Thread by @mattbuxton

Alright! The final day of the trial in the lawsuit seeking to disqualify Rep. David Eastman for his membership in the Oath Keepers is underway.

After a week of testimony, which included OK founder Stewart Rhodes and Trump attorney John Eastman, we have closing arguments.

#akleg

Watch along here: stream.akcourts.gov

Here's the thread from yesterday, where we heard the cross examination of Rhodes and the... interesting legal thinking of John Eastman that everything is pretty much fine and protected.

The key thing to keep in mind here is that Judge McKenna has laid out a straightforward test here:

Is David Eastman an Oath Keeper?

Are the Oath Keepers a group that had advocated concrete action to or taken part in an effort to overthrow the U.S. Government by violence?

And it's all based on Alaska's Red Scare-era disloyalty pledge:

Plaintiff's attorney Goriune Dudukgian is leading off his closing arguments. He's going over the basics of the case

Dudukgian: "There's really no defending Oath Keepers' actions on Jan. 6. It's well-established that the First Amendment doesn't protect violence."

Dudukgian says even John Eastman, the expert witness that Joe Miller brought in to opine on the First Amendment issues (and who also just got criminal referrals from Congress), conceded some of their speech crossed the line and didn't take into account their actions.

Running down various Rhodes quotes that Dudukgian says are incitement. Like:

"We must now do what the people of Serbia did when Milosevic stole their election — refuse to accept it and march en-mass [sic] on the nation's Capitol."

And this quote:

"Either Trump gets off his ass and uses the insurrection Act to defeat the ChiCom puppet coup or we will have to rise up in insurrection (rebellion) against the ChiCom puppet Biden. Take your pick."

(Ah, I guess it's ChiCom, no hyphen)

Dudukgian notes that Stewart Rhodes, a person convicted of seditious conspiracy, testified that he didn't commit seditious conspiracy. He says he tried the same defense from his trial.

Dudukgian: "The jury didn't believe him and this court shouldn't believe him, either."

And now picking apart the testimony of Guandolo, the anti-Muslim guy who Miller brought in as an expert on terror groups.

He says his testimony—which was Jan. 6 was a false flag and Mitch McConnell is a ChiCom agent—was one of the most outrageous things he's heard in court.

Dudukgian notes that the Jan. 6 insurrectionists did what even the Confederates didn't accomplish: occupying the U.S. Capitol building.

Notes despite Guandolo's testimony that it was like a jovial tailgate party, a bunch of people got hurt and six people died.

Dudukgian: These oath Keepers admitted not just to trespassing. They admitted they were part of a coordinated effort to prevent the transfer of presidential power.

Dudukgian says any effort to delay an election and interfere with the peaceful transfer of power, keeping Trump in office past the end of his term should be seen as tantamount to an attempt to overthrow the U.S. Government.

Dudukgian says a lot of the defenses of the Oath Keepers are not credible, like the "It was just the leadership doing it."

Says by their logic then Al Qaeda wouldn't be considered a terrorist organization and that its attacks were just the work of individuals.

Dudukgian goes over some of the case law arguments.

He notes that the ability to appear on a ballot or run for office is not a protected right that deserves a higher level of protection.

Eastman can associate all he wants with Oath Keepers, he just can't run for office.

And now we're going over Eastman's actions on Jan. 6.

he's pointing out that even when it was clear a bunch of crimes were going on, they stayed at the Grant Memorial.

He says Eastman's pal Pat Martin saw it all for what it was.

Dudukgian notes that after everything, Eastman has refused to renounce the Oath Keepers or denounce its members.

He closes by arguing that Eastman should have been barred from ever appearing on the ballot.

Eastman's attorney Joe Miller is now off with his closing arguments. He says no one has come close to proving the Oath Keepers ever even considered overthrowing the U.S. Government.

He says this entire case is purely a First Amendment case.

Miller goes after expert Jon Lewis' testimony that said, in his professional opinion, that he thought Eastman was both an antisemite and a white supremacist.

Miller's whole argument so far has basically been: Would a racist antisemite do this?

Yesterday, Miller asked Eastman if he was a racist antisemite and Eastman said he wasn't. So there.

Miller's now going over what he says are the elevated standards for this. He says you have to prove that Eastman knew the Oath Keepers were a seditious, anti-government group when he joined more than a decade ago.

Miller then goes over the "so-called expert testimony" (I was wondering when we'd hear that) offered by the plaintiffs, which he says are bunk because they called Eastman an antisemite when Eastman says he's not.

He also says the experts on violent domestic terrorism are not qualified because they didn't look at the Oath Keeper's claimed humanitarian experts.

Then he bashes them because they quoted the Anti-Defamation League, which he previously suggested is an anti-white group.

Miller notes that the Houston mayor hugged Stewart Rhodes.

"They chose not to talk about it, why? Because Mr. Lewis characterized it as a terrorist organization!"

Miller is incredulous that any organization that includes cops, service members, veterans, etc could ever be considered a terrorist group.

Miller also says that Oath Keepers can't be considered a racist organization (or an organization with some overlap with racists at least) because Stewart Rhodes is a quarter Mexican.

Miller: "How can so-called experts not be aware of their enormous humanitarian relief" and personal security?

"We're going back to the communist era!"

Miller says their whole evaluation of the Oath Keepers focuses too much on Jan. 6. He says they didn't get arrested at any of the events in the decade before Jan. 6.

Miller: "They're approaching this with extreme bias! ... There is a movement to demonize anyone who contests that election. ... We don't bend our knee when we see things that are wrong."

He says contesting elections is very American.

Miller: "Trust me, this case is far bigger than Rep. Eastman."

He says free speech in the entire country is at risk because of this case and cases like this.

Miller is now going over the testimony from his expert, John Guandolo. There was an interview played at the end where Guandolo was saying he was surprised they didn't kill representatives.

"It was actually free speech! ... It reflects how important these issue were to him."

Miller on Guandolo's statements around Jan. 6 says he's "like millions of other Americans--and the majority of the Republican party--was very upset that the vote results needed to be looked at."

The statement:

Miller then talking about how the Oath Keepers are "dormant." He says you can't have a group when it's "dormant."

Miller then addresses several of Rhodes' statements calling for a "bloody revolution": "It's all contingent!"

He says all the allusions to extreme violence and insurrection were all caveated by IF.

IF Trump doesn't act (he didn't).

Miller says obstructing government isn't the same as overthrowing government.

He says IF there was incitement to violent action, it still doesn't count because they didn't intend to overthrow the U.S. Government. They just wanted to DELAY the transfer of power.

Miller on Eastman's purpose for going to Jan. 6: They were "there for one reason and that's the oath to the constitution!"

And now we're back to the Oath Keepers helping the capitol police. He says you've gotta take all the actions of Oath Keepers as a whole and that they were actually helping... "Except for those that went in and acted unlawfully"

Miller says it's unfair to only pin the bad stuff on the Oath Keepers and not the good stuff, like the jovial tailgate atmosphere.

And then Miller says Eastman just wasn't satisfied with the outcome of the election, says a majority of Republicans weren't satisfied. What are we gonna do? Call ALL Republicans insurrectionists?!?!

"He just wanted the laws followed and that's what millions of Americans wanted."

Miller: "Not a scintilla of evidence there was any insurrection."

Miller says that Eastman didn't see any violence, his buddy Pat Martin did because he had a camera with a telephoto lens.

He says what the DID see is all the "provocateurs." (Antifa, which Martin read a book about so he knows better than most.)

And now Miller goes back to the Oath Keepers' bylaws, which he says has a clear no insurrection rule so there was clearly no insurrection.

Concedes: "There's some speech that is not nice."

And then wraps up his closing arguments with a Jefferson quote.

Now we're over to Lael Harrison, the attorney for the Division of Elections.

The Division of Elections basically argues that they shouldn't be expected to enforce the disloyalty clause.

She says the last week of testimony proves why the Division of Elections should be involved.

She says the Division of Elections is designated as a neutral organization and she says that role is important for the state to maintain the legitimacy and trust of the public.

She notes the Division still will not take a position on Eastman's legitimacy.

The Division of Elections didn't have the tools or resources to properly investigate the claims against Eastman.

She makes a Rule 50 motion to end the case dealing with the Division of Elections' involvement. She says that even though their appeal was technically timely, they didn't do anything substantive with it until after the window closed.

She says the issue was moot by that point

I'm not really sure how much this argument will have on the overall status of Eastman.

The Division and Miller have, however, argued that the Legislature should be where these kinds of issues are taken up.

Harrison says that the plaintiff's ask to reverse the decision to put Eastman on the ballot doesn't matter because he's already been placed on the ballot and won the election.

"Reversing it does nothing."

He's already won, she says.

She says what they're really seeking is an injunction to bar Eastman's election from being certified.

Harrison says the court should have deferred to the Division of Elections' interpretation of its own regulations, which she says is to just review candidates' qualifications and NOT a candidates' disqualifications.

Harrison says the Division of Elections shouldn't be involved here. That the only real question is whether or not Eastman should be disqualified. That's an issue between Plaintiff Kowalke and Rep. Eastman.

Harrison asks that the court gives very clear instructions to the Division of Elections. She says they'll need a clear court order on what they should do with the certification of the election or certify a different winner.

Basically, what she's saying, is don't just remand this to the Division of Elections for a determination. Give them very clear directions about how this is all supposed to be resolved. Don't leave the Division of Elections with a political quandary.

Now into rebuttal by Dudukgian.

He says there was no delay in filing the case.

As for the Oath Keepers, he goes after this latest claim by Eastman that you can't be in a group that is "dormant."

He notes that Rhodes, its founder, didn't say it was dormant but that it has an acting leader and five board members. He notes other branches have dissolved.

He says the fact that Rep. Eastman didn't get a response from his email to Oath Keepers board isn't evidence of anything.

"Imagine if I sent a letter to Tesla asking if they were going to fire Elon Musk for his recent statements."

He notes John Eastman's testimony is all flawed because he was not only the "legal expert" but was personally working on Eastman's filings in this case.

Says John Eastman's work on the filings meant all his testimony was biased as it's not like he can speak ill of his client.

Dudukgian says Eastman's continued membership in the Oath Keepers, refusal to denounce the group and everything else is a "manifestation of intent" that shows Rep. Eastman is not eligible to hold office under the disloyalty clause.

Now onto rebutting the state's position that they had no way to acquire information on Eastman and the Oath Keepers, Dudukgian says they could've gone to the Legislature where they had hearings on it (with experts that Dudukgian has called).

And talking about the Division of Elections' timing argument, Dudukgian says they failed to properly notice the administrative appeal. He says the Division of Elections' handling of the lawsuit has been shifting and created the timing problems.

Dudukgian on those shifting arguments says the Division of Elections opened by arguing they had no duty to enforce the disloyalty clause but once Judge McKenna found it had to be enforced somehow, they said they had actually done their job.

Dudukgian says the case has essentially "been frozen in time" since before the general election. He says the judge can find that Eastman should have never been on the ballot in the first place.

It's not moot because there's still a solution: Certify the 2nd place finisher.

Dudukgian also notes that the court can look at legal interpretations in an administrative appeal, which is contrary to the state's argument that the court should have shown deference to the Division of Elections' interpretations of its own regulations.

And that's it for the closing arguments.

Judge McKenna says he'll have a final order that touches on the Division of Elections' order for dismissal. It'll have clear instructions for the Division of Elections, if they need them he says.

No time frame for a decision mentioned before the stream cut off.

Really hard to say when a decision will be out.

Judge McKenna has previously expressed the importance of getting it done quickly so the appeals to the Alaska Supreme Court can be made.

Session starts on Jan. 17, 2023.