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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I don’t know who needs to be reminded of this (cough, cough), but you are not bound to obey an unlawful order. And it’s not contemptuous to refuse to obey an unlawful order either.
You run the risk that you’re wrong, of course, & that a higher court will therefore say you ARE in violation of a lawful order & impose consequences.
But, it’s still true that you don’t have to obey an order that is unlawful while the courts take their time figuring it out.
To clarify, I’m talking about orders that are unlawful because the court doesn’t have the authority to issue them, not unlawful because the court ruled the wrong way.
This was the only just outcome. These people were ALL over-charged, over-prosecuted, had unconstitutional conditions imposed on them when released pre-trial, had the most draconian & unlawful pleas imposed on them, & were over-sentenced.
Not even the cases where there was bad behavior by defendants were handled appropriately so as to justify the punishments handed out.
Just as electing Trump was the only way to counteract the lawfare by Democrats, pardoning & releasing all these defendants was the only way to set right the completely disproportionate & inappropriate response of the “justice system” to Jan 6.
DJT has appeared at the sentencing with Todd Blanche, seated in front of an American flag.
Per CNN
Bragg’s office has asked for the unconditional discharge sentence.
Now the prosecutor is doing what they always do - whining about how a defendant who went to trial because he thinks he’s not guilty hasn’t shown remorse after being convicted by a jury. 🙄
So you know. I would never counsel a client to not show up for a court hearing, especially a sentencing.
However, as I said last night on Spaces, if it were me - if I were the client- in this situation, I would absolutely not attend the sentencing hearing tomorrow.
I would instead have my lawyer put out a statement explaining that I view the hearing as ultra vires so I’m not attending.
The lawyers themselves are another matter. They must attend a duly scheduled court session or risk being found in contempt & being referred to Bar Counsel for discipline.
I’m happy the Right of Center now sees how awful the criminal justice system is.
But don’t expect me to be particularly outraged at how these prosecutors & judges have acted because IT’S NOT NEW & IT’S NOT NEWS TO ME.
It’s been this way the whole time & you didn’t care before.
So welcome to the fight, but don’t act like you are dropping breaking news on me, because you are actually late to the party, and I have been at this party since 1996.
Some of the weaponization & smug assholery you’re now objecting to is not a NEW development aimed at J6ers or Trump supporters - it’s how the people who run the system- prosecutors, judges, BOP, & Probation officers -just are. They’ve just turned it on people you like this time.
Judicial Appointments. DJT's new administration needs to put pedal to the metal on judicial appointments.
Right now the breakdown of all federal judges is:
496 appointed by Dem POTUSs;
382 by Repub POTUSs.
Biden appointed fewer than DJT, 214 to 237 as of today.
But, Biden still has two months to put thru appointments, and has about 40 pending. That would then eclipse DJT's number.
It appears to me that more of the older judges (pre-2010) are Republican appointed based on which POTUS appointed them. 145 of them were appointed by the two Bushs & Reagan. Only 33 were appointed by Bill.