I write this memo two years ago and sent it to lawyers who are on the list serve for the defense counsel on the J6 cases to circulate to anyone defending those cases. I also sent it to the public defender.
I wanted all the defense lawyers to have access to the argument.
As most of you know, the DOJ jacked up the cases on J6 defendants by charging them with obstruction of justice under 18 USC 1512. I think that is a misuse of the statute, & as you know the SCOTUS is set to hear argument on that point in April.
In addition to turning a lot of low level misdemeanor vases into felony cases, using 1512 also really jacked up the sentences under the Sentencing Guidelines, because the Obstruction Guideline adds up to 11 levels based on 2 enhancements for “obstructing justice” in certain ways.
My analysis of the Guidelines suggested that even if 1512 could reach to obstruction of Congress in the new way that DOJ has basically made up for J6, that the conduct still doesn’t fit within the definition of “obstruction” IN THE GUIDELINES, so the 11 levels can’t be added.
That radically reduces the sentences that 1512 produces in J6 cases, even if 1512 applies to the J6 facts (which I think it doesn’t & I’m hoping the SCOTUS rules in the Fischer case.)
11 levels can be as much as 30 months difference in the sentencing range.
A bunch of the defense lawyers made this argument in the J6 cases. The DC trial judges overwhelmingly rejected the reasoning in my memo for 99.9% of the cases/lawyers who argued it. @shipwreckedcrew says that to his knowledge only Judge McFadden agreed with the argument.
@shipwreckedcrew Some judges just blew off the argument and smirked at it.
I can’t take credit for every lawyer arguing this, of course. I would expect that some of them arrived at this conclusion themselves and I don’t know if Brock’s lawyers (the case decided today) ever saw the memo.
@shipwreckedcrew But the DC Circuit today ruled, 3-0, (2 Obama judges & a Clinton judge) that the argument in my memo is correct, which means all the sentences imposed using the two obstruction enhancements now need to be redone - and significantly reduced sentences imposed.
@shipwreckedcrew Some J6 defendants will likely be released soon because of this, as their original sentences are now unlawful under the Guidelines.
As I say, this ruling will help J6 defendants even if the SCOTUS upholds DOJ’s use of 1512.
@shipwreckedcrew Of course, if SCOTUS strikes down DOJ’s construction of 1512, this Guidelines analysis will apply to fewer cases, although there will still be some.
The Sentencing Commission could also change the Guideline definitions later, but that can’t be applied retroactively.
@shipwreckedcrew The fact that the Guidelines don’t cover the J6 situation also serves as a small data point in the discussion of whether 1512 applies in the way DOJ is claiming, although it’s far from dispositive.
@shipwreckedcrew DOJ could file a cert petition with SCOTUS to try to overrule the DC Circuit, in theory. But it’s probably unlikely that the Solicitor General’s office will see this as a good case. Of course that’s under normal circumstances, so we’ll see.
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There once was a General named Clapper,
By trade a clandestine wiretapper,
But he joined the Steele Hoax,
Now his rep is a joke,
And his life is going down the crapper.
There once was a G-man named Comey,
Who didn’t see Steele was a phony,
He said: “Hilary is Ok!,
It’s the Donald who must pay!”
Cause he couldn’t tell shit from baloney.
There once was a lawyer named Page,
Who was lovely but not very sage,
Her texts to her man,
Only helped get him canned,
As they wallowed in impotent rage.
Hoaxers: “Trump, you can’t be POTUS even tho you just somehow won the election. No, no, no.”
DJT: “Hahahaha. Watch me. Losers!”
Hoaxers:
Hoaxers then proceed to do a whole bunch of things to try to make actual reality -in which DJT is POTUS- match up to their “reality” in which he can’t be.
That’s was IMPOSSIBLE to achieve in Fall & Winter 2016-2017.
But they tried anyway.
It’s a non-rational conspiracy.
Non-rational conspiracy is rare. It’s usually confined to a very small number of people because it’s based on actual mental illness & a few other factors, like coercion &/or psychological pressure. Think Manson Family.
But it can be based on group psychoses or shared psychological stress rather than outright mental illness. Large suicide pacts are an extreme example, like the Jim Jones incident. John Brown’s raid could be seen in this light too. And perhaps the Gunpowder Plot in Britain.
I thought I'd take a look & see what I think about whether DJT in his current term and/or JD Vance (assuming he takes it next) or whoever might next be POTUS after DJT will have many SCOTUS picks.
Here's how it shapes up - just based on age.
The "average" age that a Justice retires (either from a voluntary retirement or a death) is about 78/79, but that's based on historical data and the Justices in modern times retire at later ages for a number of reasons.
So, I looked at the actual last ten Justices to retire and/or die (which yielded two slightly different groups as 2 have retired but not yet died so there's no # for their death age to use.)
If you average the ages of the last 10 retirement ages, you get 82.3 years of age, & if you average the last 10 death ages (many of which are after retirement), you get 87.9 years of age. So, taking that range, how many years before the current Justices likely leave the Court, one way or the other?
Excellent reporting by @ProfMJCleveland about how the DC federal judges are not impartial when it comes to DJT/his administration, much less giving them the deference due the duly elected co-equal branch of govt - & admitted to CJ Roberts at the judicial conference this Spring.👇🏻
I remain of the view that ALL judges who were in the DC federal courthouse on J6 were in fact affected by that event & it is impossible for them to be impartial in such cases as they are required to be by law. This was outrageously evident when a bunch attended DJT’s arraignment.
I would extend that to any judge in that courthouse who handled a J6 case. They are hopelessly tainted by those cases.
They should all recuse themselves or Congress should legislate that any judge in those 2 groups is barred from handling any case involving the administration.
1. No tax money goes to Planned Parenthood for abortions directly. That has been prohibited by law for many years.
2. Congress does not “fund” Planned Parenthood directly for the other services it provides either.
3. Rather, Planned Parenthood receives Medicaid payments for non-abortion services rendered to people who are on Medicaid, just like other medical care providers.
4. Planned Parenthood in addition to abortions provides the following services:
birth control, STD testing and treatment, pregnancy testing and options counseling, emergency contraception, “gender-affirming” care, Pap tests, breast exams, and vaccinations.
5. The “funding” cut off by the OBBB are these payments thru Medicaid.
So the issue in the litigation is going to be whether Congress can constitutionally cut Planned Parenthood out of the Medicaid Program in the way that the OBBB does it.
The same kind of problem would arise if a different Congress passed a law saying religious medical providers who are in the Medicaid program could not receive Medicaid payments for medical services they provide because they also provide religious instruction or counseling to their patients.
Medicaid is an entitlement program created by the Congress. The payments it makes are not like grants or other forms of federal funding, which the Congress controls directly.
When Congress spends money on something that is available to the public generally as an entitlement, you run into the questions of whether it can then cut some people out, which can turn on the reason for the cut, because the Constitution prevents the Congress from making laws that violate certain rights, including religion and viewpoint.
So there’s a genuine issue in this Planned Parenthood case. But it requires a lot more analysis than the Mass. district judge has given it.
DHS needs to circulate a memo to all state governments to make all their state officials & judges aware that ICE officers DO NOT need a “judicial” warrant to arrest immigrants in a public place. An immigration warrant issued by ICE is all that is required under federal law.
If state officials interfere with arrests based on those warrants, they are unlawfully interfering with federally agents under 18 USC 111. If they do so with “physical contact” with the agent, it’s a felony.
(These non-judicial warrants don’t permit entry into a home.)
So, for example, in the Brad Lander situation, he’s wrong that the agents have to show a judicial warrant to make the arrest; & holding on to the arrestee to prevent the agents from making it is a federal offense, at least a misdemeanor.