Legal AF by MeidasTouch - DOJ Quickly OUTMANEUVERS Supreme Court AFTER RULING

Episode Date: June 30, 2024

Michael Popok explains how the DOJ will be able to CONTINUE TO USE OBSTRUCTION criminal charges against Current and FUTURE insurrectionists, and the blueprint for it is in Supreme Court Justice Jackson’s concurring opinion focused on the “integrity” and “impairment” of Congressional proceedings like the electoral vote count. Try Mosh today and use LEGALAF to save 20% plus free shipping at https://moshlife.com/LEGALAF Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

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So Michael Popak, Legal AF. I'm back to do a deep dive of what's happened since the United States Supreme Court's decision in US versus Fisher, which on paper on the surface looks like a death blow to the Department of Justice's ability to prosecute these Jan 6 insurrectionists and those in the future, including some named Donald Trump. I don't agree with that and neither do other analysts, including those at Just Security. Let's first lay it out for you. There was a count that was used as one of the two highest Level counts of charges against the Jan 6th insurrectionists by the Department of Justice It's called obstruction of an official proceeding

The argument was that under one portion of that criminal statute, but we call 18 USC 1512 see little two. That sounds complicated, but it really isn't. The argument for the Department of Justice, which was accepted by 14 out of 15 federal judges, was that the language there applied to anyone who tried to obstruct or interfere with an official proceeding.

In this case, the Jan six insurrectionists basically tried to set fire to the building and try to assassinate elected officials interfere with an official proceeding. In this case, the Jan 6th insurrectionist basically tried to set fire to the building and try to assassinate elected officials and their staffers in order to stop the electoral count. That sounds like to any common person listening to the language of it in regular language, in regular English, to be obstruction. The reason they were there is no doubt. They thought that they were immune from charges. They thought that their president cult leader was going to get back into office. That's why they were filming each other. That's why they were putting everything in video up on social media. That's why they wore GoPros. That's why they communicated with

what they thought was a lack of impunity from prosecution because they thought their guy was going to get back in based on their actions to stop the count. So the Supreme Court disagreed and said, at least the six to three Supreme Court disagreed, including Katanji Brown Jackson joining with the majority in ruling that the only way you can use 1512C2 is if there is a tampering with or a destruction of actual physical evidence, including the integrity of that evidence. But they also included, as noted in the concurrence by Katanji Brown Jackson, they included a pathway for federal judges and the Department of Justice going forward to use 1512 C2, even against Jan 6 insurrectionists and future insurrectionists, heaven forbid, that attacked the Capitol after

the next election. What's the pathway? The pathway is the word integrity. They left in there, and their opinion written by Chief Justice Roberts, that if the integrity of the evidence and processes are being implicated or being interfered with or being compromised, then that could also support a 1512 C2 charge. Why is that important? Because the two highest level charges that were used by the Department of Justice that carried the highest sentencing penalty of 20 years. One was seditious conspiracy that was used against the oath keepers and the Proud Boys and others.

But the other against sort of the more run of the mill violent insurrectionists was obstruction of an official proceeding. And so having lost that, and I'm gonna talk to you about what the Department of Justice is gonna have to do now, because now that that, and I'll tease it here, now that that 1512C2 has been ripped up by the Supreme Court, at least on paper, so to speak, in every plea deal, for everybody who took a plea deal related to that charge, it says in the Department of Justice plea deal that if the count 1512C2 is vacated for

any reason, which has now been by the Supreme Court, the Department of Justice can prosecute anew that same person who took the plea deal for other crimes related to the statement. And even the 1512C2 conduct that can no longer be charged can be used by the judge in sentencing. But here's the pathway that Katanji Brown Jackson lays out that I think is very important for us to understand sort of the going forward here. Let me read it to you. She says, to amplify a portion of the opinion, which cites to just then judge Sotomayor before she was on the United States Supreme Court when she was on the Second Circuit Court of Appeals in New York. She talked about false evidence being created and fabricated, which also is a

1512 C2 violation. What does that sound like? That sounds like Donald Trump and the others, Mike Roman, Ken Chesparro, Rudy Giuliani, Sidney Powell, working to fabricate fake elector certificates, false evidence to be used to try to influence Mike Pence to either choose between two competing slates of electors, one false, one true, or select the false electors. That's the use of false evidence. And that still survives under 1512 C2. That's why in a prior hot

take, I said Donald Trump is not out of the woods yet. And his counts will probably likely stand as applied by this United States Supreme Court. But listen to the words of Katanji Brown Jackson in her concurrence, which amplifies why on page eight and nine of the majority decision, they made reference to false evidence. Listen to this. And in the integrity, remember, the key word here is integrity of the process being undermined, still supporting a 1512 C2 charge.

Katanji Brown Jackson, Justice Jackson writes, that official proceeding, talking about the Jan 6th Congress's certification of the electoral college vote, plainly used certain records, documents, or objects, that's in the statute, including among others, those relating to the electoral votes themselves, the vote tallies,

and the certificates. And it might well be that Fisher's conduct, he's the guy, the insurrectionist that's at the heart of the case, as alleged here, involved the impairment or the attempted impairment of the availability or integrity of things used during the Jan 6 proceeding in ways other than those specified in 15, in the statutes overarching provision that precedes it, right, 1512 C1. So what Judge Katanji Brown Jackson is saying to future district courts is that look at the conduct

and if it falls within this other pathway of impairment of the integrity of the process through use of their conduct, it may still fit within 1512 C2. It's up to district court judges to decide that. And I think when you read that majority position together with Katanji Brown Jackson's clarification, if you will, arising out of the false evidence component by Justice Sotomayor that also made its appearance early on in the opinion, you have the makings for how the Department of Justice going forward

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Thank you, Mosh, for sponsoring this episode. Now, the other thing we should, we should give us some comfort and solace is that almost all, almost all of the Jan 6 insurrectionists were charged with more crimes than just 1512 C2. So they have other crimes and the judge in sentencing for those crimes can take into account the conduct that has now been vacated as an independent charge. Let me repeat that.

Just because a charge has been reversed or vacated by the United States Supreme Court doesn't mean the underlying conduct that formed the basis of the indictment and the conviction and ultimately the sentencing can't be taken into account by the judge in sentencing. And so those that are now charged or have been convicted by other crimes, the judge in sentencing and also recalculation of sentencing, people can be brought back in if one of their charges got thrown out. The judge can say, well, it got thrown out, but you did all of those bad things. You were convicted of all of those bad things.

And now I'm going to give you the higher level related to the crimes that remain. That is the reality. And I do think it was genius by the Department of Justice to say in its plea deal, knowing that 1512 C2 was up for grabs with the United States Supreme Court at the time, because that appeal came relatively early. And Judge Nichols, Carl Nichols, the judge at the DC Circuit Court level, who had made the original decision, which has now been sort of upheld, that 1512C2 has to deal with kind of actually physically getting your hands on records. That's not what the Supreme Court says now. It says integrity and validity and things that go to, invalidating are also a fair game for prosecution. But the Department of Justice,

knowing that 1512C2 could be ripped off the books, had a provision in their plea deals that said, if you lose 1512C2, if we lose it, we have the right to go back after you and prosecute you for everything that's listed in your indictment for other charges, including charges that we agreed to drop as part of the plea deal. So it's not like the jails in Washington are going to be open and the floodgates open and

all these people are going to be flying out. Trust me, the Department of Justice has now since that ruling been going over with a fine tooth comb trying to figure out how to keep these people in and how to use this in their sentencing. And as I said, there's very few that fit the description. I think it's like 20 that only were charged and convicted of one count of obstruction of an official proceeding. Now, can they be retried again? Depends on their plea deal, depends on what the courts ultimately rule. But I think it gives us some solace

about the use of 1512 C2 in the future. Because if you rip these things off the books, this is the part the Supreme Court doesn't recognize, all it's gonna do is lead to more and encourage more bad behavior, especially at the urging of Donald Trump. As I said, at the top of the hot take, it wasn't by accident that these people thought that they would, whatever they got away with, whatever they could get away with would go without

criminal punishment. That's why you use GoPros and create and fabricate your own evidence against yourself with social media. Cause you don't think you're gonna get prosecuted or you're gonna get a pardon. Donald Trump has said, including at the debate, he's gonna pardon these people. He thinks they're political prisoners.

That's what he calls them who have been unjustly held. That's because he's never read all of the indictments and all the evidence and seen the videos about these people who are doing battle, medieval battle with whatever they get their hands on, either brought with them, brought in, or picked up along the way like bicycle racks, police batons, police shields, face masks, whatever they could find to bludgeon their way into the Capitol and not letting Metro Capitol Police stand in their way. Those are the people that we're talking about when we talk about 1512 C2. So I wanted to kind of just take a deep breath here.

We're going to do some analysis over the summer of what the 60 or 70 cases by this United States Supreme Court during its term and its rulings mean. We of course focus on the ones that matter to liberty and justice, like the one for immunity and all of that. But I wanted to focus on this one as well about the future and what it means for bad behavior and the ability to go after it, the future by the Department of Justice. Now, some people might be wringing their hands about why did the Department of Justice use that particular account?

Look, on the face of it, as I've said in prior hot takes and on Legal AF, the Department of Justice can't manufacture new crimes to charge people with, with conduct they've never seen before. They have to use existing law, existing crimes on the books and map it onto new conduct they've never seen before, they have to use existing law, existing crimes on the books, and map it onto new conduct they've never seen before. It's up to the next Congress, hopefully led by Blue, to create specific laws that would go and map directly onto the conduct observed on January 6th. I think the Department of Justice did a valiant job in trying to take existing

crimes and figure out a way to apply it to this new bad conduct. I mean, even the Trump Department of Justice used 1512 C-2 before Joe Biden even got into office against these same insurrectionists. That's how Joe Biggs, right? That's how against these same insurrectionists. That's how Joe Biggs, right? That's how Chancellery, those two guys got indicted and some convicted where they took a plea deal even before Joe Biden took office. Jason Chancellery and Joe Biggs. So it's not like Biden's Department of Justice made a mistake. It's not the special counsel, the department's main justice that handled all of these things in prosecuting all of these Jan 6th insurrectionists.

So we'll continue to follow the aftermath of the Supreme Court's decision, along with Katanji Brown Jackson's concurrence of the use of 1512 C2 to go after the validity and integrity angle as a way to continue to use those charges against this set of insurrectionists. We'll continue to follow it on Legal AF. You know why we call it that.

It's Wednesdays and Saturdays at 8 p.m. Eastern time, right here on this Midas Touch YouTube channel. And then I do hot takes like this, I don't know, about every hour now that I'm back at the intersection of law and politics. So until my next hot take, until my next Legal AF, this is Michael Popak, back on the microphone reporting. Heary, heary, Legal AF Law Breakdown is now in session.

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