carl nichols dis-hon

TRUMP JUDGE ~ BANNON LINDELL

CLARENCE CLERK GINNI

LET 1 JAN 6 GUY OFF?

what does it mean when THIS GUY cuts bannon off at knees?

bogus trump ltr releaSED from exec priv when trump has never asserted and can't now?

judge tossed case, liar said i have no defense left (4 parts all) , judge said yup.

an 7 22

If you are tired of waiting for Attorney General Merrick Garland to indict Donald Trump for seditious conspiracy, insurrection, obstruction of Congress, or any other crime involving the attempt to overturn the 2020 election, I have some words of consolation: Steve Bannon’s trial for contempt of Congress has begun. If convicted, he will likely go to jail.

Ordinarily, I wouldn’t take pleasure in the prospect of anyone doing time, as our penal institutions are shamelessly overcrowded and do little in the way of rehabilitation or deterrence to lower our outrageously high crime rates. But apart from Trump himself, there might not be any other person more deserving of a stint in the pokey than Bannon, the loud-mouthed propagandist and podcaster who led Trump’s 2016 political campaign to victory, and subsequently served as the disgraced ex-President’s chief strategist and senior counselor for nearly eight months in 2017.

The facts of the case against Bannon are straightforward and, from a legal perspective, devastating.

On September 23, 2021, the House Select Committee investigating the January 6 attack on the U.S. Capitol issued a subpoena commanding Bannon to produce documents on October 7 and sit for a sworn deposition on October 14. Bannon defied both requests.

On October 20, the committee voted to hold Bannon in contempt. Three days later, the full House, with the support of nine Republicans and every Democrat, passed a contempt resolution against Bannon and forwarded a request for prosecution to the Department of Justice.

On November 12, a federal grand jury returned a two-count indictment against Bannon for disobeying the subpoena. The first count cites him for refusing to testify, and the second for failing to turn over documents.

Contempt of Congress is a misdemeanor, but a very serious one. Conviction carries a mandatory minimum sentence of thirty days and a maximum of one year in jail. There is no possibility of probation, according to a 2011 federal court ruling interpreting the contempt statute.

The committee set forth its reasons for seeking Bannon’s cooperation in a succinct one-page letter that accompanied the subpoena. The letter reads in part:

“The Select Committee has reason to believe that you have information relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021. For example, you have been identified as present at the Willard Hotel on January 5, 2021, during an effort to persuade Members of Congress to block the certification of the election the next day, and in relation to other activities on January 6....Moreover, you are quoted as stating, on January 5, 2021 [on Bannon’s ‘War Room’ podcast] that ‘[a]ll hell is going to break loose tomorrow.’ Accordingly, the Select Committee seeks both documents and your deposition testimony regarding these and multiple other matters…”

The subpoena itself lists seventeen categories of records and communications. In addition to the items highlighted in the letter, the list includes all discussions that Bannon had with Trump about the planning, financing, and staging of the events of January 6, and any communications that Bannon had with Trump between November 3, 2020, and January 20, 2021, “concerning efforts to contest the election results or delay or impede the electoral vote.”

The list also includes communications Bannon may have had with any third parties about the insurrection. The subpoena specifically names attorney Boris Epstein, who worked as a strategic adviser on Trump’s 2020 election campaign; Kash Patel, a one-time aide to former GOP Congressman Devin Nunes of California; and Ezra Cohen-Watnick, an intelligence officer who briefly served as the acting Under-Secretary of Defense in 2020.

Initially, Bannon reacted to the subpoena with tough-guy bravado. Following his first court appearance in November, he told a small crowd of supporters and reporters, “This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One. And . . . we’re going to go on the offense.We’re tired of playing defense. We’re going to go on the offense on this and stand by.”

Bannon might have been emboldened by the fact that contempt of Congress prosecutions arerelatively rare, and because his case was assigned to Federal District Court Judge Carl Nichols, a Trump appointee who was narrowly confirmed by the Senate in 2019. In March, Nichols dismissed a felony obstruction charge brought against a Texas man accused of storming the Capitol.

Nichols, however, has been anything but lenient with Bannon. On June 15, Nichols deniedBannon’s motion to dismiss the case, rejecting his claims of executive privilege and his contention that the select committee was established illegally in violation of House rules.

As Bannon’s July 18 trial date approached, he apparently had a “come-to-Jesus moment” typical of many criminal defendants faced with imminent defeat. In an email sent to committee chairman Representative Bennie Thompson, Democrat of South Carolina, by one of his lawyers on July 9, Bannon offered to testify after all. The email also cited a rambling letter written by Trump, waiving claims of executive privilege.

Neither Judge Nichols nor the DOJ was swayed by Bannon’s change of position. On July 11, Nichols denied Bannon’s request to postpone his trial to October.

Nichols also ruled that Bannon will not be permitted to argue executive privilege as a defense at trial, and that he will not be allowed to subpoena House Speaker Nancy Pelosi or other members of the select committee to testify. The rulings left attorney David Schoen—who represented Trump in his second impeachment trial and later joined Bannon’s legal team—so exasperated that he remarked in open court, “What’s the point in going to trial if there are no defenses.”

Unlike seditious conspiracy or obstruction cases, contempt of Congress cases do not involve complex issues of intent. All that the prosecution needs to prove is a willful or deliberate intention not to respond to a Congressional subpoena. Evil motives or corrupt purposes need not be shown.

Bannon’s eleventh-hour offer to testify likely won’t save him, either. As the DOJ noted in a recent court filing, Bannon’s crime was committed and became complete in October, when he dodged the committee’s subpoena.

What this means, bottom line, is that Bannon had best hope he isn’t housed with the general population at the infamous D.C. Central Detention Facility, where he will probably serve his sentence. The same goes for former Trump aide Peter Navarro, who has also been indicted for defying a select committee subpoena. Navarro’s trial is set to begin November 17.

And who knows—a victory in the Bannon and Navarro cases might even encourage Garland to find his spine and prosecute Trump for attempting to overthrow what remains of our damaged democracy.

AN 7 26

One of President Donald Trump’s closest allies, MyPillow founder and CEO Mike Lindell, got slapped down in a court case by a judge Trump himself appointed.

“After Mike Lindell was held in civil contempt and hit with a $500-per-day fine for 103 days for refusing to pay sanctions he's owed Smartmatic for years, a federal judge has given the MyPillow CEO exactly one month to pay an ‘extra penalty’ for his defiance,” reported Law and Crime’s Matt Naham on Tuesday. Smartmatic is a voting machine company that Lindell falsely accused of engaging in fraud during the 2020 presidential election, which Trump continues to insist he won despite losing more than 99 percent of his court cases making that allegation.

“In late June, Smartmatic asked U.S. District Judge Carl Nichols to clarify whether the voting machine conspiracy theorist would pay some of the contempt penalty to the company or if the sum was to be paid directly to the court,” Naham added. “The judge, a Donald Trump appointee, answered that question on Monday by entering a judgment in favor of Smartmatic and giving Lindell until Aug. 21 to ‘pay the total daily contempt penalty of $51,500’ to the ‘Registry of the Court.’

In his decision, Nichols pointed out that “when a sanction is designed to coerce a recalcitrant party to comply, the sanction should be payable to the court, rather than to the opposing party. [T]he Court imposed the daily civil contempt penalty to coerce compliance, not to compensate Smartmatic[.]"

Nichols began fining Lindell in April for saying he could not pay the $56,369 in sanctions even though he had spent $187,037.87 in campaign funds from his 2026 run for Minnesota governor solely to buy copies of his own book "What Are the Odds? From Crack Addict to CEO" and give them away.

Lindell’s gubernatorial campaign has also been beset with controversy. Despite being endorsed by Trump, Lindell was recently found to be registered to vote in Texas, indicating he may not be able to cast a ballot in his own campaign. What’s more, Lindell repeatedly tries to characterize himself as an outsider despite his close ties to Trump, such as when he said this to Trump’s former adviser and ongoing friend Steve Bannon.

“They’re having a big GOP endorsement where they’re having a debate and I’m not allowed to come,” Lindell told Bannon on his podcast War Room in May. “They’ve shut me out.”

Lindell continued, “The establishment doesn’t want me, Stephen. The Minnesota media—you wouldn’t even know I’m running.”

He later concluded, “I believe I am the only one that can win, and I believe I’m the only one with the solutions to our problems.”

an 2 23

A man who stormed the United States Capitol on January 6th, 2021 and later threatened Representative Alexandria Ocasio-Cortez (D-New York) was sentenced on Wednesday to more than three years in prison and thirty-six months of supervised release, NBC News reported.

"Prosecutors had asked for a sentence of 48 months in prison for Garret Miller, an unemployed Texan who, they noted, was wearing a T-shirt bearing former President Donald Trump's picture and the words 'I was there, Washington, D.C., January 6, 2021' when he was arrested weeks after the attack," politics correspondent Dareh Gregorian wrote.

Prosecutors urged District Judge Carl Nichols of the District of Columbiato impose a longer punishment on Miller because of his interaction with Ocasio-Cortez, Gregorian noted, recalling that "the New York Democrat had tweeted the word 'impeach' after the Capitol riot, to which Miller responded, 'assassinate AOC."

Clint Broden, Miller's defense attorney, thanked Nichols for handing down a leaner sentence than what was sought by the Department of Justice and explained that his then-unemployed client had fallen prey to Trump's unending barrage of conspiracy theories.

"It should always be remembered that, although Garret is fully responsible for his individual actions that day, his actions and the actions of many others were a product of rhetoric from a cult leader that has yet to be brought to justice," Broden told the court.

Miller pleaded guilty to a total of eleven charges which included him having "openly discussed his desire to doxx the officer" who fatally shot Ashli Babbitt and "hug his neck with a nice rope," according to the filing obtained by NBC.

While Broden conceded that Miller "did make the tweet responding to Congresswoman Ocasio-Cortez and engaged in the vile private messenger chat regarding the Capitol Police Officer he believed killed a protestor," he insisted that "there is no indication that he [Miller] made any effort whatsoever to actually harm anybody (in fact, every indication is to the contrary)."

NBC's full report is available at this link.

10 22 an badash

former top Trump White House advisor turned far-right wing extremist **Steve Bannon** has been sentenced to four months in prison by a federal judge, for contempt of Congress. The former executive chairman of Breitbart News and former board member of the infamous data-analytics firm Cambridge Analytica refused to comply with a valid and legal subpoena from the **U.S. House Select Committee on the January 6 Attack**.

“Others must be deterred from committing similar crimes,” U.S. District Judge Carl Nichols, a Trump appointee who clerked with Justice Clarence Thomas,saidas he passed down the sentence.He also imposed a fine of $6500. The four month sentence is actually two, but to be served concurrently.

The sentence will be delayed to allow Bannon time to appeal, meaning he was not taken into custody and does not have to go to jail immediately. If he chooses to not appeal he is to report to prison on November 15.

Nichols had told the court as he began sentencing, “Mr. Bannon has not provided a single document,” and “has not provided any testimony on any topic.”

“Mr Bannon was a private citizen,” Judge Nichols continued. “Some of the information sought by the subpoena is information under which no conceivable claim of executive privilege could’ve been made.”

“The January 6th committee has every right to investigate what happened that day,” Nichols told Bannon and his attorneys, adding, and “what can be done to prevent similar .. events from happening in the future.”

Prosecutors had asked Judge Nichols to give Bannon the maximum sentence allowed, which would be six months in prison and a fine of $200,000.

Judge Nichols appeared to chastise the U.S. House Select Committee on the January 6 Attack for not suing Bannon to enforce their subpoena.

CBS News’ Scott Macfarlane was at the D.C. federal courthouse and posted this photo of Bannon.[twt pix]

walking into he courthouse Bannon decreed the Biden administration “illegitimate,” and said it will end on November 8.

“The governemnt further argues that Mr. Bannon has not expressed remorse and has attacked the select committee at every turn. On this point I agree with the government,” Judge Nichols said, according to NBC News’ Daniel Barnes. “He has expressed no remorse for his actions.”

Bannon’s attorney backed up his client’s behavior.

“Quite frankly, Mr. Bannon should make no apology. No American should make an apology for the way Mr. Bannon proceeded in this case,” David Schoen**t**old the court, even after Judge Nichols noted Bannon’s attacks on the U.S. House Select Committee on the January 6 Attack.

Bannon’s attorneys had asked for probation, which DOJ adamantly, in court documents, contested.

“In my view the statute sets out a mandatory minimum of one month and a mandatory maximum of 12 months,” Judge Nichols said.

J.P. Cooney, a prosecutor from the U.S. Attorney’s office, defended the request for fining Bannon $200,000 because “that is exactly what the defendant has asked for.”

Barnes reports that “Bannon refused to comply with the probation office’s financial investigation, Cooney says.”

Bannon reportedly also told the prosecutor’s office, “I am willing and able to pay any fine levied against me.”

Prosecutors, arguing for the six month sentence, told Judge Nichols, “This man, the defendant, a man of means, a public figure … chose, hiding behind the fabricated claim of executive privilege and advice of counsel, to thumb his nose” at Congress, according to Politico’s Kyle Cheney.

Bannon had claimed he was exempt from honoring the subpoena from the U.S. House Select Committee on the January 6 Attack, citing executive privilege, which, as the country later learned, Donald Trump had not invoked in Bannon’s case – not that he would have been able to, as only the sitting U.S. President has that authority.

“DOJ says that if Bannon were genuinely concerned about executive privilege, then he would’ve complied with the Jan. 6 committee subpoena as soon as Trump purported to ‘waive’ it over the summer,” Cheney reports. “But that’s not what he did, DOJ says.”

Bannon’s attorney David Schoen repeatedly delivered caustic attacks about the House Select Committee.

CBS News’ Scott Macfarlane noted that Schoen “is quoting the Federalist Papers (James Madison) about separation of powers… talking about ‘tyranny,'” but added: “Bannon had a hard copy of the Financial Times under his arm as he walked toward courtroom(let’s see if that’s something he wants to show off to cameras as he departs).”

He also was caught “quoting Montesquieu,” and repeatedly accused the January 6 Committee of having a “partisan political agenda.”

Schoen repeatedly told Judge Nichols that Bannon was merely acting on his conscience and understanding of the Constitution, and “acting on principle.” Legal experts say that is not a legitimate defense.

Donald Trump pardoned Bannon from federal charges involving conspiracy to commit mail fraud and money laundering surrounding his We Build the Wall fundraising campaign, but he is now facing similar state charges.

https://www.emptywheel.net/2022/04/02/on-ginni-thomas-obstruction-exposure-and-clarences-former-clerk-carl-nichols/

ON GINNI THOMAS’ OBSTRUCTION EXPOSURE AND CLARENCE’S FORMER CLERK, CARL NICHOLS

April 2, 2022/170 Comments/in 2020 Presidential Election, January 6 Insurrection/by emptywheel

In a motions hearing for January 6 assault defendant Garret Miller on November 22, former Clarence Thomas clerk Carl Nichols asked the appellate prosecutor for the January 6 investigation, James Pearce, whether someone asking Mike Pence to invalidate the vote count could be charged with the obstruction statute,18 USC 1512(c)(2), that Miller was challenging. Pearce replied that the person in question would have to know that such a request of the Vice President was improper.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

At the time (as Josh Gerstein wrote up in his piece), we knew that former Clarence Thomas clerk John Eastman had pressured Pence to throw out legal votes.

But we’ve since learned far more details about Eastman’s actions, including his admissions to Pence’s counsel, Greg Jacob, that there was no way SCOTUS would uphold the claim. In fact, those admissions were cited inJudge David Carter’s opinionfinding that Eastman himself likely obstructed the vote count by pressuring Pence to reject the valid votes, because he knew thatnot even Clarence Thomaswould buy this argument.

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, 37 would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.39

[snip]

Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed.254 More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,”255 including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes.257Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.258

We’ve also learned more details about Ginni Thomas’ role in pressuring Mark Meadows to champion an attempt to steal the election, including — after a gap in the texts produced to the January 6 Committee — attacking Pence.

The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

In that message, Thomas expresses support for Meadows and Trump — and directed anger at Vice President Mike Pence, who had refused Trump’s wishes to block the congressional certification of Biden’s electoral college victory.

“We are living through what feels like the end of America,” Thomas wrote to Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!”

“Amazing times,” she added. “The end of Liberty.”

Ginni Thomas famously remains close with a network of Clarence’s former clerks, so much so she apologized to a listserv of former Justice Thomas clerks for her antics after the insurrection.

Any former Thomas clerk on that listserv would likely understand how exposed in efforts to overturn the vote certification Ginni was.

As I said, little of that was known, publicly, when former Justice Thomas clerk Carl Nichols asked whether someone who pressured Pence could be exposed for obstruction. We didn’t even, yet, know all these details whenJudge Nichols ruled in Miller’s case on March 7, alone thus far of all the DC District judges, against DOJ’s application of that obstruction statute.Whilewe had just learnedsome of the details about Jacobs’ interactions with former Thomas clerk John Eastman, we did not yet know how centrally involved Ginni was — frankly, we still don’t know, especially since the texts Mark Meadows turned over to the January 6 Committee have a gap during the days when Eastman was most aggressively pressuring Pence.

DOJ may know but if it does it’s not telling.

But now we know more of those details and now we know that Judge Carter found that Eastman and Trump likely did obstruct the vote certification. All those details, combined with Nichols’ treatment of the Miller decision as one that might affect others, up to and including Ginni Thomas and John Eastman and Trump, sure makes it look a lot more suspect that a former Clarence Thomas clerk would write such an outlier decision.

Which brings us to the tactics of this DOJ motion to reconsider filed yesterday in the Miller case. It makes two legal arguments and one logical one.

AsI laid out here, Nichols ruled that the vote certification was an official proceeding, but that the statute in question only applied to obstruction achieved via the destruction of documents.He also held that there was sufficient uncertainty about what the statute means that the rule of lenity — basically the legal equivalent of “tie goes to the runner” — would apply.

DOJ challenged Nichols’ claim that there was enough uncertainty for the rule of lenity to apply. After all, the shade-filled motion suggested, thirteen of Nichols’ colleagues have found little such uncertainty.

First, the Court erred by applying the rule of lenity. Rejecting an interpretation of Section 1512(c)(2)’s scope that every other member of this Court to have considered the issue and every reported case to have considered the issue (to the government’s knowledge) has adopted, the Court found “serious ambiguity” in the statute. Mem. Op. at 28. The rule of lenity applies “‘only if, after seizing everything from which aid can be derived,’” the statute contains “a ‘grievous ambiguity or uncertainty,’” and the Court “‘can make no more than a guess as to what Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)) (emphasis added); see also Mem. Op. at 9 (citing “‘grievous’ ambiguity” standard). Interpreting Section 1512(c)(2) consistently with its plain language to reach any conduct that “obstructs, influences, or impedes” a qualifying proceeding does not give rise to “serious” or “grievous” ambiguity.

[snip]

First, the Court erred by applying the rule of lenity to Section 1512(c)(2) because, as many other judges have concluded after examining the statute’s text, structure, and history, there is no genuine—let alone “grievous” or “serious”—ambiguity.

[snip]

Confirming the absence of ambiguity—serious, grievous, or otherwise—is that despite Section 1512(c)(2)’s nearly 20-year existence, no other judge has found ambiguity in Section 1512(c)(2), including eight judges on this Court considering the same law and materially identical facts. See supra at 5-6.

[snip]

Before this Court’s decision to the contrary, every reported case to have considered the scope of Section 1512(c)(2), see Gov’t Supp. Br., ECF 74, at 7-9, 1 and every judge on this Court to have considered the issue in cases arising out of the events at the Capitol on January 6, 2021, see supra at 5-6, concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” Sandlin, 2021 WL 5865006, at *5. [my emphasis; note, not all of the 13 challenges to 1512(c)(2) that were rejected made a rule of lenity argument, which is why AUSA Pearce cited eight judges]

Among the other things that this argument will force Nichols to do if he wants to sustain his decision, on top of doubling down on being the extreme outlier on this decision, is to engage with all his colleagues’ opinions rather than (as he did in his original opinion) just with Judge Randolph Moss’.

The government then argued that by deciding that 1512(c)(2) applied to the vote certification but only regarding tampering with documents, Nichols was not actually ruling against DOJ, because he can only dismiss the charge at this stage if the defendant, Miller, doesn’t know what he is charged with, not if the evidence wouldn’t support such a charge.

Although Miller has styled his challenge to Section 1512(c)(2)’s scope as an attack on the indictment’s validity, the scope of the conduct covered under Section 1512(c)(2) is distinct from whether Count Three adequately states a violation of Section 1512(c)(2).6 Here, Count Three of the indictment puts Miller on notice as to the charges against which he must defend himself, while also encompassing both the broader theory that a defendant violates Section 1512(c)(2) through any corrupt conduct that “obstructs, impedes, or influences” an official proceeding and the narrower theory that a defendant must “have taken some action with respect to a document,” Mem. Op. at 28, in order to violate Section 1512(c)(2). The Court’s conclusion that only the narrower theory is a viable basis for conviction should not result in dismissal of Count Three in full; instead, the Court would properly enforce that limitation by permitting conviction on that basis alone.

The government argues that that means, given Nichols’ ruling, the government must be given the opportunity to prove that Miller’s actions were an attempt to spoil the actual vote certifications that had to be rushed out of the Chambers as mobsters descended.

Even assuming the Court’s interpretation of Section 1512(c)(2) were correct, and that the government therefore must prove “Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede[,] or influence Congress’s certification of the electoral vote,” Mem. Op. at 29, the Court cannot determine whether Miller’s conduct meets that test until after a trial, at which the government is not limited to the specific allegations in the indictment. 7 And at trial, the government could prove that the Certification proceeding “operates through a deliberate and legally prescribed assessment of ballots, lists, certificates, and, potentially, written objections.” ECF 74, at 41. For example, evidence would show Congress had before it boxes carried into the House chamber at the beginning of the Joint Session that contained “certificates of votes from the electors of all 50 states plus the District of Columbia.” Reffitt, supra, Trial Tr. at 1064 (Mar. 4, 2022) (testimony of the general counsel to the Secretary of the United States Senate) (attached as Exhibit B).

Those are the two legal arguments the government has invited Nichols to reconsider.

But along the way of making those arguments, DOJ pointed out the absurd result dictated by Nichols’ opinion: That Guy Reffitt’s physical threats against members of Congress or the threat Miller is accused of making against Alexandria Ocasio-Cortez would not be obstruction, because neither man touched any documents.

Any such distinction between these forms of obstruction produces the absurd result that a defendant who attempts to destroy a document being used or considered by a tribunal violates Section 1512(c) but a defendant who threatens to use force against the officers conducting that proceeding escapes criminal liability under the statute.

[snip]

Finally, an interpretation of Section 1512(c)(2) that imposes criminal liability only when an individual takes direct action “with respect to a document, record, or other object” to obstruct a qualifying proceeding leads to absurd results. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (rejecting interpretation of a criminal statute that would “produce results that were not merely odd, but positively absurd”). That interpretation would appear, for example, not to encompass an individual who seeks to “obstruct[], influence[], or impede[]” a congressional proceeding by explicitly stating that he intends to stop the legislators from performing their constitutional and statutory duties to certify Electoral College vote results by “drag[ging] lawmakers out of the Capitol by their heels with their heads hitting every step,” United States v. Reffitt, 21-cr-32 (DLF), Trial Tr. 1502, carrying a gun onto Capitol grounds, id. at 1499, and then leading a “mob and encourag[ing] it to charge toward federal officers, pushing them aside to break into the Capitol,” id. at 1501-02, unless he also picked up a “document or record” related to the proceeding during that violent assault. The statutory text does not require such a counterintuitive result.

The mention of Reffitt is surely included not just to embarrass Nichols by demonstrating the absurdity of his result. It is tactical.

Right now, there are two obstruction cases that might be the first to be appealed to the DC Circuit. This decision, or Guy Reffitt’s conviction, including on the obstruction count.

By asking Nichols to reconsider, DOJ may have bought time such that Reffitt will appeal before they would appeal Nichols’ decision. But by including language about Reffitt’s threats to lawmakers, DOJ has ensured not just the Reffitt facts and outcome will be available if and when they do appeal, but so would (if they are forced to appeal this decision) a Nichols decision upholding the absurd result that Reffitt didn’t obstruct the vote certification. Including the language puts him on the hook for it if he wants to force DOJ to appeal his decision.

I said in my post on Nichols’ opinion that DOJ probably considered themselves lucky that Nichols had argued for such an absurd result.

They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

By including Reffitt in their motion for reconsideration, DOJ has made it part of the official record if and when they do appeal Nichols’ decision.

This would be a dick-wagging filing even absent the likelihood that Nichols has some awareness of Ginni Thomas’ antics and possibly even Eastman’s. It holds Nichols to account for blowing off virtually all the opinions of his colleagues, including fellow Trump appointees Dabney Friedrich and Tim Kelly, forcing him to defend his stance as the outlier it is.

But that is all the more true given that there’s now so much public evidence that Nichols’ deviant decision might have some tie to his personal relationship with the Thomases and even the non-public evidence of Ginni’s own role.

Plus, by making any appeal of this opinion — up to the Supreme Court, possibly — pivot on how and why Nichols came up with such an outlier opinion, it would make Justice Thomas’ participation in the decision far more problematic.

Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

Tags:Alexandria Ocasio-Cortez, Carl Nichols, Clarence Thomas, Dabney Friedrich, David Carter, Garret Miller, Ginni Thomas, Greg Jacob, Guy Reffitt, James Pearce, John Eastman, Mark Meadows, Mike Pence, Randolph Moss, Tim Kelly

trump judge

https://www.washingtonpost.com/dc-md-va/2022/03/08/judge-tosses-jan-6-obstruction-charge/

waPO NO LNX

LEGAL ISSUESU.S. judge dismisses lead federal charge against Jan. 6 Capitol riot defendant

The decision from Judge Carl Nichols in the case of a Texas man clouds the legal path of as many as 270 cases

By Spencer S. Hsu, Tom Jackman and Rachel Weiner

Updated March 8, 2022 at 7:58 p.m. EST|Published March 8, 2022

:{A

federal judge said late Monday that the Justice Department cannot

charge Jan. 6 defendants with obstructing Congress’s certification of

President Biden’s 2020 election victory unless the defendants tampered

with official documents or records in the attack on the U.S. Capitol.}:

In striking down the lead felony charge brought in the government’s Jan. 6 investigation — punishable by up to 20 years in prison — U.S. District Judge Carl Nichols broke with at least seven other U.S. trial judges in Washington who have ruled that prosecutors can use the obstruction charge in Capitol riot cases.

Nichols’s ruling could

complicate the felony prosecutions of many of the roughly 275 Jan. 6

defendants facing the same pending count, with defense attorneys saying

it could slow down plea negotiations or even eventually cause the

government to recharge or retry cases.

:{The

judge’s decision came right before significant developments showed the

reach of his ruling if it is upheld on appeal. On Tuesday authorities

announced longtime Proud Boys leader Henry “Enrique” Tarrio had been

indicted on charges of conspiracy to obstruct an official proceeding —

accused of planning the Jan. 6 attack with other leaders of the

extremist group. Hours after Tarrio’s indictment was made public, a jury

convicted Guy Wesley Reffitt of obstruction of an official proceeding

in the first Capitol breach trial.}:

Lead Capitol riot charge is constitutional, judges find

Nichols’s ruling, in the case of Garret Miller, of Texas, is not binding on other judges and does not set precedent. But prosecutors could appeal it, hoping to settle the issue before hundreds of similar cases proceed.

That could take months, at best, to resolve at the U.S. Court of

Appeals for the D.C. Circuit. Or a defendant who has lost a similar

motion could appeal when their case is concluded.

But if the government doesn’t appeal, continuing to prosecute obstruction cases creates the risk that convictions secured now will be undone by a future adverse ruling, forcing retrials.:{One defense lawyer familiar with Jan. 6 cases said colleagues are

likely counseling clients not to plead guilty to a charge that may not

be a crime. In that way, Nichols’s decision has given defendants more

leverage in plea talks.}:

Miller’s lawyer, Clinton Broden of Dallas, said he expected prosecutors to appeal.

“The

government obviously believed that the ends to be accomplished somehow

justified charging him with a statute that was not applicable to his

alleged conduct,” Broden said. “Judge Nichols correctly decided

otherwise. This could result in a significant change as to how the

government prosecutes the January 6 cases going forward.”

Barbara

McQuade, a University of Michigan law professor and former U.S.

attorney, said in an email the decision “throws a monkey wrench into

DOJ’s efforts to hold accountable the people who attacked the Capitol on

Jan 6.”

She noted that Nichols’s interpretation of obstructing

an official proceeding “has already been rejected by seven other judges,

and I would expect the higher courts to follow suit, but in the

meantime, this decision will likely delay all cases where this offense

has been charged or could have been charged, including against Donald

Trump.”

:{At

issue is an obstruction charge carrying some of the heaviest penalties

leveled against nearly 300 defendants, including associates of the Oath

Keepers, Proud Boys and Three Percenters, far-right groups that

allegedly conspired and prepared for violence. The government has also

brought the charge against scores of individuals not accused of

attacking police or destroying property but facing some of the most

egregious allegations — such as occupying the Senate chamber, sitting in

the vice president’s chair and targeting government officials.}:

Prosecutors

have sought to differentiate such acts from protest-related civil

disobedience that rarely results in prison time and more politically

charged offenses such as seditious conspiracy or the use of political

violence against U.S. authorities to prevent Biden’s inauguration.

Defendants in well over a dozen cases assert that the joint House and Senate session that met Jan. 6, 2021, does not qualify as an official proceeding of Congress. They also argue that the law is

unconstitutionally vague because it fails to put individuals clearly on

notice as to how “corruptly” obstructing or influencing Congress differs

from misdemeanor trespassing, parading or disorderly conduct in the

Capitol. Defendants have also said that, among what they say are defects

in the law, it does not cover individuals’ alleged illegal actions.

Nichols wrote in a 29-page opinion that federal prosecutors erroneously interpreted a “catchall” provision Congress passed when it overhauled a long-standing obstruction-of-justice statute as part of the Sarbanes-Oxley corporate responsibility act in 2002. :{The

law came in the wake of prosecutions of accountants and other officials

involved in the Enron case, when a loophole was found in which those

who shredded crucial documents were not committing a crime.}:

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

:{The

provision covers “whoever corruptly alters, destroys, mutilates or

conceals a record, document or other object...or otherwise obstructs,

influences or impedes any official proceeding.” Prosecutors have been

charging defendants under the second part of that law, accusing them of

obstructing the official proceeding of Congress’ attempt to count the

electoral college vote on Jan. 6, 2021.}:

Nichols ruled that the government could not use the second part alone, and that the court “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” Raiding the Capitol and forcing lawmakers to flee or wrongly trying to halt vote counting does not apply to that interpretation, the judge said.

:{Nichols

dismissed 1 of 12 counts against Miller, who allegedly bragged about

storming the Capitol and threatened lawmakers and police on social

media. He is also charged with three felony counts of assaulting police

and making interstate threats, accused of stating “Assassinate AOC” in

response to a tweet by Rep. Alexandria Ocasio-Cortez (D-N.Y.) calling

for President Donald Trump’s impeachment.}:

Nichols’s reasoning is likely to apply to the cases of at least seven other defendants who are before him on the same charge. One other, Beverly Hills spa owner Gina Bisignano, awaits sentencing after pleading guilty in a deal with prosecutors.

Of the roughly 733 defendants charged in federal court so far, 114 have pleaded guilty and been sentenced, but only 10 for felonies, according to Washington Post

databases. Most convictions have been for misdemeanors related to

trespassing. Only two of the 10 defendants convicted of felonies were

sentenced for obstruction: “QAnon Shaman” Jacob Chansley, who is serving

a 41-month prison sentence, and Paul Hodgkins, who is serving an

eight-month sentence. Reffitt — who prosecutors said challenged the

police at the head the mob determined to break into the Capitol — will

be the third sentenced for obstruction.

Nichols was appointed to the bench in 2019 by Trump. He served in the Justice Department’s civil division under President George W. Bush and clerked for Supreme Court Associate Justice Clarence Thomas.

Given the novel application of the law, the conflicting rulings by the

district court judges and the high stakes of the Jan. 6 probe, a

government appeal would send the question to the U.S. Court of Appeals

for the District of Columbia Circuit and eventually to the U.S. Supreme

Court, legal experts said.

Randall Eliason, a George Washington

University law professor and former assistant U.S. attorney, said the

ruling wasn’t that important but was a “small speed bump” for the

Department of Justice.

“One way or another, this issue was always

ultimately going to be decided by the D.C. Circuit, and even

potentially by the Supreme Court,” he said. “So for now I think the

government just soldiers on and continues to use the charge where it

thinks it’s appropriate, given the widespread approval by other judges.”

But attorneys representing defendants in Jan. 6 cases said the ruling would likely impact their cases.

Stanley Woodward, who counts the wife of an alleged Oath Keepers leader among his clients, said the decision would “likely embolden” those who face the obstruction charge and “now see a greater possibility for a ... conviction to be overturned on appeal.”

Robert Jenkins, who represents a Proud Boy and other defendants, said he expects the ruling to “cause a pause on the trials that are currently in the works” as more attorneys appeal. “Everybody is going to now want to see what the D.C. circuit is going to say.” he said. “It really needs to be resolved before more people go to trial on that charge.”

Tarrio,

the highest profile Proud Boy charged in the Capitol attack and who

faces the obstruction charge, was arrested Tuesday in Miami on charges

that he conspired with followers who attacked Congress last year. Tarrio

has not yet entered a plea in the case but has denied that his group

planned to commit violence that day.

:{The

ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has

suggested Trump could be charged with obstruction of an official

proceeding, as has the House select committee investigating the Jan. 6

events — with the alleged obstruction in Trump’s case related to the

counting of electoral college votes.}:

In an indictment and

court filings, prosecutors assert that Miller, 35, predicted the

likelihood of violence on Jan. 6, 2021. Authorities also accuse him of

pushing past police to enter the Capitol, making various incriminating

statements and posting on social media videos and pictures taken inside

the building.

Miller has pleaded not guilty. Nichols has rejected

a defense motion claiming Miller was a victim of selective government

prosecution and has denied his release from jail pending trial. He has

been held since his Jan. 20, 2021, arrest in Richardson, Tex.

Understanding the criminal allegations the Jan. 6 committee is constructing against Trump

:{Before

Monday, all of at least seven judges who have ruled to date accepted

Justice Department arguments that Congress intended a broad “catchall”

provision for obstructive acts after the exposure of a massive corporate

fraud in the early 2000s wiped out hundreds of billions of dollars of

shareholder value, triggered by the collapse of Enron and the revelation

that Enron’s outside auditor, the accounting giant Arthur Andersen,

systematically destroyed potentially incriminating documents.

Congress’s

whole point in enacting such general clauses is to cover “matters not

specifically contemplated,” because lawmakers do “not know what

inventive criminal minds” might come up with in the future, Assistant

U.S. Attorney Jeffrey S. Nestler has said.}:

Second U.S. judge questions constitutionality of lead felony charge against Oath Keepers in Capitol riot

3 22 tossed jan 6

Nichols received aBachelor of Artsin1992 from Dartmouth College,where he majored in philosophy and graduated with high honors. He received aJuris Doctorin 1996 from theUniversity of Chicago Law School, where he graduatedOrder of the Coifand was a member of theUniversity of Chicago Law Review. He began his legal career as alaw clerk to Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. He then clerked for Associate Justice Clarence Thomasof the Supreme Court of the United States.^[2]

https://www.yahoo.com/news/wilmer-hale-apos-carl-nichols-072100873.html

july 2018

late last December, Carl Nichols, a top regulatory and government litigation partner at Wilmer Cutler Pickering Hale and Dorr in Washington, took a call from the White House. A Trump lawyer wanted to know whether Nichols was interested in a vacancy on Washington's federal trial court. The next day, Nichols recounted, he said yes. Trump would nominate the former top U.S. Justice Department lawyer in June.

Nichols revealed the White House's interest in him in his newly posted U.S. Senate Judiciary Committee disclosure. That he was pitched on becoming a judge is not unusual. Still, the circumstances often work the other way: A lawyer who wants to snag a seat on a bench makes that information known through various channels, including applications to nomination advisory panels.

Nichols reported earning $2.5 million in partner income at Wilmer Hale last year, according to a financial disclosure that accompanied his questionnaire. The previous year, he listed his income at $2.4 million. Average partner profits at Wilmer Hale rose to $2.12 million in 2017. Nichols has been a Wilmer partner since 2010, when he joined the firm from the U.S. Justice Department. He's served on the firm's management committee since 2017. Earlier, Nichols was a partner in the Washington office of Boies Schiller Flexner, working there from 1998 to 2005.

Several other Wilmer lawyers are up for posts in the Trump administration: Dan Berkovitz, co-chair of the firm's futures and derivatives practice, was nominated for a seat on the U.S. Commodity Futures Trading Commission. Jeffrey Kessler, a regulatory counsel at the firm, was picked for a compliance post at the U.S. Commerce Department. Gail Ennis, a now-retired securities litigation partner, was nominated to be the inspector general at the Social Security Administration. Nichols would join another Wilmer alum on Washington's federal trial court: Randolph Moss, a former chairman of the firm's regulatory and government affairs group, joined the bench in 2014. Trump has appointed three other judges to the D.C. federal trial court: Timothy Kelly, Trevor McFadden and Dabney Friedrich. What follows are some highlights and details from Nichols's Senate questionnaire and from his work at the Justice Department and Wilmer Hale.

➤➤Nichols clerked for Justice Clarence Thomas during the 1997-1998 term.At the high court, Nichols' fellow clerks included formerHughes Hubbard & Reedpartner John Wood, whorecently joinedtheU.S. Chamber of Commerce as chief legal officer and general counsel. Another co-clerk that term, Arthur Long, is a partner in the New York office of Gibson, Dunn & Crutcher,where he co-chairs the financial institutions practice. He married a fellow Thomas clerk from that term, Wendy Stone,a Republican who unsuccessfully challenged Democratic Sen. Chuck Schumer in 2016.Earlier, Nichols clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit. Nichols is a graduate of the University of Chicago Law School.

At Main Justice, Nichols last served as principal deputy associate attorney general, supervising 13 department componentsthat included the Civil Division, Civil Rights and Antitrust. From 2005 to 2008, Nichols supervised the Civil Division's federal programs branch, the component that is often involved in some of the most significant federal agency disputes. Nichols was involved in some of the most visible litigation disputes of the day involving separation of powers and government surveillance.He defended against the House Judiciary Committee lawsuit seeking enforcement of subpoenas issued to senior White House officials, including then-White House Counsel Harriet Miers and Joshua Bolten, the former White House chief of staff, amid the investigation of the firing of U.S. attorneys.In his Senate questionnaire, Nichols identified the dispute as one of the top 10 matters he's handled.His co-counsel at the time was Gregory Katsas,who is now servingon the U.S. Court of Appeals for the D.C. Circuit. "We were dealing with matters that got to fundamental questions of constitutional law, inter-branch powers and national security," hesaid in an interviewin 2010. "It was an incredibly interesting docket."

➤➤ Nichols' work at Wilmer Hale primarily focuses on cases that have a significant government or public law component,he said in his Senate questionnaire. Nichols was lead liability-phase counsel to United Launch Services LLC in a contract dispute against the U.S. Department of the Air Force. The company was seeking $396 million in adjustments because three satellites the company launched for the Air Force were heavier than the parties agreed. Nichols is co-counsel with Wilmer Hale's Howard Shapiro representing two federal defendants in their individual capacities in a suit that alleges unlawful FBI surveillance. The dispute is now pending in the Ninth Circuit. Nichols is the lead Wilmer lawyerin a pending suitthat alleges the U.S. Navy is on the hook for $596 million for using unlicensed copies of virtual reality software owned by the German computer company Bitmanagement Software. The case is pending in the U.S. Court of Federal Claims. Nichols said over the course of his career he has worked on about 30 pro bono matters.He successfully oversaw the clemency petition for a 77-year-old Vietnam veteran named Thomas Brown, who had been serving a life sentence for a nonviolent drug offense. President Barack Obama granted clemency to Brown in November 2016, two years after Nichols filed the petition.

badash new civ rts

A federal judge appointed by Donald Trump has, for now, just effectively destroyed the main case against a January 6 defendant by ignoring the rulings of seven other judges – a move that “clouds the legal path of as many as 270 cases,” according to The Washington Post.

**U.S. District Judge Carl Nichols** “said late Monday that the Justice Department cannot charge Jan. 6 defendants with obstructing Congress’s certification of President Biden’s 2020 election victory unless the defendants tampered with official documents or records in the attack on the U.S. Capitol.”

By doing so Judge Nichols “broke with at least seven other U.S. trial judges in Washington who have ruled that prosecutors can use the obstruction charge in Capitol riot cases.”

Judge Nichols clerked for Supreme Court Justice Clarence Thomas. He has ruled against Trump allies in defamation cases brought by Dominion Voting Systems, but also temporarily blocked the State of New York from handing Trump’s tax returns to a top House committee.

Nichols’ ruling Monday is in the case of Garret Miller, of Texas, but defense attorneys in hundreds of other cases could point to it to slow down prosecutions of their clients or even force the DOJ to retry cases. DOJ can appeal Nichols’ ruling.

“This ruling, which seems contrary to the plain language of the statute & conflicts with other judges’ rulings,” warns noted formerU.S. Attorney Joyce Vance, “has serious implications if applied to yesterday’s indictment of the Proud Boy’s [Enrique] Tarrio. He’s charged with conspiracy under the same provision.”

Another noted U.S. Attorney, Barb McQuade, adds: “DOJ will likely appeal judge’s dismissal of obstruction charge, a decision that’s contrary to the plain language of the statute and prior decisions by 7 other judges, but the decision will delay DOJ’s work to hold Jan 6 defendants accountable.”

In a deeper dive, national security and civil liberties journalist Marcy Wheeler calls parts of Nichol’s ruling in the Miller case “far too clever,” noting he is “ignoring some language addressing issues he raises in his opinion."

ref 1

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J:{UDGE CARL NICHOLS UPENDS DOJ’S JANUARY 6 PROSECUTION STRATEGY:(style="background-color:#ffff66;"):}::{:(style="box-sizing:border-box;margin:0px;padding:0px;border:#d4d4d4;;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:baseline;background-color:#f6f6f0;;border-style:initial;border-image:initial;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit"):}:

March 8, 2022/32 Comments/in 2020 Presidential Election, January 6 Insurrection/by emptywheel

On Friday, I argued that both the January 6 Committee and TV lawyers wailing about DOJ’s slow pace of prosecution needed to look more closely at the litigation surrounding DOJ’s use of 18 USC 1512(c)(2) to prosecute January 6 defendants.

[U]ltimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

Judge Carl Nichols — the Trump-appointed judge presiding over the Steve Bannon case and as such one of the most likely judges to preside over any Trump prosecution — will undoubtedly finally generate needed attention to what judges are doing.

That’s because he just rejected DOJ’s application in the case of Garret Miller. In places, the decision is reasonable; in others, it is far too clever. Nichols acknowledges only the Randolph Moss opinion in on this topic, thereby ignoring some language addressing issues he raises in his opinion.

Nichols disagrees with Miller’s contention that the vote certification was not an official proceeding.

[I]t makes little if any sense, in the context here, to read “a proceeding before Congress” as invoking only the judicial sense of the word “proceeding.” After all, the only proceedings of even a quasijudicial nature before Congress are impeachment proceedings, and Miller has offered no reason to think Congress intended such a narrow definition here.

But he argued that the word “otherwise” in the statute necessarily connects the charged clause to the one prior to it, and should be read as a limitation of it. From that, he reads the statute to pertain only to evidence tampering, not witness tampering.

He then cites Justice Kavanaugh to argue that under the rule of lenity, such ambiguity here must be judged in favor of the defendant.

“Under the rule of lenity, courts construe penal laws strictly and resolve ambiguities in favor of the defendant,” id., so long as doing so would not “conflict with the implied or expressed intent of Congress,” Liparota v. United States, 471 U.S. 419, 427 (1985). Under current doctrine, the rule of lenity applies to instances of “grievous” ambiguity, see Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (collecting citations), a construction that is arguably in tension with the rule’s historical origins, see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). See also Wooden v. United States, _ U.S. _, _ (2022) (Gorsuch, J., concurring in judgment) (slip op. at 9–12); but see id. (Kavanaugh, J., concurring) (slip op. at 1–4).

Via a variety of means, Nichols judges that 1512(c)(2) must relate to the destruction of evidence, which Miller is not accused of doing.

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

This argument has holes in it–holes that were addressed by some of the opinions he ignores.

Nichols simply dismisses the argument that Congress could have provided the kind of limiting language he thinks should be inferred.

Another court has sought to allay this overlap concern by pointing to the language Congress could have used:

[I]t would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally—and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volume.

Montgomery, 2021 WL 6134591, at *12. That is certainly true, and in fact is why the Court does not believe that there is a single obvious interpretation of the statute. But it is also the case that reading § 1512(c)(1) as limiting the scope of § 1512(c)(2) avoids many of these structural or contextual issues altogether

He also ignores some differences between clause c and other clauses of 1512, arguments made and dismissed by some of the opinions he ignores.

At a minimum, conduct made unlawful by at least eleven subsections— §§ 1512(a)(1)(A), 1512(a)(1)(B), 1512(a)(2)(A), 1512(a)(2)(B)(i), 1512(a)(2)(B)(iii),1512(a)(2)(B)(iv), 1512(b)(1), 1512(b)(2)(A), 1512(b)(2)(C), 1512(b)(2)(D), and 1512(d)(1)— would also run afoul of § 1512(c)(2).

He also makes a comparison between clause b and c, ignoring that c(2) — and the behavior Miller is accused of — is equivalent to b(2)(D).

DOJ will have a ready response to this on appeal. They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

But this will cause a number of prosecutions, including of some defendants who were about to provide key cooperation, to grind to a halt until this is appealed.

Update: In other news, Guy Reffitt was just found guilty on all five charges against him. That includes the obstruction charge. So the DC Circuit will soon be getting two appeals of the obstruction application.

Other opinions upholding obstruction application:

Dabney Friedrich, December 10, 2021, Sandlin*
Amit Mehta, December 20, 2021, Caldwell*
James Boasberg, December 21, 2021, Mostofsky
Tim Kelly, December 28, 2021, Nordean*
Randolph Moss, December 28, 2021, Montgomery
Beryl Howell, January 21, 2022, DeCarlo
John Bates, February 1, 2022, McHugh
Colleen Kollar-Kotelly, February 9, 2022, Grider
Richard Leon (by minute order), February 24, 2022, Costianes
Christopher Cooper, February 25, 2022, Robertson
Rudolph Contreras (upcoming, but announced March 8), Andries

Tags:Carl Nichols, Garret Miller, Patrick Montgomery, Randolph Moss, Steve Bannon

===

https://ballotpedia.org/Carl_Nichols

another filibuster loophole baby

hange in Senate rules

Nichols was confirmed to a U.S. District Court under a new precedent the Senate established.

On April 3, 2019, the U.S. Senate voted 51-48 in favor of a change to chamber precedent lowering the maximum time allowed for debate on executive nominees to posts below the Cabinet level and on nominees to district court judgeships from 30 hours after invoking cloture to two.[5]

The change was passed under a procedure, often referred to as thenuclear option,that requires 51 votes rather than 60.[6]

It was the third use of the nuclear option in Senate history. In 2013, it was used to eliminate the 60-vote threshold to confirm presidential nominees, except those to the Supreme Court. In 2017, it was used to eliminate the 60-vote threshold required to confirm Supreme Court nominees.[7] For more, see Filibuster and reconciliation in the United States Congress.

Senate Judiciary Committee hearing

The Senate Judiciary Committee held hearings on Nichols' nomination on August 22, 2018.[1] On October 11, 2018, the committee voted 11-10 to advance Nichols' nomination to the full Senate.[8]

The Senate Judiciary Committee favorably reported Nichols's nomination on February 7, 2019.[9] Click here to see how the committee voted. Nichols's nomination was one of 44 that Sen. Lindsey Graham (R-S.C.) reported that day.

Nomination

Nichols was nominated to succeed Judge Richard Roberts, who assumed senior status on March 16, 2016.[1]

At the sine die adjournment of the 115th Congress on January 3, 2019, the Senate returned Nichols's nomination to President Trump.[10] Nichols was one of 51 individuals the president re-nominated on January 23, 2019.[11]

The American Bar Association unanimously rated Nichols well qualified for the position.[12] To read more about ABA ratings, click here.

Early life and education

Nichols was born in 1970 in Rhinebeck, New York. He earned his bachelor's degree, cum laude, from Dartmouth College in 1992. He obtained his J.D., with high honors, from theUniversity of Chicago Law School,where he was Order of the Coif, in 1996. During his legal studies, Nichols served as a member of theUniversity of Chicago Law Review.[13][4]

Professional career

2019-present: Judge, U.S. District Court for the District of Columbia
2010-2019: Wilmer Cutler Pickering Hale & Dorr LLP in Washington, D.C.
- 2017-2019: Member, Management Committee
- 2014-2019: Vice chair, Government and Regulatory Litigation Group
- 2010-2019: Partner
2005-2009: U.S. Department of Justice
- 2008-2009: Principal deputy associate attorney general
- 2005-2008: Deputy assistant attorney general, civil division
1998-2005: Boies Schiller Flexner LLP
- 2002-2005: Partner
- 1998-2001: Associate
1997-1998: Law clerk to Judge Clarence Thomas, Supreme Court of the United States
1996-1997: Law clerk to Judge Laurence Silberman, United States Court of Appeals for the District of Columbia Circuit [4]

Awards and associations

Awards

2009: Attorney General's Medallion for Distinguished Service[4]

Associations

2013-2015: Member, American Bar Association
2018-present, 2003-2008: Member, Federalist Society [4]

About the court

:{District of Columbia:(style="box-sizing:border-box"):}:
District of Columbia Circuit
[](https://ballotpedia.org/File:Seal_of_the_U.S._District_Court_for_the_District_of_Columbia.png)
Judgeships
Posts: 15
Judges: 15
Vacancies: 0
Judges
Chief: Beryl A. Howell
Active judges: James E. Boasberg, Tanya S. Chutkan, Jia Cobb, Rudolph Contreras, Christopher Reid Cooper, Dabney Friedrich, Beryl A. Howell, Amy B. Jackson, Timothy J. Kelly, Colleen Kollar-Kotelly, Trevor McFadden, Amit Priyavadan Mehta, Randolph D. Moss, Carl Nichols, Florence Pan Senior judges: John Deacon Bates, Rosemary Collyer, Paul Friedman, Joyce Hens Green, Thomas Hogan, Ellen Huvelle, Henry Kennedy, Gladys Kessler, Royce Lamberth, Richard Leon, Richard Roberts, Barbara Rothstein, Emmet G. Sullivan, Reggie Walton

The United States District Court for the District of Columbia is one of 94 United States district courts. Cases dealing with the laws of the District of Columbia are heard by this court only under the same circumstances that would cause a case under state law to come before a federal court. Appeals from this court are heard by the United States Court of Appeals for the District of Columbia Circuit.

The court sits in the E. Barrett Prettyman Federal Courthouse located on Constitution Avenue NW. The District has no local district attorney or equivalent, and so prosecutorial matters fall under the jurisdiction of the United States Attorney for the District of Columbia.

The District Court for the District of Columbia has original jurisdiction over cases filed in the District of Columbia. These cases can include civil and criminal matters that fall under federal law.

The D.C. District Court hears federal cases within the District of Columbia. Its appellate court is the United States Court of Appeals for the District of Columbia Circuit.

To read opinions published by this court, click here.

The federal nomination process

Federal judges are nominated by the president of the United States and confirmed by the Senate. There are multiple steps to the process:

The president nominates an individual for a judicial seat.
The nominee fills out a questionnaire and is reviewed by the Senate Judiciary Committee.
The Senate Judiciary Committee holds a hearing with the nominee, questioning them about things like their judicial philosophy, past rulings or opinions, etc.

- - As part of this process, the committee sends a blue slip to senators from the home state in which the judicial nomination was received, allowing them to express their approval or disapproval of the nominee.

After the hearing, the Senate Judiciary Committee will vote to approve or return the nominee.

- - If approved, the nominee is voted on by the full Senate.
If the Committee votes to return the nominee to the president, the president has the opportunity to re-nominate the individual.

The Senate holds a vote on the candidate.

- - If the Senate confirms the nomination, the nominee receives a commission to serve a lifelong position as a federal judge.
If the Senate does not confirm the nomination, that nominee does not become a judg

https://en.wikipedia.org/wiki/Carl_J._Nichols

carl John Nichols(born June 25, 1970) is aUnited States District Judgeof theUnited States District Court for the District of Columbia.

Biography

Nichols received aBachelor of Artsin1992 from Dartmouth College,where he majored in philosophy and graduated with high honors. He received aJuris Doctorin 1996 from theUniversity of Chicago Law School, where he graduatedOrder of the Coifand was a member of theUniversity of Chicago Law Review. He began his legal career as alaw clerk to Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. He then clerked for Associate Justice Clarence Thomas of the Supreme Court of the United States.^[2]

Nichols worked in private practice and later joined the United States Department of Justice as a deputy Assistant Attorney General for the Federal Programs Branch of the Civil Division, and then as Principal Deputy Associate Attorney General. He left the government in 2009 and joined Wilmer Cutler Pickering Hale and Dorr, where he worked as a partner until 2019.^[3]

Federal judicial service

Nichols was mentioned as a potential judicial nominee in March 2018.^[2] On June 7, 2018, President Donald Trump announced his intent to nominate Nichols to serve as a United States District Judge of the United States District Court for the District of Columbia.^[4] On June 18, 2018, his nomination was sent to the Senate. President Trump nominated Nichols to the seat vacated by Richard W. Roberts, who took senior status on March 16, 2016.^[5] On August 22, 2018, a hearing on his nomination was held before the Senate Judiciary Committee.^[6] On October 11, 2018, his nomination was reported out of committee by an 11–10 vote.^[7]

On January 3, 2019, his nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate. On January 23, 2019, President Trump announced his intent to renominate Nichols for the same federal judgeship.^[8] His nomination was sent to the Senate later that day.^[9] On February 7, 2019, his nomination was reported out of committee by a 12–10 vote.^[10] On May 22, 2019, his nomination was confirmed by a near-party line vote of 55–43.^[11] He received his judicial commission on June 25, 2019.

Notable cases

Dominion defamation lawsuits

On August 11, 2021, Nichols denied motions to dismiss lawsuits brought by Dominion Voting Systems alleging that Sidney Powell (1:21-cv-00040 (CJN)), Rudy Giuliani (1:21-cv-00213 (CJN)), and Mike Lindell (1:21-cv-00445 (CJN)) defamed and damaged Dominion by their statements alleging fraud and misconduct in the 2020 presidential election. Those lawsuits therefore were allowed to proceed.^[12][13]

TikTok Inc. v. Trump, no. 20-2658 (D.D.C)

On Sunday, September 27, 2020, Judge Nichols, granting in part the motion of plaintiffs TikTok and ByteDance, issued a preliminary injunction partially enjoining (i.e., temporarily stopping) the Department of Commerce's implementation of President Donald Trump's August 6, 2020 Executive Order prohibiting certain transactions related to TikTok. The portion of the prohibition that Nichols enjoined would have barredAppleandGooglefrom offering TikTok in their app stores, and would have taken effect just before midnight that night.^[14]

On December 7, 2020, Judge Nichols granted a second preliminary injunction requested by TikTok and ByteBance, enjoining the remainder of the Commerce Department's implementation of that Executive Order.^[15] The case (then captioned TikTok v. Biden) was dismissed by joint stipulation of the parties on July 21, 2021, following President Biden's decision to rescind President Trump's August 6, 2020 Executive Order.^[16][17]

Donald J. Trump v. Committee on Ways and Means, et al, no. 19-2173 (D.D.C.)

On August 1, 2019, Nichols issued a temporary order which barred the State of New York from handing over state tax returns to the U.S. House Committee on Ways and Means and established a briefing and hearing schedule.^[18] The State, through its Attorney General and co-defendant Letitia James, promptly asked Nichols to dismiss the lawsuit or transfer it to a federal court in New York, on the ground that it cannot be maintained against them where the defendants neither reside nor act.^[19] On November 11, 2019, Nichols dismissed the lawsuit, finding that the court did not have jurisdiction over the New York Attorney General or the Commissioner of the New York Department of Taxation and Finance.^[20]

U.S. v. Miller, no. 21-119 (D.D.C.)

In March 2022, Nichols ruled that Garret Miller, one of the defendants criminally charged in connection with the 2021 U. S. Capitol attack, could not be charged with obstructing Congress’s certification of the 2020 Presidential election without a showing that Miller had tampered with official documents or records as part of the attack.^[21][22] Nichols's ruling is contrary to those of all seven other U.S. District Court judges who had considered the same issue, and may affect up to 275 similar criminal prosecutions.^[21] The difference of opinion between Nichols and the other judges may lead to the issue being resolved on appeal, or by petition to the U.S. Supreme Court.^[21]

Memberships

Nichols has been a member of the Federalist Society; once from 2003 to 2008 and again in 2018.^[1]

Reference

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