January 6 Select Committee

[filly]

Michigan AG says she referred the 16 republicans who signed the Michigan certifications to federal prosecutors

Referrals generally don't impress me, as rarely does the prosecuting agency require one; if the prosecutor wanted to prosecute, the prosecutor would just prosecute.

And, in this case, Michigan's referring to the feebs all but says no state law was broken.

Referrals, especially noisy ones, are often done for political purposes. I mean, didn't the Arizona Senate refer the Cyber Ninjas report to the AGoAZ?

I think the Republican-countenanced fake electors is an "interesting development" (read: we're doomed), but I presume the J6 committee's interest, if any, will focus on the masterminds ("master" and "minds" being quite generous).

Agree. If Dana Nessel had a case, she would have filed it already. Her performance on Maddow last night was just for show: I can't file charges but I'm punting to the USA for the Western District of Michigan because there are multiple states involved and I'll let him take the heat.

Jocelyn Benson, OTOH, is a star. She's far more competent and professional. Career elections lawyer, ran a marathon while 8 months pregnant, not a woman to be trifled with.

[bob]

If/when the "Master Mind(s)" get charged with something, might these chuckle-heads then get rounded up for some flavor of conspiracy, seditious or otherwise?

1. I don't think they will. (See: "we're doomed.")
2. As always, "it depends." I could see the top dogs essentially pulling a covfefe boy and denying having conspired with the useful idiots. "Oh, I was aware of the fake electors, but I in no way agreed with their actions. I'm sure I told my people to write them a sternly worded letter to that effect. Which of course was not contrary to what actually was said in more secure channels, and not done only to create plausible deniability."

(This is a common tactic in conspiracy cases: the soldiers flip on the bosses, while the bosses say they were unaware of what the soldiers were doing.)

[filly]

IIRC that draft letter that Jeffrey Bossert Clark wanted to send to Georgia made a reference to an alternate slate of electors, but maybe they were just the regular Trump electors. Since he's not talking, we may never know.

[bob]

IIRC that draft letter that Jeffrey Bossert Clark wanted to send to Georgia made a reference to an alternate slate of electors, but maybe they were just the regular Trump electors. Since he's not talking, we may never know.

Yeah, there are a lot of word games to hide behind. And, at this point, not being prosecuted is the goal and also a victory.

And the Georgia Republicans did duly, and properly, nominate a slate of electors; they just lost the election. Calling them an "alternate slate" is akin to saying "alternate facts": A bad-faith and stupid -- but not criminal -- turn of a phase.

[Estiveo]

Thx, bob!

[raison de arizona]

Calling them an "alternate slate" is akin to saying "alternate facts": A bad-faith and stupid -- but not criminal -- turn of a phase.

Alternate facts make me nutty! The whole concept is ridiculous!

[Gregg]

From out here in the Der Dachshundbukner, it looks a lot like conspiracy to me. The sending of the letters might not have been per se illegal, but they sure as hell could be "one overt act" in a plan to overthrow the election.

Not a lawyer, but I did stay at a Holiday Inn once.

[bob]

The sending of the letters might not have been per se illegal, but they sure as hell could be "one overt act" in a plan to overthrow the election.

"Overthrow an election" is not a crime. It surely is an end, and the means to it may be criminal. But "criminal conspiracy" means conspiring to commit a crime, so the first step is specifying an actual, on-the-books crime.

[Kriselda Gray]

IIRC that draft letter that Jeffrey Bossert Clark wanted to send to Georgia made a reference to an alternate slate of electors, but maybe they were just the regular Trump electors. Since he's not talking, we may never know.

If I understood what Rachel was saying the other night, the "alternate slates" were the regular slate of electors who would have served had Trump won, with a few substitutions. The names of some of the Trump electors - around a dozen or so between the first five of the fake slates that Rachel reported on - were replaced with other names, though as of that time, only one person had spoken out as to why their name was removed. That person said they didn't want to be associated with the submission of the Trump slate as if it were legit.

[raison de arizona]

[p0rtia]

The sending of the letters might not have been per se illegal, but they sure as hell could be "one overt act" in a plan to overthrow the election.

"Overthrow an election" is not a crime. It surely is an end, and the means to it may be criminal. But "criminal conspiracy" means conspiring to commit a crime, so the first step is specifying an actual, on-the-books crime.

I've been keeping a list, gleaned from IAAL's on the teevee:

Sedition
Interfering with an act of Congress
Subversive activity

I also have a note that says that there is a federal law against "rebellion or insurrection."

No other details from this IANAL. Actually my favorite is election interference in Georgia. There are other election fraud possibilities.

[bob]

Sedition
Interfering with an act of Congress
Subversive activity

I also have a note that says that there is a federal law against "rebellion or insurrection."

"Subversive activity" isn't a crime; that's a cluster of crimes, which includes rebellion or insurrection. And sedition also isn't a crime, but "seditious conspiracy" is (it is a "subversive activity").

So sending a very nicely formatted letter to the archivist that you believe the other guy actually won isn't interfering with Congress. Nor is it seditious conspiracy, or any other subversive activity, because subversive activities generally require the use of violence, a conspiracy to use it, or an incitement of it, to achieve those ends. Because, in the United States (in the modern era, at least), the First Amendment protects wrongly held beliefs about the election's outcome, provided those beliefs stay in the form of words, and don't suggest (imminent) violence to achieve them.

Which is why the seditious conspiracy charges against the Oathkeepers are both notable and justified: there is ample evidence that they intended to use force (or at least incite its use) on January 6. And geniuses that they are, there's ample evidence they conspired, and tooks acts in furtherance of their conspiracy.

Now, as for the real "master" "minds," there's no smoking gun (yet) that violence was part of that plan. Eastman's memo, for example, advocated some crazy-ass bat guano, but it didn't suggest storming Congress' electoral-vote certification and changing the election results at knifepoint.


With respect to Georgia, the "find the votes" call does seem like election interference.

[SuzieC]

[Bob] So sending a very nicely formatted letter to the archivist that you believe the other guy actually won isn't interfering with Congress. Nor is it seditious conspiracy, or any other subversive activity, because subversive activities generally require the use of violence, a conspiracy to use it, or an incitement of it, to achieve those ends. Because, in the United States (in the modern era, at least), the First Amendment protects wrongly held beliefs about the election's outcome, provided those beliefs stay in the form of words, and don't suggest (imminent) violence to achieve them.[Bob]

But they did use violence!!!! The fake certificates were a crucial part of the conspiracy as laid out by Eastman, Bannon, Waldron, and Meadows. As Gregg said and I agree with 100%, they were overt acts in furtherance of the violent terrorist conspiracy. Now, you may argue that there were two conspiracies going on simultaneouly: The White House conspiracy and the OathKeepers conspiracy. I do not buy it.

[p0rtia]

We knew here on the Fogbow that the idea of stopping the certification involved talk of entering the Capitol. Various Congressfolk told their staffers not to come in that day because they feared violence. One Rep famously wore her sneaker so she could run if needed.

The meaning of the earlier "It'll be wild" talk was quite clear.

The idea that #teamcoup didn't know that talk of violence was everywhere does not compute.

[SuzieC]

And Mo Brooks wore body armor when he spoke at Trump's insurrectionist rally. Why, if it was just a nicely formatted letter writing campaign?

[bob]

But they did use violence!!!!

Define "they." Because electoral LARPers did not use violence. Other people did.

A conspiracy (as the term is used legally) is an agreement between people to commit a common plan. What is the evidence the electoral LARPers didn't possibly merely approve of the violence, but actually agreed to a plan involving violence?

The fake certificates were a crucial part of the conspiracy as laid out by Eastman, Bannon, Waldron, and Meadows.

Eastman's memo is evidence of a non-violent conspiracy, which didn't not involve any fraudulent uttering, and essentially was protected by the First Amendment.

As Gregg said and I agree with 100%, they were overt acts in furtherance of the violent terrorist conspiracy. Now, you may argue that there were two conspiracies going on simultaneouly: The White House conspiracy and the OathKeepers conspiracy. I do not buy it.

You are free to believe whatever you desire, but at the moment one set of conspirators are in jail, and another remains free. So actual law enforcement disagrees; for reasons based in law, politics, or both.

And Mo Brooks wore body armor when he spoke at Trump's insurrectionist rally. Why, if it was just a nicely formatted letter writing campaign?

Foreseeing the possibility of violence and conspiring to ensure it happens are very different concepts.

* * *

We knew here on the Fogbow that the idea of stopping the certification involved talk of entering the Capitol.

Whose plan? And enter with violence (or otherwise the lack of legal authority to enter)? The crux of Eastman's plan involved Pence, who had the legal obligation to be there.

Various Congressfolk told their staffers not to come in that day because they feared violence.

Fear of violence, although reasonable, is not evidence people conspired to use violence or otherwise incite it.

And several people who did use violence (or incited it) were arrested and are facing charges. But not the LARPers. Or the "master" "minds" (or than the contemptors, but for reasons unrelated to actions preceding or on January 6).

The meaning of the earlier "It'll be wild" talk was quite clear.

The idea that #teamcoup didn't know that talk of violence was everywhere does not compute.

Again, this is where the "master" "minds" lean into plausible deniability; you may believe that violence was part of the conspiracy, and you may well be correct, but a prosecutor has to think about what is provable and persuasive in court.

[SuzieC]

You are persuasive, Bob, as always. What would it take to get you to believe that the fake electors should be swept up by the FBI as conspirators? And for that matter, the people who have not been arrested: The White House conspirators?

[p0rtia]

I hear the talking heads saying "They won't indict unless they have a water-tight case."

My idea is that in the face of the end of democracy and the complete take-over by the the no-consequences power mad, they should indict on every issue they can conjure up.

Do you play bridge? There is a well-known approach that states, if you can see that the card distribution is such that you have a ninety percent chance of losing the hand, don't play safe: play for the card distribution that will result in the win.

[SuzieC]

Agree. Go for it balls to the wall.

I was never a prosecutor but I disagree with the idea that there must be a 100% airtight case.

[bob]

What would it take to get you to believe that the fake electors should be swept up by the FBI as conspirators? And for that matter, the people who have not been arrested: The White House conspirators?

It is possible that there were two overlapping conspiracies, working synergistically. And that the LARPers arm didn't know about the violence arm, but the LARPers ignorance might not save them from criminal proceedings.

Having said that, I'm a card-carrying doomsayer. Without more, the LARPers LARPed; the only consequences they'll face is ridicule and scorn.

The J6 committee won't exist in a year. Before it closes shop, it'll make some recommendations (about election reform) that be duly round-filed. It may make some criminal referrals, but the DOJ will only seize on the lowest hanging of fruits.

And the White House conspirators will apply the lessons learned from the dress rehearsal.

* * *

Do you play bridge? There is a well-known approach that states, if you can see that the card distribution is such that you have a ninety percent chance of losing the hand, don't play safe: play for the card distribution that will result in the win.

Good advice for cards, but basically any prosecutor would say that's unethical for prosecutors to do in practice (and too, also may lead to personal consequences for the individual prosecutors who pursue such tactics).

Stated differently, I think J6 was fundamentally a political failing that the legal process can't fix; it can only treat the symptoms, like assault and vandalism. And we lack the clarity/resolve/tools for a political solution.

[SuzieC]

You are a doomsayer. See the "Democrats will win again" thread for recent good news for our side.

[bob]

You are a doomsayer. See the "Democrats will will again" thread for recent good news for our side.

I read and enjoy that thread. But there's a reason I don't post much there.

[p0rtia]

You are a doomsayer. See the "Democrats will will again" thread for recent good news for our side.

I read and enjoy that thread. But there's a reason I don't post much there.

There's a reason I don't post there too. The same reason that I don't care if throwing shit on the wall is not standard practice.

ETA. My objection is to the "must be 100 percent certain of winning" approach. I'll accept only _half_ the available shit being thrown on the wall. _Some_ of the shit. I reject _none_ of the shit.

[SuzieC]

Disappointed that neither you nor any of our other Fogbow Lawyers (TM*) commented on either of the Ohio Supreme Court decisions. After all, the Washington Post said today that Ohio may have saved democracy.

I don't believe that, but we may have added 3 or 4 seats in Congress.

[noblepa]

IANAL Bob, but…

If someone presents a counterfeit $20 bill in payment, it’s still forgery wether there’s a Sec of Treasury signature on it or not.

I also think that their intent was to disrupt the function of Congress in counting the electoral votes. They deliberately did this in an attempt to circumvent the legitimate outcome of the 2020 election.

And I think that they DID imply that they were the authorized representatives of their respective states.