Lawfare Daily: Trump’s Trials and Tribulations, Trump Re-Indicted in the Jan. 6 Case

[Introduction]

Quinta Jurecic: He is taking the view that the vast majority of conduct described in the original indictment is something for which Trump can be held criminally accountable, despite the Supreme Court's openness to considering that it might be conduct for which Trump is immune.

Benjamin Wittes: It's the Lawfare Podcast, Trump's Trials and Tribulations. I'm Benjamin Wittes, Lawfare's Editor in Chief, with Lawfare Senior Editors Anna Bower, Quinta Jurecic, and Roger Parloff.

Roger Parloff: I think even without these tweaks, it was always apparent to us that this was a stronger 1512(c)(2) case, even under the narrow interpretation that challengers were making.

Benjamin Wittes: In a live recording on August 28th, we discussed special counsel Jack Smith's superseding indictment against former President Trump in the January 6th prosecution. We talked about how it differs from the original indictment. And we talked about some other stuff as well.

[Main Podcast]

So Quinta, get us started. How is this superseding indictment different from all other January 6th indictments?

Quinta Jurecic: That's, that's the spirit to get me started here. So if you look at this indictment side by side with the original indictment, they are by and large pretty similar. There is not a huge amount of new material here in the sense that sometimes when you get a superseding indictment, it's because the prosecutor has more information that they want to add. They want to add additional charges, add additional information about, you know, what the defendant is alleged to have engaged in. That is not the case here. The facts are all the same. There aren't any new charges. There's not anything that is added here about our understanding of January 6th and Trump's efforts to overturn the election.

Instead, what Smith has done is responding to the Supreme Court ruling that, substantially complicated, let's say, his effort to prosecute Trump for January 6^th. He's sliced out big portions that the Supreme Court ruled were sort of unambiguously out of bounds for which Trump was immune as a former president. And then he has tweaked other portions to make it clearer that they are in bounds. There are a couple different categories that we can kind of go through to understand precisely what is happening here, but those are the broad strokes.

Benjamin Wittes: All right, so let's break this down into four categories. What's new in the indictment? What is removed that was in the old indictment and is not in the new indictment? What has been tweaked? And what is footnote three? I think those are our, our basic categories. Let's start with what's new, because it's the easiest. What's new in this?

Quinta Jurecic: Basically nothing. I think that any, everything that is arguably new here is something that I would really put under the category of tweaks. So we can, we can go straight to tweaks from here or we can do what's coming out.

Benjamin Wittes: No, no, no, no, Tweaks are, tweaks are the complicated part. So what's out? What, what's the stuff that is been removed because the Supreme Court says Trump is immune?

Quinta Jurecic: Essentially everything that has to do with the Justice Department. So listeners might remember the way that Smith set out the charges against Trump in the initial indictment had included a pretty hefty portion involving Trump's efforts to force the Justice Department to basically make false statements about election fraud in efforts to really twist the arm of state officials and state legislatures to help them overturn the election. And Jeffrey Clark Trump had meant to appoint his acting attorney general as part of that effort. It didn't go anywhere, essentially because the upper echelon of the Justice Department said that they would mutiny over it. And so it ended there.

That had always been the portion of the indictment that I think, at least the people on this call, widely agreed was the most potentially vulnerable to an immunity argument. Because if you want to frame it in the terms that are the friendliest to Trump, you could say, well, personnel management at the Department of Justice is, you know, at the core of the president's responsibilities under Article II. And the Court basically took that view and said, you know, that the president has conclusive and preclusive power over his interactions with these Justice Department officials. He can direct the Department, he can move personnel around in the Department, basically absolute immunity, you can't go further on this. And so, in response, Smith has just basically taken an X-Acto knife and just sliced it completely out of the indictment.

Mostly, I think you, you wouldn't be able to notice that if you were looking at it with fresh eyes. There is a bit of a funny edit where, so there are a number of coconspirators who are listed in the indictment. Jeffrey Clark has been identified as coconspirator 4. What is odd, though, is that the list of coconspirators in the superseding indictment, coconspirator 5 does not become coconspirator 4 now that Clark is gone. It just skips straight from coconspirator 3 to coconspirator 5. So I don't know if that's like a pointed statement track changes error or what, but it is a little amusing.

Benjamin Wittes: I think it is just, I think, Roger may be more familiar with federal pleading standards than I am, but I think the explanation of this is just that you don't want to change anybody's name in the middle of a litigation. And so coconspirators five and six would have name changes if you, in airbrushing co conspirator four out of the picture of the the old men on the balustrade at the Kremlin.

Quinta Jurecic: I was about to make that joke.

Benjamin Wittes: And sort of like moved them over. So I think it's just, I, I, I'm not sure about this, but I think it's just a, a formal standard. Roger, do you know, happen to know the answer to this?

Roger Parloff: I don't really, that sounds right to me. And then, you know, if this case ever goes to trial, there's a separate question about whether the jury gets to see the indictment. And if it does, it wouldn't have to see this version. You could tweak what they see. So, it's not like they're going to see, huh, what happened to conspirator four? So, I don't think that's an issue.

Quinta Jurecic: Yeah. So there's, there's some more stuff that's taken out here. So the, the bulk of it is material related to the Justice Department. There is also some other material that has to do with essentially internal White House conversations in the run up to and on January 6th. So this is stuff like, you know, the White House counsel on January 6th running to Trump while he's watching the rioters on television and telling him you have to call them off, right? So like that is gone because I assume it's a conversation between the president and the White House counsel.

There's also some other material, and we'll, we'll get to this when we talk about footnote three, but I want to just set it up now, that has to do with other things that are arguably official acts. So just as an example, and this is not, you know, there's a lot of different stuff here, but just as an example, there are two there's a press conference and a speech that Trump gave in late November 2020 from the White House, you know, standing behind the presidential podium and everything, where he sort of rants about election fraud. That was quoted in the original indictment and now it's gone. And I think that this is related to this prohibition not only on you can't prosecute the president for an official act, but you can't introduce evidence of an official act in prosecuting an unofficial act. So all that has to kind of be sliced out of the story.

Benjamin Wittes: All right, and then what about tweaks? The comp, this is the complicated part. Everything else is, is exacto knifing stuff, airbrushing, but this is, there's a whole bunch of stuff that's just subtly different. What are the categories of subtle difference?

Quinta Jurecic: So there's some of it that is less subtle than others. So maybe to start with the blunter instruments, there's a certain amount of just kind of like copy pasting that's happening where, you know, people who were previously identified as a lawyer are now identified as a campaign lawyer or a lawyer affiliated with the campaign.

Benjamin Wittes: Just slow down. Why is that a difference that, that Jack Smith would want to emphasize here?

Quinta Jurecic: So this goes to one of the ways of distinguishing between official and unofficial acts that the Supreme Court hinted at in its ruling, and that I think we kind of saw a preview of in the D.C. Circuit's decision in Blassingame, the case involving an effort to hold Trump civilly liable for January 6th. So in Blassingame, the D.C. Circuit suggested that you could draw a distinction in protections for former presidents for civil liability between conduct that was in their role as an office seeker, which would be unofficial conduct, essentially acting as a candidate, and then an office holder, in which case you're acting as a president. And the court sort of indicated, well, you know, maybe if Trump is getting up there and making a campaign speech, right, that's not something for which he would be civilly immune. If he's making a presidential address, he would be immune.

So the Supreme Court doesn't, you know, 100 percent port Blasingame over into the criminal context, but it does, there's some language in there that I think it's fair to say, you know, strongly suggests that a majority of the justices would be open to kind of slicing things up that way. And so along those lines, Smith has all of this language where he's emphasizing, you know, these are conversations that Trump had with campaign lawyers. You know, Trump was a candidate for office. He was having these conversations in his capacity as a candidate. There's an instance where there's a particular scene. I can't quite remember what it concerns. But where Ronna McDaniel, who is the RNC chair, had not been mentioned. And now, you know, suddenly she appears in the scene because it's, it's useful to Smith to point out like, hey, this was Trump operating in a campaign mode with someone who was working with him as part of the Republican party, rather than, you know, working with him in his capacity as a sitting office holder. So all those kinds of edits are in there throughout.

Similarly, there's an emphasis about added emphasis about how Trump's Twitter account is used not only for official purposes, you know, to communicate to the public as president, but also for personal purposes. I think that's a, another way where Smith is kind of saying like, hey, you know, it's kosher for me to include this because it's not official conduct. It's in this private campaign mode. So that's one category. And I think that may actually be the biggest.

One of the other big ones has to do with Mike Pence. So, the question with Pence, Trump has basically argued, you know, that his conversations attempting to bully Mike Pence into upending the electoral count to keep Trump in power, that those were, you know, those were official acts because they were conversations between the president and the vice president. You know, they're, they're both officials. They're talking about their constitutional duties and how best to, you know, run the country and that kind of thing. And so he should be immune. The alternative read and this is something that Smith kind of hints at here, is that he isn't immune because (a) the president doesn't have any, you know, official constitutional role in overseeing the electoral count. That is a responsibility given by the Constitution to Congress. And B, the vice president in this instance, when he is presiding as president of the Senate over the electoral count, he's not actually acting as a member of the executive branch. He is acting as a member of the legislative branch, or some kind of weird executive legislative hybrid. And so that sort of makes the extent to which Trump doesn't have an official role feel even greater. It's not only that he doesn't have an affirmative responsibility, it's actually you know, he's meddling completely with a different branch of government over which he has no power.

And so, kind of to, to emphasize that I'm just pulling up the language now, Smith essentially adds, he has this sort of, you know, copy paste, copy paste, copy paste, where he keeps emphasizing, you know, the Vice President in his role as President of the Senate presiding over the joint session of Congress as president of the Senate, comma. To the point where it reminded me of, you know, the, if anyone remembers studying the, the Iliad or the Odyssey, everyone has their, their little appellations, right? Like Hector

Benjamin Wittes: Grey eyed Athena

Quinta Jurecic: Right, exactly. You know, Hector, breaker of horses. Pence, in his role of presiding over the joint session of Congress as president of the Senate, comma. Really just like, kicking that dead horse as much as you possibly can to kind of emphasize, like, this is not something that Trump was doing in his official capacity.

Benjamin Wittes: All right, so if you had to sum up what Jack Smith is trying to do here, the Supreme Court says about a hundred things in that opinion and he's got to make an argument in the form of an indictment, which of course is not allowed to make an argument. It's supposed to pres-, allege facts. What's the argument that he's making or setting up with this document that he is gonna try to get through the Supreme Court ,first through Judge Chutkan and then through the D.C. Circuit?

Quinta Jurecic: I would say it has a couple parts. So the first part, and, and to go to back up a little bit, this has to do with the three categories of conduct that the Supreme Court has set out in its opinion. So the majority states essentially there are, and I'm, I'm, this is a bit, overgeneralized, but let's just roll with it. There are three main categories. There is conduct at the, the absolute core of the president's constitutional responsibilities. That is conduct for which the president is absolutely criminal immune. Then there is this sort of uncertain zone of conduct that is not in the core. It's outside the core, but goes all the way out to the outer perimeter of presidential responsibility. That's conduct for which the president is presumptively immune, but that presumption can be rebutted. So that's category two. And then there's category three, which is conduct for which the president is not immune at all.

We know that the Justice Department material was category one. That's why it's gone. We also know that the Pence material is category two because the Supreme Court explicitly indicated that in the opinion. So with regard to the Pence material, the way that I read this is Smith essentially saying, okay, maybe this conduct falls into category two, there's a rebuttable presumption of immunity. And I am prepared to rebut it on the grounds that Trump had no official responsibilities here and perhaps also that, you know, Pence was acting in some kind of role as part of the legislative branch or some kind of a hybrid role. That's one part of the argument.

And then the second part of the argument, I think, is that everything else that he lists apart from the Pence material is unofficial conduct. So, you know, there's actually a fair amount of stuff that he's chosen to indicate is unofficial, such as the conversations that Trump had bullying members of state legislators and state officials like Georgia Secretary of State Brad Raffensperger into overturning the election. I think, emphasis on think, that Smith is indicating that these are unofficial acts and that's why he's choosing to include them. It's possible that those could also be category two, but either way, he's saying, I think that Trump is not immune for this category. And I will say that, you know, Smith was definitely careful in sort of slicing things out, in some cases, you know, removing words here and there that could potentially get him into trouble on the official acts front. But he's also, you know, he's not, he's not cutting and running. Like he is making a pretty aggressive is not quite the right word, but he, he is taking the view that the vast majority of conduct described in the original indictment is something for which Trump can be held criminally accountable, despite the Supreme Court's openness to considering that it might be conduct for which Trump is immune.

Benjamin Wittes: Yeah, so I just want to push this point a little bit further. I think this document can be read as a tactical bet on the part of Jack Smith that two people, Amy Coney Barrett and John Roberts have a different attitude toward these very nuanced factual questions about what is and isn't official than do the four harder line conservatives, at least harder line on this set of issues. And I think you can read this document as saying I think we can peel off certainly Amy Coney Barrett and probably the Chief on these points and that's how we're going to get this case going forward.

All right, so Anna, you and I wrote a piece about a kind of fourth category, sort of a fourth category. A subcategory of, of immune conduct that has its own footnote in the Chief's opinion footnote three. And that may allow in certain circumstances some of the material that has been struck from the indictment to come back in, not in the indictment, but in the form of evidence of charged crimes, rather than charged acts themselves. So what is the evidence in this document that we were either right or wrong about footnote three?

Anna Bower: Right. So I think what we ended up deciding is that it's footnote three and the section of the opinion that it is related to is not so much a fourth category as it is we call it a public records exception. The footnote, if folks recall, arises in this section of the court's opinion where it's gotten through kind of a lot of its analysis about immunity, determining that there are these three categories that Quinta discussed. And then it addresses this argument that the government made during oral argument and during the briefing in which the government said, okay, even if you recognize that there's some immune, immunity for official acts, you know, and, and even if you recognize that, that those, that conduct has to be taken out of the indictment and a person can't be charged for it, could we at least later on at trial, when we're presenting evidence to a jury, present it for some specific evidentiary purpose? For example, showing state of mind, and you could have, you know, kind of limiting instructions to the jury in which the judge says, okay, this isn't itself evidence of Trump's guilt, but it is, you know, you can consider it when considering things like state of mind, maybe impeachment purposes, stuff like that.

A majority of the court says no to this suggestion from the government. They transform presidential immunity into an evidentiary privilege of sorts, writing that even if the indictment is based on unofficial or non-immune conduct, the prosecution also cannot introduce evidence of otherwise immune official acts for more limited purposes at trial. Amy Coney Barrett thinks that this goes too far. She says that the, that in a bribery prosecution, for example, it would hamstring the prosecution and, and Roberts responds to this and says, oh, well, you know, in a bribery prosecution, the prosecutor could point to the public record.

And so we took that in our piece as a potential, as a possible exception that at trial potentially Smith would be able to take things that weren't able to be included in the indictment because they were immune, but they potentially could be introduced for some limited evidentiary purpose. So in this superseding indictment, there's a number of things that I think might be ripe for Smith to use footnote three to later on at trial try to get some of this evidence in. The main category, and we focused on this a lot, Ben, in our piece are public statements that Trump made on his Twitter account. While the government recognizes that Trump sometimes used his Twitter account to make public statements on matters of public concern. And that is one category that the court recognized may be an official act. It also, as Quinta mentioned, kind of categorizes other statements that he makes on Twitter as private.

But Smith takes out a number of tweets and I think that it's very likely that he does so because he believes that those tweets reflect Trump speaking in his capacity as president on matters of national importance. And so he takes them out but I think that it's possible that under footnote three, he could later on try to get some of those tweets in. One of the categories of tweets that I'll mention that I, that I think stuck out to me is Trump's speech in the Rose Garden that he tweeted out in a video message in the hours after the attack on the Capitol. Remember, this came hours after the Capitol had been breached. It's the one where he tells the mob, you are very special, you are very loved. There's also a follow up tweet as well, that he tweeted a few hours after that, in which he said something to the effect of remember this day forever, and repeated his false claims of fraud in the election and of a stolen election.

So I think that those things potentially could come in if there is some, you know, more limited evidentiary purpose that Smith could find a way to kind of, argue for their admissibility. I want to also mention other things like remarks that Trump made at a press conference at the White House about fraud in Michigan. Again, I think that probably that was taken out because they looked at the context of the speech, which is the president at the White House giving remarks to members of the press. Again, that's something that the Supreme Court seemed to believe at least presumptively is deserving of immunity.

And then finally, there's another category that I think is a little bit more unclear if there is a public records exception, would you be able to get anything in, in this category? And that's some of the conversations that Trump had with his executive branch advisors. There's a number of things like with the Jeff Clark stuff, the Donoghue and Rosen stuff, all the things that were going on with DOJ. There's also, you know, other conversations in which advisors are telling him you know, that they didn't find widespread fraud, that kind of stuff. There's a lot of that that is actually in the public record because of the work of the January 6th committee. And, and so one thing that we raised in our piece that we wrote about the footnote is the question of, is there a way that, because this is in the public record, you would either be able to have a witness testify to their prior testimony that is public record? Or if there are other materials like documents that are now public record that the committee was able to retrieve, could you then, you know, get that into evidence? So there's a number of ways that potentially Smith could use this footnote to still get some of this material in front of a jury, even though it has been stripped from the indictment.

Quinta Jurecic: So I actually have a question, Anna, for, for you and Ben on this, this footnote 3 issue. And it has to do with a specific example that you made in, in your piece where you were pointing out that, you know, one example of a potential public record is Mike Pence's book. That he wrote this book, as far as I can tell, basically, to publish information about these conversations that he had with Trump in advance of January 6th. It includes a number of instances where he, you know, is telling Trump, no, I can't overturn the election for you.

I want to focus on one specifically where he says that Trump told him that he was too honest. So you point to that as, you know, okay, maybe we, we can't point to the, the conversation, but we can, you know, use the public record as evidence later on in the proceedings. What is interesting to me is that if you look at the superseding indictment, it actually quotes the too honest comment. It quotes the, the statement that Trump made that Pence is too honest. And it quotes another statement, which I believe is also drawn from the book, of Pence saying that he, he doesn't have the power to overturn the, the electoral count.

And I confess that when I was reading the indictment, this really tripped me up. Because at first I thought, oh, they're, they're, you know, including this information because it's a public record under footnote three. And then I, you know, Anna, as you've explained, that doesn't come in under your reading at the indictment stage. That comes in much later at the evidentiary stage. So what is your read on what's happening there?

Anna Bower: Yeah, I think, and look, I don't have the superseding indictment right in front of me, so, Ben and Roger, chime in if you do. I, I think what they're trying to do with a lot of these Pence and Trump conversations is try to, I mean, you mentioned first that there's an effort to emphasize Pence, Pence's role as a legislative role. But then also there's a line that they added, I, I believe that is something to the effect of all of these conversations were about Trump's efforts to hold onto power. And so there's an effort to kind of portray these conversations as. Not necessarily relating to the relationship between a president and a vice president in his role as an executive officer. It's more of a focused on, you know, the other type of relationship or interactions that they could have either with Pence as a kind of legislative actor or in a campaign related function because of course, Pence was also Trump's running mate in addition to his vice president.

Benjamin Wittes: So I think there's a few possibilities here and you can't really tell which it is from the text of the indictment. You'll only be able to tell when the provision is challenged and we get a litigation over the indictment. So one is The most likely one is the one I think Anna just said, which is that they're going to try to get Pence's testimony on the basis that it's either that that conversation was either a, the president in his capacity as a candidate for office trying to pressure Pence and therefore wasn't an official act or that the conversation was an official act but it's a, the presumption is overcomable. A second possibility is that, and I think it's most likely one of those two, probably both, i.e. it's not official, but if it is, it's overcomable because, you know, there's no great executive authority to bully the vice president or, you know, something like that.

The second possibility is that it is a footnote three thing but that it's based on something that Trump said, not something that Pence said in his book. So what if there's some tweet or something where, you know, Trump repeated the too honest thing or said, you know, quote, Pence says that I said he was too honest. Sure. You know, I'm just making stuff up now. But if you put it in Trump's mouth, you get rid of some of the hearsay problems. It becomes a statement by the president that you can authenticate, right?

The other possibility would be that there would be some way they think they can get this in not just under footnote three, but avoiding a hearsay problem with respect to Pence's book. I don't know how you do that. But I'm not an evidence expert at all. And so, but then they would not be in footnote three land, because as you note, then it wouldn't be in the, in the indictment. It would be, it would be, it would be coming in at a much later stage. So I think the answer is, hold that question for three or four months, and we'll find out the answer to it.

Anna Bower: Yeah, because I think that, I mean, my read of footnote three is that you can't use the exception to get things into the indictment because of the context of where that footnote falls in the court's opinion. It's right after the court is saying you've got a president can't be indicted based on his official acts that are immune. And you've got to strip away all of those allegations in the indictment that reflect immune official acts. And then the court goes on to say, but even if you had an indictment based wholly on unofficial or non-immune conduct, could you later introduce evidence of otherwise immune official acts? So I, I think that like, this isn't a footnote three thing with the, the too honest part. It's gotta be a, either we think this is an official or we think that it's official, but not immune.

Benjamin Wittes: I think that's almost certainly right. And it's certainly the Occam's razor explanation. All right. I want to move on to a final aspect of things that have been added to the indictment are tweaked. Roger, who's joining us from the beach in his best Joe Biden costume. Roger, help me out with the, this other Supreme Court decision that everybody ignored while it was happening, except us, and now has produced some little changes to the indictment too, and that's of course U.S. v. Fisher. So remind us what Fisher is and then walk us through how it's affected the text of the indictment.

Roger Parloff: So you remember that one of the key charges in the January 6th cases was corrupt obstruction of the, January 6^th blue collar cases, was a corrupt obstruction of an official proceeding. 355 defendants were originally charged with that, so about 25 percent, but it was challenged on the theory that it was being interpreted too broadly. Supreme Court finally accepted that argument, and so they greatly narrowed it, and we're now finding in fact n the blue collar context, exactly what that means, whether the cases can go forward or not, a number of them can't, some can, or DOJ will try.

But two of the charges against Trump are this, this charge, corrupt obstruction of an official proceeding, 18 U.S.C. 1512 (c)(2). And so, the, the way they narrowed it was they said it, it, before it was basically what it sounds like, corrupt obstruction of an official proceeding. Now because it's of the placement of the provision in that statute, they've interpreted it to be narrowed by language in the preceding section 1512(c)(1). And so you need to show, I don't have the statute, I mean, the language in front of me, but, basically that there was an attempt, or success, at impairing the integrity or the availability of a document, record, or other object that's going to be used at the official proceeding.

And so, what we see, what has happened in the superseding indictment is there are several new paragraphs that seem to be aimed at just showing that Trump was aware that pieces of paper were being used in this, you know, January 6th process, the certification of the election on January 6th at the joint session. For example, new paragraph 93, at approximately 2:20, this one is, is a different angle, at, at 2:20 pm the official proceeding having been interrupted. Staffers evacuating from the Senate carried with them the legitimate electors certificates of vote and their governor certificates of attainment, so you can, ascertainment. So you can see that records, documents are being made unavailable for a proceeding that they were intended to be used at. So I assume that these are paragraphs that are trying to overcome the new bar that Fischer set.

Benjamin Wittes: And again, let me ask you the same question I asked Quinta about the, the other additions and tweaks, which is, how would you describe the argument that Smith is making about his 1512(c)(2), which case, presumably not to Judge Chutkan, but to the Supreme Court?

Roger Parloff: Well, I think even without these tweaks, it was always apparent to us that this was a stronger 1512(c)(2) case, even under the narrow interpretation that challengers were making. And the Supreme Court didn't address Trump's situation, it wasn't before them. But we always knew it was a stronger case because it involves apparent tampering with documents. The false electors part of the indictment, submitting phony documents or misleading documents to a proceeding in order to obstruct it. So it always seemed like an easier case to make.

There's another issue that could have arisen at the Supreme Court, but didn't. You know, there were arguments that the January 6th blue collar defendants were making. They were saying, oh, this has to be an evidentiary style proceeding. So it wouldn't even cover all congressional proceedings. It would have to be an investigatory proceeding. But the Supreme Court didn't say anything along those lines at all. And 15 I don't know the, it's 1515 something. It has definitions for the, the 1512(c)(2) and other, other sections of that statute. It includes as an official proceeding, a congressional proceeding. So it does, and it doesn't hedge and say, evidentiary congressional proceedings. So you would have to, it's another atextual hurdle that somebody would have to make.

So I, I, I think this has always been a safer case. I think they are tweaks, as Quinta would put it, you know, just making sure that, yes he knew there were certificates involved. There were certificates involved. There were certificates that were being, that had to be evacuated, taken away. There were false certificates, you know, that sort of thing.

Benjamin Wittes: Alright, so two more items of business. Let's, since we are on the subject of Fischer, let's do that one. Roger. You mentioned to me that the, the contours of the post-Fischer environment in the, in the blue collar cases separately from the Trump case are really starting to come into focus now. What can we say about that?

Roger Parloff: Yeah. After the ruling came down, which was June 28th DOJ said they wanted about 60 days to process it and figure out what they were going to do. And it does appear that they are going through case by case. I said there were 355. By the time Fisher was decided, about 259 of those were still left in, open in some sense. You know, maybe, that includes people that had served out their term, but were on probation. Yeah, a lot of those were, were the ones that ended before Fischer, you know, people pled guilty to other charges. So, or, or they were found not guilty even of the 1512(c)(2) charge. So, there were 259 left and already about 60 of those have been dropped, meaning they don't think they can pursue those under the narrowed interpretation.

Benjamin Wittes: And do you mean, when you say 60 of them have been dropped, do you mean the entire cases have been dropped or?

Roger Parloff: No. The, that’s-

Benjamin Wittes: This charge has been dropped out of 60 cases.

Roger Parloff: Yes. And of course, in most cases I would say I don't know the real percentage. At, at least 60%, I mean, well every case other, there are other charges, but I would say but 60% of them there are other felony charges in in, and it makes a big difference when this is the only felony. It makes a big difference to the defendant.

So in 60 cases, they have dropped that count. In some of those, and I don't know how many, they have added a new count. And this might, that might sound sort of vindictive. But as you approach trial, it's common. You know, you begin to interview the police officers that you know were involved. You begin to pour over the CCTV, the closed circuit television video of, you know, showing where the defendant was. And you often, it's not unusual, at least, to notice new crimes. You know, you notice, oh, he, he shoved the cop there, or even, he even assaulted a cop. So I know a couple cases where they've added an assault charge and one where they've added a, a impeding officers during a civil, civil disorder.

And then I know there's at least five cases I'm aware of where they have decided we're going forward anyway. We think we can prove the case under the new definition. Some of those were actually tried before Fischer in a bench trial and now they're saying, okay, we'll have to dismiss it. We want to re-bring that and with the correct, I want to say jury instruction, whether or not it was really a jury deciding the case. So it's a case by case examination and a lot are having to be dropped, but some are being pursued.

Benjamin Wittes: And is it, is it clear to you what, what unites the cases in which I mean, is it that there's some documented issue that it's-

Roger Parloff: Yeah, it's a lot for all of these, there was always the, the, the people that get charged with this, there was almost always, remember it's proof beyond a reasonable doubt. There was almost always some social media evidence. either before January 6th, during January 6th, or after it, where they were saying what their intent was. You know, they were saying, I'm gonna stop this proceeding because I don't want them, you know, to, to, you know, because it's, the election's being stolen. And now they're looking for even more specific social media like that, showing that they understood that the proceeding involved records and certificates. And, and that they wanted to make the certificates unavailable at the proceeding. So at least four of the five are what I, people that made it all the way to the Senate chamber and were there rifling through documents on senators’ desks. And discussing them on videos that people were making and saying, oh-

Benjamin Wittes: Here's the certificate of ascertainment.

Roger Parloff: Yeah, and let's make this, let's make the availability or integrity of this certificate unavailable for this proceeding. And so then you can go forward with the case. So a lot of them have, four of them have involved people rifling through documents on the Senate floor or, or being there as other people were doing that and commenting on them. And another just had a lot of social media references to understanding the process, the role that certificates played in it.

One other thing, there's about 35 cases, that guilty pleas, some people are trying to retract their guilty pleas where this was the only felony. And we, we know the government's position will be that, obviously a guilty plea is a contract, you get something from it, you get, usually charges, additional charges are dropped and in some cases, charges that could be added are not pursued. You know, the government may have already noticed other things you did but not yet put them in the indictment. So, they are making, they are saying that these are these are enforceable contracts, unless you can show, and this is the Supreme Court language, a case called Boozley or Bolsley, Bolsey, I'm sorry, I can't remember. But you need to show actual innocence of both the charge and any higher charge that was dropped as part of the plea agreement. And that sort of switches the burden of proof. So, now it becomes their burden to show that they were actually innocent of first 1512(c)(2), even with the narrower definition. You really didn't know that certificates were being made unavailable? You prove it. And, and also the, there are often other charges, assault and, and so on, which are going to be very difficult for them to prove absolute innocence of.

Benjamin Wittes: All right. Last issue before we wrap. Roger, we also had an 11th Circuit appeal or a government brief in the 11th Circuit appeal of Judge Aileen Cannon's dismissal of the documents case. What do you make of it?

Roger Parloff: Yes. So, the government, the special counsel submitted its 11th circuit brief. Remember case was dismissed for, on the theory that special counsel was improperly appointed. There are a lot of different claims that, you know, could have been made. But the one that she accepted was that according to the Appointments Clause, the president can appoint certain officers and then there are conditions under which lower, other people can appoint officers, including the head of a department can do it if Congress has specifically authorized him to do it, him or her.

And so, there were a lot of statutes, at least four, that have been used for at least 50 years going back to Nixon versus United States in 1974, but really going back to 1857. There have been a lot of special counsel, special prosecutors, independent counsel. And so the government, and, and she felt that all four of these statutes, none of these four statutes were adequate. And in my humble opinion, the government's 11th circuit brief is stronger than its district court brief. I think that the reason for that is obvious, which is now they know what directions the judge went off in, and it's relatively easy to show what she did doesn't make sense. And doing that requires a lot of history.

Interestingly, it's not legislative history is, but it's, she would attach weight to the fact that a statute, a subsection of a statute was near other statutes. And so she would say, well, that shows it, it has to do with a different topic, like the FBI. It's not relevant. But if you look historically, you see, no, it actually, it wasn't always next to those other statutes. They were joined at, at some later period of history. And the Congress that joined them wrote, don't be misled by the fact that we're now putting them all in the same section. They mean the same thing they always meant. And the Supreme Court has also said that about.

So they do a very good job of debunking each and every one, I would say, of these four counts. I, I did not think the special counsel's lower court brief was so strong in comparison to the challenger's briefs, including the amicus briefs. And, and if you've seen some of the critiques of Judge Cannon's ruling by, especially by Marty Lederman, who was in the OLC, the Office of Legal Counsel of Justice Department, really understands this stuff. Also, Adam Unikowsky, if I'm not mispronouncing his name, we did a version of one of his articles on Lawfare. They had a lot of very convincing history. This has that history as well, and even more of it. And it's hard to summarize because it's cumulative. It's in the details.

I can read, if there's time, one thing toward the end of the brief that sort of pulls it all together. Because it's really the ruling does go against at least 50 years and really arguably 150 years of practice. And so, yeah, it says the district court's reasoning also needlessly casts doubt on longstanding practices in DOJ. And across the executive branch. It suggests that every special counsel throughout history who was appointed from outside DOJ and who did not assist a U.S. attorney was invalidly appointed. That every attorney general who made such appointed appointments acted ultra vires, that means beyond his powers. That Congress repeatedly overlooked the persistent pattern of errors. And that the Supreme Court itself failed to spot that flaw in the Nixon case. And then it goes on and says, it would invalidate the appointment of every member of the Department of Justice who exercises significant authority and occupies a continuing office other than a few that are specifically identified by statute. It would, it would invalidate deputy solicitors general, deputy assistant attorneys general. And the rationale would likewise raise questions about hundreds of appointments throughout the executive branch, including the Departments of Defense, State, Treasury, and Labor which all rely on statutes resembling 509 and 510, which are two of the four involved here, to support their secretary's authority. So anyway, for what it's worth, I thought it was I think it's a strong brief.

Quinta Jurecic: I have to say my reaction to that is like, don't give her any ideas. Her next ruling is going to invalidate the entire criminal division because it wasn't specified by statute.

Benjamin Wittes: We are going to leave it there. We will be back next week, with our usual Trump Trials and Tribulations, and until then, chill out, go on vacation, and Jack Smith, don't keep doing this in the middle of other people's vacations, it's just rude.

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