Thread by @rparloff

For anyone interested in the Oath Keepers case, prosecutors filed an important document Thursday. It’s their brief opposing the defendants’ “Rule 29” motions. Rule 29s are requests defendants routinely make after the govt rests its case … bit.ly/3DGHwNQ
1/14

… asking the judge to acquit them on the theory that the govt failed to present enough evidence to warrant even letting the jury decide the case. While such motions are rarely granted, the govt’s response here is useful because it concisely sums up its 19-day case. …
2/14

… In so doing, the govt lays out starkly what strikes me as the toughest question posed by the top charge, seditious conspiracy. Any conspiracy requires an agreement among 2 or more people to do something unlawful. Here, the govt presented ample evidence that for months …
3/14

… the defendants discussed with each other the need to use force to stop the transfer of presidential power to Biden. But the govt did not show that they ever formulated any specific plan to achieve their goal. …
4/14

… Instead, the govt proved that, once other rioters (like the Proud Boys) breached the Capitol, the Oath Keepers opportunistically entered the building, allegedly with that long-held seditious goal in mind. …
5/14

… The defense claims that the Oath Keepers’ vague & general discussions about stopping the transition of presidential power were mere “hyperbole” and “political rhetoric.” …
6/14

… Two former co-defendants who testified for the govt at trial each conceded that there was no specific plan & that they never received any express order to enter the Capitol. …
7/14

… Cooperating OK Graydon Young described the decision to enter as “spontaneous.” Both he and cooperating OK Jason Dolan said the agreement was implicit. Here’s the key passage the govt cites from Jason Dolan’s testimony: …
8/14

“It was that same idea … over and over: We will do something. We will do something … And now here we are in front of the Capitol doors, and they opened. And it was: Let’s do something.” …
9/14

… OK Young’s testimony was very similar: “We talked about doing something. . . . And then when the crowd got over the barricade and they went into the building, an opportunity presented itself to do something. …”
10/14

… “We didn’t [have to] tell each other [to go in. It was] common sense.” Does that prove a conspiracy? Under the govt’s proposed definition of conspiracy (below) it does. Conspiratorial greements can unquestionably be implicit. …
11/14

… Under the defense’s proposed definition, however (below), it might not. Their definition suggests that, to constitute a conspiracy, the criminal activity envisioned “could not have been carried out *except as the result of a preconceived agreement*…
12/14

… Since ~900 hundred other rioters entered the Capitol without conspiratorial planning, this definition would invite acquittal, IMO.
13/14

I don’t know which instruction Judge Mehta will give, or what the jury will do with it. I fear I do know what the current Supreme Court will do if the case reaches them, however.
14/14-end

P.S.: So far, only one defendant, Thomas Caldwell, has filed a Rule 29 motion in writing on PACER. It’s here for anyone curious. His lawyer focuses mainly on legal arguments that Judge Mehta has already rejected, so he’s mainly preserving these for appeal. bit.ly/3zLd2cB