2020 Election: Predictions, Results and Reactions

[Sunsilver]

One reason that I don't believe the stated reason is that the staff was able at the last minute to pivot to using video testimony of Bill Stepian when his wife went into labor and he cancelled his live testimony. I am quite sure that they would have had problem coming up with the video testimony necessary for the hearing that was scheduled for tomorrow. So when Rep. Zoe Lofgren says "“It’s just technical issues,” she said. “You know the staff, putting together all the videos. You know doing, one, two, three, it was overwhelming. So we’re trying to give them a little room.”

x-posted with N.E.B. "Primarily," indeed.

Voronwë, Stephen Colbert agrees with you!

[RoseMorninStar]

The Loudermilk footage is disturbing. I'd really like to believe there will be meaningful consequences for him, but I have little faith Democrats would push for that, even if Republicans were unable to block it.

exactly

We seem to have no stomach for holding politicians accountable - least of all politicians who don't want to be held accountable themselves!

I'll third this. Unbelievable. Sick.

Steve Bannon is an anarchist.

[N.E. Brigand]

Today was the first day of the bench trial for Cuoy Griffin, the founder of "Cowboys for Trump" and a county commissioner in New Mexico ... Griffin claims that [Vice President Mike] Pence was no longer in the Capitol when Griffin entered that building, which would reduce the penalty that Griffin faces for doing so. . . . Griffin's attorneys this morning tried a different approach, arguing that the law defines a "restricted building or grounds" as, among other places, "the building or grounds where the President or other person protected by the Secret Service is temporarily visiting," and that because Pence, as the President of the Senate, has an office in the Capitol, he can't have been visiting temporarily. Griffin's lawyers also argued that Griffin didn't know he was in a restricted area because he was never explicitly told by law enforcement that he couldn't be there. ... Judge Trevor McFadden agreed he should have known: he rejected those arguments and found Griffin guilty of entering a restricted area. However, the judge found Griffin not guilty of disorderly conduct while he was there. Yesterday the judge ruled that the government could not introduce into evidence some videos that they had only recently obtained showing Griffin's activity in the Capitol.

Judge Trevor McFadden, a federal judge in D.C. overseeing a number of the January 6th cases, issued an order today in which he "declines to toll under the Speedy Trial Act until the government confirms that discovery is substantially complete" in the case of Nicholas Rodean of Maryland, who is charged with Obstruction of an Official Proceeding and Aiding and Abetting ... [Some observers feel that] Rodean is likely to have the charges against him dismissed because they government won't be ready for the trial in time. Why? Because so many people broke the law on January 6th that prosecutors keep getting new information relevant to previously charged cases. And they don't have enough staff working the case to keep up. The Dept. of Justice did indicate a few days ago that they were adding yet more prosecutors to the team working on January 6th cases; I believe they'll largely be pulled from district offices around the country. But essentially the judge is ruling that they should just stop arresting so many people -- and that's not a problem DOJ can easily solve.

Same judge, more difficulty for the prosecution in a January 6th case. Today in another bench trial, Judge Trevor McFadden found Matthew Martin of New Mexico, who later referred to January 6th as a "magical day" whose events he was thrilled to have been part of, not guilty of the four misdemeanor counts related to his having entered the Capitol that day. The judge found, as a Politico reporter writes, that even though Martin "walked past fences with signs saying 'AREA CLOSED' and recorded video of a broken window, blaring alarms, police in riot gear, and people who appeared to have encountered tear gas" that those factors "were outweighed by Martin’s 'plausible' belief that he had permission because officers didn’t try to stop him from entering." Of course, the reason police didn't tell the insurrectionists to stop at that entrance and some others -- after they had already crossed barricades just to reach the doors -- is that the police were grievously outnumbered and had to pick their battles. ... I think it's an overly credulous but not completely ridiculous ruling by the judge, who accepted Martin's arguments that he was, essentially, just following the crowd and didn't recognize the significance of all those warning signs mentioned by the reporter above.

Judge McFadden has repeatedly indicated that he feels the Dept. of Justice was being unfairly selective in its decision to prosecute at least some of January 6th defendants while failing (under Bill Barr's leadership, mind you) to prosecute various Portland rioters for what he considers to be equivalent behavior. The Dept. of Justice over the past six months has pointed out in filings what they see as clear legal differences between the two situations (e.g., many rioters in Portland were not within a specially restricted area); as far as I can tell, he has ignored those arguments. Given that apparent bias on his part, and the fact that he's a Trump appointee, the Dept. of Justice should probably count itself lucky that he did rule, like most of the other D.C. circuit federal district judges, that a number of January 6th defendants can be charged with obstruction of an official proceeding. But if the Dept. of Justice does charge Donald Trump for his part in the insurrection, I think they better hope that they don't draw McFadden as the judge.

I believe there have been seven January 6th cases that have gone to trial prior to this week. Five were jury trials, and the defendants in those cases were found guilty. Two were bench trials (i.e., the defendants opted to have a judge rather than a jury determine their guilt or innocence), both with the same judge presiding, and as noted above, one such defendant was found not guilty while the other was found guilty of one of two minor charges, and the judge in general is giving the government a harder time on than many of his peers in the D.C. circuit as regards January 6th cases.

Now we have had a third bench trial, before the same judge, Trevor McFadden, of a father and son from Delaware, respectively named Kevin and Hunter Seefried, who were apparently among the first rioters to enter the Capitol on January 6th, and Judge McFadden found them both guilty of the most serious charge they faced, obstruction of an official proceeding, which is a felony, as well as of four misdemeanor counts for entering a restricted area and disorderly conduct. Hunter Seefried also faced three misdemeanor counts for destruction of property, but the judge ruled that others had already broken a window so thoroughly that his vandalism didn't add to the damage. This was far from a slam dunk case for prosecutors not only because Judge McFadden has shown a tendency to minimize the actions of Jan. 6th defendants in previous rulings but also because, unlike many other insurrectionists, the Seefrieds left very little information on social media (Kevin Seefried deleted his Facebook account on Jan. 7th) to demonstrate their state of mind.

One more notable point about this trial is that it included the first court testimony by Capitol Police Officer Eugene Goodman: the Seefrieds are among the group that followed him up the stairs as he led the invaders away from members of Congress.

[N.E. Brigand]

The Loudermilk footage is disturbing. I'd really like to believe there will be meaningful consequences for him, but I have little faith Democrats would push for that, even if Republicans were unable to block it.

exactly
We seem to have no stomach for holding politicians accountable - least of all politicians who don't want to be held accountable themselves!

One sharp-eyed person points out that among Loudermilk's guests was someone who apparently was carrying four phones that day:

[RoseMorninStar]

I'm wondering if they rescheduled Tuesday's hearing because of the committee's hopes in interviewing Ginny Thomas due to the newly obtained e-mails between her & John Eastmann.

[Voronwë the Faithful]

The hearing that was postponed was to be dedicated to Trump's effort to get the Justice Department to overturn the election, including by replacing the acting Attorney General with Jeffrey Rosen, someone with no prosecutorial experience whatsoever, but someone who was seemingly willing to go along with Trump's plans. Ginny Thomas' emails with John Eastman have nothing to do that topic, so far as I know.

[Voronwë the Faithful]

The most significant thing that I have seen in this morning's hearing is clear testimony by Jason Miller that Trump himself dictated the statement that his campaign put out on January 5, 2021, stating that Trump and Pence were in complete agreement that Pence had the power to overturn the election, even though Pence had explicitly told Trump that he had concluded that he did not have that power. That is clear evidence that Trump knowingly put out a false statement that put Pence at greater risk. When they come back from recess, I suspect that they will put that risk in greater focus.

As an aside, listening to Judge Luttig speak is like wading through a vat of jello.

[elengil]

As an aside, listening to Judge Luttig speak is like wading through a vat of jello.

Yes.

[Voronwë the Faithful]

40 feet.

[N.E. Brigand]

There's been too much January 6th news to keep up with over the past week.

Now it appears that a conflict between the Committee and the Department of Justice is going to lead to the trial of various Proud Boys members being delayed by six months, in part because things said about the Proud Boys in last week's hearing could be prejudicial against the defendants (to which I say: don't commit crimes that people will talk about), and in part because DOJ says it really needs to see the transcripts of the 1,000 witnesses interviewed by the Committee to determine if there's anything relevant to the case.

Meanwhile, did we know before today that John Eastman reached out to Rudy Giuliani asking for Donald Trump to pardon him?

And what's this about Trump campaign lawyer Kenneth Chesebro telling Eastman (or vice versa?) that he had inside information that four members of the Supreme Court would support Trump's legal moves if they feared there would be violence on January 6th?

[Voronwë the Faithful]

I don't believe that I had heard before this hearing that John Eastman had asked to be on the "pardon list" but I might have missed it.

I can't believe that the Committee is going to hold off from giving the transcripts to the DoJ much longer.

I don't give what Chesebro told TPM much creedence.

[N.E. Brigand]

"Rudy Giuliani was just asked if committee testimony earlier today is true -- alleging he privately acknowledged on Jan. 6 that VP Pence likely didn't have authority to not certify election results. Giuliani was silent at first, then said, 'I shouldn't really talk about that.'" (source)

[Voronwë the Faithful]

Here's the actual video.


ETA: In the twisted world of Rudy Giuliani, holding public hearings in which they include testimony is "leaking".

[N.E. Brigand]

Marcy Wheeler is somewhat alarmed by today's letter from the Dept. of Justice. She's been arguing for nearly a year that the Dept. of Justice has been slowly building a January 6th case against Donald Trump,* and she fears that the January 6th Committee's failure to provide transcripts to DOJ could blow that work up:

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

The fact that Matt Olsen, National Security Division head, is on this letter suggests the concern pertains to the militias (and, indeed, the charged militia witnesses who appeared were Tarrio and Stewart Rhodes). Similarly, Nick Quested’s testimony may be inconsistent with other information DOJ has obtained.

She points out that when DOJ superseded the Proud Boys indictment to include a charge of seditious conspiracy, the only new information was evidence obtained from Bertino.

As others are noting, it wouldn't be the first time that Congress has accidentally undermined a prosecution. That's why Oliver North's conviction was overturned.


*Wheeler's argument has been, in part, that DOJ:

(1) started by bringing charges against many otherwise "normal" insurrectionists who weren't in on the plot but could (a) testify as to the events of the day and how they were motivated by Donald Trump's statements and (b) provide videos and other evidence incriminating others.

(2) proceeded to use evidence collected from step 1 to bolster the case against militias like the Oath Keepers and Proud Boys (and remember, it took DOJ a year to crack the contents of the phone belonging to Proud Boys leader Enrique Tarrio);

(3) has been working quietly to connect those groups' actions via middlemen like Roger Stone to Donald Trump himself; and

(4) has been taking other steps -- like getting the contents of Rudy Giuliani's many phones -- to bolster the back end of a case against Trump.

[Voronwë the Faithful]

I'm concerned by that letter too, and I don't believe that the failure of the committee to provide transcripts is unrelated to the dissension in the committee over whether to potentially make criminal referrals.

[Voronwë the Faithful]

In other news, today is the deadline for Peter Navarro to amend his complaint that he filed against Pelosi, the House, the members of the Select Committee, the committee itself, and the U.S. Attorney for D.C.

Yesterday a couple of attorneys filed a notice of appearance on his behalf, and then filed a motion to dismiss the case, without ever having served any of the defendants.

[N.E. Brigand]

This is an excellent video story (17 min.) produced by the New York Times showing how the Proud Boys "instigated critical breakthroughs around the Capitol" with a four-step plan which, in the Times phrasing, was: "1. Target Access Point, 2. Rile Up the Crowds, 3. Join the Violence, 4. Reassess." Well worth your time. New to me were the multiple military-style stacks of Proud Boys during the "reassess" phases. (We had long ago seen a stack of Oathkeepers.)

Meanwhile:



He's still conspiring.

[Eldy]

The January 6 hearings aren’t acknowledging the elephant in the room - The Guardian

An interesting op-ed on the limits of what any investigation of 1/6 can accomplish when the Republican Party is still willing to put Trump back in office, even if they believe he was wrong about the 2020 election being stolen. An excerpt:

And how are the people the hearings present as Team Normal, as standing up to Trump’s coup attempt, dealing with all this? Take Bill Barr: he’s on record saying he would vote for Trump in 2024. In his testimony for the committee as well as in his book, Barr has left no doubt that he believes Trump is either willfully pushing treasonous conspiracy theories or is completely detached from reality – yet Barr is still willing to help put him back in the White House.

Barr’s ability to rationalize this astonishing balancing act is the main reason I am skeptical that the hearings, by focusing narrowly on Trump, could succeed at turning Republicans away from him. When confronted with how he could possibly still support another Trump presidency during his book promotion tour earlier this year, Barr replied: “Because I believe that the greatest threat to the country is the progressive agenda being pushed by the Democratic party.” There it is: after everything we have been through, conservatives still see the Democrats (or progressives, or liberals, or the left – they see them as interchangeable) as the biggest threat.

This is the perfect encapsulation of the permission structure that governs conservative politics: anything is justified in defense against what they constantly play up as a radically “un-American,” extremist “left” that has supposedly taken over the Democratic party. What could the hearings possibly deliver – considering that much of Trump’s involvement in the insurrection happened out in the open, in plain sight – that the right hasn’t either already mythologized as part of a fully justified struggle to protect “real America” against a fundamentally illegitimate “left,” or, at the very least, is willing to endorse as the lesser evil? If someone is still on Team Trump in June 2022 – and that includes all those who would love to present themselves as “Team Normal” but are willing to put Trump back in power – we should assume they have found an effective way of giving themselves permission to stay on Team Trump no matter what, Bill Barr style, and to side with the radicalizing Republican party against democracy.

[elengil]

So basically what I'm getting from that is that the Right has decided Democracy no longer works because it has the potential to put people they disagree with in power. Meaning they are literally now enemies of the foundational principles of our government.

Yeah that's not terrifying at all.

[N.E. Brigand]

Yesterday the New York Times published an article purporting to explore the challenges facing the possible prosecution of Donald Trump for his efforts to overturn the 2020 election, including his role in the attack on the Capitol. There was one bit of genuine news in the article (the twelve-page reply to the January 6th Committee that Trump released last week was drafted by a lawyer currently representing Steve Bannon in his fight against contempt of Congress charges: in other words, Trump and Bannon are still conspiring), but the heart of the article was a point that many others have made in one form or another for a year or more (Voronwë even pointed it out a few days before the insurrection): depending on what charge is brought, Trump's state of mind could make a big difference: if he really believed Joe Biden had stolen the election -- and Trump has long laid the groundwork for an insanity defense -- then any otherwise legal actions that he took would lack the requisite mens rea necessary for them to be criminal. Multiple observers have argued over the past 36 hours that the Times' analysis of the problem is sloppy, and I particularly appreciated one point in this reply:

Early in its investigation of the violence on January 6th, DOJ zeroed in on 18 USC 1512(c)(2) [obstruction of an official proceeding] as the most serious felony charge (short of seditious conspiracy) that it would apply broadly to the people who breached the Capitol building. As a result, that particular offense has now been charged scores of times in relation to the events of January 6th, its legal validity has been challenged repeatedly in motions to dismiss, it has been upheld at least ten times (and dismissed on two occasions by one maverick judge), and numerous defendants have pleaded guilty. And crucially, that offense has been charged against defendants who sincerely believed Donald Trump’s lies about widespread election fraud. In none of the 1512(c)(2) cases to date, so far as I am aware, has it been held—or even asserted—that the government must prove the defendant knew Trump’s election lies to be false in order to win a conviction. So why would prosecutors have to prove that for Trump, the teller of the lies? It simply would not make sense.

And I like the conclusion too:

More broadly, the notion that Trump’s liability for the post-election scheme that culminated in January 6th depends on some fiddly little argument his lawyers might make about how sincerely be believed he deserved to remain in power betrays a crabbed and stilted view of the world. A typical corrupt official might try to steal, by subterfuge, a government contract for a relative. Former President Trump and his allies tried to steal, by deceit and intimidation and eventually by main force, the government of the United States of America. Any prosecution of the man will face numerous difficulties, but we should have no problem proving that’s a crime.