Thread by @JordanOnRecord

The big Oath Keepers motion to dismiss hearing starts at 2 p.m. before U.S. District Judge Amit P. Mehta. I will be live tweeting it, but you can also call in here:

Toll Free Number: 877-848-7030
Access Code: 3218747

#CapitolRiot @wusa9 @EricFlackTV

https://twitter.com/JordanOnRecord/status/1435293933932883977

There are 15 defendants on this hearing, but the lead defendant in the motion is Thomas Caldwell, of Virginia. He was one of the first Oath Keepers arrested, and the case bears his name (Caldwell, et al). He is represented by attorney David Fischer Sr. (no relation). #CapitolRiot

You can read the full motion in the link in one of the tweets above this, but in short, the Oath Keepers are arguing that the major felony charges against them should be thrown out because the joint session of Congress on January 6 was not an "official proceeding." #CapitolRiot

There's a question now of how this hearing will proceed because one of the Oath Keepers, Kenneth Harrelson, recently retained attorney John Pierce, who has been hospitalized over the past two weeks. More on that here: wusa9.com/article/news/n…

There are a number of outstanding motions by the Oath Keepers group Judge Mehta says will be considered today. The ones joined by most/all of them are the motion to dismiss and a motion for a change of venue. Some of them are also asking to have their cases severed. #CapitolRiot

Attorney David Fischer is beginning now. He says Caldwell was wrongly charged under the obstruction statute because it only "applies to a judicial or quasi-judicial type of hearing."

Judge Mehta says the statute "defines an official proceeding simply to be a proceeding before Congress... I'm not sure how anything other than impeachment would qualify under your definition." #CapitolRiot

Mehta says if Congress intended this statute to be as limited as Fischer argues, that would have written it that way. He says they did not do so. Fischer is arguing that language from previous versions of the law (that did not pass) were more restrictive. #CapitolRiot

David Fischer: “There’s absolutely nothing about the Electoral College certification that the average person would believe is justice-related.” #CapitolRiot

Fischer argues that legislative hearings require truthful testimony. "They can't have witnesses be intimidated out of testifying." Says that's the distinction from the certification of the Electoral College certification. #CapitolRiot

One of the other defense lawyers -- didn't catch the name -- is arguing that the DOJ's application of the obstruction statute violates the Due Process Clause by being too vague. #CapitolRiot

Sorry, this attorney is Carmen Hernandez, who is representing Donovan Crowl. #CapitolRiot

Here's the statute, 18 U.S. Code § 1505, the Oath Keepers are accused of violating and which attorney Carmen Hernandez is now arguing is unconstitutionally vague, both facially and as applied in this case. #CapitolRiot

Hernandez is also arguing about the unconstitutional vagueness of the word "corruptly" in 18 U.S. Code § 1512. #CapitolRiot

Hernandez says corruption requires "paying off, bribing, getting something for yourself." She says multiple judges, including former Justice Antonin Scalia, have followed that reasoning.

Hernandez: "I think it's an absurd reading of 1505 to think that Congress intended to make illegal attempts to influence it!"

Judge Mehta: "You cannot compare standing up in a committee room with what these defendants are accused of doing, at least in state of mind." #CapitolRiot

Hernandez is fired up and keeps talking over Mehta. He admonishes her that it's "better not to interrupt me."

Hernandez is raising a comparison to an incident in February 2018 when a group of wheelchair-bound protesters were dragged out of Congress while protesting changes to the Americans with Disabilities Act. businessinsider.com/wheelchair-bou…

Hernandez argues that 1512(c)2 has only ever been used to target corporate fraud. She says the DOJ is twisting the words of the statute "into a fashion that just eliminates any meaning that Congress may have intended." #CapitolRiot

"It boggles the mind that this statute would apply to my client," Hernandez says. #CapitolRiot

The DOJ is arguing that the wording in 1512(c)2 is unambiguous, but Mehta says SCOTUS has ruled that dictionary definitions are not the "end all."

I'm not a lawyer and I don't pretend to be, so I won't presume to explain the history of the law here, but United States v. Yates is one of the major cases they're arguing over here. It dealt with the destruction of documents (or, in that case, fish). en.wikipedia.org/wiki/Yates_v._…

Also Arthur Andersen v. United States, which overturned an obstruction of justice conviction from the Enron case. en.wikipedia.org/wiki/Arthur_An…

AUSA Jeffrey Nestler says the word "corruptly" in the statute "does a lot of the work here." Mehta asks, if someone stands up during a Congressional hearing and yells, "Stop these hearings!" is that a 20-year felony?

Nestler: "The object here was not just to halt the proceedings. The object here was to *scare* Congress into halting the proceedings." Starts talking about a bomb threat, but Mehta stops him and asks where in the indictment he can find that.

Nestler says the difference between interrupting a hearing vs. the Capitol riot is that none of the rioters were at the Capitol lawfully. Versus, say, legally attending a hearing and then disrupting it in the middle.

Nestler says courts have looked at this statute and decided that 1512(c)2 is not tethered to 1512(c)1. See below. #CapitolRiot

Mehta: "The conduct here is... scaring everybody who was in Congress or the Rotunda. But that's very different from destroying documents." Nestler says the conduct was intimidating Congress: "They broke through the doors and made Congress flee."

Nestler: One person standing outside Congress yelling "shut this hearing down" is different than 10,000 storming the building.

Mehta asks Nestler if there are any similar cases of a group of people attempting to obstruct a proceeding by halting it. Nestler says no, because it doesn't often come up. Says other laws usually apply (i.e. someone intimidating a witness). But says catch-all applies here.

Nestler: "Congress doesn't always know what some inventive criminal mind is going to come up with." That's why they included the catch-all provision of 1512(c)2.

Nestler: "We should all be worried about overruling what Congress said but trying to determine what it meant."

Mehta asks if someone has to act "knowingly corruptly" to violate this statute. Nestler says in Arthur Andersen case they ruled that the word "knowingly" was not in 1512(c). Mehta says "knowingly corruptly" has a definite meaning that can be understood and prosecuted.

Both DOJ and Fischer have pointed to this Judicial Committee report from 1982, and Mehta points out that he doesn't know how helpful it is, since 1512(c)2 wasn't promulgated until many years later.

Hernandez says every case the DOJ has cited has included the "intent to mess with the evidence in a judicial proceeding." Mehta says she's conceded that "bum-rushing a courthouse" to disrupt a proceeding would be a violation of 1503.

"That same statute uses 'corruptly.' So how is that same word ambiguous" when used in other, similar statutes. "You conceded to me that the very same conduct can violate another statute that uses the word 'corruptly.'"

Hernandez: "Conduct that seeks to interrupt the political wing of government can not be viewed as corrupt by it's nature. That's what the First Amendment protects." Mehta: "You think these defendants were exercising their First Amendment rights?"

Mehta: "You think these defendants were exercising their First Amendment rights? By rushing past police. By rushing past barriers?" Hernandez: "Yes."

Mehta: "Let's not pretend that this was simple parading or picketing, ok? Let's at least acknowledge that the nature of conduct was different."

Hernandez: "Corrupt? Maybe they were jerks. "

Now we're moving on the to restricted area/building charge. Fischer says Judge McFadden's ruling on this has "opened the door to chaos." Says Secret Service could restrict any area, basically. Mehta points out there's no question the Capitol is a restricted area.

Fischer says his client, Thomas Caldwell, is not accused of entering the building. Mehta asks why the balcony isn't reasonably considered part of the building.

Nestler says it does not matter to the DOJ, for the purposes of the statute Caldwell is charged under, whether he was on the inside or the outside of the Capitol building. He still entered a restricted building or grounds.

Joshua James' attorney, Joan Robin, is saying the DOJ needs to reveal which grand jury her client is alleged to have been attempting to thwart by deleting social media posts.

Nestler says DOJ isn't obligated to reveal that.

Nestler says there didn't even have to be a grand jury empaneled at the time, as long as government can prove his conduct did obstruct *a* grand jury.

Robin is now also saying the DOJ needs to identify which specific officer(s) Joshua James allegedly assaulted.

Robin: "It's not as if it's a juvenile. It's not as if they don't know the identity of the officer. There's no reason not to [identify the officer assaulted]."

Caldwell's attorney, Fischer, is back up and arguing for the change of venue. He says there's "so much prejudice against these defendants... it's off the charts."

Mehta: "How do you know that?

Fischer: "This city is very anti-Donald Trump."

Mehta: "So? Even if I accept that's true, that doesn't mean your client can't get a fair trial."

Mehta is now talking about Fischer's filing, in which he said District residents "despised many things traditional Americans stand for."

Mehta: "I think it would come as a surprise to many District residents that we lack those traditional values."

Mehta: "They despise many things traditional Americans stand for...."

Fischer: "And they do! They do!"

Mehta: "I think you've done a wonderful job for your client. I really do. But this brief... reads less like a legal brief than something you might read on a blog. And that's not acceptable. I expect better from you. I expect better from everybody in this courtroom."

Mehta: "There may be very valid concerns about whether or not your client can get a fair trial. But painting with a broad brush, casting aspersions... writing a brief that looks like it's been ripped out of a blog post isn't going to do it."

Fischer says he's "not trying to denigrate the citizens of the District of Columbia," but if you read that filing he wrote, I think you'd come to a different conclusion. Oh god... now he says Caldwell has been subject to "nonstop race-baiting."

Fischer: "They're sick and tired of news media, of politicians, labeling them as racists. It's sick and vile. So maybe I was a little extreme in my language."

Fischer's change of venue motion was truly something to read. It included plenty of shots at D.C. residents, false claims about the Tulsa Race Massacre, and this odd (and wrong!) claim about Trump's hydroxychloroquine statements. Doc: storage.courtlistener.com/recap/gov.usco…

And that's the hearing. No rulings today.