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Comings and Goings on the Proud Boy Leaders Prosecution

When DOJ finally added Enrique Tarrio to the Proud Boy leader conspiracy, I noted that the way DOJ has structured the prosecution team for the Proud Boys made it really hard to understand where things were headed.

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after [Matthew] Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

That remains true. But on Friday, there were several minor structural changes worth noting. I’ve attempted to summarize the status of some key Proud Boy and related cases here (I’ve only listed a judge if it is someone other than Tim Kelly).

First, Trial Attorney Conor Mulroe filed a notice of appearance in the Proud Boy Leaders and the Biggs Co-Traveler cases. He hasn’t shown up on any January 6 cases before this. It’s likely he was added because on April 22, Judge Kelly set a trial date in the Proud Boy leaders for August 8. That is, it’s likely he was added to start preparing for trial. But the Biggs co-travelers, on whose case he also filed an appearance, won’t be going to trial anytime soon. That’s partly because three of the defendants have to work through the conflict created by John Pierce’s representation of three of them — Paul Rae, Kevin Tuck, and Nate Tuck (though Pierce recently ceded representation to William Shipley for the Tucks). In hearings, prosecutors have said that at least three of the defendants are considering plea deals.

Then Luke Jones, who has been part of the Leaders case from the start, dropped off the case (he recently dropped off an unremarkable misdemeanor case as well though remains on the Ryan Nichols and Alex Harkrider case). Jones had been focusing on Zach Rehl’s prosecution, and he remains on the Rehl co-traveler case, which has not yet been indicted. I don’t know what to make of his departure (perhaps a recognition that his efforts to flip Rehl won’t ever come to fruition?). Jones has, in the past, worked on national security cases, and in fact was listed as prosecuting Russian hacker Evgeny Viktorovich Gladkikh in the press release (though not the docket). That case will never go to trial (because the US is not about to get custody of Gladkikh anytime soon). But it suggests that Jones may have spent time last June helping co-counsel present that case to a DC grand jury.

I’m most interested in the addition of Nadia Moore to the Leaders case. She’s a Brooklyn-based prosecutor, among five or so prosecutors from around the country who’ve been working the Proud Boy cases (in this table, William Dreher is from Seattle, Alexis Loeb is from San Francisco, Michael Gordon is from Tampa, and Christopher Veatch is from Chicago). And as the table makes clear she has been working the Florida-based Proud Boy and related cases, as well as the case of Steven Miles and Matthew LeBrun, who spent January 6 with Florida Proud Boys AJ Fischer and friends, and the former of whom is accused of helping to bust open the other side window in the original breach of the Capitol. This may suggest the government believes they’ll obtain the testimony of multiple Floridians against Biggs and Tarrio.

Meanwhile, a slew of these cases have just one (listed) prosecutor, including the Kansas City case with its five remaining defendants.

We’ll still see some significant movements in the Proud Boys cases. But for now, the focus — as so much of the January 6 investigation is — may be on Florida.

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Amid Plea Discussions, Owen Shroyer Submits a Half-Hearted First Amendment Challenge

I came in just a few minutes late to the Owen Shroyer status hearing, and missed the better part of it, it went that quickly! That said, according to Shroyer lawyer Norm Pattis, things are quite chummy with prosecutors and they expect they might come to some kind of plea deal.

That makes the flimsiness of a motion to dismiss he submitted the other day far more interesting. He’s supposed to be arguing that because he’s a “journalist” who was covering the riot he was cheering, he shouldn’t be prosecuted. Most of his 1A argument, however, would apply to the hundreds of other people charged with trespassing that day, and doesn’t address the non-prosecution agreement that specifically prohibited Shroyer from being a loud asshole at the Capitol, uniquely among the thousands of rioters. Shroyer repeats false claims about trying to rein in the mob that Tim Kelly already rejected. He makes one half-hearted bid to press freedom:

News reporters and broadcasters often put themselves into harm’s way to cover political demonstrations. Robust public discourse requires free and unrestrained media. In New York Times v. Sullivan, 403 U.S. 713, 717 (1971), Justice Black opined

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

(Black, J. concurring.)

Yet he provides virtually no evidence that he was reporting.

That’s what makes Shroyer’s declaration, which he could be held to (though it is labeled as a draft), all the more interesting. In addition to claiming that he intended, “in substantial part, to report on my observations to our millions of listeners and viewers worldwide,” and repeating the already rejected claims that he attempted to calm the crowd, he included these details about his expectations of the Former President.

While in Washington D.C. on January 6, I accompanied Mr. Jones to the podium at which President Trump was speaking. It was my understanding that we were to follow Mr. Trump from there to the Capitol.

Mr. Jones and I were accompanied by a security detail comprised of fellow Infowars employees and off-duty police officers. We traveled together as a group, with Mr. Jones and I walking within a perimeter established by our security team.

When Mr. Trump did not appear to lead our group, I followed Mr. Jones and the security detail from the podium traveling in the direction of the Capitol building.

At no point as we walked this route did I see impediments or barriers of any kin [sic] suggestion [sic] that we were not free to enter the grounds.

None of this addresses the general details of his trespass or his specific prohibition on being a loud asshole at the Capitol. Indeed, his claim that he didn’t see any barriers as he “walked this route” “in the direction of the Capitol building” (even assuming it is a factual claim, and the Sedition Hunters say it is not), is largely true only because the march itself was unpermitted.

He’s describing thinking that President Trump was going to lead an unpermitted march to the Capitol, and then leading it himself (following along behind Alex Jones like thousands of others), right down Pennsylvania Avenue which had no barriers because there was no march planned.

This doesn’t help him, even ignoring the presence of Ali Alexander, who is not an Infowars employee.

Whatever else this declaration is (and it’s not the kind of declaration that would win a 1A motion to dismiss), it doesn’t protect Donald Trump.

Meanwhile, the status hearing of the other Infowars employee who was supposed to have a status hearing today, videographer Sam Montoya, was continued so he, too, can continue to discuss a plea deal.

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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


Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

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

 

Questions about the Proud Boys Superseding Indictment

As noted here, DOJ charged Enrique Tarrio, along with the existing leadership conspiracy defendants and Dominic Pezzola, This is just the second superseding indictment against the key Proud Boys. And while it’s good that Tarrio was finally included and there are hints of interesting coordination, unlike with the Oath Keepers conspiracy, where each superseding indictment pointed to a relentless march in one direction, where the Proud Boy investigation is heading is far less clear to me.

For now, I’ll assume that’s simply because they’re holding their cards close.

Who is missing

My first question pertains to the non-inclusion of certain people in this indictment.

The first is William Pepe, who had been charged with Dominic Pezzola on the indictment that got consolidated with this one. He has either flipped (which would be especially noteworthy given that he is represented by John Pierce), or he’s just sitting out there in a conspiracy with himself.

Another person not included here is Ron Loerkhe. With Jimmy Haffner, he was instrumental in breaching the East side of the Capitol and seems to have provided military structure to the attack. The two of them remain charged only by complaint and in February DOJ got a 3 month continuance on their case.

A third is Aaron Whallon-Wolkind, a close associate of Zach Rehl’s who kibbitzed the attack from Philadelphia that day. He was raided back in October, seemingly suggesting he too might get charged. The indictment doesn’t charge him. It also leaves out some of his statements that were in earlier court filings.

Who is cooperating and who is not

Thus far, there is only one overt cooperator in the Proud Boy cases: Matthew Greene, the former co-defendant of Dominic Pezzola (who has been moved onto this indictment) and Pepe (who has disappeared).

There are three senior Proud Boys — named as Person 1, Person 2, and Person 3 — whose status remains unknown. All three had key leadership positions. And they presumably were involved in a video chat Tarrio scheduled for December 20 to discuss Person 3’s comment that, “most of the protest will be at the capital building given what’s going on inside.” Person 1 is almost certainly Jeremy Bertino, who lives in SC; a number of well-informed people believe Person 2 is Wolkind. [h/t CH]

There are other Proud Boys who could be included in this indictment but who aren’t. Dan “Milkshake” Scott got a continuance in February for 120 days; that filing stated that he and the government had not yet even started plea negotiations. Joe Biggs’ co-travelers on the Arthur Jackman indictment are all still charged individually, even though two of them were literally touching Biggs at key moments during the day; the government is only now sorting through conflicts posed by John Pierce’s representation of three of them that would have to precede any plea discussions. Zach Rehl’s co-travelers also remain charged by complaint (and just misdemeanors, too); in February the government got a continuance until April. Jeff Finley, who also with Rehl and the others for part of the day, got a continuance in February until late March, to allow for “continued discussions about the case.” [Corrected to note Finley is a PB] Gabriel Garcia, who seemed to be one of the most useful people reporting back so others could coordinate from outside the riot, seems headed for trial by himself.

Father Jeremy and son Jeffrey Grace remain in uncertain status, too. After dad got busted for paling around with Proud Boys last summer, they’ve been in flux but still just charged (not even with each other!) with trespassing. In February Jeffrey’s case got continued until St. Patricks Day and Jeremy’s got continued to April.

Meanwhile, on Friday, Ricky Willden set a change of plea hearing for April 7, pretty far in advance as these things go. Because he was charged directly with indictment, it’s not clear what the government knows, but he has ties to the Proud Boys and others.

The inconsistent references

In addition to the three Person-Numbers, this indictment refers to people by all manner of convention.

It names Stewart Rhodes in describing the meeting he had with Tarrio in a parking garage after Tarrio was released from jail on January 5.

Then there are multiple people described as “an individual whose identity is known to the grand jury,” the most interesting of whom is the person who shared a 9-page document about occupying key buildings in DC.

But that’s also the way the indictment describes Ryan Samsel before explaining that he, “put one arm around BIGGS’s shoulder and spoke to him” before be broke through the first barrier in front of the Capitol. On Friday, Jia Cobb (who took over the Samsel case from Tim Kelly when several people were added), ordered Samsel transported from the State Jail in Pennsylvania he had been in to a the Federal jail where DC jail residents had been moved to. Since Samsel has been charged, there’s no reason not to name him, just as Rhodes is named.

Where is Trump

As I noted earlier, there’s no mention of Enrique Tarrio’s visit to the White House in December. The White House claimed that was no big deal, and maybe it is.

But this indictment also leaves out all mention of Proud Boys, including Tarrio, playing on Trump’s Stand Back and Stand By comment.

Where is the obstruction charge?

In some ways, this indictment charges more aggressively than the earlier one. As other indictments have, it swaps the 18 USC 371 conspiracy (with a maximum sentence of 5 years) for an 18 USC 1512(k) conspiracy (with a maximum sentence of 20 years).

It charges all the men for the assaults originally charged just against Donohoe and Pezzola.

But it doesn’t include an obstruction charge for Tarrio, in spite of his explicit efforts to prevent others from cooperating, recordings of which were publicly released.

Where does this go from here?

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump acted both transitively and intransitively corruptly

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

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

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

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

Trump transitively corrupted by conspiring with people who committed crimes

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

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

T. Trump Speaks at the Ellipse

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

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

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

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

U. Pence Issues Public Letter Rejecting Eastman’s Theory

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

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

V. U.S. Capitol Attack Begins

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

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

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

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

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

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

And many people in Congress want it sent back.

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

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

So let’s walk down Pennsylvania Avenue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ’s Approximate January 6 Conspiracies

Amid the clamor for Merrick Garland to say something about the January 6 investigation, DOJ has announced he will give a speech, tomorrow, to mark Thursday’s year anniversary of the assault on the Capitol.

Meanwhile, late last year, DOJ released a one-year summary of the investigation. It’s similar to periodical reports the DC US Attorney’s Office has released before, including that its numbers generally skew high. It includes DC Superior Court arrests, in addition to federal arrests, to come up with “more than 725 defendants;” (GWU’s count, which those of us tracking this closely consider the canonical list, shows 704 arrests). DOJ appears to mix assault and civil disorder arrests to come up with 225 in some way interfering with cops; my own count, while low, counts fewer than 150 people charged with assault. DOJ’s summary boasts that 275 people have been charged with obstruction, a number that includes those who’ve been permitted to plead down to misdemeanors.

One number, however, is low: DOJ claims that,

Approximately 40 defendants have been charged with conspiracy, either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three.

By my count, this number is at least 25% off the known count. There are 39 people currently charged in the top-line militia conspiracies, plus five people cooperating against them.

There are at least another 13 people charged in smaller conspiracies (though the Texas “Patriot” conspiracy has not been indicted yet), with two more people cooperating in those cases.

It’s most likely DOJ got this number so badly wrong because it is overworked and some of these (like the Texas one and the status of Danny Rodriguez co-conspirator “Swedish Scarf”) aren’t fully unsealed.

But it’s also likely that these numbers are not what they seem.

That’s because in (at least) the larger conspiracies, there have been a lot of plea discussions going on behind the scenes, if not hidden cooperators. Certainly in the wake of five decisions upholding the obstruction application (including in the main Oath Keeper conspiracy, in the Ronnie Sandlin conspiracy, and by Tim Kelly, who is presiding over three of the Proud Boy conspiracies), we should expect some movement. I expect there will be some consolidation in the Proud Boy cases. The Texas case and some other Proud Boy defendants have to be indicted.

Importantly, too, these conspiracies all link up to other key players. For example, Roger Stone, Ali Alexander, and Alex Jones coordinated closely with the Proud Boy and Oath Keeper conspirators. The state-level conspiracies are most interesting for local power brokers and the elected officials with whom these conspirators networked — like Ted Cruz in the case of the Texas alleged conspirators or Morton Irvine Smith in the SoCal 3%er.

The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.

And so while DOJ is undoubtedly overwhelmed, it may also be the case that DOJ would like to keep potential co-conspirators guessing about what’s really behind them.

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

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

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

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

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

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

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

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

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

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

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

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

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

First, some background.

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

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

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

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

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

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

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

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

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

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

And that question is significantly a question about equity.

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

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

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

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

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

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

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

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

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

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

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

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

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

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

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

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

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

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

His improper advantage was undoubtedly the goal.

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

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

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

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

Other Posts

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

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

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

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