why he was prosecuted are actually why he was (though prosecutors used that to their advantage, too).

We should assume this story is of the same ilk, a cover story, which has successfully led the press to grasp onto it as a smoking gun rather than a distraction. If it is a cover story, it serves to:

  • Claim that “‘Stephen K. Bannon, myself, and President Donald John Trump’ were ‘the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,'” as it would disrupt their plans. This claim is crucially important with regards the pressure campaign focused on Pence, as I’ll return to. And it is undoubtedly bullshit.
  • Claim that Navarro “felt fortunate that someone cancelled his scheduled appearance to speak to Trump supporters that morning at the Ellipse, “because “It was better for me to spend that morning … Just checking to see that everything was in line, that congressmen were on board.” This adopts the same strategy that Stone has, blaming those who organized the Ellipse rally rather than those orchestrating events at the Hill. And in this telling, Navarro was just talking to members of Congress, not communicating to any of the people who would go on to attack the Capitol.
  • Distance himself from Sidney Powell’s equally outlandish claims. In his telling, this is a plan that arose from the failures of Sidney Powell’s false claims, not a continuation of them. This treats Navarro’s efforts as an alternative to Powell’s false claims, not a continuation of them.

[Navarro] said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits.

  • Focus on January 6 rather than January 5. Navarro emphasizes that he spoke to Bannon first thing in the morning on January 6. Given what we know about the way the riot was finalized on January 5, I’m more interested in whom he spoke with before he went to bed.

In my experience, you learn far more in mapping out what liars are trying to cover up than you do chasing their claims as if they are the truth. And the same is probably true here.

But at the very least, Navarro’s tale attempts to dissociate himself with several contributors to January 6 that might be more obviously tied to crimes than the lies he packaged up for members of Congress to tell.

The takeaway from this book and interview ought to be that Navarro has admitted his goal was to bring maximal pressure on Mike Pence. As such, it means he shares a stated goal of a number of January 6 defendants who have already pled guilty.

Finally, Everyone Is Talking about Trump’s Obstruction on January 6

Twice in the last 24 hours, Liz Cheney has read from texts that Mark Meadows already turned over to the January 6 Committee, showing that everyone from Sean Hannity to Don Jr were desperately contacting Meadows begging him to get Trump to do something to halt the assault on the Capitol.

After reading the names of all the people who’ve protected Trump since, Cheney then described that Meadows’ testimony is necessary to determine whether Trump, “through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes.”

Hours passed without necessary action by the President. These privileged texts are further evidence of President Trump’s supreme dereliction of duty during those 187 minutes. And Mr. Meadows’ testimony will bear on another key question before this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?

With her forceful comments Cheney was, as TV lawyers have finally discovered, invoking the clause of the obstruction statute that DOJ has used to charge hundreds of the most serious January 6 rioters. Liz Cheney was stating that Trump’s actions on January 6 may demonstrate that he, along with hundreds of people he incited, had deliberately attempted to prevent the vote count.

Even as she was doing that a second time today, the judge presiding over most of the Proud Boys cases, Tim Kelly joined his colleague Dabney Friedrich in rejecting the challenge that Ethan Nordean had taken to that same application.*

Again, this issue is not over. There are 2 other ripe challenges to the application, and plenty more pending.

But for the moment, it seems that all three branches of government — prosecutors charging obstruction, judges affirming the viability of the application, and senior members of Congress invoking it as part of the January 6 investigation — agree that the events of the day may amount to obstruction.

Back when I begged TV lawyers to start focusing on this application, I laid out the things that Trump had or may have done, that might be proof of obstruction.

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

The January 6 Committee has already collected evidence demonstrating many of these issues, for example, the efforts to sow the Big Lie, including coordination with Congress, reveling in the collecting mobs, directing Guard deployment in ways that would support the insurrection, the unbelievable pressure on Mike Pence to violate his oath to the Constitution. In the interim four months, the press and Committee have identified other potential means of obstruction, such as ordering Alex Jones to bring his mob to the Capitol.

This is not a guarantee that Trump will be prosecuted. But all three branches of government now agree on the framework with which he might be held accountable.

*As I now understand it, Kelly announced yesterday that he will be denying the motion to dismiss later this week. He has not done so formally yet, but announced it yesterday in conjunction with his denial of renewed bail motions from three defendants.

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.

How Jacob Chansley Proved Patrick LeDuc Right

I have written repeatedly about how charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512).

A review of what has happened with five men who’ve pled guilty to obstruction so far illustrates not only the range of sentences possible from the same charge, but also the factors DOJ is using to distinguish defendants based on their actions on January 6.

Before I lay out what has happened, first a word of explanation: To get to sentences, the two sides in a plea deal first agree on a  “Estimated Offense Level,” then (if someone pleads guilty), knocks a few points (usually 3) off for pleading. That gives a number that gets plugged into the Sentencing Table to figure out the guidelines sentence, in months, based on whether someone has a criminal record.

So in what follows, I’m showing the initial calculation (before the 3 points taken off for pleading guilty), and then showing what the plea agreement says the guidelines will be. In the table, I’ve marked the four different guidelines calculated in the five cases I discuss here (Scott Fairlamb has some criminal background so may get bumped up a level, but the others have no criminal background).

Paul Hodgkins, who traveled alone to bring his Trump flag to the floor of the Senate, pled guilty to obstruction, and went into sentencing facing a 15 to 21-month sentence (and ultimately got an 8-month sentence).

The number you’ll see Patrick LeDuc mention — 14 — in an email below is obtained by knocking 3 points off 17. And the 15-21 months is taken by checking the “0” criminal record column for an offense level of 14.

Scott Fairlamb. who didn’t plan for insurrection but while there punched a cop, pled guilty to obstruction and assault and goes into sentencing facing 41 to 51 months. DOJ has reserved the right to invoke a terrorist enhancement (including in his plea colloquy) that, if Judge Lamberth agreed, could result in a far stiffer sentence, up to 10 years.

Josiah Colt, who planned his trip to DC with two others, came to DC armed, and rappelled onto the Senate floor, pled guilty to obstruction, but faces (before getting credit for cooperation) 51 to 63 months.

Graydon Young, who planned in advance with a militia, entered the Capitol as part of a Stack, and tried to destroy evidence, pled guilty to obstruction, but faces (before getting credit for cooperation) 63 to 78 months. The difference in guideline between him and Colt is not that Colt’s “militia” was disorganized (a couple of guys he met online), but rather that Young tried to destroy evidence. Otherwise, they’re the same.

These four men all pled guilty to the same crime, obstruction of the vote count, but all faced and are facing dramatically different sentences based on the context of what they had done. And for those who deliberately used violence in pursuit of obstruction could face longer sentences, up to 20 years, which happens to be the same sentence that some sedition-related charges carry, but (again, unless judges overturn this application of obstruction) would be far easier to prove to a jury.

Somewhere around 200 January 6 defendants have been charged with obstruction, but among those 200, there’s a great range of actions they took in their alleged effort to prevent the peaceful transfer of power, including:

  • How obstructive their actions were (a 3 point enhancement)
  • Whether they used violence or threats thereof (an 8 point enhancement)
  • Whether they planned in advance to obstruct the vote count (a 2 point enhancement)
  • Whether they engaged in further obstruction (a further 2 point enhancement)
  • Whether someone did or abetted more than $1,000 in damage to the Capitol (which will likely get a terrorism enhancement)

And this is an issue that will play out in Paul Hodgkins’ effort to appeal his sentence.

According to claims made in court, Hodgkins decided to admit his guilt early on, which led to him being the first person to plead guilty to that obstruction charge. His lawyer at the time was a guy named Patrick LeDuc, a JAG Reserve Officer who learned after he started representing Hodgkins he had to deploy to the Middle East. Immediately after he was sentenced to a below guidelines sentence, per representations a new lawyer has now made, he asked if he could appeal (Friday, Judge Randolph Moss granted his request to extend his time to appeal). What LeDuc said in response will likely be the matter of a legal fight. We do know that on August 21, LeDuc told Hodgkins, “You have no right to appeal the sentenced [sic] pursuant to our plea agreement,” which suggests that at that point, LeDuc understood Hodgkins’ complaint to be with the sentence, not the competence of his representation.

But we know, for sure, that LeDuc told Carolyn Stewart, Hodgkins’ new lawyer, that other January 6 defendants who made it to the Senate floor were going to be charged with more enhancements to the base obstruction charge than Hodgkins.

Here is what you should know. Capitol Hill Defendants found in the Senate are all being offered a felony (same as Paul)(some more than one felony) with an 8 level enhancement (you might consider obtaining a Federal Sentencing manual for your reference). I was able to get the DOJ to agree to only a 3 level enhancement. You ought to know that my plea deal was adopted at the highest level to include the AG of the United States. That meant that my client was at level 14 instead vice level 19. Other Capitol Hill defendant [sic] are looking at 46 months low end. The AG instructed AUSA Sedky to argue for mid range – 18 months. And you would suggest that is evidenced [sic] of malpractice. I would argue that an attorney of 6 months accusing an attorney with over 250 jury trials at both the State and Federal level, and with 30 years of experience is unprofessional on your part.

If you think the plea deal was insufficient, then you ought to know that the United States makes offers with a a [sic] take it or leave it attitude. Everything in the plea deal was boilerplate with one exception that did not bother me. That was a provision that required me to agree that level 14 was good to go and that I would not object to the PSR. I was allowed to argue for a variance under 3553, which was my strategy all along, and the judge did indeed vary 3 levels into ZONE B. Ms. Sedky is a very experienced prosecutor, and the plea deal was arranged over many lengthy phone calls over a period of 3 months. Being the first felony case to be resolved was something that DOJ had to concur in because my case was going to set the precedent for every one to follow and the stakes were high for both sides.

My strategy paid off to Paul’s benefit. No other Federal defendant who is pleading to a felony will get a sentence better than Paul (nearly 250 others)  We had a very good judge who understood the issues, and the sentence was a fair reflection of the fats.

LeDuc is obviously furious at being called incompetent (and writing from Qatar where he is also juggling a huge influx of refugees from Afghanistan). But in this passage he describes a lot of the background to the plea deals that was evident to those  of us following closely, but for which there had been only off the record confirmation.

I think things may intervene that change DOJ’s plans (particularly if any of the challenges to 1512 are successful). But LeDuc describes that the plan when he was involved was to give Hodgkins a good deal and then use that as the precedent for everyone else. With other judges an 8-month sentence may not actually be the floor, but it is the base level treatment DOJ thinks it will adopt for those charged with felonies.

We’ve seen a few people plead down from felonies to 18 USC 1752, but thus far those people are looking at close to the same sentence as Hodgkins, 6 months, a difference of 2 months and the onerous felony conviction.

One thing LeDuc did say is that other defendants who made it to the Senate floor will face 8 level enhancements. Again, I’m virtually certain there will be others who made it to the Senate that will avoid this treatment.

But yesterday, with Jacob Chansley’s sentence, LeDuc was proven correct: another defendant, with whom Hodgkins stormed the Senate floor, got an 8 point enhancement for doing so.

.

Note that, as with Fairlamb, the government reserved the right to ask for a terrorist enhancement, though I did not hear AUSA Kimberly Paschall make a record of that in yesterday’s plea hearing, as AUSA Leslie Goemaat did in Fairlamb’s plea hearing.

To be sure, Chansley’s Statement of Offense includes multiple things that weren’t present with Hodgkins (nor will they be present for some others who made it to the Senate floor). According to his sworn Statement of Offense, Chansley defied orders from Officer KR four different times, and made public and written comments while in the Senate that might be deemed a threat, including to Mike Pence personally.

11. At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building. In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers, instructing them to peacefully leave the building. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

12. Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.

13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

14. The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K.R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

15. After Officer K.R. again asked the defendant to vacate the seat, the defendant remained, calling other rioters up to the dais and leading them in an incantation over his bullhorn, which included giving thanks for the opportunity “to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

16. Finally, at approximately 3:09 p.m., other law enforcement officers arrived to support Officer K.R., and cleared the defendant and other rioters from the Chamber. [my emphasis]

While it’s a puzzle to compare who posed more of a threat, Scott Fairlamb or Jacob Chansley, DOJ is treating both as people who deliberately tried to prevent the vote count by using violence or threats thereof. And because of that, DOJ has gotten their attorneys to agree, they should face a sentence more than twice as long as Hodgkins faced.

And that’s precisely what Patrick LeDuc told Hodgkins’ new lawyer would happen.

Update: I’ve corrected that these are the only five men who’ve pled guilty to obstruction. Some other Oath Keepers also did.

How a Trump Prosecution for January 6 Would Work

Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.

Assumptions

The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.

Questions

There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

Did Paul Gosar Take Actions on Behalf of Donald Trump that Contributed to Ashli Babbitt’s Death?

In this post, I noted that just nine minutes before accused January 6 defendant Brady Knowlton entered the Capitol at 2:35, Donald Trump called Tommy Tuberville. Later in the day, Rudy Giuliani would ask Tuberville to delay the vote certification by challenging more states. If that’s what Trump asked Tuberville to do on that first call and if Tuberville complied with Trump’s request, he and the rest of his colleagues might still have been in the Senate when Knowlton and others started to swarm in.

Instead, Tuberville told the President he had to go because the Senators were being evacuated, following shortly on the evacuation of Mike Pence just minutes before Trump called.

We only know of Trump’s call to Tuberville because Trump — and later Rudy Giuliani — dialed the wrong number, calling Mike Lee’s phone instead of Tuberville’s.

We don’t know who else Trump was calling at the time, though in recent days Jim Jordan has admitted he spoke to Trump that day, while dodging wildly about when that happened and what Trump said.

What we do know is that someone on the other side of the Capitol was doing exactly what Trump later asked Tuberville to do: Paul Gosar, who coordinated closely on all aspects of the insurrection with Trump, was raising more challenges to the vote.

That’s of particular interest because the NYT, in their superb documentary on the chronology of the day (starting at 25:40), suggests that the chain of events that led to Ashli Babbitt’s death started with Jim McGovern’s decision to get through one more person’s challenge of the vote, Gosar’s.

By 2:30 PM the Senate evacuation is well underway. But, even though a lockdown was called over 15 minutes ago, the House is still in session.

Gosar: I do not accept Arizona’s electors as certified.

Representative Jim McGovern is chairing. He told us he wanted to finish hearing objections to the election results by Paul Gosar. House staff and security gave McGovern the all-clear to continue. It’s a delay that likely cost someone their life.

Suddenly, staff are now pointing at the Chamber’s doors.

Please be advised there are masks under your seats. Please grab a mask and place it in your lap and be prepared to don your mask in the event we have a breach.

Just outside, a mob of a hundred or more is baying to get into them.

Well, we came this far, what do you say?

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

These rioters pay little heed to the thin line of police.

They’re going. I would just stop.

And in moments, are pushing against doors into the House.

Stop the Steal! Stop the Steal!

On the other side, Capitol police erect a barricade and draw their guns. On the floor, lawmakers are evacuating to the rear of the chamber, where in a few minutes a rioter will be shot and killed. Part of the mob inside now peels off in that direction to find a different way in. Ashli Babbitt, an Air Force veteran and a QAnon supporter is among the first to arrive at the rear of the House.

There they are! What the fuck!

They see the lawmakers escaping. That lobby might have been clear had the House been evacuated sooner. But the rioters now become incensed. Zachary Alam, a Trump supporter punches in the glass panels with his bare fists.

Stop the Steal! Open the door. Break it down! Break it down!

Police are stretched extremely thin. Just three officers and a security officer stand guard. None are wearing riot gear and they keep their weapons holstered. When a team of heavily armed police now arrives, the three officers step aside.

Go! Let’s go! Get this thing!

This creates a crucial gap that allows rioters to smash in the glass. [A warning: what happens next is graphic.] It’s 2:44PM and behind the door a police officer draws his handgun.

There’s a gun. There’s a gun! He’s got a gun! He’s got a gun!

Babbitt vaults into the window. And the officer shoots her once. It’s a fatal wound, through the upper chest.

Gosar’s challenge delayed the evacuation of the House, meaning that rioters spied the lawmakers evacuating through the Speaker’s lobby as they arrived. NYT suggests that viewing the lawmakers in such close proximity inflamed the rioters, leading Zach Alam to punch through the door and Babbitt to leap through it in an attempt to chase after them, in turn leading to an officer’s decision to use lethal force to protect fleeing Members of Congress.

One minute after Babbitt was shot, surveillance footage caught Knowlton entering the Senate Chamber at 2:45. Had Trump convinced Tuberville to stay, the same kind of confrontation might have happened in the Senate Chamber, too (and video shows that Mitt Romney, already a target for Trump’s supporters, narrowly avoided running into the mob as well).

If a Tuberville delay might have orchestrated a similar clash on the Senate side, it raises questions whether Trump was involved in the Gosar delay.

As it happens, Gosar is among the most active purveyors of the martyr myth surrounding Ashli Babbitt, including tweeting out this image that seemes almost necrophiliac in composition, with its focus on his crotch and her name.

But the fact that Trump was actively calling Members of Congress well after rioters stormed the building, and the fact that Gosar caused what the NYT deemed the fatal delay on the House side, it’s possible that he and Trump had a bigger role in ensuring that Babbitt jumped through that window to chase Gosar and his colleagues. It’s possible Gosar created that delay because Trump asked him to.

CNN reports that the January 6 commission is weighing whether to obtain White House call logs (Trump made the call to Tuberville from the main White House line).

The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.

The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.

Liz Cheney may well be thinking of tracking Trump’s calls to Kevin McCarthy. But the import of Gosar’s delay to the shooting of Ashli Babbitt by itself presents a good reason to subpoena those records.

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

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

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

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

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

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

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

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

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

[my italics]

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

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

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

[snip]

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

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

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

[snip]

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

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

[snip]

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

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

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

[snip]

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

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

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

[snip]

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

It would be a great gotcha if it were true.

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

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

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

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

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

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

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

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

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

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

Update: emptywheel gets results.

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

Like All His Co-Conspirators, Donald Trump Would Be Charged for Obstruction, Not Incitement

Today is the day that DOJ has to inform Judge Amit Mehta whether or not Mo Brooks’ incitement of January 6 rioters is part of his job, which would require DOJ to substitute itself for Brooks in Eric Swalwell’s lawsuit. Commentators who appear not to have followed the court cases very closely suggest that if DOJ does substitute for Brooks, it’ll make it impossible to hold Trump accountable for his role in the riot.

Brooks argued in court papers that his statements came as Congress prepared to certify the election results and that he was acting in his role as a federal lawmaker, representing his constituents, that day.

Now, the Justice Department and the top lawyer for the U.S. House of Representatives are involved. U.S. District Judge Amit Mehta has directed them to say by Tuesday whether they consider Brooks’ statements to be part of his duties as a member of Congress, and whether the federal government should substitute itself as a defendant in the case.

“We hope DOJ will see Brooks’ appalling conduct on Jan. 6 for what it was and what he admitted it was, which was campaign activity performed at the request of Donald Trump, which inarguably is beyond the scope of his employment as a member of Congress,” said Philip Andonian, a lawyer who brought the case on behalf of Swalwell.

Andonian said there’s no way Brooks and Trump were acting in their capacity as federal officials, which would give them a legal shield under a law known as the Westfall Act. Instead, he said, they were engaged in campaign activity, which doesn’t deserve that kind of protection.

[snip]

[Protect Democracy’s Kristy Parker] said she’s worried that if the Justice Department endorses Brooks’ and Trump’s statements on Jan. 6 as within the scope of their federal employment, it could complicate the efforts of prosecutors to bring the rioters to justice.

“That is not going to have a good impact on the ongoing criminal cases when it comes to persuading judges that the people who stormed the Capitol should get hefty sentences when the people who inspired them to do it have been endorsed as acting within the scope of their official jobs,” Parker said.

This column lays out some of the legal complexities regarding Brooks, including that even if DOJ does substitute for Brooks, it likely still leaves him exposed to part of the lawsuit.

I say the people claiming that this decision will determine whether or not Trump can be held accountable seem not to be following the actual court cases. If they had, after all, they’d know that the crime for which key instigators are facing “hefty sentences” is obstruction and conspiracy to obstruct the vote count. They’d also know that every single conspiracy indictment thus far has the same objective — to stop, delay, or hinder Congress’s certification of the Electoral College vote.

They’d also know that the overt acts in these parallel conspiracy cases involve getting large numbers of people to DC — often by publicizing the event on social media — and then getting those people to occupy the Capitol.

That is, if people were following the court cases rather than uninformed commentators, they’d know that the 38 people charged with conspiracy and the at least four people cooperating against them (not to mention the almost 200 individuals charged individually with obstruction) all had the same goal as Trump — they wanted to prevent the vote certification. Those charged with a conspiracy also used some of the same overt acts that Trump did, making sure lots of bodies were there and making sure that those bodies were occupying the Capitol.

They also might know that, starting with the Three Percenter SoCal conspiracy, DOJ started charging people who threatened violence as part of their efforts to get more bodies to the Capitol.

The difference between the threats that Trump made against Mike Pence after Pence refused an unconstitutional request from him and the threats of execution that were included in Alan Hostetter’s posts in advance of the riot is that virtually all the people who occupied the Capitol on January 6 were aware of Trump’s threats and some took action to implement them.

The disorganized militia conspiracy (which will presumably be rolled out any day now) is significant because at least one of the men who will likely be charged in it, Nate DeGrave, said he was responding entirely to Trump’s exhortations. DOJ likely has video evidence of the effect that Trump’s attacks on Mike Pence had on those men as they walked from his speech to the Capitol. Those men fought with cops to open up a second front of the siege on the Capitol and then they fought with cops to get into the space where, Josiah Colt hoped and believed, Senators were still conducting the vote count. These men are charged with trying to intimidate government personnel like Mike Pence, something that Trump also did.

We already have evidence Trump shared the same goal as every person charged with conspiracy and evidence that Trump committed some of the very same overt acts as those charged. We even have evidence tying Trump’s own actions with physical violence committed with the goal of reaching Mike Pence to intimidate him.

We don’t, yet, have evidence that Trump agreed with any of the co-conspirators already charged. But we are within two degrees of having that, working through either Rudy Giuliani or Roger Stone, which would make Trump a co-conspirator with all the others.

I’m not saying DOJ will get that evidence. As I’ve said, a goodly number of people are going to have to agree to cooperate before DOJ will get there, though we have abundant reason to believe such agreements were made.

But unless this novel application of obstruction gets thrown out by the courts, then it remains ready-made to fit Trump right in among the other co-conspirators, just one violent mobster among all the others.

Even Billy Barr agreed that Presidents could be charged with obstruction. And if Trump is going to be held accountable for his actions on January 6, it will be via obstruction charges, not incitement.

A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

Accused Terrorist* Leader Ethan Nordean Complains He Got Charged with Trespassing

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

Don’t get me wrong; I think Smith is a good lawyer and I’m grateful for the January 6 defense attorneys who are making aggressive challenges to the charges against their clients; it’s an important check on the First Amendment risks of this prosecution. And I imagine the filing was all ready to go before yesterday’s status hearing, where Kelly kept repeating that he is sympathetic to the plight of the defendants, but noted that the last motion Smith filed — a motion for a Bill of Particulars, a kind of motion that, in general, rarely succeeds — probably tolls the Speedy Trial clock whether or not Kelly were prepared to rule against prosecutors’ request for more time.

But tactically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

The 66-page motion goes one by one, arguing that every charge against Nordean is vague or wrongly applied. Obstruction — 1512 — only applies for Congress when it is engaged in an investigative function, not what Nordean claims (notwithstanding the questions that sympathetic members of Congress raised about the vote count) was just a formal technicality. Leading an insurrection also doesn’t have the requisite corrupt nature, because threatening the Vice President and the Speaker of the House with assassination would not have the effect of influencing members of Congress to do what the mob wanted. Civil disorder — 231 — was designed to jail civil rights leaders and so (it suggests) shouldn’t be used against a guy trying to invalidate the votes of 81 million Americans. A riot affecting a vote count that affects every state and shut down much of DC did not affect interstate commerce. There were other police, in addition to the Secret Service at the Capitol, and so the specific terms of 1752 — the trespassing charge — don’t apply here. Plus, poor Ethan Nordean had no way of knowing that barriers that were clearly in place when he started the approach to the Capitol were barriers meant to keep him out. And, finally (though this comes off as half-hearted), Nordean has no idea what property his conspiracy depredated even though it has been discussed ad nauseum in past hearings.

Along the way, Smith shades the case in ways that prosecutors will easily rebut, as when he suggests Nordean, whom the indictment cites invoking revolution as early as November 27 (and so even before the states certified their votes), was motivated out of a sincere belief that the election was stolen because of voter fraud.

Nordean did so, the government alleges, in the misguided belief that the legislature should refuse to certify the vote upon a review of evidence that he mistakenly contended showed voter fraud.

[snip]

Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided.

He lays out the legislative history for many of these laws. He provides the entire history of the Executive Mansion. He falsely represents that the only people who are being charged with 1512 are gang members like Nordean. More ridiculous still is the claim that hundreds or thousands of other people aren’t being charged with 1752 and so Nordean’s charge must solely stem from his gang membership, when in fact, virtually every person who is being charged, is being charged with 1752.

Some of these arguments have merit. For example, I’ve repeatedly raised concerns about the way the government has hung all its felony counts on a fairly novel reading of obstruction (basically, the argument that the insurrectionists were obstructing the official proceeding of certifying the vote). But other defendants — albeit mostly Proud Boys — are already bringing these challenges (and more are likely to now that Paul Hodgkins’ plea has made it clear that the government will insist defendants plead to that count). The DC Circuit is far more likely to assess those arguments on their legal merits if someone like business owner Jenny Cudd, who actually attended Trump’s rally before heading to the Capitol, and who didn’t preassemble a mob of 100 gang members to attack the Capitol even before Trump’s speech (that said, Cudd’s challenges thus far have been motions to change venue and to sever).

I would like the 231 challenge to succeed, but similar challenges have thus far failed when launched by people in actual states rather than the nation’s capital that by its geographic nature can carry out little commerce without transit through Maryland and/or Virginia, and in protests that would have been prosecuted solely by state cops if Billy Barr didn’t bigfoot on the events

Even Smith’s challenge to the trespassing charge was genuinely interesting when he made the same argument for another of his clients, Couy Griffin, who attended Trump’s rally and is not alleged to have entered the Capitol itself. But it works very differently for a guy who, rather than attending Trump’s rally, instead spent the morning of January 6 preparing a mob to march on an event that was important precisely because Mike Pence, along with his Secret Service detail, would be there conducting official business.

That’s the thing about being charged along with 450 other people: Where a claim has legal merit, other defendants are going to make such challenges. Those other defendants will be taken more seriously by the DC Circuit (the detention case for Chris Worrell has already shown that the DC Circuit sees the Proud Boys’ role in this as distinct from the unaffiliated defendants). And most of those defendants, if they succeed, won’t be promptly charged with insurrection or seditious conspiracy to sustain the prosecution.

And if any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

The worst thing about this motion, though, is that both the substance of it and that it was filed by one of the key terrorist leaders of this attack serves as the single best argument I’ve seen for passing a domestic terrorism statute. I don’t want January 6 to lead to passage of a domestic terrorism statute so the government has a way to criminalize membership in the Proud Boys. But claiming that Ethan Nordean shouldn’t even be held accountable for trespassing is a good way to ensure that one is passed.


*I believe it is legally accurate to use the term “terrorist” with Nordean because the government has charged him with a crime that can carry a terrorist enhancement — and in fact the government laid that out explicitly in the superseding Front Door indictment. I also believe the January 6 attack was a classical case of terrorism: the use of political violence to achieve a political goal.