Thread by @mattbuxton

What should be the final full day of the trial against Rep. David Eastman is getting underway now.

Today, we expect to hear more from Oath Keepers founder Stewart Rhodes, Trump lawyer John Eastman and Rep. David Eastman.

Closing arguments expected Wednesday.

#akleg

Here's a blog post that pulls together most of the good stuff from the newsletters and the basics of the case: midnightsunak.com/2022/12/20/the…

Here's the latest newsletter I wrote about it, which covered through Monday morning: akmemo.substack.com/p/the-complica…

And we're off with the usual audio glitches.

For some reason folks on the stream can ONLY hear Stewart Rhodes. The courtroom's audio isn't coming through.

Rhodes asks Miller how the weather is up here.

Miller can't hear him.

Alright. It seems like things are starting to work.

Now into cross examination from plaintiff's attorney Dudukgian, who starts out with questions about Rhodes' location and convictions.

Rhodes notes he was in custody for far longer than he's been charged, makes a crack about innocence until proven guilty.

A lot of foundational questions about other Oath Keepers who've pleaded guilty to seditious conspiracy and have been charged, etc.

Rhodes knows some of the people, others aren't ringing a bell.

You had the best legal help in the country?

Rhodes: "I wouldn't say that," before adding with a chuckle, "They're not Alan Dershowitz."

Part of your defense was that all these other teams went off script?

Right.

And the jury didn't buy that, right?

Miller objects, calling it speculation.

Rhodes says he was punished for his free speech.

And that conduct was a conspiracy to overthrow by force the U.S. government, right?

Rhodes said all he did was free speech.

You called Biden and Harris "Chi-Com Puppets"?

Rhodes says yes, "Just like Trump was called a Russian puppet. What is good for the goose, is good for the gander."

And you sought to stop the certification of the election?

Rhodes says, no, he just wanted the voter fraud reviewed and Trump to dump a bunch of documents.

But you were telling Trump to stop the certification of the election, isn't that pushing to halt the certification?

Rhodes: "If it's an unconstitutional election then neither Trump nor Biden would have been the winner. You can't have a winner in an unconstitutional election."

Rhodes says he wanted the whole election thrown out and for the country to... fall back on the succession of power.

Rhodes seems to suggest he wasn't actually as mad about Biden winning as he was about it being an unconstitutional election.

Rhodes adds that he's grateful the voter fraud issues will finally make it to the U.S. Supreme Court this year.

He's talking about Moore v. Harper.

scotusblog.com/case-files/cas…

And now there's some talk about the cabal of pedophiles in government.

And you said the Chinese Communists were installing their puppets in the White House?

Rhodes: "It's consistent with what I said in my open letters."

There's a brief interruption while someone else is yelling in the background of Rhodes' call.

"I'm on the phone!"

And then some back and forth about the Oath Keepers' hopes that Trump would invoke the insurrection act.

Rhodes says he was only ever focused on calling Trump into action, not doing it unilaterally.

And then some transcripts, etc, that undercut his claims.

There's a previous comment about Rhodes telling Oath Keepers to protect "the duly elected president." Is that Trump in your mind?

Rhodes says, yes, but then adds "I don't think you can have a winner of an unconstitutional election."

Not a single court in the country has found widespread fraud in the 2020 election, right?

Rhodes: "The Supreme Court didn't hear it. How can you prove a negative?"

There's some more questions from the recorded call from an informant (which was used in his trial). It's language that's increasingly close to the call to action.

Rhodes says he wants to hear the audio: "I don't trust the words of a government snitch."

Rhodes: "I consider the left to be an insurrection."

There's some back and forth about the transcript of this recording.

Rhodes: "Why are you asking something that I cannot even review? I can't refresh my memory."

Dudukgian says he tried to get it all to Miller yesterday, but he says Miller claimed it "couldn't be done."

Some more yelling outside Rhodes' call.

"I'm testifying in court! If you guys could refrain from yelling, that'd be nice!"

There's a quote from the recording that says "it's going to be just like Serbia." Weren't you referencing the storming of parliament?

Rhodes says he can't remember.

But you referenced Serbia a lot?

Yes, because it was also a fraudulent election.

And you were telling people to bring armor, helmets, stab-proof body armor?

Rhodes says it's to protect from Antifa, which he says likes to bonk people on the head with bricks.

Would that call for tactical gear include a tactical backpack (which Pat Martin brought or Eastman)?

Rhodes: "What's a tactical backpack?"

(For the record, Eastman also thought it was dumb.)

Then some chats with Rhodes telling the members to be "ready to fight" etc.

Rhodes says that sounds right.

He's mostly been framing it, though, as preparation to go to battle with Antifa (which he also says they've never actually fought with).

And you said "The final defense is us and our rifles"?

Right.

And you said Trump will "need us and our rifles?"

Right. Says the Oath Keepers would "keep the peace" while Trump got to the bottom of the voter fraud.

After continued questioning about Serbia, which resulted in the storming of parliament, Rhodes says he wasn't ever serious about actually storming the building. He just was talking about protesting, he says, which is why he stopped referring to it after a while.

And you also echoed Trump's "stop the steal" phraseology?

Sure, and a bunch of other people like Roger Stone and Michael Flynn.

And you thought the election was fraudulent?

Fraudulent and unconstitutional.

And you said if Trump failed to act while he could, then he'd leave the public with no choice but to fight a desperate bloody war.

Rhodes says yes, but it's not a foregone conclusion.

"I think Biden should be impeached and removed from office, that's what should happen next."

Rhodes says his whole plan would have had the state Legislatures selecting electors directly.

And so they wouldn't elect Biden?

Rhodes says they could've picked Biden.

Rhodes: "My goal was to have the states do their duty constitutionally, however it shook out. I think Trump won the election and think covid was used as an excuse to facilitate fraud and the removal of Trump."

There's a pause in the connection, but we're back.

And we're into the second open letter to Trump where Rhodes talks about how he can't concede the election and leave the presidency in the hands of a fraudulent Chinese Communist puppet.

And if Trump listened to you, he would have stayed in power right?

Rhodes says you don't REALLY know if it goes back to a "constitutional election" where the Legislatures just picked the electors.

And then there's part of the transcript that literally says the people would need to rise up in "insurrection (rebellion" against the Biden, a Chi-Com puppet.

Rhodes says that's correct.

There's some particularly inflammatory language about going to battle, etc.

Rhodes: "Under the First Amendment I have the right to speak my mind."

Do you believe Mitch McConnell is an agent of the Chinese government?

Rhodes: "I think he with other American elites have made a deal with the devil."

Then clarifies that the Chinese government is the devil.

And some back and forth about Jan. 6.

There's a question about the language around Oath Keepers having to do it on their own if Trump didn't act.

He says, yeah, because Trump would no longer be president and everyone would be on their own. Like they are now.

Talking about the Oath Keepers security details, Rhodes says that he was telling them to stay out and talks about idle hands being the devil's workshop.

He's explaining why he called Oath Keepers to him.

And now we're getting into whether the plea agreements are any use here. Miller's objecting.

Judge McKenna overrules, adding that he understands the limitations of plea deals.

Rhodes says they were threatening people to coerce confessions.

Confronted with some more of his previous comments, Rhodes reiterates that it's his free speech right to say these things.

Also notes that Jan. 6 was mostly peaceful.

Now back to the dinner at Olive Garden.

Rhodes says, basically, that they just had dinner and didn't discuss anything like a further fight against the government.

That's it for the cross, back into redirect from Miller.

Miller asks what he means when he says "fight." Is it limited to physical fighting?

No, Rhodes says.

Miller asks about a video apparently showing a Chinese professor bragging about how they control the inner-workings of the U.S. Govt and how Trump is a problem.

Rhodes says it's evidence they had a whole plan to steal the election from Trump and that Biden's a puppet.

Miller asks about the actions of the other Oath Keepers.

Rhodes concedes that one of the members grabbed a capitol security police officer and screamed at him "GET OUT OF MY CAPITOL!"

But he says he just lost his temper a little bit.

Miller asks Rhodes to provide a legal analysis on whether his version of the story makes anything he did illegal.

It gets an objection that's sustained.

Judge McKenna says Rhodes isn't a lawyer.

Then Miller asks Rhodes if he ever intended to break the law when he went to Jan. 6.

He says no, they even went as far as checking the allowable length of knives.

And that's it for the Stewart Rhodes.

Taking a comfort break.

They'll be back at 11.

Rhodes did answer the question, though, about the whether he did anything illegal in his mind.

He said no, it was all just free speech and clearly didn't cross the line set in Brandenburg v. Ohio.

Basically, was it likely to incite “imminent lawless action"?

Rhodes says no.

And we're back with John Eastman.

As we get started Dudukgian registers an objection to the whole thing, noting he needs to keep it limited to his legal analysis.

Watch here: stream.akcourts.gov

Eastman explains that "mere advocacy" for overthrowing the government is protected speech. He says it calls for advocacy for imminent action.

Eastman (no relation, that we know of, to Rep. Eastman) basically says that the disloyalty clause was Alaska trying to suck up to the U.S. during the Red Scare.

Now into the Oath Keepers' bylaws. He says it's nothing like the Communist Party, according to the bylaws.

And now Eastman is talking about how all Rhodes' speech was just free speech. He notes that there were several calls to action, but it was just lawful actions.

Eastman says all the calls and references to violence was just because they were concerned that Antifa was going to Benghazi the White House.

He says he thinks that's protected conduct.

And on Rhodes' comments about how if Trump doesn't stop the certification of the election how there will be a bloody violent civil war, Eastman says it's protected.

"It's clearly speaking in the abstract and it's clearly speaking about future conduct perhaps months away"

And now we're talking about how all the references to the overthrow of the Serbian empire, Eastman says it's also not incitement.

"That is clearly talking about what should be done" in response to "stolen election."

He says it's all protected.

Eastman says stuff posted to a website or other statements don't count because you can't be sure everyone in the membership read it.

Eastman says that even the "violent, bloody civil war" comments is completely fine because there wasn't a specific time for the violent, bloody civil war.

"This is vintage Brandenburg stuff."

Eastman continues, says the Rhodes letters are just an "incitement to legal action."

Also, this is some pretty important background about Eastman: cbsnews.com/news/john-east…

He says you need to look at all this through the lens of understanding the communists trying to overthrow the government.

He says even if Rhodes' letters are inciting violence, they don't rise to the level of inciting violence to overthrow the U.S. government.

He also says the whole proposal to put militias in charge of a new set of elections was about it being a few weeks away, therefore not imminent.

Eastman says all the calls for "torches and pitchforks" IF the elected officials don't "do the right thing" is fine.

"Do the right thing" is a call for lawfulness.

"torches and pitchforks" isn't precise in time or actors.

"Vintage Brandenburg stuff."

Eastman says that all the violent civil war talk is really just a prediction of the future, not an incitement.

"It makes it more protected, rather than less," Eastman says.

CU regents call John Eastman “an embarrassment” as Jan. 6 committee includes ex-professor in criminal referral : denverpost.com/2022/12/19/joh…

Eastman says Rep. Eastman can't be held liable for the actions that happened in a small group chat. He says it had to be clearly communicated to everyone. Adds, though, it'd still be protected even if he did hear it.

After some more questions, Eastman says that basically all this talk about a "violent bloody civil war" is fine because it contained "if" in the statement. Says that the violent bloody civil war isn't imminent if Trump acts.

On a Rhodes quote: "The final defense is us and our rifles."

Eastman: "We're still talking about things that are months away. ... That's abstract discussion of the necessity of doing these things. It's not an incitement. ... and therefore protected under Brandenburg."

Eastman says Rhodes' "Stand now or kneel forever" statement is totally abstract and "Vintage Brandenburg"

Comfort break for one of the Eastmen.

Then we're into another Oath Keepers email.

Eastman says there are calls to action and most are for lawful actions.

Now into the references to all the Quick Response Force where they talked about being ready in the event of the worst-cast scenario.

Eastman says it's all fine because it's abstract. Trump calling them up, he says, would also have been lawful.

On some other statements, Eastman says it's—at best—an "incitement to street violence" not the overthrow of the U.S. Government.

Eastman: "It's civil disobedience at best."

Now Eastman is calling into question the plaintiff's expert witnesses. There's some back and forth over whether he can fairly evaluate their bias.

We get into the first question, though, and he says they give to a bunch of Democrats and far-left groups.

There's another objection.

Judge McKenna sustains it. He says this isn't a case about political party affiliations.

Joe Miller starts arguing that calling them "far-right" groups is political.

Judge McKenna says the core of the case is whether Oath Keepers tried to overthrow the government. Their political affiliation doesn't matter.

And do the Oath Keepers advocate for the overthrow of government?

Eastman says the bylaws say no overthrow, so therefore they don't support it.

Eastman says it's all about the bylaws.

He says the Oath Keepers are the exact opposite of an anti-government group.

Miller asks if the Thomas Jefferson quote: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Is protected speech or not.

Eastman says it's protected because it's all hypothetical.

And we're at break to 1:15.

When we come back, Eastman the lawyer will be on cross with the plaintiffs.

We've still got the reminder of direct and then cross with Rep. Eastman.

Getting done with things by 430 might be a little optimistic.

We're now into Dudukgian's cross of attorney Eastman.

First question is about how much he's charging.

$500 an hour.

And how much total?

$8,000 total.

And have you just been a witness?

I'm also an attorney for him as a law firm.

How much has that been?

Not sure.

Has he personally drafted any of the briefings in this trial?

Yes, but Miller objects.

Judge McKenna says to keep it limited.

Has he ever been an expert witness in court before?

No, but he's testified to state legislatures.

But to a court is a first for you?

Yes.

Now Eastman is talking about the cases that were important to him.

Brandenburg and NAACP v Clayborn

But you didn't even reference NAACP v. Clayborn in your expert report?

Eastman says Brandenburg takes care of everything, so you don't even need to get to the NAACP case.

Eastman concedes that some of the signal chats either got close or may have actually crossed the line under Brandenburg, which is why he falls back on NAACP v. Clayborn that apparently draws a line between a group's leadership and its members.

Is seditious conduct protected?

No.

Is violence protected?

No.

And would violence in service of seditious conduct be protected?

Eastman says he sees no such evidence of it.

There's some back and forth about his reading of the NAACP case, which Eastman says requires members to specifically intend to help the groups. Has there been any cases where his standard has been applied?

No, not that he's aware of.

Then Dudukgian brings up several other state cases similar to the Eastman one where they're trying to be barred from holding office.

Eastman says there's a difference there. Here it's about Eastman's association with the group.

And you said you're a law professor?

Not for 20 years.

Eastman says no legislators have been disqualified under these disloyalty rules.

Dudukgian brings up a specific case in New Mexico where an insurrectionist was disqualified from running for office.

Eastman says, oh yeah. That one.

It's this one: kcra.com/article/new-me…

There's talk about the meaning of "insurrection" in the 14th amendment. Dudukgian asks about the conclusion in this case.

Eastman says Dudukgian had asked about the authors' intention behind the 14th. Says what a judge decides 150 years later doesn't prove their intent.

Dudukgian asks if he understands that "intimidation by numbers" can count as insurrection.

He's not sure. He says what's most important is to view the 14th Amendment under the lens of the Civil War, where there was a great deal of violence.

And you were Trump's attorney, right?

Miller objects.

Dudukgian says it's important to establish the quality of Eastman's opinions when every court has rejected them.

Judge McKenna cuts it off. Says it's not needed.

That's it for Dudukgian.

Miller asks what the purpose of the Civil War was.

Southern states attempting to separate from the U.S.

And now we're back to the cross examination of Rep. Eastman.

Plaintiffs are playing some video.

Miller has an objection.

Do you think the capitol police have "gone downhill"?

Yes, because they're snooping.

And do you think the FBI is the "largest criminal organization" in the country?

Some people believe that.

But you tweeted that out, right?

I retweeted Dinesh D'Souza.

Then there's talk about members of the Oath Keepers are Oath Breakers.

Eastman says Ray Epps—the target of Oath Keepers conspiracies/"true conspiracies," depending on who you ask—didn't keep his oath.

And what about Stewart Rhodes?

I have no opinion.

Is part of your oath a duty to ignore the results of a presidential election if you think it's unconstitutional?

I don't know what you mean by "ignore the results of a presidential election."

Do you think others at Jan. 6 believed that?

Eastman says he doesn't know.

Now we're into more question about whether Eastman is an antisemite. Specifically, he tweeted out a website run by Carolyn Yeager, a big-time antisemite.

Eastman says he wasn't posting it to post to Yeager, but he just wanted to make sure it was an accurate quote of Hitler.

Eastman kinda mealy-mouths a lot of that. He apparently said the quote was there to be "fair to Hitler" and not allow people to pretend it was written after Biden took office. Did he ever tell anyone that?

No.

And do you know Yeager is a big-time antisemite holocaust denier?

Eastman says he has zero clue about who Carolyn Yeager is.

Several questions about antisemitism.

Eastman says he has no idea about it.

And there's some back and forth about disparities between Eastman's account of Jan. 6 and his buddy Pat Martin, who testified yesterday.

While Martin said what he saw was clearly not a constitutional to contest the election, Eastman says he has no idea. Didn't see it.

And there's some back and forth about what prompted Eastman on deciding to go home. He says he was never sure about the curfew going into effect (IIRC Martin says he did see something about it) and decided to go home because it looked like nothing was gonna happen.

And there's some post-Jan. 6 message Eastman posted that suggested Trump did nothing to incite the insurrection and that it was Antifa that did it. Was it about the Oath Keepers?

Eastman says no. "It was clear there were provocateurs in the crowd."

You weren't there to provide security?

No.

And not humanitarian relief?

No, but I would have been happy to do that and provide security if called upon.

Was it in response to Trump's call to see him speak?

Correct.

And why did he go from the Trump speech to the U.S. Capitol?

Miller objects, Judge McKenna overrules. It's basically there as a refresh Eastman's recollection thing.

Now we're going to the Trump's "they rigged an election like they never rigged one before."

Eastman's memory has been recollected.

Then there's some more words about "fighting like hell or we won't have a country anymore."

Eastman's not sure what it means.

And then afterwards you went to the U.S. Capitol after the speech with your friend Martin, right?

Yes.

That's it for Dudukgian's cross of Eastman.

15 minute break.

Back at 2:35 for redirect that Miller says will be 30-45 minutes, and then that should be it for the day.

Now we're into redirect.

Miller leads off with the Carolyn Yeager links. Does he know about her "alleged antisemitism"?

No.

Miller does linking to a website constitute an endorsement of the site?

Eastman says no and if that were the case, then he wouldn't link to any websites.

After some long technical issues, Miller asks if Trump's words caused him to go to the U.S. Capitol after the speech.

Eastman says no, he had already planned to go there after the speech.

Miller asks about FBI's impact on the election.

Eastman talks about big tech's and the election. He suggests 6 million votes "that were shifted" by Big Tech somehow.

He says it's why 2020 was "not worthy calling an election. ... It's not a constitutional election in any way."

Eastman: "The FBI was paying Twitter, a member of Big Tech, to censor information."

How do we know this?

He says a NY Post article.

And then we get into Ray Epps again. The only Oath Keeper that Eastman has condemned.

There's a bit of back and forth about how much this can be asked about right now.

Had to run to the door real quick but the long pause, feedback and silence leads me to believe they're attempting to play the Ray Epps video now.

Basically, Epps was recorded saying that they should go inside the capitol and protest.

The MAGA conservative crowd has taken it to suggest that he is the sole instigator of the whole insurrection.

(But, also, it wasn't an insurrection they argue.)

Eastman says Ray Epps' status in the Oath Keepers was one of things he was asking about when he emailed them. Wondering if he'd be kicked out.

He never received a response.

And now Miller is asking Eastman to rank in the order of constituents' concerns about the 2020 election.

He says pre-election, it was only a few. Post-election, he says, a lot of people were worried.

And was raising those concerns part of your duty representing them?

Yes.

Miller asks what he was asking for with the delay.

Eastman says the voter fraud concerns should have been heard and reviewed. He says he didn't want a wholesale stop on it.

Do you consider yourself to be anti-government?

No.

And where does our loyalty rest?

To the U.S. Constitution.

Have you ever been in an anti-government group?

No.

Do you want to overthrow the government?

No.

Are you using your position to overthrow government?

No.

And what's your biggest concern about his case?

My constituents having their voice in government.

Eastman says had he been in Congress, he would have been "a default no" to certify states where the Legislatures hadn't certified the elections and with other cases of fraud, unconstitutional, etc.

Eastman says his greatest concern in the country right now is that the freedom of speech is under attack.

And that's it for Eastman's redirect.

And now they're talking about timing for tomorrow's closing arguments.

It's gonna be at 9 a.m.

Miller asks they start early at 8 a.m. because he's gotta drive back up to Fairbanks.

Plaintiffs object.

Miller then suggests that the plaintiffs could just do their closing this afternoon.

Dudukgian objects. He notes Miller has still yet to submit his supplemental briefs. They need time to review it.

Judge McKenna splits the difference.

Start at 8:30.

He says each side gets 45 minutes.

Plaintiffs and Miller agree it down to 30 minutes.

Then some back and forth over evidence and other filings. It's been a hallmark throughout the trial.

Miller objects to submitting the entire transcript of the Rhodes trial.

Judge says he just needs the parts that Rhodes talked about personally. Doesn't need the whole thing.