I. Tyranol
Last week I wrote about the Renewed Relevance of the Great Fox-Trump-Putin Love Affair, and all those Republicans who are suddenly deciding that maybe supporting Putin isn’t such a good idea. If you missed it, it’s here.
Anyway, I thought you’d enjoy this piece on Tyranol:
Are you a conservative who praised Putin, but now need to hate him? Ask your doctor about Tyranol. pic.twitter.com/JKShl6do12
— The Daily Show (@TheDailyShow) March 1, 2022
II. Seditious Conspiracy
This is a big deal.
Here are the elements of seditious conspiracy:
🔹Two or more persons . . .
🔹Conspire to overthrow . . . or destroy by force the Government of the US or to levy war against them . . .
The key to this crime is the use of force.
Treason is almost impossible to charge. It’s defined in the Constitution as⤵️
The Supreme Court has said that the “enemy” must be a country in which we are at open war, meaning a war declared by Congress. Even when Julius and Ethel Rosenberg were convicted of handing nuclear secrets to the Soviets at the height of the cold war, they were convicted of conspiracy to commit espionage, not treason.
So seditious conspiracy is the closest we have to a charge of treason. It’s rarely charged, and also hard to prove. That’s why it’s a big deal that the DOJ secured a conviction (in the form of a plea deal) for seditious conspiracy in connection to the January 6 insurrection.
The person who pleaded guilty was Joshua James, the leader of the Alabama Chapter of Oath Keeper. (The Oath Keepers is a large but loosely organized collection of individuals who embrace anti-government extremist ideas. Oath Keepers were among those who participated in the January 6 insurrection.)
James admitted to participating in leadership meetings as part of planning the insurrection. At one point, he wrote to his co-conspirators that, “It will be a bloody and desperate fight. We are going to have a fight. That can’t be avoided.” He brought a semi-automatic handgun to the insurrection. On the evening of January 6th, he and his co-conspirators (one of whom is Stewart Rhodes, who is awaiting trial) planned how they would similarly “oppose” the inauguration with their guns.
Then, on Jan. 8th, they got a clue that they were going to get into trouble. They were all like OMG we better start deleting our messages !!!
By Jan, 20, they were getting really scared:
You can read the Statement of Offense here. What strikes me is that, during the lead up to the insurrection, they were deliriously confident that they would overthrow the United States government–armed with guns they bought on the way to Washington, D.C. Granted, under our screwed-up gun laws, they were allowed to buy semi-automatic weapons, but still. They felt ready to take on local police, the National Guard, and “other Government actors.” It seems to me they were seriously deluded in thinking they would actually install Trump for a second term, or they thought they had inside help. (Or both!)
Here’s a key detail: As part of James’s plea agreement, he agreed to cooperate with prosecutors and give testimony to a grand jury. This is not good for others up the ladder.
Where will his testimony lead? We’ll have to wait to find out.
III. John Eastman Is In Trouble (and he isn’t happy.)
Three more documents have been filed in the John Eastman / January 6 committee saga:
- Eastman’s motion for Exculpatory Information and Continuance of the March 8 privilege hearing.
- The Select Committee’s response.
- The Court’s ruling. (Spoiler: Eastman lost)
Shall we read them together? 🤓
John Eastman, remember, is the law professor who wrote what’s been called the Eastman Memo, a plan for overturning the election. I wrote about his memo for the Washington Post. You can read it here.
The current dispute began when the January 6 committee subpoenaed a tranche of Eastman’s emails. He tried to keep certain emails from the committee by claiming attorney-client privilege. (Basically, this means that Eastman is claiming that the committee can’t have these particular emails because they are privileged communication between him and his client, Donald Trump.)
The committee responded by invoking the crime-fraud exception, which says there is no attorney-client privilege over legal advice was given in furtherance of illegal or fraudulent activity. To illustrate: If you tell your lawyer that you killed someone and he advises you to remain silent, that’s privileged. If, on the other hand, the lawyer helps you hide the body, that’s not privileged. Makes sense, right? Lawyers should not be able to hide criminal behavior behind a privilege.
The procedure goes like this: If the committee has good reason to believe the documents sought were given in furtherance of illegal or fraudulent activity, the court will look at the communications in camera (privately) to see if Eastman was offering help in committing a crime. This is the legal standard:
If the court find that the emails that Eastman is trying to hide from the committee were written in furtherance of a crime, the exception applies and there is no attorney-client privilege. So the J-6 committee gets Eastman’s emails.
Keep in mind that this is not a conviction or a finding of guilt–but Eastman understands that this is a shortcut to a court finding that he offered his advice in furtherance of a crime. He also understands exactly what will be splashed all over the headlines.
So he filed this motion to try to prevent this. Basically, he says wait, hold on. They’re accusing me (and the former President) of a crime. This is serious business:
Therefore, he argues, he should get all the benefits a criminal defendant is entitled to. One of the rights a person indicted has is the right to see whatever exculpatory evidence the prosecution possesses.
So Eastman argues that he should get any exculpatory evidence that the committee has, including “dissent within federal agencies about election fraud.” (Oy)
But you can see what he wants to do. He wants any “evidence” (doesn’t have to be good evidence) which he will then give to the media to show that the committee has evidence that he was right.
Interestingly, he also complains about how fast this is going. With a real criminal trial, it could take years to get a final decision:
The January 6 select committee responded by pointing out that there is no legal basis for what Eastman is demanding.
The Court agreed with the committee. The court said no, you don’t get all the protections of a criminal defendant.
What’s both sad and hilarious is that the court was explaining to a law professor that this isn’t a criminal trial. A criminal defendant has certain constitutional protections because the person is at risk of losing liberty. In this case, what’s at stake are Eastman’s emails.
So the hearing goes forward. The judge will review the evidence in private. Eastman is understandably worried that the judge will find that the emails were written in furtherance of a crime.
The Attacks on Merrick Garland Continue
Again a large account (this one is a really good actor, but not a lawyer) tweeted this:
The day after this tweet, Joshua James pleaded guilty to seditious conspiracy and we learned he is cooperating with prosecutors. Reiner’s response? Cickets. Why? Because Rob Reiner has no idea that the plea agreement means that Garland is actually doing his damn job.
Rob Reiner is perfectly entitled to his opinion. I’m only picking on him because this is how social media works. A large account tweets something without any basis in fact. Then literally thousands of other people start repeating it. This is how bad information spreads. For more on that, see my post, Is the Internet Making us all Authoritarians?
Naturally, shortly after I Tweeted that info about John Eastman and Joshua Jones, I start getting responses like this one:
Yesterday, this question came to my email inbox:
As Merrick Garland explained in his last speech, prosecutors work their way up the ladder. If they file indictments the moment they have enough evidence, the defense lawyer waltzes into court, files a motion demanding to see all the exculpatory evidence (which they have a right to see) and then all the people higher up know exactly what evidence the DOJ has, which then interferes with the investigation. If you’re investigating someone, you don’t want anyone to know what you’ve gathered so far. You don’t want people coordinating stories.
That’s what Merrick Garland meant when he explained that if prosecutors talk about ongoing investigations, they will undermine the investigation.
But the Twitter consensus is that the moment they see evidence of a crime, the DOJ should indict or Garland isn’t doing his job.
I have a new theory about why so many TV prosecutors are attacking Garland for not filing indictments yet. Prosecutors have a different view of criminal cases than defense attorneys. To defense lawyers, it often looks like certain kinds of prosecutors define themselves by how good they are at getting convictions. I see some of these prosecutors (many of whom would never qualify for Merrick Garland’s job because they’ve never actually worked at that level) flexing their muscles, saying I COULD DO IT. I’m tough. I’m good. Garland is a wimp for not trying on this evidence.”
Defense attorneys love it when prosecutors file charges before gathering all the evidence, or when they file charges without enough evidence to prove each element of the crime beyond a reasonable doubt.
Federal prosecutors have about a 96% conviction rate. That means defense lawyers don’t win very often. One way the defense wins is when prosecutors and investigators are sloppy, or when they think they’ve got enough but they don’t.
To be clear, I make no predictions about who will be indicted. I haven’t seen the evidence.
But everything Merrick Garland has said makes sense to me. Here’s what he said. I suggest reading it all. One thing he says is the investigations are ongoing.
Twitter thinks that it’s a great idea to indict the top people on the chain while investigations are ongoing.
I see the folly in that.
