Thread by @JordanOnRecord

At 10 a.m. Texas 3%er Guy Reffitt will be back in court for a motion hearing. He tried and failed last month to get a change of venue. Now he's one of the many #CapitolRiot defendants trying to get the felony obstruction charge against him thrown out.

I don't know that we will get a ruling on that question today, but earlier this week, defense attorneys in a different January 6 case said they believed the judges hearing those challenges were getting close.

Judge Friedrich has arrived and announces she has lost her voice and, indeed, she is very croaky.

Reffitt's attorney is jumping right back into the 1512 argument. Says the obstruction statute requires an adjudicative function to be disrupted, while the joint session of Congress was merely "ministerial."

Reffitt's attorney argues that Congress doesn't even have the power to reject certified electoral votes. Which is, you know, more than a little ironic, considering the circumstances.

Judge Friedrich asks, if she finds that the joint session of Congress *is* an official proceeding, would they need to be physically present? Welch says yes, they could not be in recess or a suspension.

Welch says his understanding of the DOJ's legal theory is that Reffitt and other rioters were attempting to prevent the electoral tally from being for anyone other than Donald Trump.

DOJ says their theory is two part:

1. Prevent Congress from physically being able to tally the votes.
2. Intimidate/influence them into delivering the result Reffitt and others wanted (the re-election of Donald Trump).

Judge Friedrich: "Mr. Welch you can't plausibly argue that what happened on January 6 didn't delay the joint session of Congress."

Welch was arguing the joint session of Congress was suspended at the time of Reffitt's alleged acts because they were considering the objection to the Arizona vote.

Judge Friedrich: "What was he doing, if not trying to disrupt the proceeding? Why was he trying to get into the Capitol?"

Welch: "To protest!"

Welch then suggests Al Gore could have been accused of attempting to disrupt the certification of electoral votes in 2000.

Friedrich isn't buying that comparison.

Welch and Reffitt went into a breakout room.

Welch is talking about the 1971 National Commission on Reform of Federal Criminal Laws, which he says Congress drew on for the original 1512 statute. The problem, as he himself notes in his motion, is that they ultimately did not use its language.

https://twitter.com/JordanOnRecord/status/1461059960608104450

Judge Friedrich says she's not sure Welch has her on the official proceeding point.

Judge Friedrich says she's heard enough on the official proceeding argument. Asks if he has any additional arguments on the "corruptly" part of the statute.

It's unconstitutionally vague as used in this instance, essentially is his argument.

Judge Friedrich questioning the DOJ now. Says she's going to require the government to produce a bill of particulars because it's not clear to her what their legal theory for obstruction is in this case.

AUSA Jeffrey Nestler says they will prove at trial that Guy Reffitt intended to take and possibly burn a ballot box on January 6. But, he's also charged with aiding and abetting others' efforts to disrupt the joint session.

Judge Friedrich: "So by disrupting the proceeding, defendant Reffitt and others were preventing evidence from being entered?"

AUSA Nestler: "Correct."

Nestler says the DOJ believes 1512(c)(2), the obstruction statute under which the most serious #CapitolRiot cases are charged, was intended by Congress to be a "broad catch-all."

Judge Friedrich says the DOJ's position "eviscerates" the need for other provisions in the statute.

"That's how catch-alls work, your honor," Nestler says.

DOJ: "We're not saying he didn't violate 1512(b)."

Judge Friedrich: "I don't understand why you didn't charge him under that. It seems easier."

DOJ: "We have taken a higher burden on ourselves."

Judge Friedrich is really hammering the DOJ on the "corruptly" requirement in 1512(c). Asks if they're going to expect a jury to decide what that means.

Here's 1512(b), for reference, which is what both Judge Friedrich and the DOJ seem to agree would have been an easier charge to prove for Guy Reffitt.

Judge Friedrich: "So corruptly means wrongdoing or consciousness of wrongdoing?"

Nestler says in the Arthur Andersen (Enron) case, SCOTUS decided that "corruptly" means wrongfully, immorally, depraved or evil.

Nestler: "We believe we can prove the defendant was acting wrongfully, immorally, depraved or evilly."

Judge Friedrich is going to order the DOJ to file a bill of particulars outlining their legal theory on the obstruction charge by next Wednesday.

Judge Friedrich also wants the DOJ to outline which other obstruction statutes they think aren't captured by the 1512(c) catch-all provision.

Judge Friedrich: "While I don't disagree with you that Congress intended to make a catch-all" that doesn't mean it applies to everything.

They've been circling around the notion of a catch-all provision for a while now and it doesn't seem like it's getting resolved prior to the filings Judge Friedrich wants from the DOJ by next Wednesday.

Judge Friedrich says 1512(d) would be easier to prove and seems more applicable to Guy Reffitt's alleged conduct. The DOJ says they believe he *did* violate 1512(d) and that it's a lesser included offense. 1512(d) is a 3-year max felony, vs. 20 years for 1512(c).

"In order to resolve this motion I need to understand what the theory is," Judge Friedrich says. Bill of particulars coming from the DOJ by next Wednesday.