October 3, 2022
This morning, the trial of Oath Keeper founder Elmer Stewart Rhodes and four others began in Washington, D.C. They are on trial for various counts of seditious conspiracy, conspiracy to obstruct an official proceeding, conspiracy to prevent U.S. officials from carrying out their official duties, obstruction of justice, and impeding police officers, all related to their important part in the attack on the U.S. Capitol on January 6, 2021.
These are five of the nine charged; according to Lawfare editor Roger Parloff, who has been following the case closely, the other four will go on trial in November, and the split is because there wasn’t a courtroom big enough in Washington to hold a trial of all nine. Parloff also notes that the last “unambiguously successful” seditious conspiracy trial was of Omar Abdel Rahman, the so-called blind sheik, and his associates for bombing the World Trade Center in 1993. Since then, the charge has been used to prosecute small al-Qaeda cells.
Prosecutors said the Oath Keepers set out on January 6 “to shatter a bedrock of American democracy” by stopping the peaceful transfer of power. They stockpiled weapons, breached the Capitol, and tried “to stop by whatever means necessary the lawful transfer of presidential power, including by taking up arms against the United States government,” attacking “not just the Capitol, not just Congress, not just our government—but our country itself.”
The defense said the government was mischaracterizing what happened, and overreaching. The Oath Keepers came to Washington as security guards dedicated to “peacekeeping,” who showed up expecting that then-president Donald Trump would invoke the Insurrection Act to activate the Oath Keepers to defend Trump’s government.
Also today, the Supreme Court began its new term this week with Justice Ketanji Brown Jackson on the bench. In the minority, Jackson will not change the right-wing slant of the court, which the editorial board of the New York Times on Saturday called “a judicial arm of the Republican Party,” discarding “the traditions and processes that have allowed the court to appear fair and nonpartisan.”
One of the cases before the Supreme Court in this session is Moore v. Harper, which is about the “independent state legislature” doctrine. That doctrine is a new legal theory based on the election clause of the U.S. Constitution, which reads that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The theory says that this clause means that the legislature alone can determine elections in a state, unchecked by the state courts or even the state constitution.
The case comes from North Carolina, where the state supreme court in February declared that the new congressional and state legislature maps so heavily favored Republicans as to be “unconstitutional beyond a reasonable doubt.” The Republican-dominated legislature says it alone has the power to determine state districts.
Revered conservative judge J. Michael Luttig, who sat on the U.S. Court of Appeals for the Fourth Circuit, is clear about this doctrine’s illegitimacy. Calling Moore v. Harper “the most important case for American democracy in the almost two and a half centuries since America’s founding,” he made his understanding of that case clear in an article in The Atlantic today titled “There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory.” The subtitle explained: “Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.”
Luttig correctly identifies this theory as “the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election”; had it been in place, Trump’s scheme for throwing out Biden’s electors in favor of his own would have worked, and he would now be in the White House. Luttig calls it “baffling” that six of the Supreme Court justices have “flirted” with the theory, because “[t]here is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions.” Indeed, the Constitution says just the opposite.
While Trump’s loyalists continue to try to stack the mechanics of our system in favor of the former president, his troubles continue to mount. Yesterday, even the Wall Street Journal editorial board complained of Trump’s “reckless…tirade” against Senate minority leader Mitch McConnell (R-KY), a tirade this political historian, who is very aware of the power of words, will not quote in public. The editorial board called Trump out for endangering McConnell’s life.
In an interview with Chauncey DeVega of Salon today, lawyer and Lincoln Project founder George Conway warned that Trump “is basically a cornered animal,” trapped by legal troubles, losing his connection to the public, and facing consequences for his actions for the first time in his life.
Conway predicted that Trump’s theft of government documents is “the shortest distance between him and an orange jumpsuit, for the simple reason that it is a simple case.” “Given the details of the case and all the related charges, I don't know how the DOJ doesn't prosecute Trump,” he said. “And I don’t know how Trump is not convicted, especially if he is tried in the District of Columbia.”
To get out of trouble, Conway said, Trump will threaten violence. And, indeed, he has been doing so, telling a crowd on October 1, “I don’t believe we’ll ever have a fair election again. I don’t believe it.” Legal analyst and former U.S. attorney Joyce White Vance accurately identifies this as “[a] message designed to justify abandoning democracy & installing a strongman.”
And yet, just tonight, Trump’s troubles got worse. Josh Dawsey and Jacqueline Alemany of the Washington Post directly connected Trump to the withholding of the federal documents when they reported that in February, Trump asked one of his lawyers, Alex Cannon, to lie to the National Archives and Records Administration (NARA), telling them that he had returned everything the archives wanted. Cannon refused. In May, after a subpoena, former One America News personality and Trump lawyer Christina Bobb did sign a document saying that Trump had handed over “all documents that are responsive to the subpoena” after a “diligent search.” Bobb has now retained an attorney and says she’s willing to talk to the Department of Justice about her role in the case.
In an interview tonight, Trump accused the FBI or the archivists from the National Archives and Records Administration of planting or removing documents in order to frame him, saying that NARA is “largely radical-left run.”
Trump is not the only one in hot water tonight. Roger Sollenberger of the Daily Beast reported that a former girlfriend of Trump-backed Republican Senate candidate Herschel Walker in Georgia revealed that Walker paid for her to have an abortion in 2009. Walker has taken an extreme stand against abortion, saying he opposes it without any exceptions and supports the Republican plan for a federal law to ban the procedure nationwide. Abortion is the big dividing line between Walker and his opponent, Senator Raphael Warnock, who supports abortion rights. Walker called the story “a flat-out lie,” but the woman provided Sollenberger with a receipt from a clinic, a check from Walker, and a get well card Walker had signed, while Walker’s campaign has been marred by his own repeated lies.
Then, an account that appeared to be that of Walker’s adult son, who had been a big supporter of his father’s campaign on social media, got involved, tweeting that Walker had made “a mockery” of him and his mother. “You’re not a ‘family man’ when you left us to bang a bunch of women, threatened to kill us, and had us move over 6 times in 6 months running from your violence,” the younger Walker tweeted.
The elder Walker claims he will sue the Daily Beast tomorrow morning.
For his part, when Shannon McCaffrey and Greg Bluestein of the Atlanta Journal-Constitution asked Senator Warnock about the story, he said he would continue to focus on policy. “I’ll let the pundits decide how they think it will impact the race,” Warnock said. “But I have been consistent in my view that a patient’s room is too narrow and cramped for space for a woman and the government.”