January 6th legal proceedings and investigations megathread

[Torie]

"with Trump being held unaccounted"

He's missing? Did he flee to Moscow? /\

That video posted above (and thanks to the poster that put it up) that the NYT produced is at once riveting and terrifying. I want Trump to be behind bars one way or the other, really, really bad. He has no redeeming value. Calling posters here HP's is hyperbolic jive, calling him one is an understatement.

[Torie]

Unless they hurt someone or damaged property, probation sounds fine for the rest.

Probation for trying to violently overthrow the government?

Didn't I say violent ones deserve jail time?  Yes, yes I did.

They were all violent. At best you could argue that this terrorist only intended to come in the Capitol to yell, scream, and threaten Congressmen into overturning the election while not being willing to throw any punches or pull any triggers himself, but considering how he knowingly and willingly went in there with people who were willing to go all the way, is that really a convincing argument? I think not. We all know what his intentions were.

Uh, no, they were not all violent.  Many were arrested after the fact just for being outside of the buildings but on the grounds. I'm in favor of punishing for what they did, not what any of us think their intentions were.  If they committed violence or damaged property, jail time.  

Yes, you already so opined Grumps, so no need to repeat when there is Joe Republic's rope thing (see above) twisting, twisting slowly in the wind for you to contend with. Is that just his fashion accessory of choice?

[Torie]

Unless they hurt someone or damaged property, probation sounds fine for the rest.

Probation for trying to violently overthrow the government?

Didn't I say violent ones deserve jail time?  Yes, yes I did.

They were all violent. At best you could argue that this terrorist only intended to come in the Capitol to yell, scream, and threaten Congressmen into overturning the election while not being willing to throw any punches or pull any triggers himself, but considering how he knowingly and willingly went in there with people who were willing to go all the way, is that really a convincing argument? I think not. We all know what his intentions were.

Uh, no, they were not all violent.  Many were arrested after the fact just for being outside of the buildings but on the grounds. I'm in favor of punishing for what they did, not what any of us think their intentions were.  If they committed violence or damaged property, jail time.  

Yes, you already so opined Grumps, so no need to repeat when there is Joe Republic's rope thing (see above) twisting, twisting slowly in the wind for you to contend with. Is that just his fashion accessory of choice?

I have no reason to respond to Joe's post. There were lots of crazy photos of that day.  As you mentioned, I've repeated for the umpteenth time what I think are the criteria for being jailed. Maybe this guy did one or both of those things.  I don't know.  I'm not advocating for probation for him. 

Well let's try to finesse away your fixation with cells for a moment, and frame the issue another way. Do you think the guy running around with a rope in his hands is in and of itself an exacerbating fact?

[Torie]

Unless they hurt someone or damaged property, probation sounds fine for the rest.

Probation for trying to violently overthrow the government?

Didn't I say violent ones deserve jail time?  Yes, yes I did.

They were all violent. At best you could argue that this terrorist only intended to come in the Capitol to yell, scream, and threaten Congressmen into overturning the election while not being willing to throw any punches or pull any triggers himself, but considering how he knowingly and willingly went in there with people who were willing to go all the way, is that really a convincing argument? I think not. We all know what his intentions were.

Uh, no, they were not all violent.  Many were arrested after the fact just for being outside of the buildings but on the grounds. I'm in favor of punishing for what they did, not what any of us think their intentions were.  If they committed violence or damaged property, jail time.  

Yes, you already so opined Grumps, so no need to repeat when there is Joe Republic's rope thing (see above) twisting, twisting slowly in the wind for you to contend with. Is that just his fashion accessory of choice?

I have no reason to respond to Joe's post. There were lots of crazy photos of that day.  As you mentioned, I've repeated for the umpteenth time what I think are the criteria for being jailed. Maybe this guy did one or both of those things.  I don't know.  I'm not advocating for probation for him. 

Well let's try to finesse away your fixation with cells for a moment, and frame the issue another way. Do you think the guy running around with a rope in his hands is in and of itself an exacerbating fact?

No doubt the Judge saw it as such, and that's why he's going to the cooler.

That is a very legalistic and evasive answer. I think I may have had a bad influence on you. Sad!

[Torie]

All of the offenses boil down at the least to burglary (going into a place in which one is unauthorized and for which one has no compelling excuse, such as escaping a violent crime or a severe storm).

You are describing trespassing, not burglary. You do not burglarize a building merely through unauthorized entry. Burglary requires intent to commit a separate crime within.

Not necessarily. Depends a lot on interpretation of DC and federal law regarding the presence of other individuals other than co-conspirators.

I thought I would show off by mentioning the "at night" element, but that common law element has been abandoned in the bulk of the US states, and in particular in DC, so my exercise was a fail. Boo!

[Torie]

Video: See (hear) what Liz Cheney had to say about McCarthy's decision to pull all Republicans from the select committee.

https://us.cnn.com/videos/politics/2021/07/21/liz-cheney-kevin-mccarthy-capitol-riot-committee-vpx.cnn

Well Liz not only burned her bridge to the Pub party, and her political career in Wyoming as a Pub, but now she demolished the underwater pilings that had held up the bridge, leaving no trace but memories. I like her all too rare style. Some things are more important than others.
Thanks PM2 for taking the time to put it up.

[Torie]

https://twitter.com/abughazalehkat/status/1418379937002700803

Somebody didn't follow the script that Carlson gave him.

[Torie]

Here is the link to the committee hearing. The first witness is now making a statement. Cheney delivered a most eloquent statement.

https://thehill.com/homenews/house/564978-live-coverage-house-panel-holds-first-hearing-on-jan-6-probe

[Torie]

Can you imagine if that shameless clown Jim Jordan was on the panel?

I can't even. Jordan would have been attacking those officers and trying to impeach the legitimacy of their testimony. That's precisely why Pelosi excluded him from the committee.

https://twitter.com/Acyn/status/1420147017242746885

My partner and I actually watched that clip, and I noted that going discursively shrill was not the most skillful way to evade a question. Dan, who is not that political outside his "zone," asked me what I thought of Jordon. I said that he was "utterly loathsome." Dan who is not used to that kind of terminology from me, was kind of surprised, and said so do I! We then changed the channel. Enough is enough.

[Torie]

This particular old lawyer is flummoxed as to why a court is not involved here. It seems to me that Meadows etc could state that  they will not invoke executive privilege unless a court so enjoins him to pursuant to a Trump filed lawsuit within say 30 days. Or he could state to Congress that it should get a court order stating that executive privilege does not apply and compelling him to testify not invoking it. It seems ridiculous and very unfair to put a witness in criminal jeopardy over a dispute about the scope of executive privilege without having a court issue a ruling first.

Am I missing something here?

[Torie]

This particular old lawyer is flummoxed as to why a court is not involved here. It seems to me that Meadows etc could state that  they will not invoke executive privilege unless a court so enjoins him to pursuant to a Trump filed lawsuit within say 30 days. Or he could state to Congress that it should get a court order stating that executive privilege does not apply and compelling him to testify not invoking it. It seems ridiculous and very unfair to put a witness in criminal jeopardy over a dispute about the scope of executive privilege without having a court issue a ruling first.

Am I missing something here?

It's been pointed out by some of the national security lawyers on Twitter that any of the subpoenaed people could file suit to quash their subpoena -- which would at a minimum protect them from criminal contempt charges while the suit was being resolved.  However, none of them has filed such a suit.

Thanks.  Myself, I don't think it reasonable to incur the attorney's fees to do that, so my approach if subpoenaed would be to state that I would honor it if not quashed pursuant to someone else's lawsuit with a given period of time.

Not that it matters, but I think the executive privilege claims are ludicrous, and wonder what the exposure would be to a witness for ignoring such claims absent a court order, assuming much to my shock and amazement that a court disagrees with my opinion.

Has Pence been asked to testify by the way?

[Torie]

This particular old lawyer is flummoxed as to why a court is not involved here. It seems to me that Meadows etc could state that  they will not invoke executive privilege unless a court so enjoins him to pursuant to a Trump filed lawsuit within say 30 days. Or he could state to Congress that it should get a court order stating that executive privilege does not apply and compelling him to testify not invoking it. It seems ridiculous and very unfair to put a witness in criminal jeopardy over a dispute about the scope of executive privilege without having a court issue a ruling first.

Am I missing something here?

It's been pointed out by some of the national security lawyers on Twitter that any of the subpoenaed people could file suit to quash their subpoena -- which would at a minimum protect them from criminal contempt charges while the suit was being resolved.  However, none of them has filed such a suit.

Thanks.  Myself, I don't think it reasonable to incur the attorney's fees to do that, so my approach if subpoenaed would be to state that I would honor it if not quashed pursuant to someone else's lawsuit with a given period of time.

Not that it matters, but I think the executive privilege claims are ludicrous, and wonder what the exposure would be to a witness for ignoring such claims absent a court order, assuming much to my shock and amazement that a court disagrees with my opinion.

Has Pence been asked to testify by the way?

Not yet, but his Chief of Staff is cooperating with the Committee.

I just found a squib on that:

https://abc7ny.com/pences-former-chief-of-staff-subpoenaed-by-jan-6-committee/11306693/

[Torie]

This particular old lawyer is flummoxed as to why a court is not involved here. It seems to me that Meadows etc could state that  they will not invoke executive privilege unless a court so enjoins him to pursuant to a Trump filed lawsuit within say 30 days. Or he could state to Congress that it should get a court order stating that executive privilege does not apply and compelling him to testify not invoking it. It seems ridiculous and very unfair to put a witness in criminal jeopardy over a dispute about the scope of executive privilege without having a court issue a ruling first.

Am I missing something here?

https://twitter.com/RepLizCheney/status/1469005189294268430

Thanks Grumps. Is it just me, or has the world just gone stark raving mad on so many fronts?

[Torie]

Here is a concise, and I believe accurate, of the current state of legal play of a former POTUS asserting executive privilege to protect his personal ass from the unpleasant consequences of his acts (yes, that is not a "fair and balanced" posing of the question from me, but then Trump has always been inimical to my balance):

https://reason.com/volokh/2021/10/11/does-executive-privilege-extend-beyond-a-presidents-term/

Trump to get in the legal game here and make for an interesting SCOTUS case with a potentially uncertain result, needs to come up with something concrete that has to do with enabling a POTUS to perform his official duties while in office to facilitate discharging his duties, rather than protecting himself from the consequences of trying to keep himself in office in an execrable and perhaps illegal way, or from embarrassment and ridicule.

[Torie]

https://twitter.com/Jose_Pagliery/status/1470554291509334021

Maybe there is a God, Just whom since the Civil War has done more to destroy the rules of the road and destroy the accepted norms of the public square which, when all when else fails, is all we have? Trump is the incarnation of evil. He needs to be in a cell for the balance of his execrable life, if there is some justice left on this Earth and an applicable statute to put him there, rather than a gap in the law that needs to be closed. And Liz Cheney is a profile in courage, redux. Sometimes the only honorable route, is to take this job and shove it route. Otherwise, one's life has no meaning and no purpose worth pursuing.

[Torie]

The Hill has an interesting piece on Kevin "the coward" McCarthy and his Faustian bargain. Another classic example about how the quest for power over all else can destroy your soul.

https://thehill.com/homenews/house/589839-gops-mccarthy-has-little-incentive-to-work-with-jan-6-panel

[Torie]

The one thing I found interesting from today's hearing is the following narrative. Long, long before election night (like 3-4 months before), Trump had this scenario in mind that he would be ahead in the early and election day vote as the votes were counted and released to the media, but as the VBM's came in he would fall behind, and that he would then characterize the valid VBM votes as ballot box stuffing, electronic vote switching and so forth. So he was encouraging his voters to vote in person and not by mail, the better to increase his early lead to fuel the narrative. He campaign manager and Kevin McCarthy were worried that would cost the Pubs votes net, and tried to get Trump to change course, but there was no deflecting Trump on any of this.

So the only piece missing was to find someone who would hawk his crazed narrative and make court filings based on it as the VBM's did indeed tank him as they flooded in. And voila - Rudy Giuliani appears from stage left just perfect for the role. And the rest is history. All  that is left is for Trump to grift his supporters, for dough ostensibly to be used to fight the fraud, but actually used to self aggrandize himself.

[Torie]

Yes, Luttig is not well.

[Torie]

The article below quotes several prosecutors as thinking Trump committed crimes. While I agree that Trump's grifting might well be  crime, as to the Jan 6 events, I don't see how pursuing bogus legal theories in bad faith that will be thrown out by the courts, including pushing for phony electors picked by state legislatures, and that Pence had the power to delay the count and accept them, is a crime. It is not as if anything is covered up, and once the courts rule, it is over. Sure it would get you disbarred, sure it is wrong, and in some circumstances a civil tort perhaps, and subject to sanctions for the costs imposed on the parties and the courts for filing frivolous claims in bad faith. But not a crime. So based on what I know so far, I dissent.

The closest we come to a crime is Trump telling the GA SOS over whom he has no authority to find more votes that he knows are there. I don't think that is enough.

https://www.theguardian.com/us-news/2022/jun/19/trump-charges-january-6-hearings-capitol-attack

[Torie]

The article below quotes several prosecutors as thinking Trump committed crimes. While I agree that Trump's grifting might well be  crime, as to the Jan 6 events, I don't see how pursuing bogus legal theories in bad faith that will be thrown out by the courts, including pushing for phony electors picked by state legislatures, and that Pence had the power to delay the count and accept them, is a crime. It is not as if anything is covered up, and once the courts rule, it is over. Sure it would get you disbarred, sure it is wrong, and in some circumstances a civil tort perhaps, and subject to sanctions for the costs imposed on the parties and the courts for filing frivolous claims in bad faith. But not a crime. So based on what I know so far, I dissent.

The closest we come to a crime is Trump telling the GA SOS over whom he has no authority to find more votes that he knows are there. I don't think that is enough.

https://www.theguardian.com/us-news/2022/jun/19/trump-charges-january-6-hearings-capitol-attack

But there's now testimony that Trump told Pence to refuse to accept electoral votes for Biden even though those around him--including Eastman himself, the person whose idea it was to do this--had informed him it was illegal.  That makes Trump's own conduct here criminal.

1. The illegal bit was blowing off the electoral count statute. The theory Eastman was promoting was that that act was unconstitutional because state legislatures have the final say. Eastman wanted that tested before SCOTUS, and then the discussion with Jacob, Pence's attorney, about the vote being 7-2 and then 9-0 against Trump. But just because a legal theory appears to be frivolous, that does not make it a crime to give it a test drive in court. I suspect if Pence had adjourned the count for 10 days as Eastman was urging, SCOTUS would have ordered it to re-commence within 72 hours thereafter. (It was a no brainer, because there was no evidence that the vote count in the subject states was fraudulent or wrong.)

2. I understand that you don't agree, but it is my view that it is hard to criminalize something that will be resolved by the court in a hurry. In other words, Trump persuades Pence (he can't order Pence), to do something that is almost certainly not within Pence's power and would be wrong in any event, but even if Pence goes for it, the court will reverse, and it is over. If Trump defies SCOTUS or course, then in this context he is a felon. But everyone gets their day in court. Think of it this way. If Pence did Trump's bidding, and SCOTUS made its ruling within 72 hours, and the count was completed on Jan 10, 2021, and that was the end of it, do you think Trump committed a crime by attempting, and then succeeding, in changing Pence's mind?

3. Thus, I don't see Garland indicting on this issue. If the GA SOS makes clearer that Trump wanted him to create phony votes, via doing something fraudulent, like fiddling with the machines or something, and there is a crime of trying to persuade somebody to commit a crime (hey, shoplift that pair of socks for me please), that would be considerably more promising material for Garland. We shall see.

Make sense?

[Torie]

"No dice.  You can't avoid liability for asking to someone to do something illegal based on a novel "legal theory" if you know perfectly well that theory is bogus to begin with, just because a court hasn't ruled on it yet."

OK. If you ever write (or find) a legal memo on the topic,* I would appreciate being forwarded a copy.

Nice chatting with you. And even though we failed to resolve, or even narrow, our disagreement, we still managed to converse without calling each other an idiot, or a fascist, or a sociopath, or a bigot. Amazing isn't it?  


*Oh, one more question. Do you think that Pence would have committed a crime if he had been persuaded by the bogus Eastman theory, and adjourned the count for 10 days? The point I guess being that not all things that one does that are illegal, or beyond one's power, are necessarily crimes.

[Torie]

“Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.”

https://www.law.cornell.edu/uscode/text/18/1512#c_2

Aside from whether standing upon frivolous legal theories until a court says no is "corrupt," the title of the linked statute is:

18 U.S. Code § 1512 - Tampering with a witness, victim, or an informant

[Torie]

What about just conspiracy? If they knew it was illegal and knew they would lose in court (and we've heard testimony for both) and try anyway, can't that apply?

Same reason as above. OK, it is frivolous, but you get your day in court, and it is not done in secret, but on the world stage open to all, so everybody knows (no cover up), and will  be dealt with expeditiously. You know, there is some really weird stuff going on out there, that with a conservative SCOTUS, is suddenly in play, like the Independent State Legislative Theory.

https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained

Anyway, as we go round and round on this, checking out to find if any doors are unlocked in the hotel hallway, we will find out whether Garland indicts or not on this theory. Either he agrees with Torie, or he is a wimp (he thinks Trump is a felon, but is afraid to roil the public square on this, or Trump, etc.), or both, or something.

[Torie]

So per reading the above news, Trump is watching the hearings, and they're discommoding him - perhaps even to the point of making the sociopath sweat a tad, which is no mean feat. Life is beautiful.

[Torie]

Well, we got a bit closer to crime time, although without more, still not there, in my view. That is when I heard on the Trump recording berating the Georgia SOS, Raffensperger, that it was or would be "dangerous" for him to say/find that that there had been no fraud. Raffensperger was then harassed. He was characterized as writing in his book that he viewed Trump's "dangerous" comment as a threat. If Trump really was threatening Raffensperger that bad things would happen to him if the votes were not found, that I think gets us there. What we don't have though is evidence that Trump was telling people to harass and threaten the SOS (and family), and make his life hell.