Thread by @ZoeTillman

The motion hearing in the Proud Boys conspiracy case is just starting (was set for 11am), stay tuned

https://twitter.com/ZoeTillman/status/1440330851393277958

Judge Timothy Kelly begins by explaining the delay was because the facility where defendant Charles Donohoe is being held had an issue connecting him on time

Kelly begins by asking about Ethan Nordean et al.'s challenge to felony count for obstruction of an "official proceeding" — judge says govt "fairly" argued an official proceeding is tied to degree of formality, whereas defense is arguing there needs to be an investigatory purpose

Kelly notes that there were previous cases where govt charged obstruction re: investigatory official proceeding. But he questions whether that reflects a legal limit on the statute itself, or just the circumstances of cases that happened to be brought in the past

Ethan Nordean's lawyer argues "official proceeding" meaning stems from understanding terms when 1512 was enacted in 2002 — previous obstruction statute referred to investigatory proceedings. But Kelly points that also works against them, that Congress didn't use same language

Overall, I'd say Kelly has signaled he's not totally sold yet on the defense argument that "official proceeding" has to be investigatory/adjudicative to fall under the obstruction count that Nordean et al. (and many Jan. 6 defendants) are charged with

Next, Nordean's lawyer (it's one of the Smiths, but tbh I missed if it's Nick or David) argues if the judge ultimately agrees an "official proceeding" does need to be quasi-judicial, Congress's certification of the election results shouldn't count

Bringing things full circle, Nordean's lawyer cites 2018 memo former Bill Barr wrote before he became AG disagreeing w/ Mueller's apparent interpretation of the obstruction statute re: Trump. Smith calls it a "brilliant" piece of writing, setting aside "political controversy"

Kelly turns to the govt, AUSA James Pearce arguing. Judge flips it, says defense "fairly" noted most prev. cases re: "official proceeding" suggest some investigatory purpose. Pearce says you start with the text, this was a proceeding before Congress, don't need to go past that

Pearce also argues that most of these previous cases didn't grapple with how to apply "official proceeding" to Congress, but rather to various law enforcement investigations and whether the obstruction statute could apply

Kelly moves on, says a "more difficult question" is whether the use of the word "corruptly" in the obstruction statute is unconstitutionally vague. Pearce argues the govt's possition is the term in this statute means intent to obstruct + wrongfulness/consciousness of wrongfulness

After hearing args (my earlier thread is not comprehensive, check out @emptywheel for more back and forth), Kelly moves on to scheduling and wants to at least get a trial date on the calendar. Asks govt how long it estimates to put on its case, they say, conservatively, 2-3 weeks

Kelly explains scheduling a trial (esp. a four-defendant one) is complicated because of pandemic rules, they have to use the DC fed court's ceremonial courtroom. Defense counsel express concerns about estimating trial length w/out benefit of getting all evidence from the govt

Yeow. Kelly estimates needing at least 4 weeks (Joseph Biggs' lawyer suggests at least 6 weeks) and says that the first slot available for a trial of this length is to start jury selection on May 18, 2022

Kelly says he understands there are also concerns about the fact that defendants are incarcerated (Nordean/Biggs have pending motions to be released), but stresses that they should really claim whatever first slot is available for the courtroom because they're getting booked

Kelly says that if he keeps Nordean and Biggs in jail (no ruling yet), he'll take a more proactive role in pushing the govt to explain/deal with issues related to defense counsel's access to their clients and the jaile defendants' ability to access materials

That is a wrap on this hearing, no rulings from bench, Kelly said he expected to rule on the bond issue (whether Nordean/Biggs can get out of jai pending trial) before the next status hearing next month