The 9/8 Train

September 8 was an afternoon of more than 2-1/2 hours of oral argument before Judge Mehta by Attorneys for defendants Thomas Caldwell (rep. by David Fisher), Donovan Crowl (rep. by Carmen Hernandez), and Joshua James (rep. by Joan Robin), and attorneys for the U.S. Department of Justice. More than 135 people were on the conference call, broadcast live from the courtroom, including Kevin and I, as we drove through rural roads of Virginia and North Carolina on our way home.

It turns out to be pretty difficult to be strapped into a passenger seat for such critical oral arguments on motions to dismiss charges, as filed by defense counsel. The key legal issue of the day was whether 18 USC §1512(c)(2) is a valid charge as interpreted by the DOJ or should get tossed. Several times, I, myself responded, as though I was there.

I have been complaining about this charge, which the DOJ has referred to as “Obstruction of Congress,” as being more than a misread. I maintain that it is an intentional misrepresentation of the law by a US DOJ hell-bent on characterizing the events of January 6 as an “insurrection,” even though not one of the more than 600 defendants to date have been charged with such a crime.

18 USC §1512(c)(2) is not titled “Obstruction of Congress,” which is how the US DOJ has repeatedly referenced the statute in its court filings and press releases. The statute is titled “Tampering with a witness, victim, or an informant.” In fact, 18 USC §1512(a)(1) begins with “Whoever kills or attempts to kill another person, with intent to (A) prevent the attendance or testimony of any person in an official proceeding…” It’s a statute all about witness and evidence tampering in the context of a judicial or quasi-judicial proceeding.

Good news out of yesterday’s oral arguments? Judge Mehta and I appear to agree on much. Here are several of his points with which I agree. This may bode well for the upcoming decision:

• a statute should have some relationship to the statues that precede (surround) it;

• the specific statute, itself, relates to testimony and evidence;

• a statute sub-section should not be read so broadly as to negate the functionality of the rest of the statute sub-sections.

Judge Mehta’s own words plus hypotheticals frame as “the million dollar question” at what point does innocent conduct, which is not inherently illegal, cross the line? Or, as he rephrased, “How would the ordinary person know 18 USC §1512(c)(2) reaches that far?”

Attorney Hernandez got in at one point that the First Amendment is “implied,” even as concerns conduct on January 6. Her word combination did not go over particularly well with the Court. Hernandez might have done better with this Court to frame that argument as

“the analysis begins with a First Amendment presumption of legality,”

which then would have slid some underpinnings beneath the second argument of Judge Mehta, which was “how does the ordinary person know” when his political conduct becomes illegal? Continuing my line of thought, Judge Mehta might, himself, have done better to phrase it as

“given the (however incorrect) mindset of the average American that all of their political expressions are protected under the First Amendment, how much notice must be given to alert that average American that they are approaching the line between constitutional and illegal behavior, before they cross it, so that there is an opportunity to turn back?”

Due Process thus becomes the engine pulling and stopping the coupled cars of Free Speech, and the analysis of the conduct on January 6 becomes straight questions of criminal trespass, assault, and destruction of property.

As even the DOJ attorney conceded: “we used other provisions to more easily prosecute” other situations in the past.

Look, here’s my simple position: taken as a whole, with now more than 600 charged, the overwhelming number of defendants face charges for walking into and out of the Capitol grounds and/or building, having done nothing more than a social media post. Those same selfies and words, if posted from First Street SE, would, instead, absolutely be protected Free Speech.

As Judge Mehta said, in essence, if someone stands up and yells at Congress “Stop this proceeding now!” should that become a 20-year felony charge?

As I have said for months on radio shows, podcasts, and to reporters: even this attorney did not know and was not on notice that the US Capitol had become closed to this country’s citizens. I have detailed the lack of written notices. I have written about the lack of written notices on that day. According to yesterday’s oral arguments there is still confusion among the attorneys and the Court precisely who – be it the Secret Service due to the presence of the Vice President or the USCP – put up the barricades and whether those barricades were lawfully erected. (Hint: there was already Congressional testimony on point last February.) And, as I have repeatedly argued, the Senate did not make an advance motion to conduct its Electoral College proceedings “in secret,” including that it was being live telecast around the globe.

This line of argument – which follows the 2-1/2 hour train that left the station yesterday afternoon, however, missed an essential point. The deeper argument that the DOJ has engaged in malfeasance through filing these charges in the first place.

As Judge Mehta tried to walk the DOJ attorney through a hypothetical over where the line exists between protected and illegal political expression, the DOJ attorney told the Court to “trust” that the DOJ knows where that line is located and charges people, accordingly.

In response, Judge Mehta’s voice dropped from an upper baritone to a bass, ringing slowly, like the bell that sounds at the station when a train is slowly pulling in through the fog. His words were to the effect that when the DOJ argues “trust us” it is the alert to “the real problem” of ensuring justice is properly administered.

Bravo Judge Mehta! There wasn’t an attorney in the courtroom yesterday who pulled the weight he did in consideration of the numerous facets of these important legal matters. As a 25+ year litigation attorney, all I can say is I believed Judge Mehta when he said he was seriously considering the issues. And, Kevin kept the truck in the lane, neither of us needing to pull over, even when we reached a sign that indicated “SOUTH” both to the right and to the left. It was a reassuring proceeding, even if the cliff-hanger continues.

Next step! The US DOJ may submit by September 22, 2021 a supplemental filing on a specific point of law argued by Hernandez, to which defense counsel may reply by October 6. It is then up to Judge Mehta whether he will conduct further oral arguments and/or when he will issue his decision on all motions pending as of yesterday. Given that the trial of the incarcerated defendants begins on January 31, 2022, Judge Mehta won’t be able to procrastinate on these rulings. Stay tuned by signing up for my e-blasts and following my Facebook page.