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Part 6 of 8

Conclusion

Despite its long slumber, Section Three of the Fourteenth Amendment is alive and in force. It remains fully legally operative. It is constitutionally self-executing—that is, its command is automatically effective, directly enacted by the Constitution itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional provisions. It sweeps in a broad range of conduct attacking the authority of the United States. And it sweeps in a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion. It is enforceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three. All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including courts.

All of this has obvious, important, and immediate legal implications.

We the People should honor and vigorously enforce this important provision of our Constitution. It should not be allowed to become a dead letter from disuse. Its purpose, while inspired by specific historical events, is one of general and continuing importance. The idea that men and women who swore an oath to support the Constitution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by supermajorities of both houses of Congress) remains a valid, valuable, and we think vital precept. Disqualifying candidates and official from office is not something to be done lightly, but Section Three was not enacted lightly. Section Three remains part of our Constitution, part of our nation’s fundamental law. If we honor the Constitution, we must honor Section Three of the Fourteenth Amendment.

That means that those who possess the power and duty to apply and enforce Section Three have a constitutional responsibility to do so, fairly but vigorously. If state election boards or secretaries of state determine that a candidate for state elective office or a candidate seeking to represent that state in Congress is constitutionally disqualified from holding that office, those state authorities should exercise the state-law powers they possess to remove ineligible candidates from the ballot. If the House or Senate determines that a person elected to serve as a member of such body is constitutionally disqualified from holding such a position, they should refuse to seat or expel that person. And if a candidate for President, or an already-elected President, is constitutionally disqualified from office by Section Three, then that disqualification should be enforced by state election officials, by electors, by Congress through the impeachment process, and by the Vice-President, cabinet and, Congress in carrying out the Twenty-fifth Amendment. In any and all these situations, and more, where the enforcement of Section Three’s constitutional disqualifications is properly presented to the judiciary in a case over which a court possesses jurisdiction, it is the constitutional duty, province, and responsibility of federal and state judges exercising the judicial power to faithfully apply and enforce Section Three according to its terms.

No official should shrink from these duties. It would be wrong – indeed, arguably itself a breach of one’s constitutional oath of office—to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one’s own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution.

Importantly, it is also wrong to shrink from applying Section Three on grounds of “democracy,” whether on the premise that Section Three should be ignored or narrowly construed because it limits who voters may choose, or on the premise that only the voters should enforce Section Three. It is true, as we have said, that limiting democratic choice is not something to be done lightly, but it is something the Constitution does, and for serious reasons.452 The Constitution cannot be overruled or disregarded by ordinary election results. (And we note that there is particular irony in invoking democracy to shrink from applying Section Three to the insurrectionists of 20202021, who refused to abide by election results and instead sought to overthrow them.)453

Finally, we believe it would be wrong for courts to refuse to decide cases, otherwise lawfully within their jurisdiction, concerning Section Three on the pretense that such matters are “political questions.” Outside of certain exercises of power to exclude, expel, or impeach and try, committed to each House’s judgment, Section Three is enforceable by the judiciary as well as by other officials.454 Section Three’s terms embody rules and standards, enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial.

We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former president Donald Trump is at the top of that list, but he is not the end of it. As we have said, it is not for us to say who all is disqualified by virtue of Section Three’s constitutional rule. That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country. Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Constitution’s legal standard to the facts before them in a given instance. Our point is to emphasize Section Three’s continuing force, and broad sweep.

At all events, if a President or former President of the United States; a current or former officer of the federal executive branch; a Member or former Member of Congress; a current or former state legislator or state executive official; or a current or former federal or state court judge, planned, supported, assisted, encouraged, endorsed, or aided in a material way those who engaged in the insurrection of January 6, or otherwise knowingly and willfully participated in a broader rebellion against the constitutional system, such persons are constitutionally disqualified from office. In such situations, Section Three’s constitutional disqualifications can, should, and must be carried out.

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Notes:

1 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 85 (2019).

2 U.S. Const. art. XIV, sec. 3.

3 See infra note 228 and sources cited there. Electronic copy available at: https://ssrn.com/abstract=4532751

4 Akhil Reed Amar, America’s Constitution: A Biography 377 (2005); see also Eric L. McKitrick, Andrew Johnson and Reconstruction 176179 (1960); Allen C. Guelzo, Reconstruction: A Concise History 25 (2018).

5 The most important scholarly articles (to which we are deeply indebted) are Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment.. 87 (2021); Myles S. Lynch, Disloyalty and Disqualification: Reconstructing Section Three of the Fourteenth Amendment, 30 William & Mary Bill of Rights J. 153 (2021), both of which were written before the events of January 6, and Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A Howto Guide, Lawfare (Jan. 19, 2021), available at https://www.lawfareblog.com/disqualifyi ... lshowguide.

6 11 F. Cas. 7, 2227 (C.C.D. Va. 1869) (No. 5,815).

7 Eric Foner, Reconstruction, 18631877, at 260 (1988).

8 Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment, Volume 1 (2023, University Press of Kansas).

9 See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L. J. 1113, 11241148 (2004); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857, 872883 (2009); William Baude & Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U Pa. L. Rev. 609, 624625 (2021); William Baude & Stephen Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 14561460 (2019). For purposes of this article, we can bracket any differences in emphasis between Paulsen’s objectiveoriginalmeaning originalism and Baude’s originallaw originalism.

10 We have used such examples before. Paulsen, Rules for Its Own, supra note 9, at 901902; Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: UnWriting Amar's Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1421 n. 68 (2014); William Baude, Jud Campbell, & Stephen Sachs, General Law and the Fourteenth Amendment (Jan. 31, 2023) at 6768.

11 We have used this example before, too. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839840 (1993); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 23802381 (2015). See also Baude, Campbell, & Sachs, supra note 10, at 66.

12 Indeed, for what it is worth, the legislative history of Section Three confirms that this is what the authors of the Fourteenth Amendment did. Earlier drafts had limited the Section’s application to the “late insurrection.” Later versions dropped this limitation and generalized Section Three’s application to “insurrection” and “rebellion.” See Cong. Globe, 39th Cong., 1st Sess., at 276768, 2770 2869, 2921; see also Mark A. Graber, Rewarding Loyalty (?) and Punishing Treason Through Disenfranchisement and Bans on Officeholding: Section 3, at 34 (unpublished chapter, forthcoming in The Forgotten Fourteenth Amendment, Volume 2, University Press of Kansas) (documenting this development).

13 Infra Part IV.A.

14 See, e.g., Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 908909 (1994) (making this point about the disqualification of some senators and representatives from eligibility for certain appointed offices posed by the Emoluments Clause of Article I, § 6, cl. 2); William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J. L. & Pub. Pol’y (forthcoming 2023) (“Sometimes rules go beyond their reasons; a rule can be overbroad compared to the reasons for enacting it. And sometimes rules are underbroad; a rule cannot quite do all the things that you might want to do given the reasons for enacting the rule. Textualism recognizes that when the judge enforces the law, the law’s rule might sometimes be different from what the people who enacted the law would have wanted had they thought about the situation.”). For an extended discussion of the abuse of arguments from inconvenience, see infra Part II.C.2.a (discussing Chief Justice Chase’s appalling opinion in Griffin’s Case).

15 Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457, 14861490 (1997) (discussing privilege against selfincrimination).

16 David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 58 (2015); see also Adam M. Samaha, Originalism's Expiration Date, 30 Cardozo L. Rev. 1295 (2008).

17 See Baude & Sachs, Grounding, supra note 9, at 1487 (responding to Strauss).

18 For a rare example, see an argument made and rejected by the House during the exclusion of Victor Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935) (“It was also seriously contended by counsel that section 3 of the fourteenth amendment was an outgrowth of the Civil War and that such a provision cannot possibly apply to the present case”).

19 U.S. Const. amdt. XIV, sec. 3.

20 Act of May 22, 1872, ch. 193, 17 Stat. 142.

21 Act of June 6, 1898, ch. 389, 30 Stat. 432.

22 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 889892 (E.D. N.C. 2022) rev’d sub nom Carthorn v. Amalfi, 35 F. 4th 245 (4th Cir. 2022). This argument, too, was made and rejected by the House during the exclusion of Victor Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935).

23 The power in general of Congress by twothirds vote of each House to remove Section Three’s disability and the history of its exercise are the central themes of Professor Gerard Magliocca’s excellent article, cited supra note 5.

24 See generally Magliocca, Amnesty, supra note 5, at 112120.

25 Act of May 22, 1872, ch. 193, 17 Stat. 142.

26 Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022).

27 Id.

28 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 891 (E.D. N.C. 2022) rev’d sub nom Carthorn v. Amalfi, 35 F. 4th 245 (4th Cir. 2022).

29 Id.

30 See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896); Cummings v. Richmond County Bd. of Ed. 175 U.S. 528 (1899). See also Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 195201 (2015).

31 Act of June 6, 1898, ch. 389, 30 Stat. 432.

32 For instance, the D.C. Circuit’s recessappointments opinion in Noel Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013) aff’d only on alternate grounds, 134 S.Ct. 2550 (2014), leaned heavily on “this difference between the word choice ‘recess’ and ‘the Recess’,” arguing that “[a]s a matter of cold, unadorned logic, it makes no sense to [say] that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end it makes all the difference.” Id. But a majority of the Supreme Court did not share this view of the text. NLRB v. Noel Canning, 134 S.Ct. 2550, 2561 (2014).

33 For the brief legislative history of the 1898 act, see 31 Cong. Rec. 53675419 (1898).

34 U.S. Const. art. I, §9, cl. 1. (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”) For a scathing critique of the substance and purpose of this proviso, see, e.g., Paulsen & Paulsen, supra note 30, at 8183.

35 U.S. Const. art. I, § 2, cl.3.

36 U.S. Const. art. I, § 4.

37 U.S. Const. art. III, § 2, cl. 2.

38 U.S. Const. amend. XX, §2.

39 We thus part ways with Professor Magliocca here. Magliocca argues (in addition to versions of the points we make above) that Section Three’s second sentence cannot be read as authorizing Congress to remove future disabilities because this “would mean that Congress basically repealed Section Three of the Fourteenth Amendment in 1872. But Congress cannot repeal a part of the Constitution by itself: only a constitutional amendment can do that.” Gerard N. Magliocca, The January 6th Insurrectionists Do Not Have Amnesty, JURIST – Academic Commentary, April 13, 2022, https://www.jurist.org/commentary/2022/ ... ctionists/. See also Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1314 (N.D. Ga. 2022) (“’Congress has no power whatever to repeal a provision of the Constitution by a mere statute.’”) (quoting 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935), available at https://www.govinfo.gov/content/pkg/GPO ... df#page=75)

This strikes us as not quite right: If Section Three in fact authorized prospective removal of disqualifications arising from future acts of insurrection, a statute doing so would not be repealing a constitutional provision but exercising a power conferred by that constitutional provision—a power to terminate the provision’s ongoing legal effect.

40 Dr. Webster’s Complete Dictionary of the English Language 1116 (Chauncy A. Goodrich and Noah Porter, eds. 1864) (defining “remove” as “To cause to change place; to move away from the position occupied; to displace”) (quoted in Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022)).

41 But not ours! See Paulsen, McConnell, Bray and Baude, The Constitution of the United States (5th ed. 2022).

42 U.S. Const. art. VI.

43 We have borrowed this felicitous phrasing from John Harrison. Cf. John Harrison, The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 84 U. Chi. L. Rev. 203, 211 (1997) (“The Vesting Clause is a selfexecuting enactment; it lays down rules by saying what shall be.”)

44 U.S. Const. art. II, §2, cl. 5 (emphasis added).

45 U.S. Const. art. I, §2, cl. 2(emphasis added).

46 U.S. Const. art. I, §3, cl. 3 (emphasis added).

47 See Josh Chafetz, Democracy’s Privileged Few 168 (2007).

48 U.S. Const. amend. XIII §1 (emphasis added).

49 See Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 48–53 (2004) (documenting reactions of persons learning of their freedom immediately after ratification).

50 U.S. Const. amend. XIII §2 (“Congress shall have power to enforce this article by appropriate legislation.”).

51 U.S. Const. amdt XIV, sec. 1, 3. Nothing here turns on it, but Section Four of the Fourteenth Amendment, which repudiates rebel and slave debts while guaranteeing the legal obligation of the national debt, also seems to be selfexecuting. Section Two, which alters Article I, section 2’s rule for how Representatives “shall be apportioned,” presents a more complicated case. Its rule is immediately operative, like the rest of the Fourteenth Amendment, but its rule operates by changing an apportionment process undertaken by Congress. In practice, Congress has ignored it, see Michael Rosin, The FiveFifths Rule and the Unconstitutional Presidential Election of 1916, 46 Hist. Meth. 57 (2013); Amar, America’s Constitution, supra note 4, at 395; see also email from John Harrison to Akhil Reed Amar, quoted in id. at 611 n. 96, and it is hard to see how anybody else can realistically enforce it.

52 U.S. Const. amdt. XIII, sec. 2; amdt. XIV, sec. 5.

53 Indeed, Section One was added to an early draft of the Fourteenth Amendment precisely to ensure that state Black Codes would be unenforceable even if there were no federal legislation saying so. Baude, Campbell, & Sachs, supra note 10, at 3031, 6364.

54 Act of May 31, 1870 (First Ku Klux Klan Act), ch. 114 §§14, 15, 16 Stat. 140, 143. These provisions were largely repealed during the 1948 positive law codifications of Titles 18 and 28 of the U.S. Code. See Act of June 25, 1948, ch. 646, § 39, 62 Stat. 869, 993; see also Act of June 25, 1948, 62 Stat. 683; Lynch, supra note 5, at 206 n. 365. These codifications were not supposed to make substantive changes to the law, see generally William W. Barron, The Judicial Code, 8 F.R.D. 439 (1949), and so our best guess is that the revisers (mistakenly) believed the provisions to be obsolete. In any event, the 1948 codification bills were obviously not intended to preclude any other existing remedies for Section Three.

55 Professor Magliocca concurs. Magliocca, Amnesty, supra note 5, at 106 & n.101 (noting that “enacting enforcement legislation does not imply that legislation is required” and that the existence of Section Five of the Fourteenth Amendment does not imply that the other sections are not selfexecuting). Indeed, this is especially so because Congress may have been responding to the decision in Griffin’s Case (wrongly) holding that such legislation was required for Section Three to have operative legal effect. See infra Part II.C.

56 U. S. Const. art. III, sec. 3.

57 U.S. Const. art. II, sec. 4.

58 U.S. Const. art I, sec. 3 & sec. 4.

59 Indeed, for what it is worth, the legislative history supports this understanding. Section Three’s opponents criticized the proposal for its immediate consequences on former Confederates, and its proponents seemed to share the same understanding. For opponents, see Cong. Globe 39th Cong., 1st Sess., at 2900 (Senator Doolittle) (amendment “will have the effect of putting a new punishment, not prescribed by the laws, upon all those persons who are embraced within its provisions”); id. at 2916 (Senator Doolittle); id. at 2940 (Senator Hendricks) (complaining about immediate consequences); for proponents, see id. at 2919 (Senator Willey) (defending the amendment’s immediate effect because those affected had already “forfeited” their claim to participate in government “by their past conduct’); id. (they lost their "citizenship rights when they committed treason"); Cong. Globe 39th Cong., 1st Sess., App., at 228 (Senator Defrees); Cong. Globe, 39th Cong., 1st Sess. at 3036 (Senator Henderson) (defending the immediate effect of Section Three against the charge that it is a bill of attainder or ex post facto law); see generally infra Part III.AB. See also Graber, supra note 12, at 2627, 3537 (documenting all of these discussions).

60 U.S. Const. art. V.

61 U.S. Const. art. VI, cl. 2.

62 See Gerard N. Magliocca, Background as Foreground: Section Three of the Fourteenth Amendment and January 6th, at 14 n.42 (Mar. 2, 2023), https://papers.ssrn.com/sol3/papers.cfm ... id=4306094 (“Section Three was unprecedented in the sense that prior restrictions on serving in office were brightline rules (age and citizenship, for example) instead of standards”). On the other hand, the Constitution’s inhabitancy requirement, has proved far from simple in practice. See Jack Maskell, Congressional Research Service, Qualifications of Members of Congress (Jan 15, 2015) at 1318, https://sgp.fas.org/crs/misc/R41946.pdf. And there has been recent litigation about the requirement that the President be a “natural born citizen” as well. See Derek T. Muller, “Natural Born” Disputes in the 2016 Election, 85 Fordham L. Rev. 1097 (2016).

63 Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J. L. Ethics & Pub Pol’y 497, 511512 (2018).

64 Cf. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839 (1993) (mocking constitutional interpretation that engages in “the legal equivalent of the method my lab partner and I used in high school chemistry: first draw the desired curve; then plot the data; if time permits, do the experiment”); Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).

65 To be sure, the centralized, governmentadministered ballot did not come to American until the late Nineteenth Century and so of course states are not constitutionally required to run elections in this way. But if they do, Section Three governs how they carry out their duties.

66 U.S. Const. art. VI, cl.2 (“This Constitution … shall be the supreme Law of the Land”). See also U.S. Const. art. VI, cl.3 (“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”). The nature of the Constitution as supreme, binding law is of course fundamental to the argument for “judicial review,” as it is likewise fundamental to the argument for the obligation of all government officials to adhere to the law supplied by the Constitution and give its commands priority over any other source of law or legal duty. See generally Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003); see also William Baude, Severability First Principles, 109 Va. L. Rev. 1, 59 (2023).

67 We note that the determination by state officials that a candidate for election to the U.S. Congress is not disqualified—and may be elected—does not bind the respective houses of Congress, in the exercise of their independent Article I, section 5, powers to act as “Judge” of the “Elections, Returns, and Qualifications of its own Members” and refuse to seat prospective members it judges to be constitutionally disqualified by Section Three or other constitutional limitation. See also infra n. 96 and accompanying text.

68 Initial Decision, Rowan v. Greene, No. 2222582OSAHSECSTATECE57Beaudrot (Georgia Office of State Administrative Hearings, May 6, 2022).

69 Id. at 56.

70 Id. at 15. The January 3, 2021 cutoff is because that is the date that Representative Greene first took a constitutional oath. The Court also specifically rejected the argument that a Newsmax appearance on January 5, 2021, should be interpreted as a “coded message from Rep. Greene to her coconspirators to go forward with a previously planned incursion into the Capitol.” Id. at 16.

71 Final Decision, Rowan v. Greene, No. 2222582OSAHSECSTATECE57Beaudrot (Georgia Office of the Secretary of State, May 6, 2022).

72 Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1320 (N.D. Ga. 2022).

73 Greene v. Sec'y of State for Georgia, 52 F.4th 907, 909910 (11th Cir. 2022).

74 Hansen v. Finchem, No. CV220099AP/EL, 2022 WL 1468157 (Ariz. Supreme Ct. May 9, 2022) (nonprecedential disposition).

75 Id. at *1. The court did not cite any authority for this interpretation, but its argument does echo a fallacious argument made by Chief Justice Chase in Griffin’s Case, which we discuss at greater length presently. See infra Part II.C.2.d. The Arizona Supreme Court also made the additional suggestion that Article I, Section 5 gave Congress “exclusive authority to determine whether to enforce the Disqualification Clause against its prospective members,” id. We are skeptical of this point as well, see infra n. 96 and accompanying text, but in any event it would have only applied to federal representatives Gosar and Biggs, not the lead defendant, state representative Finchem. The individual houses of Congress of course have no Article I, Section 5 power, exclusive or otherwise, to determine the membership of state legislatures.

76 See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458460 (1990); id. at 469 470 (Scalia, J., concurring); see also Thomas Koenig & Christopher D. Moore, Of State Remedies and Federal Rights (May 29, 2023) https://papers.ssrn.com/sol3/papers.cfm ... id=4462807.

77 330 U.S. 386 (1947).

78 Id. at 391 (quoting U.S. Const. Art VI, sec. 2).

79 Id. at 393. To be sure, Testa and especially subsequent cases expanding it have been subject to powerful criticisms as a matter of original meaning, see Ann Woolhandler & Michael G. Collins, State Jurisdictional Independence and Federal Supremacy, 72 Fla. L. Rev. 73, 7883, 97105 (2020); Haywood v. Drown, 556 U.S. 729, 74267 (2009) (Thomas, J., dissenting). We bracket those criticisms here.

80 Hansen v. Finchem, No. CV220099AP/EL, 2022 WL 1468157, at *1 (Ariz. Supreme Ct. May 9, 2022) (nonprecedential disposition).

81 For instance, both President George Washington and President Franklin Roosevelt felt obligated to consider whether their Supreme Court nominees (Patterson and Black, respectively) were constitutionally disqualified by Article I, sec. 6. See William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 330, 333334, 355356 (2019).

82 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 914918 (1994) (discussing constitutional responsibility of political branches to enforce constitutional disqualifications from office irrespective of whether they give rise to a judicial case or controversy, and bemoaning the failure of all to enforce the Emoluments Clause); see also Baude, Black, supra note 81, at 355356 (similar); see also Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105 Yale L.J. 549, 562570 (1995) (noting parallel constitutional structural argument for obligation of both the President and the Senate to exercise independent faithful constitutional interpretive judgment in the course of carrying out their respective powers with respect to appointment); Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, 658660 (1970) (similar).

83 Or because Section Three was not yet adopted as law when they were appointed to office but became operative and disqualified them subsequently. This was the situation presented in Griffin’s Case, discussed presently. See infra at II.C.

84 Of course, federal courts, too, might possess jurisdiction, subject to the usual rules and conditions, to decide such lawsuits just as they will for state determinations of election candidate eligibility. See supra notes 7273 and accompanying text. And when doing so, they have the authority and duty to interpret, apply, and enforce Section Three.

85 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D101CV202200473 (1st. Dist. Santa Fe County, Sep. 6, 2022).

86 Id. at 46. The New Mexico Supreme Court dismissed Griffin’s appeal on procedural grounds. NO. S1SC39571 (N.M. Sup. Ct. Nov. 15, 2022). Meanwhile, the federal courts concluded that they lacked federal jurisdiction over two related claims by Griffin: an attempt to remove the state action to federal court, State ex rel. White v. Griffin, 2022 WL 1707187 (D.N.M. May 27, 2022) (denying removal because of plaintiffs’ lack of Article III standing) and a separate parallel suit attempting to enjoin the state proceedings, Griffin v. White, 2022 WL 2315980 (D.N.M. June 28, 2022) (finding lack of standing, lack of ripeness, and invoking Pullman abstention).

87 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D101CV202200473, at 2425 (1st. Dist. Santa Fe County, Sep. 6, 2022).

88 Id. at 3538.

89 The availability of a federal quo warranto action is curiously codified in the D.C. Code, §§ 16350102. Courts have generally construed this statute quite narrowly, holding that only the Attorney General may bring a quo warranto against a public official, and that he has broad discretion not to do so. See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984); Drake v. Obama, 664 F.3d 774, 784785 (9th Cir. 2011); SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 81 (D.C. Cir. 2015), aff'd, 580 U.S. 288 (2017). The Third Circuit recently dismissed a Section Three quo warranto against former state senator Doug Mastriano on this ground. Hill v. Mastriano, No. 222464, 2022 WL 16707073, at *2 (3d Cir. Nov. 4, 2022). See also Hill v. Perry, No. 222465, 2023 WL 3336648, at *1 (3d Cir. May 10, 2023) (dismissing similar suits by same plaintiff against Rick Saccone and Scott Perry).

90 An officeholder who has engaged in insurrection or rebellion or given aid and comfort to enemies of the United States has surely committed a “high Crime or Misdemeanor” within the meaning of Article II, section 4’s description of the scope of the impeachment and removal power. See generally Michael Stokes Paulsen, To End a (Republican) Presidency, 132 Harv. L. Rev. 689, 698702 (2018). Note that military officers are not subject to impeachment; they are subject instead to the President’s removal authority as Commander in Chief. Whether Congress could supplement that authority through appropriate legislation is an interesting question. See Zachary Price, Congress’s Power Over Military Offices, 99 Tex. L. Rev. 291 (2021).

91 Nguyen v. United States, 539 U.S. 69, 77–79, 81–82 (2003); Baude, Black, supra note 81, at 34647.

92 Buckley v. Valeo, 424 U.S. 1, 8–9 (1976) (per curiam); Morrison v. Olson, 487 U.S. 654, 668 (1988); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 487–88 (2010); NLRB v. Noel Canning, 134 S. Ct. 2550, 2557 (2014); see also Baude, Severability, supra note 66, at 3637.

93 U.S. Const. art. I, sec. 5, cl. 1.

94 395 U.S. 486 (1969).

95 See Powell, 395 U.S. at 520 n. 41 (reserving the possibility that Section Three disqualification is a qualification); see also P. Allan Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J. Pub. L. 103, 114115 (1968) (cited in id. at n.41) (arguing that it is); Powell, 395 U.S. at 521 n.42 (noting that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the standing qualifications”). We emphasize that questions of interpretation and application of Section Three are not in general “political questions” that cannot be decided by federal courts, simply because they have political consequences. Where the Constitution supplies a rule, and the rule’s application is not committed by the text of the Constitution to the judgment of one of the political branches, the courts are not disabled from deciding a case based on that rule. We simply think that the provision committing to each house the power to be the “Judge” of the “Elections, Returns, and Qualifications” of its own Members does not permit judicial review of determinations of each house that properly fall within these constitutional categories.

96 See Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 594598 (2015); see also Cawthorn v. Amalfi, 35 F.4th 245, 267273, 282284 (4th Cir. 2022) (Richardson, J., concurring); Greene v. Sec'y of State for Georgia, 52 F.4th 907, 912916 (11th Cir. 2022) (Branch, J., concurring).

97 U.S. Const. art. I, sec. 4. The same Clause also gives Congress the power to “make or alter” such regulations by legislation if it wishes. Two relatively recent Supreme Court cases have invalidated state ballot eligibility rules for members of Congress that attempted to impose congressional term limits. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001), and Judge Richardson relies on these cases to argue that states cannot judge the qualifications of congressional candidates, Cawthorn, 35 F.4th at 273275 (Richardson, J., concurring). Putting aside whether these cases are correct as an original matter, we think they further support our view. The Court rejected term-limit-ballot-access restrictions because they were an attempt to impose a qualification not contained in the Constitution. E.g., U.S. Term Limits, 514 U.S. at 784, 787788, 806815. It follows that ballot access rules that follow the qualifications contained in the Constitution could be treated differently.

98 U.S. Const. art. I, sec. 5, cl. 2.

99 There is some debate whether Congress can expel a member for conduct that occurred before being elected. See Chafetz, Democracy’s Privileged Few, supra note 47, at 210212 (recounting arguments on both sides but arguing that it can); Jack Maskell, Congressional Research Service, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 47 (2016) https://sgp.fas.org/crs/misc/RL31382.pdf (same). At all events, however, continuing to hold office when forbidden to do so by Section Three is ongoing conduct that would seem independently to justify expulsion in the here-and-now.

100 U.S. Const. art. III.

101 Cf. Ex parte Milligan, 71 U.S. 2, 141 (1866) (Chase, C.J., concurring in the judgment) (“In Indiana, the judges and officers of the courts were loyal to the government. But it might have been otherwise. In times of rebellion and civil war, it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies.”).

102 See supra note 90.

103 Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72 (2006). In the interests of full disclosure, one of us was the student lead editor when this piece was published, and continues to think it is probably right, notwithstanding the counterarguments in James E. Pfander, Removing Federal Judges, 74 U. Chi. L. Rev. 1227 (2007). The other of us adheres to the traditional view. Michael Stokes Paulsen, Checking the Court, 10 NYU J. L. & Liberty 18, 7677 (2016).

104 We are assuming for now that the Presidency and Vice Presidency are covered by Section Three’s language as an “office, civil or military, under the United States.” We think that assumption is correct, and we will return to it in Part IV.B.

105 See Hemel, How-to Guide, supra note 5; Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) (upholding state exclusion from presidential primary ballot of twenty-seven-year-old candidate constitutionally disqualified on grounds of age); Hassan v. Colorado, 495 Fed. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (upholding state exclusion from presidential election ballot of naturalized citizen constitutionally disqualified from office by Natural Born Citizen Clause of Article II); see also Muller, Scrutinizing, supra note 96, at 599608; see also Muller, Natural Born, supra note 62, at 11001106. This is standard practice and law even though the President and Vice President are only indirect candidates, with their electors as direct candidates.

106 See Muller, Scrutinizing, supra note 96, at 579580.

107 Chiafolo v. Washington, 591 U.S. ___ (2020); see also Muller, supra note 96, at 580. We bracket the serious possibility that Chiafolo was wrongly decided. See, e.g., Mike Rappaport, The Originalist Disaster in Chiafolo, Law & Liberty (Aug. 7, 2020), https://lawliberty.org/theoriginalistdi ... chiafalo/; Michael Stokes Paulsen, The Constitutional Power of the Electoral College, Public Discourse (Nov. 21, 2016), https://www.thepublicdiscourse.com/2016/11/18283/.

108 We take no position on many further details of this issue, including the relative interplay of the Electoral Count Reform Act, Pub.L. 117328, Div. P, Title I, § 109(a) (Dec. 29, 2022) 136 Stat. 52385239, codified in relevant part at 3 U.S.C. 15(b) & (d)(2)(B)(ii), possible constitutional challenges to it, see Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1805 (2002); see also John Harrison, Nobody for President, 16 J.L & Pol. 699 (2000), interpretations of it, but see Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1538 (2021), or the like.

109 U.S. Const. amdt. XX, sec. 3. Cf, Muller, Regularly Given, supra note 108, at 1538 n.42.

110 See infra Part IV.C. for further discussion.

111 For two relevant examples, see NMSA. 1978, sec. 443; W.V. Code sec. 5321. In West Virginia, such a claim may be brought “[w]henever the Attorney General or prosecuting attorney of any county is satisfied that a cause exists therefor he may, at his own instance, or at the relation of any person interested.” Id. 5322. For illustrative applications, see State ex rel. Zickefoose v. West, 145 W. Va. 498, 545 (1960); Wells v. Miller, 237 W. Va. 731 (2016).

112 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D101CV202200473 (1st. Dist. Santa Fe County, Sep. 6, 2022).

113 Resignation letter from West Virginia Delegate Derrick Evans to Governor Jim Justice (Jan. 9, 2021), available at https://s3.documentcloud.org/documents/ ... letter.pdf.


114 In re Griffin (“Griffin’s Case”), 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5,815) (Chase 364).

115 See, e.g., Josh Blackman and S. B. Tillman, Opinion, “Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene,” The New York Times, (Apr. 20, 2022); Tom Ginsburg, Aziz Huq, & David Landau, The Law of Democratic Disqualification, 111 Calif. L. Rev. at 16, 51 (forthcoming 2023) at https://ssrn.com/abstract=3938600.

116 For other criticism of Griffin’s Case, insightful as always, see Magliocca, Amnesty, supra note 5, at 102108; Magliocca, Foreground, supra note 62, at 914.

117 11 F. Cas. at 22.

118 Id. at 22.

119 Cf. Will Baude, The deadly serious accusation of being a “socalled judge,” Volokh Conspiracy, Wash. Post. (Feb. 4, 2017), https://www.washingtonpost.com/news/vol ... lledjudge/ (“[T]o call him a ‘socalled’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue”).

120 11 F. Cas. at 22.

121 Id. at 23.

122 See Opinion of Judge Underwood in Edward McPherson, The Political History of the United States of America During the Period of Reconstruction (from April 15, 1865, to July 15, 1870), at 462466 (1875). We are indebted to Myles Lynch for locating this source.

123 The procedural posture of this and several related cases are extremely confusing and reflect background machinations by both Judge Underwood and Chief Justice Chase: At the time, habeas was apparently available from the district court, or “at chambers,” or from the circuit court. If Judge Underwood issued the writ from the district court or at chambers, he could be reviewed by the circuit court, which would include Chief Justice Chase. But if Chief Justice Chase was not present, Judge Underwood could also sit alone as the circuit court. And thanks to a recent statute designed to strip jurisdiction over the anti-Reconstruction suit of Ex parte McCardle, there would be no appeal if Judge Underwood sat as the circuit court. Underwood took this, the unreviewable route, in another habeas case like Griffin’s brought by Sally Anderson. Chief Justice Chase then wrote to Underwood with a veiled threat, floating the possibility that a recent statute could be interpreted to deprive Underwood of his ability to hold the circuit court at that time, and encouraging Underwood to hear the cases in the district court or at chambers so that Chase could review him. Underwood obliged. Meanwhile, Virginia also sought an original writ in the Supreme Court to put a stop to Underwood’s Section Three docket. The Supreme Court ordered all of the proceedings stayed, and then let Chase go down to the circuit to clean things up, taking no action on the writ. See Charles Fairman, Reconstruction and Reunion at 601607; Letter from Chase to Underwood (Nov. 19, 1868) in 5 The Salmon P. Chase Papers 285286 (1998); Letter from Chase to Underwood (Jan. 14, 1869) in id. at 292293.

This background is briefly alluded to in the synopsis in Griffin’s Case which explains that “[a] motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of prohibition against the district judge, to restrain him from further exercise of such power. The supreme court advised on the motion, and never announced any conclusion, but shortly afterward the chief justice opened the circuit court at Richmond, and immediately called up the appeal in Griffin’s Case. This statement is necessary for a full understanding of the pregnancy of the chief justice’s statement that the supreme court agreed with him as to the decision he rendered in this case.” Griffin’s Case, 11 F. Cas. at 78. But really, these circumstances are extraordinary. We take them up again below.

124 Id. at 23.

125 Id. at 18.

126 Id. at 24.

127 Chase summarized the intriguing legal history of this Virginia government: When Virginia, by act of its legislature in 1861, purported to secede from the Union, loyal Unionists assembled in convention in Wheeling to organize a new state government. Congress and the Lincoln administration recognized the Wheeling government as the lawful government of Virginia. The Wheeling Virginia government then gave its consent to the creation of a new Wheeling-based state of West Virginia, after which the (Wheeling) Virginia government-in-exile relocated to Alexandria, just across the river from Washington, to serve as the loyal, Union-recognized government of all of what remained as “Virginia.” After Lee’s surrender at Appomattox, Chase’s opinion notes, the “government recognized by the United States was transferred from Alexandria to Richmond” and “became in fact what it was before in law, the government of the whole state.” Id. at 18. Judge Sheffey was appointed under the authority of this government. (For the full story – and full formalist legal defense – of the validity of the legal fiction of “Virginia” giving its consent to the creation of a breakaway state of West Virginia, see Vasan Kesavan and Michael Stokes Paulsen, Is West Virginia Unconstitutional? 90 Calif. L. Rev. 291 (2002) For an argument that this aside was actually relevant to Chase’s argument, see Magliocca, Foreground, supra note 62, at 10 n.30, discussed infra note 154.)

128 11 F. Cas. at 24.

129 Id. at 25.

130 Chase also suggested that the problem was not completely limited to the Southern governments. Id. at 25 (observing that “[i]t is well known that many persons, engaged in the late Rebellion, have emigrated to states which adhered to the national government . . .” and that “it is not to be doubted that not a few among them” had previously taken a covered oath, and that “[p]robably some of these persons” had subsequently been elected to office).

131 Id. at 25. Of course, Chase would undercut this conclusion later in the opinion. See infra Part II.C.

132 11 F. Cas. at 25.

133 More on this point presently, Part II.C.2.c, and again Part III.

134 11 F. Cas. at 26.

135 Id. at 24.

136 Id. at 24.

137 Id. at 24.

138 James Madison, Speech on Feb. 2, 1791, reprinted in Legislative and Documentary History of the Bank of the United States 39, 40 (photo. reprint 2008)

139 United States v. Fisher, 2 Cranch (6 U.S.) 358, 386 (1805)

140 11 F. Cas. at 24 (emphasis added).

141 As Judge Underwood had put it: “Whatever inconvenience may result from the maintenance of the Constitution and the laws, I think the experience of the last few years shows that much greater inconvenience comes from attempting their overthrow.” Opinion of Judge Underwood, supra note 122, at 465.

142 11 F.Cas. at 24.

143 See supra notes 914, sources cited there, and accompanying text.

144 See generally, John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 461 (2001). For arguments that Congress’s requiring states’ ratification as condition of restored representation was entirely lawful and appropriate, see id; Kesavan & Paulsen, West Virginia, supra note 127, at 329; Amar, America’s Constitution, supra note 4, at 364380, see especially id. at 376378. There is a different argument for ratification, the “loyal denominator” theory, in which the southern states were unnecessary for ratification. See Christopher R. Green, Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications, 13 Duke J. Const. L. & Pub. Pol’y 167, 168 (2017); Christopher R. Green, The History of the Loyal Denominator, 79 La. L. Rev. 47, 48 (2018). One of us has rejected this theory in prior writing, Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 709 (1993); see also Amar, supra note 4, at 378380, and the other of us is inclined in the same direction.

145 11 F.Cas. at 25.

146 Id. at 26.

147 See infra, Part III.

148 11 F. Cas. at 25 (emphasis added).

149 Id. at 26.

150 See Case of Davis, 7 F. Cas. 63, 92, 95 (C.C.D. Va. 1867).

151 Id. See Magliocca. Amnesty, supra note 5, at 100102; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 293300 (2017).

152 Nicoletti suggests—and she is not making this up—that either Chase was gunning for the Democratic nomination for President, or that this was a bank shot to get southern whites to accept the ratification of the Fourteenth Amendment, by arranging for the Amendment to benefit them. Id. at 293296.

153 11 F. Cas. at 26.

154 Magliocca also suggests that in the specific situation in Griffin’s Case, state law may have been “unavailable for enforcement” of Section Three because “Virginia was an unreconstructed state and thus lacked the ordinary powers of a state” and “because Virginia did not yet recognize the Fourteenth Amendment’s legitimacy” – in contrast with states such as North Carolina. Magliocca, Foreground, supra note 62, at 10 n.30. We are not sure whether this is giving Chase too much credit or not, but regardless, these points would obviously not hold today, where state law is fully available in every state of the union.

155 11 F. Cas. at 27.

156 11 F. Cas. at 27.

157 Accord, Magliocca, Foreground, supra note 62, at 11 n.25.

158 See, e.g., Letter from Thomas Jefferson to William Johnson (June 12, 1823) (“This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable.”) https://founders.archives.gov/documents ... 801023562; Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 101112 & n.39 (2003); Baude, Judgment Power, 96 Geo. L.J. 1807, 182324 (2008).

159 11 F. Cas. at 27.

160 The Court’s one recorded public statement on the matter was a statement from Justice Nelson in the original writ of prohibition case, Ex Parte State of Virginia, that Chief Justice Chase had “informed the court that before the pending motion for prohibition was made, he signified to the district judge his dissent” and that Chase was going to “direct that this division of opinion . . . be certified to this court.” Ex parte State of Virginia No. 11, 1868 WL 10951, 19 L. Ed. 153 (1868); Fairman, supra note 123, at 606. That statement did not state the Court’s view on the division, and seemed to anticipate that the Justices would deliberate on the issue later in the more ordinary course – not deputize the Chief Justice to go deliver some secret verdict in their stead.

161 Fairman, supra note 123, at 607.

162 Id.

163 Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023); William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J. L. & Lib. 1 (2015).

164 For many citations, see Griffin’s Case, 11 F. Cas. at 1821 (argument of counsel). For more, see also Reply and Response Brief for the United States, Financial Oversight and Management Board for Puerto Rico v. Aurelius (Nos. 181334, 181475, 181496, 181514, 1815121) 20190919201613217_181334rbUnitedStates.pdf (supremecourt.gov) at 2747; and Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 34245 (6th Cir. 2022) (Murphy, J., dissenting).

165 Baude, Severability, supra note 66, at 12 (discussing Yale Todd).

166 For statements like this, see Ball v. United States, 140 U.S. 118, 128129 (1891) (“was judge de facto if not de jure, and his acts as such are not open to collateral attack."); see also Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909, 910, 919 (1963); but see id. at 910 & n. 9 (suggesting that a suit is collateral whenever the officer “is not a party,” including on “writ of error”).

167 All three cases cited by Chase in Griffin’s Case, 11 F. Cas. at 27, can be characterized this way. Taylor v. Skrine, 5 S.C.L. 516, 3 Brev. 516 (1815) deals with a writ of execution and observes that “no objections were made to his authority at the time the decree was given.” State v. Bloom, 17 Wis. 521 (1863) relies entirely on In re Boyle 9 Wis. 264 (1859) which is a habeas case holding that the “right to hold the offices cannot be inquired into in a collateral proceeding of this kind,” id. at 267. And People v. Bangs, 24 Ill. 184., 187 (1860) distinguishes a “direct proceeding” from one where the doctrine applied.

168 For statements like this, see McDowell v. United States, 159 U.S. 596, 598 (1895) (“presents a mere matter of statutory construction . . . . It involves no trespass upon the executive power of appointment.”); see also Note, The De Facto Officer Doctrine, at 918 (discussing Glidden Co. v. Zdanok, 370 U.S. 530 (1962)).

169 But see In re Boyle, cited supra note 167 (distinguishing “the jurisdiction of the court, which may always be inquired into; it is an inquiry into the right of the judge to hold his office, which is a question entirely distinct from that of the jurisdiction of the court over the offence”).

170 In the Supreme Court’s most recent de facto officer doctrine case, Ryder v. United States, 515 U.S. 177 (1995), it split the difference, holding the doctrine inapplicable because the case was on direct review and the challenge was constitutional. In the more recent case of Financial Oversight and Management Board for Puerto Rico v. Aurelius, 140 S. Ct. 1649, 1666 (2020), it avoided the issue because it found the appointments lawful.

171 See Opinion of Judge Underwood, supra note 122, at 463466.

172 See supra Part III.C.2.c.; see also Ginsburg, Huq, & Fontana, supra note 115, at 18 (suggesting that a self-executing interpretation, “while in harmony with the original operation of Section 3, raises due process and perhaps bill of attainder concerns” and for that reason an “alternative, more plausible construction gives Congress authority to determine how Section 3 is enforced”).

173 See The Federalist No. 78 (I. Kramnick ed. 1987) at 439 (Hamilton). These rules were well-established in American and English law. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 235244 (2000)

174 See The Federalist No. 78, supra note 173, at 439440 (Hamilton) (“But in regard to the interfering acts of a superior and subordinate authority of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”)

175 U.S. Const. art. V.

177 Baude & Sachs, Eleventh Amendment, supra note 9, at 62425; cf. Hans v. Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring).

177 Baude & Sachs, Eleventh Amendment, supra note 9, at 62425; cf. Hans v. Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring).

178 U.S. Const. amdt XIV, sec. 5.

179 See William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 19 (2017) (offering the examples in this paragraph).

180 See U.S. Const. amdt. XIV, sec. 2; U.S. Const. art. I, sec. 3. By itself, the Thirteenth Amendment also already rendered the Three-fifths Clause a null set. Section Two then dealt with the injustice of letting the South claim a massive increase in political power for its disenfranchised black population.

181 Indeed, for what it is worth, the legislative history supports this conclusion as well. Opponents of Section Three characterized it as directly imposing retroactive punishment, thus contradicting principles of due process and principles against bills of attainder and ex post facto laws. Cong. Globe, 39th Cong. 1st Sess. at 2915 (Sen. Doolittle) (complaining that Section Three was an “ex post facto provision, a bill of attainder”); id. at 2890 (Sen. Cowen) (bill of attainder); id. at App 241 (Sen. Davis) (Section Three “is in the nature of both a bill of attainder and an ex post facto law”); id. at 2940 (Sen. Hendricks) (ex post facto); id. at 2916; see also id. at 2467 (Rep. Boyer) (criticizing earlier version of Section Three as “a bill of attainder or ex post facto law”). These charges were generally premised on the view – with which proponents of the amendment evidently agreed, see id. at 3036 (Sen. Henderson) – that Section Three would preempt these earlier rules to the extent of a direct conflict. Though at one point Senator Davis did make the wild suggestion that Section Three might itself exceed Congress’s power to propose amendments to the Constitution. Id. at App. 241 (“The framers of the Constitution did not intend to invest, and have not in fact conferred on Congress the power to initiate alterations of it which would revolutionize the Government formed by it”); see also id. at 3146. See also Graber, supra note 12, at 2631, 3637 (documenting this history).

182 See generally Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63 Stan. L. Rev. 1177 (2011).

183 U.S. Const. amdt. XXII. But see Cummings v. Missouri, 71 U.S. 277, 320 (1866) (“Disqualification from office many be punishment, as in cases of conviction upon impeachment.”).

184 United States v. Brown, 381 U.S. 437 (1965); United States v. Lovett, 328 U.S. 303 (1946).

185 71 U.S. 277 (1866).

186 71 U.S. 333 (1866).

187 For much more detailed discussion of the federal “Ironclad Oath” see infra Part IV.A.4.b.i.

188 Garland, 71 U.S. at 377.

189 Cummings, 71 U.S. at 319.

190 Garland, 71 U.S. at 378.

191 Cummings, 71 U.S. at 327 (“They are aimed at past acts, and not future acts.”); Garland, at 377 (“In the exclusion which the statute adjudges it imposes a punishment for some of the acts specified which were not punishable at the time they were committed”).

192 See supra Part I.B.

193 Garland, 71 U.S. at 382. Cummings presents a trickier case, as it might involve complicating questions of state power to interfere with religious liberty and church autonomy (albeit before ratification of the Fourteenth Amendment) and an especially weak case for the relevance of past loyalty to engaging in religious occupation.

194 For a somewhat lighthearted explication of this principle – and a serious treatment of certain of its implications, see Michael Stokes Paulsen, Can a Constitutional Amendment Overrule a Supreme Court Decision? 24 Const. Comm. 285 (2007).

195 U.S. Const. art. I, §§9 & 10.

196 To be sure, there are revisionist arguments that the Ex Post Facto clause itself extends to retroactive civil laws too. See Eastern Enterprises v. Apfel, 524 U.S. 498, 53839 (1998) (Thomas, J., concurring). And as with bills of attainder, in the wake of the Civil War the Supreme Court held that Ironclad Oath requirements were ex post facto laws as well. Cummings, 71 U.S. at 326332; Garland, 71 U.S. at 377368. But as discussed in the text, even these principles do not ensnare Section Three going forward, on a non-ex-post-facto basis

197 3 U.S. at 37880 (arguments of counsel).

198 Id.

199 Id. at 382. See Baude & Sachs, Eleventh Amendment, supra note 9, at 626627.

200 Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565593 (2007); William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 15401547 (2020).

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201 Jed Shugerman, Freehold Offices vs. “Despotic Displacement”: Why “Executive Power” Did Not Include Removal (July 25, 2023), https://papers.ssrn.com/sol3/papers.cfm ... d=4521119; Hoke v. Henderson, 15 NC 1 (1833).

202 See Jane Manners & Lev Menand, The Three Permissions, 121 Colum. L. Rev. 1, 20 (2021) (“In revolutionary America, the idea of offices as property was roundly rejected”); Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1824 n. 157 (2006) (“A more republican conception of government meant a more republican conception of offices.”).

203 Taylor & Marshall v. Beckham, 178 U.S. 548 (1900).

204 See supra notes 4850 and accompanying text.

205 See generally supra Part II.B.

206 See infra Part IV.C.2.

207 395 U.S. 444 (1969).

208 Federalist No. 78, supra note 173, at 173 (“So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done.”)

209 For what it is worth, we do not in general dispute many aspects of modern First Amendment doctrine, which we believe often captures the original meaning of freedom of speech and freedom of the press, as applied to modern circumstances. See generally Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 19191922 (2001). To get a sense of how one might construct a truly marvelous proof of this, which this margin is too narrow to contain, see for starters, Adam Griffin, First Amendment Originalism: The Original Law and A Theory of Legal Change as Applied to The Freedom of Speech and of The Press, 17 First Amend. L. Rev. 91 (2019); Jud Campbell, Natural Rights and the First Amendment, 117 Yale L. J. 246 (2017); Jud Campbell, The Emergence of Neutrality, 131 Yale L. J. 861 (2022). (We will cease further digression on this point.)

210 United States v. Hansen, 599 U.S. __, at 1819 (2023); United States v. Williams, 553 U.S. 285, 297 (2008); Giboney v. New Ice Storage, 336 U.S. 490 (1949); Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981, 989993, 10071008 (2016).

211 Volokh, supra note 210, at 10111015.

212 395 U.S. at 447; see also Hess v. Indiana, 414 U.S. 105, 108109 (1973); NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

213 561 U.S. 1 (2010).

214 The Court emphasized that “only material support coordinated with or under the direction of a designated foreign terrorist organization” was banned; “independent advocacy” was “not covered.” Id. at 3132. Additionally, the law only applied to foreign organizations.

215 President Abraham Lincoln to Erastus Corning and others (June 12, 1863), in Abraham Lincoln, Speeches and Writings, 18591965, at 454, 459 (Don Fehrenbacher, ed. 1989). See infra notes 264272 and accompanying text.

216 See infra notes 265273, and 338343 and accompanying text.

217 Lynch, supra note 5, at 197198.

218 See Lynch, supra note 5, at 198 (“Had Section 3 been ratified by this point, these concerns would be assuaged.”)

219 Chafetz, supra note 47, at 190; Lynch, supra note 5, at 211213; 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives 5263 (1935).

220 Berger v. United States, 255 U.S. 22 (1921). Curiously, after this verdict the House then allowed him to sit in the sixty-eighth through seventieth Congresses. Lynch, supra note 5, at 213.

221 Chafetz, supra note 47, at 191.

222 In our view, for instance, the exclusion of Victor Berger went too far—not because the First Amendment makes an exception to Section Three, but because Berger’s advocacy did not satisfy the original meaning of Section Three. See infra note 354.

223 Federalist No. 78, supra note 173, at 439.

224 Susan Morse, Safe Harbors, Sure Shipwrecks, 49 U.C. Davis L. Rev. 1385 (2016).

225 10 Documentary History of the Ratification of the Constitution 1296 (Statement of Madison) (“A riot did not come within the legal definition of an insurrection”).

226 2 Black (67 U.S.) 635, 667 (1863).

227 Though it is possible that this connotation is anachronistic. See infra note 247.

228 For important accounts and discussion of Southern arguments for the constitutional propriety and validity of secession, on a variety of asserted grounds, see James M. McPherson, Battle Cry of Freedom: The Civil War Era 234236 (1988) (summarizing Southern constitutional and political theories); Daniel Farber, Lincoln’s Constitution 5791 (2003) (emphasizing arguments of states’ rights to interposition, nullification, and secession generally); Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame. L. Rev. 1227, 12701277 (2008) (setting forth Southern leaders’ constitutional arguments that Lincoln’s stance against the Dred Scott decision, against judicial supremacy, and against extension of slavery violated the judicially settled constitutional rights of slaveholding persons and states); Kenneth M. Stampp, The Concept of a Perpetual Union, 65 J. Am. Hist. 553 (June 1978) (providing detailed history of constitutional and political arguments over the nature of Union and the validity of secession); David P. Currie, The Constitution in Congress: Descent into the Maelstrom 18291861, at 228237 (2005) (discussing and evaluating the constitutional arguments for and against the validity of secession). For the case against the constitutionality of secession, see generally 2 Abraham Lincoln, Speeches & Writings, 18591865: Speeches, Letters, Miscellaneous Writings, Presidential Messages & Proclamations, at 217218 (First Inaugural Address, March 4, 1861); id. at 254258, 260261 (Message to Congress, July 4, 1861); see also Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U Chi. L. Rev. 691, 703715 (2004) (reviewing Daniel Farber, Lincoln’s Constitution) (distilling and building on Lincoln’s arguments); Kesavan & Paulsen, West Virginia, supra note 127, at 303311 (same). For further background, see generally William W. Freehling, The Road to Disunion: Secessionists at Bay 17761854 (1990), and for a comprehensive exposition of the Southern view, see Alexander M. Stephens, A Constitutional View of the Late War Between the States; Its Causes, Character, Conduct and Results (1867).

229 Indeed, one might characterize the process of adoption of the U.S. Constitution, replacing the regime of the Articles of Confederation, as a peaceful political coup d’etat – an act of “rebellion” if judged by the preexisting law, but morally and politically justified by the failure of the prior regime and Lockean notions of self-governance, and subsequently legalized by its own success. See generally Paulsen & Paulsen, supra note 30, at 38, 1720; Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J. L. & Pub Pol’y 818, 821, 844, 850 (2015).

230 The seceding states adopted their secession resolutions by state “conventions,” purporting to parallel the process by which the states ratified the Constitution. See McPherson, supra note 228, at 234284 (describing secession actions of the ten states that purported to secede from the Union). The secession ordinances of the South were self-consciously styled after the Declaration of Independence, which was obviously an act of formal legal rebellion.

231 This working definition of having “engaged in” wrongful activity resembles familiar common law understandings of accomplice liability in the area of criminal law, which typically resulted from the combination of (1) assistance to unlawful conduct (with “assistance” including uttering words of encouragement to, or agreeing not to interfere with, such conduct) and (2) the intention to further such unlawful conduct). Federal criminal law today is to similar effect. 18 U.S.C. § 2(a) (2012) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”). We think it is also generally supported by background mens rea principles. See William Baude & Stephen Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1108 (2017). That said, the lesson of the Civil War also suggests one important limitation: there is no mistake-of-rebellion defense. See text accompanying infra note 420.

232 U.S. Const. art. III, § 3, cl. 1 ( “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”)

233 See infra note 253.

234 See infra Part IV.A.4.b.ii.

235 What is the referent of “enemies thereof”? Does “thereof” refer to enemies of the United States or enemies of the Constitution of the United States? We think this replicates the question of what “the same” refers to, earlier in the sentence, and presents the same issue of minor and seemingly inconsequential ambiguity. (Does “insurrection or rebellion against the same” refer to insurrection or rebellion against “the United States”? On balance, we think that it probably makes little practical difference: rebellion against the United States and rebellion against the Constitution of the United States will often amount to the same thing; either one is capable of being considered an instance of the other.) Whatever the answer, it should be the same for both – “against the same” and “thereof” refer to the same thing. And given that the Treason Clause refers to “enemies” of “the United States,” it seems fairly likely that Section Three does too.

236 See also, e.g., Section Two of the Second Confiscation Act, discussed infra Part IV.A.4.b.ii.

237 See, e.g., Paulsen, Rules for Its Own, supra note 9, at 858 (arguing that where constitutional language states a general principle, “actions of government that fall within the scope of judgment or discretion admitted by the breadth with which that principle is expressed do not violate the Constitution, and are thus allowable”); Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J.L. & Pub. Pol’y 991, 995 (2008) (arguing that “textual imprecision or generality often admits of a range of choices” and that the correct constitutional answer in such circumstances “is that the legislature must be permitted to choose from options within that range”; thus, “the more indeterminate or under-determinate the range of a constitutional provision, the broader the duty of the courts to defer to what the legislature has enacted”); Kesavan & Paulsen, Secret Drafting History, supra note 9, at 112930 n.54 (2003); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 333 (1994); Baude & Sachs, Law of Interpretation, supra note 231, at 1120 (describing “the presumption of constitutionality” as a rule of unwritten law); William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 3536, 44 (2019). Again, we bracket any differences in emphasis between our respective views of the adjudication of ambiguities.

238 17 U.S. (4 Wheat.) 316 (1819).

239 1 Noah Webster, American Dictionary of the English Language 111 (1828, photo-reprint 1993) (“Insurrection”); see also Dr. Webster’s Complete Dictionary of the English Language 702 (Chauncy A. Goodrich and Noah Porter, eds. 1864) (similar); 1 John Boag, A Popular and Complete English Dictionary 727 (1850) (similar).

240 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also Webster’s (Porter 1864), supra note 239, at 1094 (similar); 2 Boag, supra note 239, at 319 (similar).

241 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 1 Boag, supra note 239, at 727; 2 id. at 319 (similar).

242 1 Webster (1828), supra note 239, at 111 (“Insurrection”). For comparison, Webster defined “Sedition” as: “A factious commotion of the people, or a tumultuous assembly of men rising in opposition to law or the administration of justice, and in disturbance of the public peace. Sedition is a rising or commotion of less extent than an insurrection, and both are less than rebellion . . .” 2 Webster (1828), supra note 239, at 66 (“Sedition”).

243 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 2 Boag, supra note 239, at 319 (similar).

244 1 Webster (1828), supra note 239, at 111. Daniel Hemel argues that “Webster’s definition of ‘insurrection’ seems implausibly broad for Section 3 purposes.” See Hemel, How-to Guide, supra note 5.

245 “Insurrection” in 1 John Bouvier. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union 729730 (Philadelphia, G.W. Childs, 12th ed., rev. and enl. 1868).

246 “Rebellion” in 2 Bouvier (1868), supra note 245, at 415 (emphasis added).

247 See also Joseph Worcester, A Dictionary of the English Language 764, 1190 (1860) (generally equating insurrection and rebellion). Elsewhere in this edition, Bouvier drew a distinction in connotation between “REBEL” and “INSURGENT,” suggesting that “rebel is always understood in a bad sense, as one who unjustly opposes the constituted authorities; insurgent may be one who justly opposes the tyranny of constitute authorities,” and thus that “[t]he colonists who opposed the tyranny of the English government were insurgents, not rebels.” “Insurgent” and “Rebel” in 1 Bouvier (1868), supra note 245, at 729; 2 id. at 415. In a much later edition, Bouvier’s drew a distinction between insurrection and rebellion as two different varieties of “actual and open resistance to [government] authority.” Insurrection was “an actual uprising against the government” while rebellion “goes beyond insurrection in aim” and attempts actually to overthrow the government authority in question. “Insurrection” and “Rebellion,” in 2 Bouvier’s Law Dictionary & Concise Enycl. (Rawles Rev., 1897). Lynch misstates the date of this edition as 1867, and thus mistakenly cites it as “contemporarily authoritative.” Lynch, supra note 5, at 167 n. 80.

248 “Aid and Comfort” in 1 Bouvier (1868), supra note 245, at 107.

249 Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999).

250 M‘Culloch, 17 U.S. at 413414. In construing the scope of the legislative power conferred by the Necessary and Proper Clause, Marshall noted how the word “necessary” was used differently, and subjected to different qualifications, in other parts of the Constitution and found that those differences were useful in interpreting the clause at hand. For discussion of the prominence of intratextual and structural-logic, whole-text arguments in some of Chief Justice Marshall’s most significant Supreme Court opinions, including Marbury and M‘Culloch, see Paulsen, Marbury, supra note 66, at 2711; see also Michael Stokes Paulsen, The Plausibility of Personhood, 74 Ohio St. L. J. 13, 33 n. 72 (2013).

251 U.S. Const. art. I, §8 cl. 15.

252 U.S. Const. art. I, §9 cl. 2.

253 Perhaps the most notable U.S. treason case to date was Ex parte Bollman, in which Chief Justice Marshall delivered an opinion for the Court granting habeas to two of the coconspirators in Aaron Burr’s plot to seize Spanish territory in the American (then)southwest and attempt to form his own independent nation. Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). The opinion combined a relatively narrow construction of the substantive crime of treason (in part because of Article III’s text (“only in levying war”) with a relatively broad construction of complicity. Thus on one hand: “However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason,” id. at 126, but on the other hand, “if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” Id. Ex parte Bollman was an early and prominent legal landmark supporting some key propositions that would have been familiar to lawyers during the Civil War era: first, that there are such things as conspiracies and plots to “overturn the government,” in whole or in part, that though they might not qualify as treason, remain great and culpable legal wrongs; second, that the crime of treason specifically requires showing the existence of an armed assembly to employ force for a treasonable purpose; third, that one may be said to have engaged in (or provided “aid and comfort” to) treason where one is in league with the conspiracy and done any act, large or small, or played “any part,” however remote, to further that plot. Whether or not Bollman’s construction was sufficiently established to be read in to Section Three itself, it was cited occasionally in the 1860s Congress. See, e.g., 37th Congress 2nd Session Cong. Globe 414 (1862) (statement of Sen. Sumner) (citing Bollman passage quoted above during the proceedings to expel Senator Jesse Bright for writing a letter to Jefferson Davis).

254 See Harold Holzer, Lincoln and the Power of the Press: The War for Public Opinion 361 (2014) (referring to the phrase “aid and comfort to the enemy” (by the press) as “that catch-basin phrase again.”).

255 U.S. Const. amdt. XIV, sec. 2.

256 U.S. Const. amdt. XIV, sec. 4.

257 Morse, supra note 224.

258 On Lincoln’s understanding of secession as unconstitutional and his resulting conception of the Civil War as, legally, a situation of insurrection or rebellion (not declared war) see sources cited in note 228. That does not exclude the existence of full constitutional Commander in Chief Clause powers in the situation of actual civil war, however. Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief Power, 40 Georgia L. Rev. 807, 814823 (2006).

259 Compare U.S. Const. art. I, §8, cl. 11 (Declare War Clause) with U.S. Const. art. I, §8, cl. 15 (power “to provide for calling forth” the Militia for law execution and to suppress insurrections”). Congress’s exercise of this power – the Insurrection Acts of 1795 and 1807 – is discussed infra Part IV.A.5.a.

260 Abraham Lincoln, First Inaugural Address (March 4, 1861), IV Complete Works of Lincoln (“CWL”) 262, 265.

261 Abraham Lincoln, Proclamation Calling Militia and Convening Congress (April 15, 1861), IV CWL 331, 332.

262 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), IV CWL 421, 427428, 432437.

263 Id. at 429431 (emphasis added).

264 U.S. Const. art. I, §9, cl. 2.

265 Abraham Lincoln, To Erastus Corning and Others (June 12, 1863), VI CWL 260, 264 (emphasis added).

266 Id. at 263.

267 Id. at 265.

268 In several respects, Lincoln anticipated later judicial free speech doctrines and decisions, such as those distinguishing pure speech from speech linked to prohibited conduct; recognizing limits on speech posing a danger of inciting to crime or lawlessness; recognizing “compelling interest” overrides in exceptional circumstances, including for reasons of national security or military secrecy; finding that government’s motives and purposes for a particular action may matter to its lawfulness; and noting where an incidental limitation on expression leaves open alternative channels for expression of the same message. See Paulsen, Civil War, supra note 228, at 698702 & n.23 (noting how Lincoln anticipated many of the issues and exceptions contemplated by later judicial doctrine concerning the First Amendment’s freedom of speech).

269 Letter to Corning (June 12, 1863), VI CWL at 267. (Emetics referred to a medicine or substance used to induce vomiting.)

270 Letter to Corning, VI CWL at 266.

271 Id. at 26667.

272 Id. at 267.

273 Lincoln’s characterization of Southern secession as rebellion continued throughout the war. His December 8, 1863 Message to Congress referred to the Confederacy as “the rebellion.” Annual Message to Congress (Dec. 8, 1863), VII CWL at 51 In his accompanying offer of amnesty and pardon, in the Amnesty Proclamation of December 8, 1863, Lincoln referred, repeatedly, to the “rebellion” that “now exists whereby the loyal State governments of several States have for a long time been subverted” (id. at 53), to “said rebellion and treason” (id. at 54), to “said rebellion” (id.) and to persons who had provided “aid” to the “rebellion” in various forms. Interestingly, Lincoln excepted from his offer of forgiveness – in language that would seem to presage the similar terms of Section Three – “all who have left judicial stations under the United States to aid the rebellion” and “all who resigned commissions in the army or navy in the United States, and afterwards aided the rebellion.” Id. at 55. Lincoln also left to the respective houses of Congress the exclusive judgment “whether members sent to Congress from any State shall be admitted to seats.”

274 12 Stat. 502.

275 12 Stat. 589 (1862). 12 Stat. 627 (1862).

276 23 Stat. 21 (1884). There was an important exception. In 1868, Congress provided that anybody who had received amnesty from two-thirds of each house of Congress under Section Three was exempt from the Ironclad Oath and need only swear future loyalty, 15 Stat. 85 (1868), and in 1871 it added that anybody “who is not rendered ineligible to office by the provisions of the fourteenth amendment to the Constitution” yet would otherwise “not be able on account of his participation in the late rebellion to take” the Ironclad Oath, could take the forward-looking oath instead, 16 Stat. 412 (1871). These two provisions effectively equated the Ironclad Oath to Section Three from 1871 on.

277 For this reason, Lincoln famously wrote: “On principle I dislike an oath which requires a man to swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of repentance. I think it is enough if the man does no wrong hereafter.” Endorsement of Abraham Lincoln in Letter from R.M. Edwards to Edwin Stanton, February 5, 1864, 7 Lincoln Papers 169.

278 The extensive overlap between the meaning of the Ironclad Oath and the Section Three disqualification is confirmed by Congress’s own interpretation and application of the oath to its own members, during and after the enactment of Section Three. These applications are detailed infra Part IV.A.5.b.

279 12 Stat. 589 (1862). See also 12 Stat. 627 (1862) (“explanatory” joint resolution).

280 An earlier act had provided for forfeiture more specifically of property or slaves actually used in service of rebellion. 12 Stat. 319 (Aug. 6, 1861).

281 See generally David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131, 11851195 (2006). Among many noteworthy twists and turns in the road to enactment, President Lincoln came close to vetoing the bill, preparing a veto message with his objections and signing the bill only after Congress passed an “explanatory” joint resolution (which Lincoln signed together with the bill). Lincoln nonetheless appended his original draft veto message setting forth his objections. For discussion of the constitutional objections of Lincoln and others to various aspects of the bill, and his unusual course of action in signing it but nonetheless appending his objections, see id. at 11931194; Burrus M. Carnahan, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War 105106 (2007) (noting Lincoln’s initial concern that the act would violate Article III’s limitations on the punishment for treason and the objections of others that the act was a bill of attainder); Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery 215217 (2010). For Lincoln’s July 17, 1862 message to Congress, detailing his objections, see V Complete Works of Lincoln 328331.

282 A month after the Act had been adopted, Horace Greeley published a scathing editorial titled “The Prayer of Twenty Millions,” in which he demanded that Lincoln “EXECUTE THE LAWS” faithfully with specific reference to the Second Confiscation Act. Greeley condemned Lincoln’s “mistaken deference to Rebel Slavery” and his failure to rebuke his generals for having “habitually disregarded” the Confiscation Act. Lincoln replied to Greeley, equally prominently, within days, in a famous public letter dated August 22, 1862, published in a rival newspaper and “widely reprinted,” defending his course of action. V Complete Works of Lincoln 388389; see Holzer, supra note 254, at 400401. One month later, Lincoln issued his Preliminary Emancipation Proclamation of September 22, 1862, in which he noted and quoted provisions of the Second Confiscation Act (without invoking the statute as actual authority for his proclamation). V Complete Works of Lincoln at 434435 (stating that “attention is hereby called to” provisions of the act but relying for authority on his powers as executive and military Commander in Chief). See also Foner, Fiery Trial, supra note 281, at 215 (noting that “the Second Confiscation Act embodied a major shift in national policy”).

283 12 Stat. 589, 590. (emphasis added). Section 2 provided penalties for conviction, which included confiscation of slaves. A modified version of this provision remains a crime today, and continues to incorporate the Confiscation Act’s disqualification from federal office, id., as well. 18 U.S.C. §2383 (“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”). Needless to say, a prosecution under Section 2383 of Title 18 is neither a prerequisite to nor preclusive of the self-executing application of Section Three of the Constitution.

284 12 Stat. 589, 590.

285 Id. (emphasis added.)

286 Id. at 591.

287 Id.

288 Id.

289 See McPherson, supra note 228, at 500 (noting confusing aspects of the Second Confiscation Act and the requirement of “in rem proceedings by district courts that were of course not functioning in the rebellious states”); Foner, Fiery Trial, supra note 281, at 215 (“For most property, [the Act] established a cumbersome judicial process that helps to explain why little land was actually seized and sold under its provisions.”). See also Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 18611862, at 238 (2005) (remarking that “[t]he confiscation bill that finally emerged was neither sweeping nor enforceable” though opining that “if the law had not been hobbled by its own internal inconsistencies, it might have affected the lives and property of a large majority of southerners.”).

290 See Eric L. McKitrick, Andrew Johnson and Reconstruction 141152 (1960).

291 John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South 55 (2005).

292 Id. at 72; see also James G. Randall, Constitutional Problems Under Lincoln 288292 (1926) (describing minimal enforcement of the Second Confiscation Act).

293 67 U.S. (2 Black) 635 (1863).

294 Id. at 668669; see also Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J. 149, 177180 (2004).

295 Paulsen, Emancipation, supra 258, at, 814823.

296 67 U.S. at 666 (emphasis added).

297 Id. at 666

298 Id. at 668.

299 Id. at 674 (quoting 3 Wash. C.C.R. 183). That said, the Court also cautioned that “ ‘enemies’ property” was “a technical phrase peculiar to prize courts, and depends upon principles of public policy, as distinguished from the common law.” Id. at 674. The point that, in a military context, property could be treated as “enemies’ property” irrespective of the allegiance of the owner was important to the lawfulness of the Emancipation Proclamation: even though Lincoln’s proclamation purported to free the slaves of all persons in rebel-controlled territory – including slaves held by persons claiming to be loyal to the Union – such “property” constituted a resource assisting or supplying the rebellion and thus could be declared seized, confiscated, and liberated as a matter of the military law of war. See Paulsen, Emancipation, supra note 258. See generally John Fabian Witt, Lincoln’s Code (2012).

300 U.S. Const. art. I, sec. 8, cl. 15.

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301 2 Stat. 424 (1795), sec. 1.

302 Id. sec. 2. (emphasis added).

303 That said, because Section Two is supported by both Congress’s power to “suppress Insurrections” and its power “to execute the Laws of the Union,” U.S. Const. art. I, sec. 8, cl. 15. it could encompass instances of law enforcement that do not rise to the level of a constitutional “insurrection.”

304 2 Stat. 443 (1807).

305 12 Stat. 281 (1861).

306 Myles Lynch has written that there can exist no insurrection within the meaning of the Insurrection Acts unless the President proclaims that an insurrection exists and, further, that as a consequence, there can exist no insurrection or rebellion within the meaning of Section Three of the Fourteenth Amendment unless the President proclaims that such an insurrection exists. Lynch, supra note 5, at 168, 214215. This seems plainly wrong. If the Insurrection Act defines insurrection, it is defined as concerted and powerful obstruction of the execution of the laws by government. It is no part of this definition that an insurrection exists only if the President declares it to exist. The President’s proclamation is a statutory prerequisite to the use of military force, not part of the definition of insurrection. The President can use force if he proclaims that there is an insurrection; but it is not an insurrection only because he proclaims it one.

307 See generally Elkins & McKitrick, The Age of Federalism 461474 (1993) (detailing actions of organized resistance, intimidation, and threats preventing federal officials from performing their duties – including tarring and feathering, whipping, surrounding of officials’ homes by armed mobs, and kidnapping and coerced repudiation of federal authority); see also Ron Chernow, Alexander Hamilton 468478 (2004) (similar); Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 17891878, at 4368 (1988) (documenting the resistance and military response).

308 To be sure, one scholar of the Acts suggests that “[i]t may have been dubious whether actions of the Whiskey Rebellion farmers truly rose to the level of insurrection,” and that Washington may have treated it as lawobstruction rather than insurrection. Vladeck, at 161 n. 46; see also Coakley, supra note 307, at 67 (suggesting that to “characterize the . . . affair as a ‘riot’ and the participants as ‘rioters’” is “far closer to the truth”). But later sources called it at least an insurrection, see infra note 309.

309 See Townsend Ward, The Insurrection of the Year 1794, in the western counties of Pennsylvania (J.B. Lippincott 1858); H.M. Brackenridge, History of the western insurrection in western Pennsylvania: commonly called the whiskey insurrection (W.S. Haven, 1859).

310 Coakley, supra note 307, 6977.

311 John Adams, Proclamation on Insurrection in Pennsylvania, 12 March 1799, https://founders.archives.gov/documents ... 9902023377

312 These prosecutions also occasioned a widely-cited jury charge from Circuit Justice Chase, in which he repeatedly discussed “insurrection,” describing it as a “rising of any body of the people” and arguing that it qualified as treason because “an insurrection to resist or prevent, by force, the execution of any statute of the United States, has a direct tendency to dissolve all the bands of society, to destroy all order and all laws, and also all security for the lives, liberties and property of the citizens of the United States.” Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800).

313 But see Elkins & McKitrick at 696700 (questioning “whether the circumstances really called for military force of any kind”).

314 Federal troops were used to suppress this and other slave rebellions, but “without following the legal procedures laid down in the statutes of 1795 and 1807.” Coakley, supra note 307, at 9294. Coakley suggests that this the failure to go through the Insurrection Acts reflected “the universal dread of slave revolts” at the time and the fact that “t]he slaves had no political constituency.” Id. at 94.

315 See The Confessions of Nat Turner, The Leader of the Late Insurrection in Southampton, VA, as fully and voluntarily made to Thomas R. Gray, at 3, 5, 7, 20, 22 (1831) (calling it “insurrection”); see also Thomas Wentworth Higginson, Nat Turner's Insurrection, 8 Atlantic Monthly 173 (1861)

316 See Turner, supra note 315, at 3 (“The late insurrection . . . is the first instance in our history of an open rebellion of the slaves”) (emphases added).

317 See McPherson, supra note 228, at 8184; Cf. Coakley, supra note 307, at 130131 (noting debate about whether this disturbance in Boston was sufficiently great to trigger the insurrection acts).

318 McPherson, supra note 228, at 8485. See also Thomas Slaughter, Bloody Dawn: The Christian Riot and Racial Violence in the Antebellum North (1991); and cf. id. at ix (“The line between riot and rebellion was shifting during the antebellum period.”).

319 See generally H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2006) (describing resistance, in the midtolate1850s, in Wisconsin to federal legal authority to execute the Fugitive Slave Act).

320 McPherson, supra note 228, 202208. Federal troops helped suppress this insurrection and rebellion too. See Coakley, supra note 307, at 193 (“This intervention was, as in the case of Nat Turner’s Rebellion, an emergency measure undertaken without the usual formalities.”).

321 Luther v. Borden, 58 U.S. (7 How.) 1 (1849). On Dorr’s Rebellion generally and the federal response, see Coakley, supra note 307, at 119127.

322 Luther, 58 U.S. (7 How.) at 8.

323 Id. at 37

324 Id. at 46

325 Id. at 45.

326 By this time, the Act had been amended yet again. See 17 Stat. 13, 1415 (1871), §§ 34.

327 Ulysses S. Grant, Proclamation No. 197, Law and Order in the State of South Carolina (Mar. 24, 1871); http://www.presidency.ucsb.edu/ws/?pid=70253; Ulysses S. Grant, Proclamation No. 200, Law and Order in the State of South Carolina (Oct. 12, 1871); for background see Michael Bahar, The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States, 5 Harv. Nat'l Sec. J. 537, 61314 (2014); Lou Falkner Williams, The Great South Carolina Ku Klux Klan Trials, 18711872, at 3949 (1996).

328 Ulysses S. Grant, Proclamation No. 213, Law and Order in the State of Louisiana (May 22, 1873) http://www.presidency.ucsb.edu/ws/index.php?pid=70364

329 Ulysses S. Grant, Proclamation No. 220, Law and Order in the State of Louisiana (Sept. 15, 1874) http://www.presidency.ucsb.edu/ws/index.php?pid=70422

330 Ulysses S. Grant, Proclamation No. 223, Law and Order in the State of Mississippi (Dec. 21, 1874), http://www.presidency.ucsb.edu/ws/?pid=70459.

331 Ulysses S. Grant, Proclamation No. 218, Law and Order in the State of Arkansas (May 15, 1874) http://www.presidency.ucsb.edu/ws/?pid=70420.

332 Ulysses S. Grant, Proclamation No. 232, Law and Order in the State of South Carolina (Oct. 17, 1876) http://www.presidency.ucsb.edu/ws/?pid=70542.

333 Lynch, supra note 5, at 196. Lynch ably and accurately describes the most important such cases. See id. at 196201, 207210. We find little or nothing to disagree with in his account and analysis of these disputes and are indebted to Lynch’s research and analysis.

334 See generally 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States, ch. 14, pp. 431486 (1907).

335 Id. §448 at 442.

336 Id. at 443 (emphasis added).

337 Id.

338 Id. at 445.

339 Quoted in id. at §449, p. 445.

340 Id. at §449, pp. 443, 448.

341 Id. at §451, p. 452 (quoting House Report 4029 (1868)) (emphasis added).

342 Id. at §451, p. 452 (quoting House Report 4029 (1868)) (emphasis added).

343 Id. at §453, p. 459.

344 Id. at §453, 455, pp. 459461, 462465. In Butler’s case, twothirds of both houses voted him amnesty. Id. at 464465. In Patterson’s case, the Senate tried to pass a bill altering the oath for Patterson, but the House tabled it, id. at 46, but perhaps that is okay, if application of the Ironclad Oath, to members of Congress, is a function of each house’s separate power to make rules governing its proceedings. U.S. Const. art. I §5.

345 Hinds’ at §§457, 458 at pp. 465470.

346 Hinds’ at §459, pp. 470 (reporting that Senator Sumner withdrew a resolution focused on Thomas’s son “it being urged that Mr. Thomas’s conduct as a Cabinet officer in 1860 afforded more certain grounds for action.”). See also Cong. Globe 40th Cong. 2nd Sess. at 12601262 (Feb. 19, 1868).

347 Hinds’ at §459, pp. 470472. Interestingly, the Governor of Georgia had concluded that Christy was disqualified under Section Three while the House committee relied on the Ironclad Oath “independently of any question as to ineligibility under the fourteenth amendment,” id.

348 Hinds’ at §460, pp. 472473.

349 Congressional Globe, 41st Cong, 2nd Sess. pp. 54425447 (July 11, 1870). Rice had also been in the Kentucky legislature and voted for a resolution against the coercion of the southern states; but everybody agreed this was not enough to count as aid or comfort, because it was only in January 1861: “No war exist[ed] at the time” and it was before “the policy of the Government had been announced.” Id. at 5443 (Butler); see also id. at 5445 (Garfield). Nor could Rice be excluded solely because of his politics. See id. at 5445 (“[T]his man was a Democrat. That is a political sin, but it is not a crime under the law. He is a Democrat yet. I think he is very wrong in being that, but yet it is not a crime.”) (Logan).

350 Hinds’ at §461, pp. 474475.

351 See generally Hinds’ at §463, pp. 478486.

352 See generally Richard E. Yates, Zebulon B. Vance: as War Governor of North Carolina, 18621865, 3 J. Southern Hist. 43 (1937).

353 Vance ultimately had the last laugh. Vance was excluded from the 1872 amnesty statute because he had served in the thirty-sixth Congress, Act of May 22, 1872, ch. 193, 17 Stat. 142; https://bioguide.congress.gov/search/bio/V000021. Cf. Franklin Ray Shirley, Zebulon Vance, Tarheel Spokesman 71 & 152 n. 36 (1962) (claiming that Vance had been waiting for the 1872 amnesty until his opponent Abbott had somehow engineered the amendment to the 1872 act that excluded Vance), but Congress then passed a private bill granting him individual amnesty. 17 Stat. 691 (June 10, 1872). Thanks to Gerard Magliocca for this source. Vance subsequently returned to the North Carolina governorship, and then to the Senate until his death in 1884. Magliocca, Amnesty, supra note 5, at 111 n. 126.

354 Finally, though it occurred long after this period, there has been one additional congressional exclusion under Section Three: the 1919 exclusion of socialist newspaper editor Victor Berger from the House. See supra notes 219221 and accompanying text. The Berger episode of course has no probative value about the original meaning of Section Three, since it occurred more than 50 years after Section Three was enacted. In our view, the House’s decision was mistaken—an overzealous reading of the law, the facts, or both.

355 See generally Graber, Volume 1, supra note 8.

356 See supra notes 12, 59, & 181.

357 See generally Graber Section Three manuscript, supra note 12.

358 Congress also rejected a series of proposed amendments to Section Three that would have narrowed or limited the conduct or persons to which the language would apply – e.g., only to persons who joined the Confederacy while still holding prior office under the U.S. Constitution; only to persons who had sworn oaths to the Constitution since 1851; only to persons who had not received presidential pardons; and only to persons who had voluntarily served the confederacy. Republican defenders of Section Three successfully opposed these proposed limitations on Section Three’s scope, arguing that limiting the ban to persons who still held office under the Constitution when they joined the Confederacy would indulge the pretext that resignation from office before engaging in or assisting rebellion absolved one of any prior duty of loyalty to the United States Constitution. Cong. Globe, 39th Cong. 1st Sess. p. 2770 (statement of Sen. Howard). Republicans likewise rejected the proposed limitation to persons who had “voluntarily” assisted or participated in rebellion, because it would raise unnecessary and difficult proof problems and permit spurious claims of involuntary participation. Indeed, one senator noted that Alexander Stephens, Vice President of the Confederacy, had testified before the Joint Committee on Reconstruction that he “never entered into the rebellion voluntarily”! Cong. Globe, 39th Cong., 1st Sess. p. 2918 (statement of Sen. Willey).

359 See, e.g., Baude, Liquidation, supra note 237, at 6162; Paulsen, Most Dangerous, supra note 237, at 293, 303.

360 Additionally, some of Congress’s application of the Ironclad Oath to its own members also entailed the application of Section Three, see supra Part IV.A.5.b.

361 An Act to provide for the more efficient Government of the Rebel States, 14 Stat. 428, 429, sec. 56 (March 2., 1867).

362 Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867); Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 182 (1867).

363 12 Op. Att’y Gen. at 159160. But see supra Part III.AB (explaining why the constitutional ex post facto and attainder principles do not apply to Section Three, especially as applied to new insurrections and rebellions).

364 Id. at 161162 (emphasis added)

365 Id. at 161.

366 Id. at 165.

367 Worthy v. Barrett, 63 N.C. 199, 203 (1869). The court also applied the Worthy rule to the even easier case of a county attorney who “took part in th[e] rebellion by serving in the Confederate army, voluntarily.” In Re Tate, 63 N.C. 308 (1869).

368 By contrast, Stanberry had concluded that officers who “discharged official duties not incident to war, but in the preservation of order and the administration of law, are not to be considered as thereby engaging in rebellion.” 12 Op. Att’y Gen. 162.

369 16 Stat. 140, 142143, sections 14 & 15. See supra note 54.

370 United States v. Powell, 27 F. Cas. 605 (C.C.D.N.C 1871).

371 Id. at 607.

372 Id. Additionally, Powell had served as a justice of the peace under the Confederate government, but the federal court held this not to qualify, for reasons similar to those articulated by Attorney General Stanberry. Id.

373 Sam D. Elliott, When the United States Attorney Sued to Remove Half the Tennessee Supreme Court: The Quo Warranto Cases of 1870, 49 Tenn. B.J. 20 (2013); see also Magliocca, Amnesty, supra note 5, at 109110.

374 For one fawning account of Nelson, see Oliver P. Temple, Notable Men of Tennessee From 1833 to 1875. at 166215 (1912).

375 Justice Nelson resigned while these actions were pending, and the rest of the actions were abandoned with the passage of the 1872 Amnesty Act and a change in the federal attitude towards Section Three. Elliott, supra note 373.

376 In re Griffin, 11 F. Cas. 7, 22 (C.C.D.Va. 1869).

377 Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 873, 885–87 (1872). There is reason to think there were hundreds of other Section Three actions brought during this time period, but few records of the specifics of the cases. Magliocca, Amnesty, supra note 5, at 109110.

378 U.S. Const. amdt. XIV, sec. 3.

379 Id.

380 See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twentythird Century, 59 Albany L. Rev. 671, 67476 (1995). For instance, consider the story, passed down from Albert Gallatin to Max Farrand to William Treanor, that Gouverneur Morris slyly attempted to replace a comma with a semicolon in Article I in order to convert the “General Welfare” Clause from a limitation on the tax power into a freestanding power of regulation. William Michael Treanor, The Case of the Dishonest Scrivener: Guverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. Rev. 1, 2024 (2021). Putting aside whether this story is really true, David S. Schwartz, Framing the Framer: A Commentary on Treanor’s Governeur Morris as Dishonest Scrivener, 120 Mich. L. Rev. 51, 6973 (2022), a sensible approach to constitutional interpretation should obviously resist such antics. Even if Morris had succeeded in smuggling in the semicolon, that maneuver should not be decisive in interpreting the Clause. See Kesavan & Paulsen, West Virginia, supra note 127, at 338339 & n. 151.

381 U.S. Const. art. VI, cl.3.

382 U.S. Const. art. II, §1, cl. 8. On the Presidential Oath Clause generally, see Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 12601267 (2004); on “to the best of my Ability,” see William Baude, Signing Unconstitutional Laws, 86 Ind. L.J. 303, 310 (2011).

383 U.S. Const. amdt. XIV, sec. 3.

384 Hemel, Howto Guide, supra note 5 (setting forth arguments why state legislative offices are included within the general catchall category of excludedfrom “civil” offices.); contra John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 54 (1878). None of this in our view affects the question whether a Member of Congress may properly be designated as an “Officer” to whom the duties of the office of President may devolve upon presidential and vice-presidential death, resignation, or inability, which turns on different considerations. Compare Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995) with John F. Manning, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 Stan. L. Rev. 141 (1995).

385 Serious scholarship has explored those questions with respect to the Appointments Clause. Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443 (2018). We do not address that somewhat peripheral question here, but leave such issues for another day.

386 38 U.S. 230, 258 (1839) (“[T]hat a clerk is one of the inferior officers contemplated by [the Appointments Clause] cannot be questioned”). To be clear, Hennen dealt with the clerk of court, not what we would now call a term judicial law clerk.

387 That said, to the extent that one maintains that magistrate judges and bankruptcy judges cannot lawfully exercise judicial power or executive power of their own, see William Baude, Adjudication Outside Article III 133 Harv. L. Rev. 1511, 155456, 157475 (2020), one might question whether they are truly “officers” at all. Again, we leave this issue for another day.

388 Josh Blackman & Seth Barrett Tillman, Is The President An “Officer of the United States” For Purposes of Section Three of the Fourteenth Amendment?, 15 N.Y.U. J. L. & Liberty 1 (2021).

389 See, e.g., id. at 6, 17, 21.

390 To be sure, faithful readings of the Constitution sometimes yield counterintuitive outcomes. See Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 Const. Comm. 245 (1997); (suggesting the possibility that a straightforward reading of the constitutional text yields the “stupid” – and surely inadvertent – result that the Vice President would be the presiding officer over his own impeachment trial in the Senate and that this is a result to be rectified); Baude & Sachs, Grounding, supra note 9, at 1468. But that does not mean we should close our eyes to plausibility and common sense, especially when the proposed textual reading is such a stretch. See also Paulsen, supra, Nothing But the Text, supra note 10, at 14391440 (noting cautions concerning use of the “absurdity” canon to deny plain textual meaning, but noting how the canon is a sometimes useful tool in discerning actual textual meaning.).

391 See generally U.S. Const. Art. II.

392 For instance, consider the differently phrased, but seemingly identical enforcement clauses of the Reconstruction Amendments. U.S. Const. amdt. XIII, sec. 2 (“Congress shall have power to enforce this article by appropriate legislation.”); id. amdt. XIC, sec. 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”); id. amdt. XV, sec. 2 (“The Congress shall have power to enforce this article by appropriate legislation.”). Or consider the Constitution’s “gratuitous (one could also say strange) punctuation marks.” Kesavan & Paulsen, West Virginia, supra note 127, at 348 (giving examples).

393 One of us has previously complimented Tillman’s prior scholarship that attempts to prove such a systematic term-of-art/secret code in the original Constitution. William Baude, Constitutional Officers: A Very Close Reading, JOTWELL (Jul. 28, 2016) https://conlaw.jotwell.com/constitution ... sereading/. But the very pieces of evidence that are most arresting in that context also confirm extensive linguistic drift or changing understandings in the decades after the founding. Compare id. (foreign gifts to Washington) with Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 190 (2013) (contrary practice by Presidents Van Buren, Tyler, and Jackson); compare Baude, supra this note (Hamilton’s list) with Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated, at 2021 https://papers.ssrn.com/sol3/papers.cfm ... id=3037107 (describing a scrivener’s “condensed” version of this document likely made “circa 1830” that may reflect a different understanding of the constitutional terms); cf. Blackman & Tillman, supra note 388, at 2431 (acknowledging, and arguing against, the possibility of linguistic drift). In other words, such secret code (if any) turns out to have been written in disappearing ink.

394 Cong. Globe, 39th Cong., 1st sess. at 2899 (1866)

395 Id.

396 Id.

397 Id.

398 Former President John Tyler of Virginia subsequently sided with the Confederacy and was elected to the Confederate congress (but died before assuming office). And former Vice President John Breckinridge subsequently served as a Confederate general and, later, as Confederate Secretary of War. See Blackman & Tillman, supra 388, at 4546 (acknowledging this). While Tyler and Breckinridge had served in other disqualification-triggering posts, if the text really had failed to include the offices of President and Vice President as triggering disqualification these incidents would have shown that to be a glaring and dangerous omission.

399 Mark Graber Disqualification From Office: Donald Trump v. the 39th Congress, Lawfare (Feb. 24, 2023). Professor Graber notes further that a “unanimous House select committee report issued barely a month after Congress sent the 14th Amendment to the states concluded that ‘a little consideration of this matter will show that ‘officers of’ and ‘officers under’ the United States are ‘indiscriminately used in the Constitution.’’” In addition, “[t]he most comprehensive study of state ratification . . . does not point to a single example of any journalist or participant in a state convention who distinguished between ‘officers under’ and ‘officers of’ or who otherwise thought a president who participated in an insurrection could not be disqualified under Section 3.’” John Vlahoplus, Insurrection, Disqualification, and the Presidency, 13 Brit. J. Am. Legal Stud. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm ... d=4440157; see also Lynch, supra note 5, at 158160 (collecting authorities supporting the same point); Magliocca, Foreground, supra note 62, at 16 n. 48 (“My research . . . shows that President Andrew Johnson repeatedly referred to himself as “the chief executive officer of the United States”).

400 In describing these events, we rely generally here and throughout on the public record assembled by the House January 6th Committee. Final Report, Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. 117000 (117th Cong., 2nd Sess.). Of course, to the extent that a potentially disqualified officer wished to prove that this public record was inaccurate or incomplete as relevant to them, they could attempt to do so in the relevant proceedings and to the relevant decisionmaker. See generally supra Part II.B.

401 Supra Part IV.A.1. The fact that President Trump may have supported the insurrection, see infra II.C.2.b, does not change this. In our system the President is not “the government,” and especially not when Congress is carrying out a constitutionally mandated role in supervising the transfer of power.

402 See, e.g., January 6 Report, supra note 400, at 499502, 530531.

403 Id. at 640642.

404 Id. at 646647, 651659.

405 Id. at 502510, 521530.

406 See supra Part IV.A.4.c.

407 What about other disruptive, disorderly, even violent protests during the same year? For instance, the many such events that erupted during the summer of 2020 in the wake of the police killing of George Floyd? So far as we can tell, none of these were covered by Section Three. Of course mere protest is not insurrection. Some of these protests devolved into riots, but even a riot is not necessarily an insurrection. And even if some of them went further, amounted to “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect,” and met the definition of insurrection, they would seem to be insurrections against the state governments, not the United States, and thus outside the scope of Section Three. But of course if there were other insurrections against the United States, Section Three applies to them all.

408 Pub. Law. 11732 (Aug. 5, 2021), 135 Stat. 322.

409 Id. sec. 1(1). In the state Section Three proceedings against Marjorie Taylor Greene, supra notes 6873 and accompanying text, the hearing officer cited this statute to conclude “Congress has characterized the Invasion as an insurrection.” Initial Decision, Rowan v. Greene, No. 2222582OSAHSECSTATECE57Beaudrot, at 910 (Georgia Office of State Administrative Hearings, May 6, 2022). The hearing officer found it unnecessary to decide for himself, however, “Whether the Invasion of January 6 amounted to an insurrection.” Id. at 18.

410 Pub. Law. 11732, sec. 1(4).

411 H. Res. 24 (117th Cong., 1st Sess. Jan 25, 2021).

412 For what it is worth, other scholars have also agreed that January 6th was an insurrection. See Magliocca, Foreground, supra note 62, at 23 n.65 (“January 6th was an insurrection within the meaning of Section Three, in part because the mob disrupted a constitutionally required act – the formal counting of the electoral votes under the Twelfth Amendment –and prevent the lawful transfer of authority.”); Vlahoplus, supra note 399, at 1 (referring to “The insurrection of January 6.”); Farah Peterson, Our Constitutionalism of Force, 122 Colum. L. Rev. 1539, 162225 (2022); see also Hemel, How-to Guide, supra note 5 (“[T]he constituted government in the United States is not any single individual but the constellation of institutions that facilitate the lawful exercise and peaceful transfer of power. A sitting president who seeks to subvert those institutions through violence is no less an insurrectionist than a lower-level official or private citizen who seeks to do the same.”).

413 See supra Part IV.A.2.

414 See generally Daniel J. Hemel, Self-Coup and The Constitution, 37 Const. Comm. (forthcoming 2023).

415 In similar fashion, we note that—at least at first—the purported “secession” of a state from the Union was not universally acknowledged to be itself an act constituting “rebellion” as a legal matter It too did not fit perfectly the standard dictionary definition (unless and until force was used or threatened). But the logic of the matter led Lincoln—and Congress, and the Supreme Court—to conclude that secession, in practical and legal terms, was a species of “rebellion” and legally to be treated as such. See supra Part IV.A.4. As set forth in the text, the same logic suggests that conduct tantamount to an attempted coup d’etat (including attempting to maintain a defeated incumbent president in office, dishonestly and unlawfully) may fairly be characterized, legally, as “insurrection or rebellion.”

416 For the sake of completeness, we add that we think the events of 20202021 probably do not rise to the level of “treason” or “levying war” against the United States, though of course it is possible that further investigation will reveal truly treasonous conduct that is not yet on the public record.

417 See generally supra Part IV.A.

418 See not only the January 6 Report, supra note 400, but also John Danforth, Benjamin Ginsburg, Thomas B. Griffith, David Hoppe, J. Michael Luttig, Michael W. McConnell, Theodore B. Olson & Gordon H. Smith, Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election (2022), https://lostnotstolen.org.

419 This is consistent with principles of mens rea that distinguish knowledge of what one is doing from knowledge of the proper legal characterization of what one is doing. See, e.g., Counterman v. Colorado, 600 U.S. ___, at 4 n.2 (2023).

420 Now what if the shoe were on the other foot? What if Trump had somehow succeeded in unlawfully holding apparent office after January 20, 2021? Would comparable actions by Biden supporters have constituted “insurrection”? We think not. The true facts matter. A rebellion against lawful government is rebellion, but acts of counterinsurgency against an attempted coup d’etat are not.

421 And not that it matters, see supra Part IV.C.2.a, but it also appears that Trump knew that these accusations were false. See January 6 Report, supra note 400, 10001, 10304, 203, 213, 789.

422 Id. at 202203, 263265; see also id. at 223231,

423 Id. at 296300.

424 Id. at 341354.

425 Id. at 431.

426 Id. at 441458.

427 Id. at 441458.

428 Quoted in id. at 499.

429 Id. at 499540.

430 For the quotations in this paragraph, see “Transcript of Trump’s Speech at Rally Before US Capitol Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election2020 ... 02eb471f27. See also id. (“And again, most people would stand there at 9 o’clock in the evening and say, ‘I want to thank you very much,’ and they go off to some other life. But I said something is wrong here, something is really wrong, can’t have happened, and we fight. We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”).

431 See Michael Conklin, Capital Offense: Is Donald Trump Guilty of Inciting a Riot at the Capital?, 15 U. St. Thomas J.L. & Pub. Pol’y 483 (2022); see also Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the OvertActs Rule, 37 Const. Comm. at 23, 2021 (forthcoming 2023).

432 Transcript, supra note 430.

433 395 U.S. 444 (1969); compare Conklin, supra note 431, with Alexander Tsesis, Incitement to Insurrection and the First Amendment, 57 Wake Forest L. Rev. 971 (2022); see also Rozenshtein & Shugerman, supra note 431, at 3 n.3 (citing these and other sources and describing this disagreement).

434 As Rozenshtein and Shugerman also emphasize, “Trump’s speech was accompanied by several overt acts in furtherance of inciting an attack against the Capitol,” which they argue takes it outside of the Brandenburg framework for that reason. Rozenshtein & Shugerman, supra note 431, at 38.

435 See supra Part III.D (arguing that Section Three is not limited by the free speech principles of the First Amendment).

436 January 6 Report, supra note 400, at 577606.

437 Donald J. Trump, Tweets of January 6, 2021, available at https://www.presidency.ucsb.edu/documen ... nuary62021

438 January 6 Report, supra note 400, at 577.

439 Even as he urged peace in a video to the insurrectionists (“we can’t play into the hands of these people. We have to have peace”) he continued to express affection for them (“So go home. We love you. You’re very special.”) and to reiterate that the “election was stolen from us.” Donald J. Trump, Videotaped Remarks During the Insurrection at the United States Capitol, at https://www.presidency.ucsb.edu/documen ... tescapitol. Later that night he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” Trump Tweets, supra note 437.

440 Cf. notes 345346 and accompanying text (describing the exclusion of Senator-elect Phillip Thomas).

441 See supra notes 413415 and accompanying text.

442 See supra notes 8588, 111113 and accompanying text.

443 See supra notes 6880 and accompanying text.

444 January 6 Report, supra note 400, at 294. Such a claim was brought against Mastriano in federal court but dismissed on jurisdictional grounds. See supra note 89.

445 January 6 Report, supra note 400, at 536, 577, 581, 593594, 608; https://www.rev.com/blog/transcripts/ru ... albycombat

446 January 6 Report, supra note 400, at 533, 535536.

447 See supra notes 413415 and accompanying text.

448 January 6 Report, supra note 400, 222.

449 January 6 Report, supra note 400, at 352353. Several of these would-be electors previously held state and local offices, and so are covered by Section Three.

450 January 6 Report, supra note 400, at 50.

451 Id. at 50 (discussing actions of Pennsylvania U.S. Representative Scott Perry).

452 See Magliocca, Foreground, supra note 62, at 1424 (arguing at length that “the democracy canon in a seductive but mistaken way of reading Section Three of the Fourteenth Amendment,” and that it “elevates a background constitutional principle in a way that is inconsistent with the text, purpose, and history of Section Three”).

453 See William Baude, The Real Enemies of Democracy, 109 Cal. L. Rev. 2407, 241820 (2021) (“The real enemies of democracy, at a more fundamental level, are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.”).

454 Supra note 95.

[admin]

Trump legal advisers warn him not to hold press conference railing against Georgia case
Ex-president is now under four criminal indictments
by John Bowden
Independent.co.uk

Donald J. Trump
@realDonaldTrump
8/15/23

A Large, Complex, Detailed but Irrefutable REPORT on the Presidential Election Fraud which took place In Georgia is almost complete & will be presented by me at a major News Conference at 11:00 A.M. on Monday of next week in Bedminster, New Jersey. Based on the results of this CONCLUSIVE Report, all charges should be dropped against me & others - There will be a complete EXONERATION! They never went after those that Rigged the Election. They only went after those that fought to find the RIGGERS!

Donald Trump may not end up hosting a press conference to refute allegations of criminal activity in front of member of the media, as he has done in similar previous instances.

The ex-president had vowed to do so in a Truth Social posting after being indicted this week on 13 felony counts in Georgia, where he and members of his campaign sought to alter the results of the 2020 presidential election and prove baseless claims of voter and election fraud.

But now those plans appear to be in question, according to ABC News, which cited sources close to the former president as saying that Mr Trump’s legal team strongly urged him against further addressing the allegations in public and taking questions from reporters on the matter.

Doing so would “complicate his legal problems”, ABC reports the former president as having been advised by his attorneys.

It’s an unsurprising piece of advice, and a common one that attorneys often offer their clients. What’s more surprising is the notion that Mr Trump actually appears to be taking it, rather than plowing ahead at full steam as he did following his first federal indictment on charges of illegally retaining defence materials and other presidential records, including classified documents, from the White House.

Mr Trump almost immediately hosted a press conference at his Bedminster resort and golf course after those charges were handed down. The seriousness of his mounting legal problems appears to be breaking through, however, following his latest criminal charging.

Legal experts have speculated for months that Mr Trump is hoping to evade the reach of the Justice Department by winning the presidency a second time. A victory in the election would be irrelevant to his prosecution in Georgia, where a presidential pardon would not affect state charges. If Mr Trump were to be convicted of his RICO charge, he would face mandatory jail time.

Were a conviction to occur on any of his charges, his fate would ultimately be in the hands of a state Board of Pardons, given that Georgia’s constitution does not grant that power to the governor as do other states’ laws.

Mr Trump has loudly denied guilt in any of the charges he faces, though not for lack of evidence; he instead has insisted that no wrongdoing occurred on a recording of a telephone call where he is heard pressuring Georgia’s top elections official to “find” more than 11,000 votes to add to his total in the state.

Fulton County District Attorney Fani Willis, whose office is overseeing the prosecution of the former president in Georgia, has given Mr Trump a surrender date of no later than 25 August.

[admin]

Government's Sentencing Memorandum
USDC, District of Columbia
USA v. Ethan Nordean, Joseph Biggs, Zachary Rehl, Enrique Tarrio, and Dominic Pezzola
Case No. 21-CR-175 (TJK)
by Matthew M. Graves, United States Attorney
8/17/23

https://s3.documentcloud.org/documents/ ... s-memo.pdf

[admin]

Part 1 of 3

Government's Sentencing Memorandum
USDC, District of Columbia
USA v. Ethan Nordean, Joseph Biggs, Zachary Rehl, Enrique Tarrio, and Dominic Pezzola
Case No. 21-CR-175 (TJK)
by Matthew M. Graves, United States Attorney
8/17/23

https://s3.documentcloud.org/documents/23917711/proud-boys-memo.pdf

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
ETHAN NORDEAN,
JOSEPH BIGGS,
ZACHARY REHL,
ENRIQUE TARRIO, and
DOMINIC PEZZOLA,

Defendants.

Case No. 21-CR-175 (TJK)

GOVERNMENT’S SENTENCING MEMORANDUM

The United States respectfully submits this omnibus Sentencing Memorandum for defendants Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, and Dominic Pezzola. This Sentencing Memorandum addresses those factors that are common to all defendants, a hearing on which is set for August 29, 2023. Additional support for the government’s sentencing recommendations for each defendant are discussed in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
The government’s Sentencing Memorandum reflects the seriousness of the defendants’ conduct and crimes, as reflected in the jury’s verdict after a four-month trial. After adopting the PSRs’ factual findings,1 Chapter Two specific offense characteristics, and Chapter Three adjustments, including the application of Section 3A1.4 to the defendants’ federal crimes of terrorism, the Court should apply the following Guidelines ranges and impose the following terms of incarceration:
1 As of the date of this filing, final presentence reports (PSRs) are not available. All references to the PSRs herein refer to the drafts that were filed on the docket at ECF 835 – 839.
Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 1 of 80
2

Defendant / Offense Level after application of Terrorism adjustment (§3A1.4) / Role adjustment (§ 3B1.1) / Obstruction adjustment (§ 3C1.1) / Adjusted offense level / Criminal History Category / Guidelines Range (in months) / Sentence in years (and months)

Tarrio / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)

Biggs / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)

Nordean / 32 / 4 / 36 / VI / 324 - 405 / 27 years (324)

Rehl / 32 / 3 / 2 / 37 / VI / 360 - life / 30 years (360)

Pezzola / 32 / - / - / 32 / VI / 210 - 262 / 20 years (240)

Table of Contents

I. FACTUAL BACKGROUND ........................................................................................... 5
A. Summary of Evidence ......................................................................................................... 5
B. Victims ............................................................................................................................... 7
C. Scope of the Conspiracy ................................................................................................... 14
II. CHARGES AND STATUTORY PENALTIES............................................................ 15
III. LEGAL STANDARDS ................................................................................................... 16
A. Preponderance of the evidence ......................................................................................... 16
B. Relevant conduct and definition of “offense” ................................................................... 17
IV. CHAPTER TWO – OFFENSE CONDUCT................................................................. 19
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2) ......................................... 19
1. Base Offense Level for Counts One - Four ................................................................ 20
2. “Administration of justice” specific offense characteristics (Counts One – Four) .... 22
a) Legal applicability .................................................................................................. 22
b) Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) ......................... 29
c) Section 2J1.2(b)(2) (substantial interference with administration of justice) ......... 33
3. “Extensive scope, planning, or preparation” specific offense characteristic .............. 35
B. Count Five ......................................................................................................................... 39
1. Base Offense Level for Count Five ............................................................................ 39
2. “More than minimal planning” specific offense conduct ........................................... 40
C. Counts Six and Seven. ...................................................................................................... 40
D. Count Nine ........................................................................................................................ 43
E. Count Ten.......................................................................................................................... 43
V. CHAPTER THREE: ADJUSTMENTS FOR CRIMES OF TERRORISM ............. 43
A. All Offenses of Conviction Were Calculated to Influence and Affect the Conduct of Government by Intimidation and Coercion, and to Retaliate Against Government Conduct. ............................................................................................................................ 44
1. Legal Standard ............................................................................................................ 44
2. Analysis ...................................................................................................................... 45
B. The Defendants’ Convictions on Counts Six and Seven are Qualifying Offenses for the Section 3A1.4 Adjustment ................................................................................................ 52
C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions ... 53
VI. CHAPTER THREE: OTHER ADJUSTMENTS ........................................................ 57
A. Section 3B1.1 (aggravating role) ...................................................................................... 57 Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 3 of 80
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B. Section 3C1.1 (obstruction of justice) .............................................................................. 64
C. Section 3E1.1 (no acceptance of responsibility) ............................................................... 65
VII. GROUPING ANALYSIS ............................................................................................... 67
VIII. UPWARD DEPARTURES ............................................................................................ 70
IX. SECTION 3553(A) FACTORS APPLICABLE TO ALL DEFENDANTS ............... 71
A. Nature and Circumstances of the Offense and Need for the Sentence Imposed to Reflect the Seriousness of the Offense and Promote Respect for the Law ................................... 71
B. Need for the Sentence to Afford Adequate General Deterrence....................................... 74
C. Need to Avoid Unwarranted Sentencing Disparities ........................................................ 75
X. CONCLUSION ............................................................................................................... 79

I. FACTUAL BACKGROUND

A. Summary of Evidence

Having already ravaged the streets of Washington, D.C. with violence on two prior occasions in the fall of 2020, Tarrio, Biggs, Nordean, and Rehl hand-selected “rally boys,” including Pezzola, for their return on January 6, 2021. They established a chain of command in which the directives of leadership would be followed without question. They chose the time and place for action—leading their men to a vulnerable entrance on the west front of the Capitol when most other rally-goers were focused on then-President Donald Trump’s speech almost a mile away. They arrived shortly before 1 p.m.—the appointed hour for the Certification to begin. These defendants and the men in their command saw themselves as the foot soldiers of the right—they were prepared to use, and they did use, force to stop the “traitors” from stealing the election. On May 4, 2023, twelve jurors found each defendant guilty for their calculated efforts to oppose the lawful transfer of presidential power.
The defendants and the men they recruited and led participated in every consequential breach at the Capitol on January 6. They began their assault that day at 10 a.m., when Nordean, Biggs and Rehl marched an assembled group of nearly 200 individuals away from the speeches at the Ellipse and directly to the Capitol. They arrived at the First Street gate at 12:50 p.m., and Biggs led the crowd in chants of “Whose Capitol? Our Capitol!” and “Whose house? Our house!” Within three minutes, Nordean, Biggs, Rehl, and Pezzola helped lead the charge up the first street walkway with their men throwing aside bike racks and laying waste to anything that stood in their path. As Biggs proudly declared, “we’ve gone through every barricade thus far.” When the police attempted to reform a line, Nordean and Biggs moved to the front and again led the way. They violently tore down a black metal fence and continued their assault on the Capitol. Nearly an hour Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 5 of 80
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later, at approximately 1:30 p.m., when law enforcement appeared to have successfully controlled the crowd by pushing them back, the men again pushed forward. Nordean, Biggs, and Pezzola gathered at the base of the concrete stairs that led to the doors and windows of the Capitol with many of their co-conspirators and other men they had led to the Capitol. They again surged toward the Capitol and overwhelmed officers that had been battling the crowd for nearly an hour. Rehl sprayed an officer in the face. Pezzola smashed open a window, allowing the first rioters to enter the Capitol at 2:11 p.m., and Biggs entered close behind him with some of his men.
The defendants’ leadership role was no accident. They viewed themselves as revolutionaries, and they believed fully in their cause. From the start of the riot, the defendants and their co-conspirators celebrated their achievement. Tarrio, who was monitoring the attack on the Capitol from afar as it unfolded, posted encouraging messages to his tens of thousands of social media followers, including the following messages: “Proud of my boys and my country,” and “Don’t fucking leave.” Tarrio privately claimed credit for the riot at the Capitol, telling Proud Boys senior leadership, “Make no mistake . . . we did this.” Biggs and Nordean posed with other Proud Boys on the west lawn of the Capitol for a celebratory video in which Biggs stated that “January 6 will be a day in infamy.” Rehl made social media posts calling January 6 a “historical day,” and he told his mother he was “so fucking proud” of the Proud Boys’ “raid of the capitol.” Pezzola, once inside the building, filmed a video of himself having a “victory smoke in the Capitol,” and stating, “I knew we could take this motherfucker over if we just tried hard enough… Proud of your motherfucking boy.”
The defendants’ celebratory statements continued in the days that followed. On January 7, Tarrio addressed the Ministry of Self-Defense (MOSD) members, telling them he was “proud of y’all.” Rehl likewise told the MOSD members he was “proud as fuck what we accomplished Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 6 of 80
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yesterday.” Biggs recorded a podcast-style interview in which he called January 6 a “warning shot” to the government that showed them “how weak they truly are” after being “bitch-slapped . . . on their own home turf.” Biggs explained that “January 7th was warning shot to the government – look, we started this country this way and we’ll fuckin’ save it this way.” Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that he “was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.”
Their own words leave no doubt. The defendants understood the stakes, and they embraced their role in bringing about a “revolution.” They unleashed a force on the Capitol that was calculated to exert their political will on elected officials by force and to undo the results of a democratic election. The foot soldiers of the right aimed to keep their leader in power. They failed. They are not heroes; they are criminals.
B. Victims
“January 6th will be a day in infamy.”
– Joe Biggs, January 6, 2021, 1:27 p.m.
“To those who wreaked havoc in our Capitol today, you did not win. Violence never wins. Freedom wins . . . As we reconvene in this chamber, the world will again witness the resilience and strength of our democracy . . . The elected representatives of the people of the United States have assembled again, on the very same day, to support and defend the Constitution of the United States . . . Let’s get back to work.”
–Vice President Mike Pence, January 6, 2021, 8:06 p.m.
In his 1981 Inaugural Address, President Ronald Reagan remarked that the peaceful and orderly transfer of power called for by the Constitution is viewed by the rest of the world as “nothing less than a miracle.” These defendants and their followers attempted to subvert that two-centuries old tradition. And while freedom, democracy, and the Constitution prevailed on January 6th, it was not without cost. Alongside the enduring legacy of bravery and honor by those who Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 7 of 80
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defended our country, a harsh reality has emerged—political violence is not some foreign concept that exists only in faraway lands, it exists here too.
The actions of these defendants threatened the bedrock principles of our country—democracy and the rule of law. These defendants sought out and embraced their role as the purveyors of street violence to achieve their political objectives. They loudly and publicly declared themselves the face of the insurgency in the wake of the Presidential Election, and they encouraged others to follow them. These defendants sought out to attack and did attack our democracy, and they publicly led the way on January 6th.The defendants’ crimes also directly harmed individuals on January 6: Congress, legislators, the staffers working inside the Capitol building, and the hundreds of law enforcement officers from across the region valiantly trying to protect the building, the people, and the constitutional process.
Congress was the public face of the peaceful transfer of presidential power and, in these defendants’ eyes, they were “traitors.” Public accounts by many of these Members of Congress illustrate some of the emotional and physical toll these people suffered, and continue to suffer, at the hands of these defendants. And that is precisely what these defendants aimed to accomplish—Tarrio posted a picture of Representatives hiding in the gallery and rejoiced at the government “fearing” the people; Biggs later giddily recounted that the attack left elected representatives “shaking” and in fear.
Some Representatives were initially stranded in the gallery of the House of Representatives after the other members had been evacuated from the floor. One Representative stated, “I really thought, we’re not going to be evacuated. We’re going to die here,” and because of the slim political majority, the rioters “could at any point take any three members either hostage or kill any Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 8 of 80
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three members, and that would have prevented us from certifying the election.”2 Another Representative expressed that, “[i]t was terrifying,” because they “didn’t know if the doors could be locked. And so I was focused on planning my escape if I had to get out.” “That’s what I was concerned about,” she added, “were we going to get out? Were we going to survive? Were they going to come after us?”3 A third explained that the noise from the rioters “sounded like a battering ram trying to beat down the doors.”4 This is not an after-the-fact embellishment, Inspector Thomas Loyd testified that when he arrived at the House gallery to evacuate the Representatives, officers initially resisted opening the doors out of concern that Inspector Loyd may have “been held hostage or had a gun to [his] head.” Tr. 3628:1-24 (Loyd).
Yet another Representative noted that he hadn’t “felt that way in over 15 years, since I was a Ranger in Iraq and Afghanistan.”5 “I had this realization that we were trapped,” the Representative said, so he “started to kind of view this in a tactical way,” explaining the “need to get everyone together, need to get in a defensive position. You don’t want people spread out. You don’t want people to be able to be pulled away from a mob—you need to get in a tight group.”6 And a Representative with a law enforcement background noted that her “police career flashed
2 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022).
3 Id.
4 lohud.com/in-depth/news/2022/01/04/january-6-capitol-protest-congress-members-recall-escape/6493506001 (Jan. 4, 2022).
5 Id.
6 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 9 of 80
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through my mind because I came from a job where I went to work every day thinking I might not make it back home.” She continued, “to be there in that moment and thinking—really in the midst of complete chaos—I reserved myself to the fact that, yeah, I could die today. But I’m just like a cop. I’m here doing the right thing, protecting and serving my nation by being here for this process, a peaceful transfer of power.”7
The threat these defendants and other rioters presented to the Members of Congress continued long after the rioters breached the building. Even when they were finally found and later evacuated, they still feared for their lives. One Representative who had served in the military explained that during the evacuation, “I remember the hallways were quiet (when we were evacuating). I was listening so carefully because I was so afraid that we would turn a corner and there would be the rioters.”8
Elected legislators were not the only individuals harmed by the defendants’ conduct. The defendants also specifically targeted and vilified law enforcement in public and private messages in the leadup to January 6. Even after January 6, Nordean continued to vilify police, posting an altered photograph of a law enforcement officer deploying mace against a rioter while referring to law enforcement as the “honorable oath breakers” and telling the public that if they “feel bad for the police, [they] are part of the problem.” Ex. 601-41.
Words on the page will never full capture the horror and heroism that defined the experience of law enforcement on January 6. Radio transmissions between officers on January 6, introduced at trial as Government Exhibits 359 to 398, provide a rare window into the conditions
7 Id.
8 Id. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 10 of 80
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that law enforcement faced that day and the professionalism with which they responded. Sworn law enforcement officers risked their lives to protect not only the Capitol building and the legislators inside, but also the constitutional process itself. Officer David Riggleman stayed in the fight because even though the officers were “greatly outnumbered,” he was committed to protecting the Members of Congress and other stakeholders in the building. Tr. 11645 (Riggleman). Despite all the chaos and terror of the day, Inspector Loyd expressed pride that the U.S. Capitol Police officers carried out their mission—“despite all the chaos that we were involved with, none of the members of Congress sustained physical injuries.” Tr. 3690:21-23 (Loyd).
The Court and the jury heard firsthand from just a fraction of the officers who faced the relentless force of the defendants that day. Officer Shae Cooney described hearing the radio call of a breach, and she testified that the terror that she heard in that transmission caused her to run to the west front. Tr. 6996:12-24 (Cooney). When she saw that rioters had advanced to the black fence, “a little panic came through” because Cooney knew they “weren’t going to have enough” officers. Id. at 6999:1-7. The panic was briefly “paralyzing,” but Cooney promptly joined her outnumbered officers on the line and got in the fight. Id. Officer Cooney came face-to-face with Ethan Nordean just after he tore down the black metal fence. Nordean and Biggs ignored her command to stop as they and others poured into the West Plaza. See, e.g., id. at 7088. Cooney explained that once the rioters were in the west plaza, they were “taking the individual poles on the fence and throwing those at us.” As Officer Cooney battled rioters in the West Plaza, she was personally hit by water bottles and hit in the head with poles and flags, including the American flag. Id. at 7074:9-16. Officer Cooney completed a twenty-hour shift and returned to the Capitol on January 7 after only two hours of sleep. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 11 of 80
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Officer Mark Ode responded to calls of a breach on the west front, and he arrived shortly after Nordean and Biggs tore down the black fence. Just like Officer Cooney, Officer Ode saw officers being assaulted, hit with punches, and having things thrown at them. Tr. 7484:19 – 25 (Ode). Officer Ode recalled the crowd calling law enforcement “traitors.” Id. at 7485:6-11. When Officer Ode attempted to assist another officer who was being assaulted, Pezzola and other rioters “violently and forcefully grabbed” his shield and pulled him to the ground. Id. at 7487:10 – 7488:22. Officer Ode was sprayed with a chemical substance, and Officer Ode fell to the ground with multiple people on top of him. Id. An individual on top of Officer Ode was using his helmet strap to choke him. Id. Officer Ode struggled to breathe, and he believed that he would not make it out of the pile alive. Id. Officer Ode left the front line to decontaminate his eyes and immediately returned to the West Plaza. Id. at 7501-02. The situation was becoming “more intense” and “more officers were intentionally being pulled out and singled out” by the rioters. Id. at 7503:6-13. Officer Ode watched one officer get pulled into the crowd by rioters, and Officer Ode saw “fear in her eyes” as she became separated from her colleagues. Id. at 7503:22-25. Officer Ode eventually responded to the Rotunda where he fought to push rioters such as Nordean out of the building. Id. at 7505-06. Officer Ode did not get home until 2 a.m. Id..
Officer Riggleman responded to the West Plaza shortly before the defendants surged forward up the concrete stairs toward the Upper West Terrace. When he arrived, Officer Riggleman encountered an “enormous crowd” that was “aggressive” and outfitted in tactical helmets and plate carriers. Tr. 11637:14-25 (Riggleman). Officer Riggleman joined officers under the scaffolding and attempted to hold them back from advancing further. Id. at 11641. The crowd surged toward officers, and Officer Riggleman was hit in the face by pepper spray from Barry Ramey, a man who marched with Nordean and Biggs from the Washington Monument. Id. at
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11641. The spray disabled Officer Riggleman’s vision and forced him to retreat to safety while guarding his service weapon. After decontaminating himself, Officer Riggleman got back in the fight even though he was still suffering from blurred vision and a burning sensation and having trouble breathing. Id. at 11644:5-9. Riggleman responded to the Crypt where an outnumbered group of officers again attempted to stop the crowd from advancing. While in the Crypt, rioters such as Gabriel Garcia (a man hand-selected by Tarrio) called the police “traitors.” Id. at 11648. The crowd again surged forward, and Riggleman was pressed against the wall by the force of the rioters, and he was unable to move. Id. at 11651.
Officer Marc Carrion was one of two officers who relentlessly fought for control over the Columbus Doors against overwhelming odds. As Biggs prepared for his second entry through the Columbus Doors, Officer Carrion and a handful of officers had their backs against the Columbus Doors and were trying to keep the mobs of rioters at bay. Officer Carrion recalled calls for help over the radio, yelling and chanting by the crowd, and he described a feeling that all five senses were overwhelmed in that moment. Tr. 14302 (Carrion). Eventually, there were only “five or six [officers] left at the door” and they were being sprayed by rioters, including by James Haffner (whom Nordean and Biggs led to the Capitol). Id. at 14308:2-7. Some of the officers were hit in the eyes, which created the “dangerous situation” for them to be fighting blind. Id. at 14309-10. Officer Carrion testified that the crowd was “hitting us with flagpoles, throwing batteries at us, throwing frozen water bottles at us, all in the hopes of getting us out of there so they could access the door.” Id. at 14308:2-7. Eventually, only Officer Carrion and one colleague, Officer Ryan Salke, remained. They fought to hold the door despite the waves of rioters that continued to push past them. Officer Carrion explained that even though he and Officer Salke had been completely overrun, they continued to work, “just trying to put our bodies in the way, if we can, to minimize
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the amount of people coming in.” Id. at 14315-316. After literally sacrificing his body to the effort, Officer Carrion completed his shift at 11 p.m., went home and washed his uniform, and returned at 7 a.m. Id. at 14320-321.
The officers’ heroism shined through in their testimony, but that heroism came at a tremendous cost. These officers, like countless others, carry with them the physical and mental scars of January 6, and the government anticipates that the Court will hear a more fulsome description of the experience of law enforcement and congressional workers during the omnibus hearing on August 29, 2023.
C. Scope of the Conspiracy
The scope of the defendants’ conspiracy is vast. The defendants organized and directed a force of nearly 200 to attack the heart of our democracy. Other leaders of the conspiracy, including Jeremy Bertino and Charles Donohoe, have pleaded guilty. Dozens of individuals who the defendants commanded or led to the Capitol await trial or have pled guilty.9
The scope of the conspiracy impacts many aspects of sentencing, including each defendant’s culpability for “relevant conduct,” U.S.S.G. § 1B1.3, the Guidelines’ specific offense characteristic for an offense that is extensive in scope, id. § 2J1.2(b)(3), the Guidelines’ adjustment
9 Other charged defendants include: Matthew Greene and William Pepe (No. 21-cr-52 (TJK)); Arthur Jackman, Paul Rae, Edward George, Kevin Tuck, Nathaniel Tuck (No. 21-cr-378 (TJK)); Christopher Kuehne, Louis Colon, Felicia Konold, Cory Konold, William Chrestman, and Ryan Ashlock (No. 21-cr-160 (TJK), Isiah Giddings (No. 22-cr-389 (TJK)), Brian Healion (No. 23-cr-230 (TJK)), Freedom Vy (No. 21-mj-689), Ronald Loehrke and James Haffner (No. 21-mj-672), Christopher Worrell and Daniel Lyons Scott (No. 21-cr-292 (RCL)), Barry Ramey (No. 22-cr-184 (DLF)), Zachary Johnson, Dion Rajewski, Alan “AJ” Fischer, Brian Boele, and James Brett (No. 22-cr-11 (RJL)), Gilbert Fonticoba (No. 21-cr-638 (TJK)), Gabriel Garcia (No. 21-cr-129 (ABJ)), Nicholas Kennedy (No.21-cr-487 (CKK)), Steven Miles and Matthew Lebrun (No. 22-cr-136 (JMC)), Jeffrey Finley (No. 21-cr-526 (TSC)), Marc Bru (No. 21-cr-352 (JEB)), Robert Gieswein (No. 21-cr-24 (TNM)); Tucker Weston (No. 23-cr-174 (RBW)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 14 of 80
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for aggravating roles in the offense, id. § 3B1.1, the Guidelines’ adjustment for “terrorism” in relation to defendants’ qualifying offenses, id. § 3A1.4(a) and (b), the Guidelines’ recommended upward departure for “terrorism,” id. § 3A1.4, cmt. n.4, and the need to avoid unwarranted sentence disparities, 18 U.S.C. § 3553(a)(6). As explained below, the scope of the conspiracy helps illustrate why the leaders and major participants must receive significant sentences of incarceration.
II. CHARGES AND STATUTORY PENALTIES
As set forth below, Tarrio, Nordean, Biggs, and Rehl were found guilty of Counts One through Six; and Pezzola was found guilty of Counts Three through Seven, Nine, and Ten, which crimes carry the maximum statutory penalties set forth below:
• Count One, seditious conspiracy, 20 years of incarceration;
• Count Two, conspiracy to obstruct an official proceeding, 20 years of incarceration;
• Count Three, obstruction of an official proceeding, 20 years of incarceration;
• Count Four, conspiracy to use force, intimidation, or threats to prevent officers of the United States from discharging their duties, 6 years of incarceration;
• Count Five, interference with law enforcement officers during a civil disorder: 5 years of incarceration;
• Counts Six and Seven10 destruction of federal property: 10 years of incarceration;
• Count Nine, assaulting federal officers: 8 years of incarceration; and
• Count Ten, robbery of personal property of the United States: 15 years of incarceration.
10 Counts Six and Seven, destruction of federal property in violation of 18 U.S.C. § 1361, are specifically enumerated crimes of terrorism as defined in 18 U.S.C. § 2332b(g)(5) and as applied in U.S.S.G. §3A1.4. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 15 of 80
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The government respectfully requests that the Court sentence Tarrio, Nordean, Biggs, and Rehl to terms of incarceration greater than 20 years, meaning that at least some of the counts would run consecutively to one another. The Court may sentence a defendant to a total term of incarceration greater than 20 years—i.e., run the terms consecutively—if the Court determines that such a sentence is necessary to comply with the factors in 18 U.S.C. § 3553(a)(2), that, is, to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant. U.S.S.G. § 5G1.2(b), (d) (“If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, . . . the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.”); 18 U.S.C. § 3584(b); see also United States v. Lafayette, 337 F.3d 1043, 1050 & n.11 (D.C. Cir. 2003) (explaining that a court may impose consecutive or “stack[ed]” sentences to achieve a total sentence in excess of the statutory maximum on a single count).
III. LEGAL STANDARDS
A. Preponderance of the evidence
To apply a provision of the Guidelines that the jury did not, by virtue of its guilty verdicts, necessarily already find beyond a reasonable doubt, the Court must make a finding by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 154 (1997); see also United States v. Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997) (“[I]t is the Government’s burden to demonstrate by a fair preponderance of the evidence that an enhancement is warranted.”); U.S.S.G. § 6A1.3, cmt (“The Commission believes that use of a preponderance of the evidence standard is appropriate. . . .”). The Court may consider any relevant information, without regard to whether Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 16 of 80
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the information would be admissible at trial. 18 U.S.C. § 3661. The Court may also consider acquitted conduct, United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008), including an acquittal of a conspiracy charge, United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir. 2014).
B. Relevant conduct and definition of “offense”
In applying the Guidelines, the Court must consider all “relevant conduct.” And especially in a conspiracy case,11 “relevant conduct” is “broadly defined.” United States v. Khatallah, 41 F.4th 608, 645 n.23 (D.C. Cir. 2022). Under Section 1B1.3(a)(1)(A), a defendant’s “relevant conduct” encompasses both the defendant’s own acts and those that the defendant aided, abetted, counseled, commanded, induced, procured, or willfully caused. And under Section 1B1.3(a)(1)(B), in a “jointly undertaken criminal activity,” such as a conspiracy, a defendant is responsible for all acts of others that were “within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity.” Finally, a defendant’s “relevant conduct” under the Guidelines includes “all harm that resulted” from the defendant’s acts or the acts of others engaged in the jointly undertaken criminal activity. U.S.S.G. §1B1.3(a)(3).
All of these defendants were convicted of being participants in at least one conspiracy, and thus, by virtue of the jury’s verdict, they are responsible for actions of their conspirators that fall within the parameters of Section 1B1.3(a)(1)(B). It is true that “the scope of the ‘jointly undertaken
11 As Judge Mehta observed at sentencing in United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM), the Supreme Court has found that “collective criminal agreement, partnership in crime presents a greater potential threat to the public than individual dealings. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Rhodes Sentencing Transcript (May 25, 2023) at 111 (quoting Callanan v. United States, 364 U.S. 587 (1961)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 17 of 80
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criminal activity’ is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” U.S.S.G. §1B1.3, cmt. n.3(B). But given the nature of the conspiracies here and the conspiracy convictions for these five defendants, each defendant’s “relevant conduct” supports application of each of the Guideline provisions discussed below. See United States v. Khatallah, 314 F. Supp. 3d 179, 189 (D.D.C. 2018) (broadly applying Section 1B1.3 because, in part, “‘[o]nce the conspiracy and the defendant’s knowing participation in it have been established beyond a reasonable doubt, the defendant will be vicariously liable for the substantive acts committed in furtherance of the conspiracy by his coconspirators’”) (quoting United States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)).
As discussed in greater detail above, the jury found that these five defendants joined a conspiracy, the aims of which included opposing the government through the use of force, obstructing Congress’ certification of the electoral college, and/or using force, intimidation, or threat to prevent members of Congress from discharging their duties that day. Each defendant should thus be liable for his own conduct plus the conduct of all his co-conspirators on the afternoon of January 6, to include the actual or threatened property damage and injury to others caused by those who breached the Capitol. Each of these defendants joined the conspiracy prior to January 6. For example, Tarrio, Nordean, Biggs, Rehl, and other leaders of the Proud Boys organization formed the “Ministry of Self Defense” in the days following former President Trump’s announcement of an election-related rally in Washington, D.C. on January 6. These leaders intentionally recruited men who would follow their top-down leadership and who were prepared to engage in physical violence, if necessary. One of those recruits was Dominic Pezzola, who enthusiastically joined the MOSD on January 2, 2021, and committed to carrying out the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 18 of 80
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objective of the leaders. Tarrio, Nordean, Biggs, and Rehl organized the Proud Boys return to Washington, D.C., which guidance included what to wear (e.g., no colors), what to bring (e.g., protective gear and communication equipment), and what to do (e.g., fit in or fuck off). Thus, each defendant also bears responsibility for certain conduct by their co-conspirators prior to January 6.
For all of these reasons, the relevant conduct in this case is much broader than a typical January 6-related case.
IV. CHAPTER TWO – OFFENSE CONDUCT
As the Supreme Court has instructed, the Court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Gall, 552 U.S. 38, 49 (2007). “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point” for determining a defendant’s sentence. Id. Pursuant to the order of operations set forth in Section 1B1.1(a) of the Guidelines, the operation generally proceeds with a calculation for each offense of the Base Offense Level and Specific Offense Characteristics in Chapter Two, then to any Adjustments and Grouping of counts in Chapter Three, then to Criminal History in Chapter Four, and finally to the determination of the sentence under Chapter Five. These operations are presented in order herein.
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2)
The PSRs correctly determine that the appropriate Chapter Two offense guideline for Counts One, Two, Three, and Four is Section 2J1.2 (Obstruction of Justice). All five of the defendants were convicted of multiple crimes for which the Obstruction of Justice guideline applies. As explained herein, there are several Specific Offense Characteristics that apply to the defendants’ convictions. First, an eight-level increase under Section 2J1.2(b)(1)(B) applies because the offense involved property destruction or its threat “in order to obstruct the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 19 of 80
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administration of justice.” Second, a separate three-level increase under Section 2J1.2(b)(2) applies because “the offense resulted in substantial interference with the administration of justice.” Because both of these characteristics concern the “administration of justice,” they are addressed together herein. Finally, an additional two-level increase under Section 2J1.2(b)(3) applies because the offense was “extensive in scope, planning, or preparation.” As explained below, these Specific Offense Characteristics combine for a total Offense Level of 27 for Counts One – Four.
1. Base Offense Level for Counts One - Four
The applicable Chapter Two Guideline for each of Counts One – Four is Section 2J1.2 (Obstruction of Justice).
Count One (Seditious Conspiracy). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of sedition in the Statutory Appendix, use “the most analogous guideline.” Here, that is Section 2M1.1, “Treason.”12 Under Section 2M1.1(a)(2), if a defendant’s conduct was not “tantamount to waging war against the United States,”13 use “the offense level applicable to the most analogous offense,” which is Section 2J1.2, “Obstruction of Justice.”
12 See United States v. Rahman, 189 F.3d 88, 150-54 (2d Cir. 1999) (affirming that the most analogous offense guideline for seditious conspiracy, in violation of 18 U.S.C. § 2384, is Section 2M1.1); see also United States v. Ford, 216 Fed. App’x 652, 652-53 (9th Cir. 2007) (rejecting a habeas claim that counsel was ineffective for agreeing to stipulate to the use of Section 2M1.1); see also United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 25, 2023), Sent. Tr. at 82 (applying 2J1.2 to Rhodes’s conviction for Seditious Conspiracy).
13 As noted in Part IX.C, infra, for almost every seditious conspiracy conviction (on the “levying war” and “opposing the government by force” prongs) since the advent of the Sentencing Guidelines, the court appears to have applied the Treason Guideline and found that the defendants’ conduct was “tantamount to waging war against the United States.” See U.S.S.G. § 2M1.1(a)(1). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 20 of 80
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Count Two (Conspiracy to Obstruct an Official Proceeding). Under Section 2X1.1, the base offense for a conspiracy conviction is the guideline for the substantive offense, which is 18 U.S.C. § 1512(c)(2). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Three (Obstruction of an Official Proceeding). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Four (Conspiracy to Prevent Officers of the United States from Discharging Their Duties). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of preventing officers of the United States from discharging their duties in the Statutory Appendix, use “the most analogous guideline.” The “officers” of the United States who were the victims of this count were the Members of Congress and law enforcement officers. See Jury Instructions (ECF No. 767 at 25) (listing “Members of Congress” and “law enforcement officers” as the victims); see also Verdict Form (ECF No. 804) (same). Because the object of the defendants’ conspiracy—preventing Members of Congress from performing their constitutional duties at the Capitol on January 6—was designed to obstruct the administration of justice, the most analogous guideline is Section 2J1.2, “Obstruction of Justice.”14
14 The common criminal objective among the members of the conspiracy was to obstruct the certification of the electoral college proceeding. The victims of this effort—Members of Congress and the federal law enforcement who were protecting them—are indistinguishable for this purpose. Indeed, Judge Mehta applied §2J1.2 to violations of 18 U.S.C. § 372 by members of the Oath Keepers. See United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM). And the First Circuit agreed that §2J1.2, rather than §2A2.4, was the most analogous guideline for a defendant convicted of violating 18 U.S.C. § 372, when the defendant’s conviction was premised on the defendant conspiring to prevent federal officers from arresting other people, and thus “obstructed the administration of justice.” United States v. Gerhard, 615 F.3d 7, 33 (1st Cir. 2010); see also Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 21 of 80
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2. “Administration of justice” specific offense characteristics (Counts One – Four)
Congress’s Joint Session on January 6 related to the “administration of justice” as used in the Sentencing Guidelines. See United States v. Jensen, No. 21-cr-6 (TJK) (Dec. 16, 2022), Sent. Tr. at 13-16 (holding that the applicable definitions and structure of 2J1.2 apply to the Official Proceeding); see also United States v. Matthew Wood, No. 21-cr-223 (APM) (Nov. 28, 2022), Sent. Tr. at 35-38 (holding that the “administration of justice” in Section 2J1.2 is synonymous with “official proceeding” as defined in 18 U.S.C. § 1515(a)(1), including a “proceeding before the Congress”). Accordingly, the Specific Offense Characteristics set forth at Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) and Section 2J1.2(b)(2) (substantial interference with administration of justice) apply to Counts One – Four. Id.
a) Legal applicability
i. The Electoral College vote involved the administration of justice as defined broadly in the Guidelines.
Section 2J1.2 applies to a variety of obstruction offenses, including all offenses under 18 U.S.C. § 1512 and eleven other statutes found in Chapter 73 of Title 18. See U.S.S.G. § 2J1.2 cmt.; U.S.S.G. Appendix A. The eight-level increase under Section 2J1.2(b)(1)(B) applies if the offense involved property destruction or its threat “in order to obstruct the administration of justice.” A separate three-level increase under Section 2J1.2(b)(2) applies “if the offense resulted in substantial interference with the administration of justice.”
United States v. Rakes, 510 F.3d 1280, 1290 (10th Cir. 2007) (acknowledging that a § 372 conviction for conspiring to impede and thwart the prosecution of other people would constitute “imped[ing] the due administration of the law,” and thus would warrant application of §2J1.2 rather than §2A2.4). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 22 of 80
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Section 2J1.2’s text, purpose, and commentary all support the conclusion that conduct that obstructs Congress’s certification of the electoral vote interferes with the “administration of justice” for purposes of the guideline. Administration of justice, in its broadest sense, refers to the proper administration of law by all three branches of government. Black’s Law Dictionary defines “justice” to include “[t]he fair and proper administration of laws,” and it defines “obstruction of justice” as “[i]nterference with the orderly administration of law and justice.” Black’s Law Dictionary (11th ed. 2019); see also Ballentine’s Law Dictionary 696 (3d ed. 1969) (defining justice to include “exact conformity to some obligatory law”). When defining “contempt” to include “[c]onduct that defies the authority or dignity of a court or legislature,” Black’s Law Dictionary observes that “such conduct interferes with the administration of justice.” Black’s Law Dictionary (11th ed. 2019) (emphasis added). And courts have defined “administration of justice” to mean “the performance of acts or duties required by law,” Rosner v. United States, 10 F.2d 675, 676 (2d Cir. 1926) (quotation omitted), or “the performance of acts required by law in the discharge of duties,” United States v. Partin, 552 F.2d 621, 641 (5th Cir. 1977).
To be sure, the term “administration of justice” is most commonly used in a narrower sense to refer to “interference with the pendency of some sort of judicial proceedings.” In re Kendall, 712 F.3d 814, 828 (3d Cir. 2013); see In re McConnell, 370 U.S. 230, 234, 236 (1962) (defining the term in the contempt context as relating to “the performance of judicial duty”); United States v. Aguilar, 515 U.S. 593, 599 (1995) (stating that the “omnibus clause” of 18 U.S.C. § 1503, which criminalizes obstruction of the “due administration of justice,” requires proof of “an intent to influence judicial or grand jury proceedings”). But there are compelling reasons for concluding that “administration of justice” bears its broader (albeit less common) meaning in Section 2J1.2. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 23 of 80
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First, Section 2J1.2’s context and purpose support the broader reading of “administration of justice” in both subsections (b)(2) and (b)(1)(B). Section 2J1.2 applies to an array of obstruction statutes, including a number that do not involve the “administration of justice” in the narrow sense (i.e., relating to judicial or quasi-judicial proceedings). See U.S.S.G. § 2J1.2, cmt. (listing covered statutes); U.S.S.G. Appendix A (statutory index). Those offenses include concealing or destroying invoices or papers relating to imported merchandise, 18 U.S.C. § 551; obstructing an investigation under the Workforce Innovation and Opportunity Act, 18 U.S.C. § 665(c); obstruction of proceedings before departments, agencies, and committees, 18 U.S.C. § 1505; obstruction of enforcement of state gambling laws, 18 U.S.C. § 1511; obstruction of official proceedings, 18 U.S.C. § 1512; obstruction of a federal audit, 18 U.S.C. § 1516; destruction of documents in agency investigations, 18 U.S.C. § 1519; and interfering with the administration of the Internal Revenue Code, 26 U.S.C. § 7212. Yet under a narrow interpretation of the guideline, the enhancements under subsection (b) would not apply to those statutes. That is good reason to reject such a reading. Cf. United States v. Castleman, 572 U.S. 572 U.S. 157, 167 (2014) (rejecting a reading of 18 U.S.C. § 922(g)(9) that “would have rendered [it] inoperative in many States at the time of its enactment”).
Section 2J1.2’s background indicates that the Sentencing Commission intended the enhancements to reach the type of violent and dangerous conduct at issue in this case. The background notes that Section 2J1.2 broadly covers crimes “of varying seriousness,” including offenses that involve intercepting grand jury deliberations, interfering with an illegal gambling investigation, or obstructing “a civil or administrative proceeding,” and that the underlying conduct may “range from a mere threat to an act of extreme violence.” U.S.S.G. § 2J1.2, cmt. bkgd. Within that range, the enhancements “reflect the more serious forms of obstruction.” Id. The
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Commission thus crafted the enhancements in Section 2J1.2 to cover the most egregious conduct knowing that obstruction-of-justice offenses are not limited solely to interference with judicial proceedings.
Relatedly, limiting subsection (b)’s enhancements to obstruction of judicial proceedings would undermine the purpose of the Guidelines. “A principal purpose of the Sentencing Guidelines is to promote uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Hughes v. United States, 138 S. Ct. 1765, 1774 (2018). The Guidelines therefore seek to achieve “a strong connection between the sentence imposed and the offender’s real conduct.” United States v. Booker, 543 U.S. 220, 246 (2005). The Sentencing Commission reasonably determined, for example, that “causing or threatening physical injury to a person, or property damage, in order to obstruct the administration of justice” is more serious than obstruction not involving such injury or threats and should be punished more severely. U.S.S.G. § 2J1.2(b)(1)(B). And the seriousness of the threatening or injurious conduct does not depend on whether the obstructed proceeding is judicial, legislative, or executive. There is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding. See United States v. Rubenacker, No. 21-cr-193 (May 26, 2022), Sent. Tr. at 69 (“There is simply no indication in guideline Section 2J1.2 that the [specific offense characteristics] containing the phrase ‘administration of justice’ were meant to apply to only some of the statutes referenced to this guideline and not to apply to all of the cases involving obstruction of proceedings taking place outside of courts or grand juries; that simply doesn’t make sense.”).
Likewise, the history and context of Section 2J1.2 support the broad application. When originally promulgated, Section 2J1.2 encompassed 18 U.S.C. § 1512, which included obstructive Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 25 of 80
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conduct directed at a witness or victim in connection with proceedings before the Congress. See United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 24, 2023), Sent. Tr. at 171-177. The Sentencing Commission then included enhancements to Section 2J1.2 to address the most serious conduct, “including obstructive conduct before an official proceeding, which [] would include a proceeding before Congress. Id. (applying the specific offense characteristics related to “administration of justice” to all members of the Oath Keepers and explaining that the Sentencing Commission intended for the original 2J1.2 Guideline to be “coextensive with the conduct that is captured in 1503 through 1513”).
Second, Section 2J1.2’s commentary provides a broad definition of “administration of justice.” It defines “[s]ubstantial interference with the administration of justice” to include “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). This definition includes interference not only with “court” resources, but also with any “governmental” resources, a term that includes congressional resources. The Supreme Court has held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). Because this commentary is consistent with the plain text of the Guideline, which uses the broad term “administration of justice,” it is authoritative.
It is true that the commentary defines only the term “substantial interference with the administration of justice,” which serves as the basis for the three-level enhancement in Section 2J1.2(b)(2) and does not specifically define the term “in order to obstruct the administration of
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justice,” which serves as the basis for the eight-level enhancement in Section 2J1.2(b)(1)(B). But the relevant term “administration of justice” is identical and should be given the same interpretation in both enhancements. The operative verbs “interfere[]” and “obstruct” carry the same meaning in this context. And the adjective “substantial” in Section 2J1.2(b) does not change the meaning of “administration of justice,” especially since the commentary repeats the word, requiring “the unnecessary expenditure of substantial governmental . . . resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). Thus, the term “in order to obstruct the administration of justice” in Section 2J1.2(b)(1)(B) should be read to include obstructive conduct aimed at nonjudicial governmental activities. A different conclusion would lead to the incongruous result of giving two different meanings to the term “administration of justice” within the same guideline. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (“A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”).
The Electoral College certification vote on January 6 falls comfortably within the meaning of “administration of justice” as used in Section 2J1.2 because it involved Congress’s performance of duties required by law. Specifically, Congress’s certification of the Electoral College vote was an official proceeding required by both the Constitution and federal statutes. See Dec. 28, 2021, Mem. Op. (ECF 263) at Part III.A.1. (“Congress’s Certification of the Electoral College Vote Was an ‘Official Proceeding.’ Under Section 1512(c)(2)”). Application of both Sections 2J1.2(b)(1)(B) and (b)(2) is therefore appropriate here. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 27 of 80
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Part 2 of 3

ii. Courts, including judges on this Court in January 6 cases, have correctly held that non-judicial proceedings can involve the administration of justice.
Other courts have appropriately applied the “administration of justice” enhancements in Section 2J1.2(b)(2) to efforts to obstruct a wide range of governmental functions, not limited to judicial or grand jury proceedings. See United States v. Ali, 864 F.3d 573, 574 (7th Cir. 2017) (defendant “substantially interfered with the administration of justice” by causing government to expend resources to recover children he had kidnapped and transported internationally in violation of child custody order); United States v. Atlantic States Cast Iron Pipe Co., 627 F. Supp. 2d 180, 205-08 (D.N.J. 2009) (defendant interfered with OSHA investigations into a workplace accident); United States v. Weissman, 22 F. Supp. 2d 187, 194-98 (S.D.N.Y. 1998) (defendant withheld subpoenaed documents from a congressional subcommittee).
Moreover, fourteen judges in this District (including this Court in Pruitt and Jensen, Nos. 21-cr-6 and 21-cr-23), have applied at least one of Section 2J1.2’s “administration of justice” enhancements in cases arising from the Capitol breach on January 6: then-Chief Judge Howell (Rubenacker, No. 21-cr-193); Judge Mehta (Wood, No. 21-cr-223); Judge Contreras (Andries, No. 21-cr-93); Judge Cooper (Robertson, No. 21-cr-34); Judge Chutkan (Priola, No. 22-cr-242); Judge Moss (Miller, No. 21-cr-75); Judge Jackson (Rodriguez, No. 21-cr-246); Judge Friedrich (Reffitt, No. 21-cr-32); Judge Hogan (Tenney, No. 21-cr-640); Judge Lamberth (Fairlamb, No. 21-cr-120); Judge Friedman (Puma, No. 21-cr-454); Judge Bates (Brock, No. 21-cr-140); and Judge Kollar-Kotelly (Allen, No. 21-cr-64).15 And because this Court already held that Congress’ certification of the election qualifies as “quasi-adjudicative or quasi-judicial,” Dec. 28, 2021, Mem. Op. (ECF
15 Although some judges have handled multiple such cases, only one case is listed per judge. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 28 of 80
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263), at 12, it should give no weight to the reasoning of the two judges who, after concluding the certification proceeding was “ministerial” or was not “a proceeding that determines rights or obligations,” found Section 2J1.2’s “administration of justice” enhancements inapplicable. See Seefried, No. 21-cr-287, ECF 123 (Oct. 29, 2022) (Judge McFadden); Watson, No. 21-cr-513 (March 9, 2023), Sent. Tr. at 23-25 (Judge Walton).
The Court should find that Section 2J1.2’s “administration of justice” specific offense characteristics apply here as a matter of law.
b) Section 2J1.2(b)(1)(B) (causing or threatening injury or damage)
The PSRs correctly apply this eight-level enhancement to all of the defendants here because the defendants’ relevant conduct “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(1)(B). Indeed, each of the cooperating defendants who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the applicability of the Section 2J1.2(b)(1)(B) characteristic.
First, the conspirators, in being among the first wave of rioters to breach the Capitol grounds and building at 12:53 p.m., were part of a mob that caused injuries to Capitol Police officers guarding the outer perimeter at First Street. Among other things, one officer was “knocked unconscious” and a second officer “suffered an almost career-ending leg injury when the bike rack was pinned against her leg.” Tr. 3529:15-24 (Loyd). Pezzola and Rehl were among the first across the trampled barricade, with Nordean and Biggs following closely behind. Ex. 445Cx.
Second, the conspirators, including Biggs and Nordean, tore apart a black metal fence on Capitol grounds at 12:56 p.m., which allowed the first wave of rioters to continue advancing onto Capitol grounds and towards the Capitol building. See, e.g., Ex. 445-Bx, 492-G. The fence posts Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 29 of 80
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were screwed into the concrete and “it takes a pretty good amount of force” to detach the fence. Tr. 7149:2-11 (Cooney).
Third, after tearing down the fence, Biggs, Nordean, and Rehl immediately moved forward toward the line of officers. After destroying the fence, Nordean moved intentionally forward toward a line of outnumbered officers—a threatening action. Ex. 417x at 0:52; Ex. 445-Bx at 1:35. Nordean and Biggs then surged forward with Biggs waving the crowd forward. Ex. 417x at 0:52 – 1:05; Ex. 445-By. Just to their right, Rehl rushed past the trampled fence and joined Nordean and Biggs at the front of the advancing crowd. Ex. 445-By.
Fourth, Pezzola, engaged in hand-to-hand combat with law enforcement officers who were guarding the Capitol. Officer Ode described the assault by Pezzola, which was captured on photos and videos, and testified that the picture showed “two individuals grabbing my shield or my arm and forcefully attempting to take it away from me.” Tr. 7491:8-23 (Ode). Officer Ode described that individuals in the crowd “violently and forcefully grabbed [his] shield and pulled [him] down to the ground.” Id. at 7487:10 – 7488:22. Pezzola himself admitted that he grabbed Officer Ode’s shield while it was still in Officer Ode’s hand and tried to “take it from his possession.” Tr. 19375:8-19 (Pezzola); see also id. at 19376:3-19377:7 (describing grabbing and pulling the shield with intent “to take possession of it.”).16
16 Although the other defendants were acquitted of this count, the Court can and should still find by a preponderance that their “relevant conduct” includes the actions of Pezzola because the jury convicted these defendants of conspiracy. The jury’s “not guilty” verdicts on this count does not preclude such a finding. “[A defendant] was not ‘acquitted’ for conduct unless the jury necessarily determined that the facts underlying a charge or enhancement were not proved beyond a reasonable doubt.” United States v. Khatallah, 41 F.4th 608, 648 (D.C. Cir. 2022), cert. denied, No. 22-7065, 2023 WL 4163280 (U.S. June 26, 2023). It is difficult to reconcile the jury’s acquittal of four defendants for Pezzola’s assault at Count Nine, given that these same defendants were both convicted of a conspiracy to use force, intimidation, or threats to interfere with officers (Count Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 30 of 80
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Fifth, evidence at trial included violent acts carried out by the men who followed Nordean and Biggs onto Capitol grounds, including the spray assaults by Trevor McDonald (Ex. 261; Tr. 12365:1-12366:10 (Miller)) and Haffner (Tr. 12562), and the coordinated efforts to physically break through a line of officers in the lower west tunnel by A.J. Fischer (id. at 12674-75).
Sixth, Rehl assaulted a law enforcement officer with an irritant spray before quickly retreating into the crowd on the West Plaza. Ex. 2003, 2004, and 2008.
Seventh, various conspirators, including Biggs and Pezzola, overwhelmed a line of officers at the base of the concrete stairs that led to the U.S. Capitol building. Dozens of Proud Boys reunited at the base of the concrete stairs shortly before 1:44 p.m. Daniel Lyons Scott, a Proud Boy who had marched behind Nordean, Biggs, and Rehl to the Capitol (and the same man who had earlier yelled out, “let’s take the fucking Capitol”), initiated a push by shoving two officers and pushing them up the stairs. Tr. 12467:6-9 (Miller); Ex. 451x. Almost instantaneously thereafter, the crowd overwhelmed the officers and pushed up the scaffolding. Pezzola, Donohoe, and Biggs were among the surge of rioters to move up the concrete stair behind Scott. Tr. 12467:12-12470:16 (Miller); Ex. 451x and 476x.
Eighth, Pezzola continued up the stairs with a mass of other rioters. He threatened officers manning a barricade at the top of the stairs, telling them: “You better be fucking scared. Yeah, you
Four), and the jury was instructed on Pinkerton liability. Courts have long cautioned against trying to reconcile “inconsistent verdicts.” See, e.g., United States v. Dykes, 406 F.3d 717, 722 (D.C. Cir. 2005) (“We do not know what went through the jurors’ minds. . . . But even if the [verdicts were inconsistent], a ‘criminal defendant convicted by a jury on one count [cannot] attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count.’”) (quoting United States v. Powell, 469 U.S. 57, 58 (1984)). In any event, because of the guilty verdicts on multiple conspiracy counts, it is not the case that “the jury necessarily determined that the facts underlying [that] charge . . . were not proved beyond a reasonable doubt.” Khatallah, 41 F.4th at 648. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 31 of 80
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better be fucking scared. ….We ain’t fucking stopping . . . You better decide what side you’re on motherfuckers. You think Antifa’s fucking bad? Just you wait.” Ex. 429-Cx.
Ninth, Pezzola broke windows to access the Capitol building and achieve the objective of stopping the certification. See, e.g., Ex. 425. Pezzola’s admitted goal in smashing the window was for someone inside the building to hear him, and he believed that this was a way to get the government to listen to him. Tr. 19409:23 – 19410:25 (Pezzola).17
Tenth, the conspirators, including Biggs, used force to push past law enforcement officers who were guarding the doors of the Capitol in order to gain entry to the Capitol and stop the certification. Biggs made his second entry as part of a tactical line of four Proud Boys immediately after the crowd overwhelmed officers guarding the door. Ex. 433-C. Biggs’ group pushed directly past those officers, with Biggs brushing up against one. Ex. 172x. Officer Carrion described his efforts to guard the door and the assaultive conduct that he endured before Biggs rushed inside, including rioters “hitting [officers] with flagpoles, throwing batteries . . ., throwing frozen water bottles . . ., all in the hopes of getting [officers] out of there so they could access the door.” Tr. 14308:2-7 (Carrion). Officer Carrion fought against “waves and waves” of rioters by “just trying to put [his] body in the way . . . to minimize the amount of people coming in.” Id. at 14316:1-3; 14317:12-18.
17 Although the jury did not reach a verdict on Count Seven for the other defendants, the Court can and should still find by a preponderance that their “relevant conduct” includes the actions of Pezzola because the jury convicted all five defendants of conspiracy to use force, intimidation, or threats to prevent officers (i.e., law enforcement and Members of Congress) from discharging their duties. Pezzola’s own admission that he was taking the action to get the government to listen to him provides further support for the conclusion that the destruction of the window was a “harm that resulted” from the jointly undertaken criminal activity. See U.S.S.G. §1B1.3(a)(3). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 32 of 80
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c) Section 2J1.2(b)(2) (substantial interference with administration of justice)
This specific offense characteristic applies because the defendants’ relevant conduct “resulted in substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2) (emphasis added). As an initial matter, it is hard to imagine a more substantial interference with the administration of justice than what took place on January 6. The defendants’ relevant conduct resulted in the incapacitation of an entire branch of the federal government and the suspension of a congressional proceeding that was required by the Constitution and federal statute to take place at a certain date, time, and location so that our country could peacefully transfer presidential power from one person to the next. Indeed, Pezzola and Biggs were among the first rioters in the building, which act forced the Senate into emergency recess. E.g., Tr. 11862:7-12 (McCumber); Ex. 910 at 5:20-5:30 (Aide: “protestors are in the building”). Biggs owed his entrance into the Capitol to Pezzola’s destruction of the window at 2:11 p.m. Ex. 425. The first rioters into the building entered through that window. Tr. 12516:4-6 (Miller).
Moreover, the Guidelines define the term “[s]ubstantial interference with the administration of justice” to include “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). The defendants’ offenses “resulted in” substantial interference with the administration of justice because the offenses caused the unnecessary expenditure of substantial governmental resources.
That commonsense view finds support in the case law. See, e.g., Ali, 864 F.3d at 574 (numerous federal agents “worked for several days around the clock”); Atlantic States Cast Iron
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Pipe, 627 F. Supp. 2d at 205-08 (defendant interfered with OSHA investigations into a workplace accident); Weissman, 22 F. Supp. 2d at 194-98 (defendant withheld subpoenaed documents from a congressional subcommittee). The Eleventh Circuit recently cited affirmatively to another case in which it found Section 2J1.2(b)(2) applicable where, as a result of the defendant’s false grand jury testimony, the government was forced to identify and interview several other witnesses, review the defendant’s records, and reconvene the grand jury. See United States v. Pegg, 812 F. App’x 851, 860 (11th Cir. 2020) (citing United States v. Johnson, 485 F.3d 1264, 1271-72 (11th Cir. 2007)). Indeed, many appellate courts have affirmed the application of the enhancement because significant “government” resources were invested to resolve an attempt to obstruct a judicial proceeding. See, e.g., United States v. Meredith, 602 F. App’x 102, 103 (4th Cir. 2015); United States v. Tankersley, 296 F.3d 620, 623-24 (7th Cir. 2002); United States v. Harrington, 82 F.3d 83, 87 n.2 (5th Cir. 1996); United States v. Voss, 82 F.3d 1521, 1532 (10th Cir. 1996).
The events of January 6 indisputably resulted in the “unnecessary expenditure of substantial governmental . . . resources,” with the latest estimate of damages from entities responsible for the United States Capitol18 totaling more than $2.9 million. And the conspirators’ offenses contributed to that “unnecessary expenditure” of substantial governmental resources: the deployment of hundreds of law enforcement officers to defend and then clear the Capitol building and grounds of those—such as the defendants here—whose conduct caused the evacuation of hundreds of lawmakers and the suspension of the certification proceedings. The repair and clean-up costs were similarly extensive, and certainly “substantial.”
18 These entities include the Architect of the Capitol, the Office of the Chief Administrative Officer of the United States House of Representatives, the Office of the Secretary of the United States Senate, the Senate Sergeant at Arms, and the United States Capitol Police. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 34 of 80
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By the government’s count, of the sixteen judges in this District who have handled a sentencing hearing for a January 6 defendant convicted of violating 18 U.S.C. § 1512, fourteen found that the specific offense characteristic in Section 2J1.2(b)(2) applied because the defendant’s conduct “resulted in substantial interference with the administration of justice,” that being disruption to Congress’ certification of the Electoral College vote and the attendant government response to the riot.19 Moreover, all of the cooperating defendants who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the application of Section 2J1.2(b)(2) based on their “relevant conduct.”
The evidence established that the conspirators’ conduct obstructed Congress’s certification (delaying it by several hours, for example) and impeded the ability of the staff working for the Vice President (see the testimony of Secret Service Inspector Lanelle Hawa), and Congressional staff (see the testimony of Kevin McCumber), among others, to complete their work related to that certification. That delay caused the unnecessary expenditure of substantial governmental resources. Therefore, the three-level enhancement under Section 2J1.2(b)(2) applies.
3. “Extensive scope, planning, or preparation” specific offense characteristic
Section 2J1.2(b)(3) provides a two-level enhancement if the offense (A) involved the destruction of a substantial number of records; (B) involved the selection of an especially probative record to destroy; or (C) “was otherwise extensive in scope, planning, or preparation.” While all three components of subsection (C) apply here, based on the subsection’s use of the disjunctive
19 See Part IV.B.2.a.ii, supra (listing judges and cases). And even the two judges who have declined to apply the characteristic based their reasoning on the phrase “administration of justice” rather than the substantiality of the interference with the proceeding. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 35 of 80
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“or,” the Court need only find that the defendants’ relevant conduct was extensive in scope, planning, or preparation. See United States v. Petruk, 836 F.3d 974, 977 (8th Cir. 2016).
The structure of this Guideline subsection is similar to the structure of 18 U.S.C. § 1512(c); both lay out a particular means of obstruction related to a tangible object or record and then include a “catchall” (or “residual” or “omnibus” clause) that begins with the phrase “or . . . otherwise.” As the D.C. Circuit explained when interpreting 18 U.S.C. § 1512(c), the word “otherwise” should be “given its common meaning of “in a different manner.’” United States v. Fischer, 64 F.4th 329, 336-37 n.2 (D.C. Cir. 2023). In other words, Section 2J1.2(b)(3)(C) provides for a two-level enhancement if the defendant’s relevant conduct, in a manner other than destroying a substantial number of records or a particularly probative record, was extensive in scope, extensive in planning, and/or extensive in preparation.
While the phrase “otherwise extensive” is not defined in the Guidelines, “there are a number of factors relevant to the extensiveness determination, including the length and scope of the criminal activity as well as the number of persons involved.” United States v. Holland, 22 F.3d 1040, 1046 (11th Cir. 1994). And while the D.C. Circuit has not yet had occasion to rule on this enhancement, multiple courts of appeals have affirmed its application by district courts. In United States v. Pegg, 812 F. App’x 851, 860 (11th Cir. 2020) (per curiam), the Eleventh Circuit found that the defendant’s conviction for conspiracy to obstruct justice, which was done in secret from prison, directing several people through numerous coded phone calls and emails, was “extensive in scope and planning” because it was part of a “scheme [that] involved an elaborate gathering together of lies and misrepresentations.” Similarly, in Petruk, 836 F.3d at 977, the Eighth Circuit concluded that the obstructive conduct of the defendant—who, while incarcerated, solicited his girlfriend to find someone else to falsely claim on a recorded line to be the perpetrator of the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 36 of 80
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underlying crime—was extensive in planning and preparation (though not in scope). In United States v. Jensen, 248 F. App’x 849, 851 (10th Cir. 2007), the Tenth Circuit agreed that a correctional officer’s helping inmates avoid or pass urinalysis tests, which “was far from an isolated occurrence,” was “extensive in scope.” In United States v. Rodriguez, 499 Fed. App’x 904, 907-09 (11th Cir. 2012), the Eleventh Circuit agreed that an incarcerated defendant’s use of her boyfriend’s semen to frame a correctional officer, which involved the “gathering together of lies and misrepresentations,” was extensive in “scope, planning, and preparation.” Finally, in United States v. Bakhtiari, 714 F.3d 1057, 1062 (8th Cir. 2013), the Eighth Circuit agreed that a defendant-lawyer’s efforts to intimidate an opposing lawyer and his family, including doctoring photographs and creating a fake email account, were crimes that were extensive in scope, planning, and preparation.
In addition to these appellate decisions affirming application of this enhancement, judges in this district have applied the enhancement to defendants’ crimes related to the attack on the Capitol. In Scott, over the defendant’s objection, Judge Lamberth found that the enhancement applied because “the whole idea that as Proud Boys leaders they were going to communicate and wearing the technical gear, bringing the communications equipment, being prepared for pepper spray” all supported the application. No. 21-cr-292, Sent. Tr. 2-7. Likewise, Judge Friedrich applied the enhancement in two separate cases. In Reffitt, over the defendant’s objection, Judge Friedrich found that the enhancement applied both because of the defendant’s extensive efforts in “planning and preparation” and the extensive “scope” of what the defendant intended to accomplish. No. 21-cr-32, Sent. Tr. at 46-47. She found that there was “enough evidence of planning and preparation here in terms of organizing the trip, in terms of gathering together this wide range of sophisticated gear, not just firearms, but a helmet, bulletproof vest, flex cuffs, radios, Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 37 of 80
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and megaphones. There was a lot of thought and planning that went into this offense.” Id. And the defendant’s “stated intentions” were “hugely extensive in scope”: forcibly removing and then replacing legislators. Id. at 46. In Sandlin, the defendant agreed to the application of the enhancement in his plea agreement, and Judge Friedrich applied it during his sentencing. No. 21-cr-88 (Dec. 9, 2022), Sent. Tr. at 36. According to the agreed-upon statement of offense, Sandlin traveled to D.C. with two co-conspirators and multiple weapons, including two firearms. ECF 85 at ¶ 15.
Here, all of the co-conspirators who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the application of Section 2J1.2(b)(3), because their relevant conduct was extensive in scope, planning, and preparation.
These defendants’ relevant conduct shows that their offense was extensive in scope, planning, and preparation. The seditious conspiracy began at least as early as December 19, 2020. Tarrio, Nordean, Biggs, Rehl, and other leaders of the Proud Boys organization intentionally recruited men prepared to engage in physical violence, if necessary. They organized a return to Washington, D.C., which guidance included what to wear (e.g., no colors), what to bring (e.g., protective gear and communication equipment), and what to do (e.g., fit in or fuck off). They coordinated with men from across the country using encrypted messaging applications. Once on the ground, they continued to organize and direct the “boots on the ground” using a top-down command and control structure. They surveilled the Capitol and then lay in wait for approximately 30 minutes until just before the certification was to commence. They marched scores of men to the west front of the Capitol at 12:50 p.m. and within three minutes, they led the charge of those men onto the Capitol grounds. Finally, the scope of the conspiracy’s objective was itself enormous: Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 38 of 80
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to forcibly prevent an entire branch of the federal government from performing its constitutional and statutory duties.
B. Count Five
1. Base Offense Level for Count Five
All five defendants were convicted of Count Five - Interference with Law Enforcement Officers During a Civil Disorder. There is no applicable Chapter Two Guideline for this offense in the Statutory Appendix. Accordingly, under §2X5.1, the Court is to use “the most analogous guideline.” Here, that is §2A2.4, “Obstructing or Impeding Officers;” however, when the conduct “constitute[s] aggravated assault” the Guidelines direct that Section 2A2.2 be applied.
Here, the offense conduct involving interference with officers constitutes “aggravated assault.” See U.S.S.G. §2A2.2, n.1 (Aggravated assault “means a felonious assault that involved … an intent to commit another felony.”) Among other things, the offense conduct involved jointly undertaken criminal activity in furtherance of an effort to obstruct the certification of the Electoral College vote and to use force to prevent officers of the United States from discharging their duties. Obstructing and impeding officers in violation of Count Five was within the scope of the criminal activity, in furtherance of the criminal activity, and reasonably foreseeable in connection with the criminal activity. See U.S.S.G. §1B1.3, n.3. Such actions taken in furtherance of the jointly undertaken criminal activity include (1) Rehl’s assault on law enforcement with irritant spray, (2) Pezzola’s assault on Officer Ode, (3) Donohoe’s assault by throwing water bottles at a line of officers, (4) Biggs, Pezzola, Donohoe, Greene, and others’ participation in the assault by Daniel Lyons Scott and others in their push up the concrete stairs toward the Capitol, (5) Biggs and others’ push past law enforcement to re-enter the building through the Columbus Doors, and (6) the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 39 of 80
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destruction of the black metal fence by Nordean, Biggs, and others, which allowed the Proud Boys and other rioters to surge toward officers and engage in assaults.
2. “More than minimal planning” specific offense conduct
Section 2A2.2(b)(1) provides a two-level increase when the assault included “more than minimal planning,” which means “more planning than is typical for commission of the offense in simple form.” U.S.S.G. §2A2.2, cmt n.2. Here, the defendants’ interference with law enforcement was part of the means by which they carried out the conspiracies charged at Counts One, Two and Four. In particular, the defendants’ preparation to organize and prepare a group to travel across the country, leadership in directing a group of more than 100 men to the Capitol just prior to the start of the certification, and direction to the men to advance on the Capitol by following the lead of the boots on the ground were all part of this plan. Moreover, the defendants’ preparation included a hand-selected assemblage of “rally boys,” many of whom donned helmets and vests in anticipation of conflict.20 As laid bare by the defendants’ own words before and on January 6, the defendants’ preparation for conflict was not focused on Antifa—it was the preparation for conflict with law enforcement and government officials who they had declared traitors. See, e.g., Ex. 603-33 (Biggs post about “treat[ing] your think [sic] blue line like we do antifa”); Ex. 501-50 (conspirators discussing police: “#fucktheblue” … [T]hey chose their fucking side so let’s get this done.”).
C. Counts Six and Seven.
The applicable Chapter Two Guideline for Count Six is §2B1.1, “Larceny, Embezzlement, and Other Forms of Theft,” and for Count Seven is §2B1.5, “Theft of, Damage to, or Destruction
20 In applying Section 2A2.2(b)(1) to defendant Christopher Alberts over his objection, Judge Cooper noted that Alberts’s decision to bring a gas mask showed more planning than is typical of the commission of the offense in its simple form. United States v. Christopher Alberts, 21-cr-26 (CRC) (July 19, 2023). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 40 of 80
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of, cultural Heritage Resources or Paleontological Resources.” As described herein, the applicable Chapter Two Guidelines for Count Six differs from Count Seven because the government property destroyed at Count Seven (i.e., the Capitol window) is a “cultural heritage resource.” The distinction increases the base offense level by two points. No Specific Offense Characteristics apply to either Count Six or Seven.
The distinction between Counts Six and Seven is largely rendered moot due to the application of the Chapter Three adjustment for a “federal crime of terrorism,” which applies to the defendants’ convictions for destruction of federal property. The defendants’ convictions for a federal crime of terrorism result in a Guidelines calculation of at least offense level 32 and the application of criminal history Category VI. U.S.S.G. §3A1.4(a) and (b).21 Accordingly, and as explored more fully below at Part V, the application of the adjustment for a federal crime of terrorism renders the distinction moot because the offense level will increase to level 32 for both Counts Six and Seven. Nonetheless, for sake of completeness, the memorandum addresses the distinction here.
The damaged window at the Senate Wing door was part of the United States Capitol, which was designated as a National Historic Landmark in December 1960 and the National Park Service continues to recognize that designation to this day.22 The United States Capitol is thus a “historic
21 Pursuant to the Sentencing Guidelines, the application of §3A1.4 requires an increase in offense level by +12, but if the resulting offense level is less than 32, the offense level should be raised to 32. U.S.S.G. §3A1.4(a). Since the offense level for Counts Six and Seven will be less than 32 even after increasing the base offense level for those counts by +12, §3A1.4 requires that the offense level for both counts be increased to level 32. In addition to the increase in offense level, the defendant’s criminal history shall be increased to Category VI. U.S.S.G. §3A1.4(b).
22 See List of NHLs by State - National Historic Landmarks (U.S. National Park Service) (nps.gov), https://www.nps.gov/subjects/nationalhi ... -state.htm (last visited September 9, 2022) (listing the United States Capitol as a National Historic Landmark and
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property” and accordingly a cultural heritage resource, pursuant to Application Note 1(A)(i) for U.S.S.G. §2B1.5. Accordingly, the destruction of the Capitol window at Count Seven provides for a base offense level of 8, as opposed to the level 6 provided under § 2B1.1(a)(2) for the destruction of the black fence at Count Six.
Application Note 1(A)(i) of the Sentencing Guidelines refers to 54 U.S.C. § 300308, which defines a “historic property” as “any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic Places]…” 54 U.S.C. § 300308 (emphasis added). While the United States Capitol is not included on the National Register, as it is exempt from inclusion on the National Register and other attendant regulations in 54 U.S.C. § 300101 et. seq. pursuant to 54 U.S.C. § 307104, it would otherwise be eligible for inclusion on the National Register.23
An additional two points is added for the destruction of the Capitol window under Section 2B1.5(b)(2) because the Capitol is a National Historic Landmark. The Capitol was designated as a National Historic Landmark in December 1960, and the National Park Service continues to recognize that designation to this day.24
noting its December 1960 designation date); see also 36 CFR § 65.1(c) (“The National Park Service (NPS) administers the National Historic Landmarks Program on behalf of the Secretary”).
23 Section 16(l) of 36 C.F.R. pt. 800 clarifies that “eligible for inclusion” in the National Register includes “both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria.” 36 C.F.R. § 800.16(l)(2) (emphasis added). The National Register criteria can be found at 36 CFR § 60.4 and focuses on the historical significance of the property, and the property’s associations with historical events, significant historical figures, historical styles and artistic value, and important historical information.
24 See List of NHLs by State - National Historic Landmarks (U.S. National Park Service) (nps.gov), https://www.nps.gov/subjects/nationalhi ... -state.htm (last visited Aug. 16, 2023) (listing the United States Capitol as a National Historic Landmark and Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 42 of 80
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D. Count Nine
The applicable Chapter Two Guideline for this offense is §2A2.2, “Aggravated Assault.” U.S.S.G. Appendix A. Pursuant to Application Note 1 of Section 2A2.2, “aggravated assault means a felonious assault that involved . . . an intent to commit another felony.” Here, the evidence at trial showed that Dominic Pezzola’s assault on Officer Ode was directly related to his commission of multiple other felonies, including the robbery of Officer Ode’s police riot shield in violation of 18 U.S.C. § 2112 (Count Ten). Moreover, the evidence at trial showed the Dominic Pezzola’s assault was also part of a larger endeavor that included interference with law enforcement officers during a civil disorder (18 U.S.C. § 231), conspiracy to use force, intimidation, or threats to prevent officers of the United States from discharging their duties (18 U.S.C. § 372), and obstruction of an official proceeding (18 U.S.C. § 1512(c)(2)).
No Specific Offense Characteristics apply to Count Nine.
E. Count Ten
The applicable Chapter Two Guideline for this offense is §2B3.1, “Robbery, Extortion, and Blackmail.” U.S.S.G. Appendix A. No Specific Offense Characteristics apply to Count Ten.
V. CHAPTER THREE: ADJUSTMENTS FOR CRIMES OF TERRORISM
Section 3A1.4 of the Guidelines provides for an enhanced offense level and increased criminal history category when the offense was “a felony that involved, or was intended to promote, a federal crime of terrorism” as that term is defined by 18 U.S.C. § 2332b(g)(5). That statutory definition, in turn, involves two requirements: (1) that the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against
noting its December 1960 designation date); see also 36 CFR § 65.1(c) (“The National Park Service (NPS) administers the National Historic Landmarks Program on behalf of the Secretary”). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 43 of 80
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government conduct”; and (2) that the offense is one of the enumerated crimes listed in 18 U.S.C. § 2332b(g)(5)(B). Both of those criteria are met here as to each defendant; consequently, the Section 3A1.4 adjustment must apply to their convictions on Count Six (all defendants) and Count Seven (Pezzola).
Separate and apart from the Section 3A1.4 adjustment to Counts Six and Seven and other enhancement sought by the government herein, the government notes that an upward departure under §3A1.4 cmt. n.4(A) (“Note 4”), would be also warranted for all five defendants for these counts or for their other counts of conviction.
A. All Offenses of Conviction Were Calculated to Influence and Affect the Conduct of Government by Intimidation and Coercion, and to Retaliate Against Government Conduct.
1. Legal Standard
A defendant’s offense is “calculated” to influence government or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, as required by Section 3A1.4, if the offense was specifically intended to have the effect of influencing, affecting, or retaliating against government by force or the threat of force. See, e.g., United States v. Mohammed, 693 F.3d 192, 201 (D.C. Cir. 2012) (defendant’s narcoterrorism offense had requisite “calculation” where evidence showed defendant “specifically intend[ed] to use the commission from the drug sales to purchase a car to facilitate attacks against U.S. and foreign forces in Afghanistan”). While they are related, “calculation” for the Section 3A1.4 enhancement is distinct from a defendant’s particular “motive” and a defendant need not be “personally motivated by a desire to influence or affect the conduct of government,” so long as the predicate crime was “calculated to have such an effect.” Khatallah, 314 F. Supp. 3d at 199. Although “calculation may often serve motive,” the enhancement’s “calculation” requirement is satisfied if Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 44 of 80
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a defendant’s offense was “planned—for whatever reason or motive—to achieve the stated object.” United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010) (Section 3A1.4 applied to defendant motivated by “prestige and potential influence obtained by associating with” another terrorist, even if defendant did not share the specific political motivation of that terrorist). Moreover, a defendant’s intent to influence government conduct or retaliate against the government need not have been his “sole” or “primary” purpose and the “calculation” requirement may be satisfied even if a defendant’s relevant conduct sought to “accomplish other goals simultaneously.” United States v. Van Haften, 881 F.3d 543, 545 (7th Cir. 2018); see also United States v. Haipe, 769 F.3d 1189, 1193 (D.C. Cir. 2014) (defendant’s “money-raising goals obviously do not preclude a finding of intent to influence government policy,” even if raising money was defendant’s “primary purpose”).
Indeed, Section 3A1.4 is applicable regardless of the defendants’ claims that they believed that they were stopping a fraudulent election and aimed to stop communists from taking over the United States. See United States v. Christianson, 586 F.3d 532, 539 (7th Cir. 2009) (affirming application of the adjustment for defendants who professed to try to “sav[e] our earth,” because “the purpose behind defendants’ actions was to further [their] political agenda: the end to industrial society”). As the Seventh Circuit explained, “it doesn’t matter why the defendants oppose capitalism and the United States government—if they use violence and intimidation to further their views, they are terrorists.” Id. So to with these defendants.
2. Analysis
In addition to being convicted for their destruction of government property for tearing down the fence on the Capitol grounds (Count Six), an offense enumerated under 18 U.S.C. § 2332b(g)(5)(B), Tarrio, Biggs, Nordean, and Rehl were each convicted of seditious conspiracy Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 45 of 80
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(Count One), conspiracy to obstruct an official proceeding (Count Two), obstruction of an official proceeding (Count Three), conspiracy to prevent officers of the United States from discharging their duties (Count Four), and/or interference with law enforcement officers during a civil disorder (Count Five). Pezzola was convicted on Counts Three, Four, and Five, as well as on Count Seven, an enumerated offense, for smashing the Capitol building window in an effort to break into the building and intimidate the congressmen and other government officials inside. Counts One through Five are not enumerated offenses under 18 U.S.C. § 2332b(g)(5)(B). But as the relevant conduct underlying all of these convictions reflects, the defendants conspired to, attempted to, and temporarily did prevent Congress from certifying the 2020 Electoral College vote and to physically prevent Members of Congress from performing their constitutional duties inside the Capitol building, all through the planned, threatened, and actual use of force. As Nordean cogently explained, “the only thing left is force” when other avenues are foreclosed. Ex. 608-C. Force—in the form of street fighting—was a means that these defendants were well-versed in.
The jury’s guilty verdicts with respect to Count One (seditious conspiracy) are accompanied by the specific finding—beyond a reasonable doubt—that Tarrio, Nordean, Biggs, and Rehl “conspired or agreed with at least one other person with the goal of opposing by force the authority of the Government of the United States, or preventing, hindering, or delaying the execution of any law of the United States by force.” ECF 767 (Jury Instruction) at 21; ECF 804 (Verdict Form) at 1. The jury’s finding plainly establishes that the defendants’ crimes were calculated to influence or retaliate against the government by force or coercion. See United States v. Dowell, 430 F.3d 1100, 1110 (10th Cir. 2005) (holding that the jury made the factual finding that defendant had requisite intent to influence or affect the conduct of government by intimidation or coercion necessary for application of the Section 3A1.4 enhancement when the jury convicted
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defendant of attempting to interfere with IRS, having been instructed that an element of the offense was that defendant knowingly and intentionally “endeavored to obstruct or impede the due administration of the Internal Revenue laws by the use of force”).
Similarly, the jury’s guilty verdicts with respect to Counts Two and Three25 (conspiracy to obstruct and obstruction of an official proceeding) carry with them the finding that all five defendants acted on January 6 with intent to obstruct or impede the certification proceeding. See ECF 767 (Jury Instructions) at 24-25 and 30-31. Likewise, the jury’s guilty verdicts with respect to Count Five (interference with law enforcement officers during a civil disorder) carries the finding that defendants intended to obstruct, impede, or interfere with law enforcement. Id. at 32-33.
And the jury’s guilty verdicts with respect to Count Four (conspiracy to prevent officers from discharging their duties) necessarily mean the jury found that all of the defendants knowingly agreed to use of force or intimidation to stop Members of Congress or law enforcement officers from discharging their duties, thereby inducing law enforcement officers to abandon efforts to guard the building or inducing Members of Congress to flee the House and Senate floors where the certification proceeding had been underway. See ECF 767 (Jury Instructions), at 24-25 (instructing jury that defendants must have agreed “to, by force, intimidation or threat, (1) prevent a Member of Congress or federal law enforcement officer from discharging a duty as a Member
25 Pezzola was found guilty of Count Three (obstruction of an official proceeding), but not Count Two (conspiracy to obstruct an official proceeding). The jury thus found that, through his actions on January 6, Pezzola intended to obstruct the Certification of the Electoral College even if it determined that the government had not proven that Pezzola was a part of that conspiracy beyond a reasonable doubt. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 47 of 80
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of Congress, or (2) induce a Member of Congress or federal law enforcement officer to leave the place where that person’s duties are required to be performed”).
For the following reasons, the jury’s verdict reflects the ample evidence that the defendants’ offenses were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. §3A1.4, n.1 (cross referencing 18 U.S.C. § 2332b(g)(5)).
Finally, the defendants’ convictions for the destruction of government property in Counts Six and Seven reflect the jury’s finding that defendants shared the conspiratorial objective of perpetrating a physical assault on the Capitol, overrunning the fences on the Capitol grounds and ransacking the Capitol building, all in order to intimidate, coerce, and retaliate against the government officials involved in the certification proceedings within those walls.
The government’s evidence showed that all five defendants were motivated to use force to stop the certification proceedings in order to keep former President Donald J. Trump in power. On November 16, Tarrio vowed that “[i]f Biden steals this election” the Proud Boys would not “go quietly[.]” Biggs announced that the left was “radicalizing” people by stealing the election and said it was “time for fucking War if they steal this shit.” Nordean asserted that the Democrats were “trying to steal the election” and later announced that the “spirit of 1776 had resurfaced” in the Proud Boys. Rehl tracked the election results closely and told his followers that he hoped that “firing squads” would be used “for the traitors that are trying to steal the election from the American people.” Pezzola viewed the country as one locked in a “battle between good & evil” and “freedom vs. tyranny” and vowed to “fight” to his “last breath” to avoid a communist takeover.
In the leadup to January 6, the men undertook extensive efforts to deploy a force against the Capitol. Notwithstanding the Proud Boys’ frequent use of street violence in cities across Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 48 of 80
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America, Biggs told Tarrio on December 19 that it was time to get “radical” and get “real men.” Tarrio, Biggs, and Nordean then oversaw an effort to recruit a gang of “real men”—in the form of the MOSD—to return to Washington, D.C. on January 6. In the private, encrypted chatrooms for the MOSD, the men they had selected discussed the use of force, including force against the Capitol. Their men declared that they were ready to “kick the fuck ass when [it came] time to kick ass.” And their men plainly anticipated violence in connection with the certification proceeding on January 6—one of Tarrio’s hand-selected members announced that it was “time to stack those bodies in front of Capitol Hill.”
Tarrio, Nordean, Biggs, and Rehl had in mind a specific objective for January 6. Tarrio had in his possession a nine-page strategic plan to “storm” government buildings on January 6 for the purpose of getting the government to overturn the election results. In the days before January 6, Nordean announced that he was prepared to use “force against the government” because when “government officials are breaking the law . . . you have to use force.” Biggs declared that every “law maker[] who breaks their own stupid Fucking laws should be dragged out of office and hung” and declared that the “government should fear the people.” Rehl echoed the same sentiment on January 6, noting that the storming of the Capitol was “what patriotism looks like” and asserting that the when the government “fears its people, you have freedom.”
The defendants personally deployed force against the government on January 6. Nordean and Biggs combined their conspirators and others to rip down a black metal fence, which served to unleash the mob into the West Plaza of the Capitol. Pezzola assaulted an officer and stole a riot shield. Rehl fired an aerosol spray against officers. Biggs, Pezzola and their conspirators surged with the crowd up the concrete stairs toward the Capitol. Pezzola used a stolen riot shield to break a window. And the men they led to the Capitol joined in the assaultive and destructive action. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 49 of 80
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These were not random acts—they were intentional acts done for the overarching purpose of influencing government action. After telling his followers, “don’t fucking leave,” Tarrio posted a picture of rioters in the Senate Chamber with the caption “1776.” He referred to the rioters as “revolutionaries.” Upon seeing a video of Pezzola smashing the Capitol windows, Tarrio compared the rioters to “George Washington[,] Sam Adams[,] and Franklin.” From the lawn of the Capitol while standing with Nordean, Biggs made their objective clear—“we just stormed the fucking Capitol; took the motherfucking place back.” He then declared January 6 to be a “day in infamy.” Nordean menaced an officer in the Rotunda, telling him that the “thin blue line was dead.” Pezzola recorded himself inside the Capitol stating that he “knew” they could “take this motherfucker over if we just tried hard enough.” Pezzola closed the recording with his mention of the gang, “Proud of your motherfucking boy.”
After breaching the Capitol and halting the Certification, the defendants’ statements indicate that their intent had been to coerce and intimidate the government—and that they sought to continue doing so. For instance, on the evening of January 6:
• Tarrio posted a message that read, “I don’t want what happened today to continue to happen. But it is up to our elected officials to listen...Because things can get ugly.”
• Tarrio posted a message that said that Biden had launched a “war” against “us” and that as “crazy as [January] 6th was, It shows . . . DON’T FUCKING TREAD ON US.”
• Nordean posted a message calling the Capitol police “oath breakers” and said that if you “feel bad” for them, “you are part of the problem.” Nordean claimed that “they care more about federal property . . . than serving the people.”
• Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that “I was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.” Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 50 of 80
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• Biggs recorded a podcast where he proudly declared that the government “just found out how weak they really are.” Biggs went on to explain that January 6 was a “warning shot to the government” that the people “started the country this way” and they would “save it this way.”
• Rehl announced that January 6 was a “historical day.” He declared himself “so fucking proud” that “our raid of the capital [sic] set off a chain reaction of events throughout the country.”
These are just a sample of the numerous statements made by the defendants indicating their coercive, intimidating intent.
Finally, the defendants’ choice of target, itself—the Capitol building, where Congress was in session—further evidences their intent to intimidate and affect the government. A defendant’s specific intent to influence and retaliate against government conduct for purposes of Section 3A1.4 can often “be inferred from the defendant’s choice of target.” Abu Khatallah, 314 F. Supp. 3d at 198. Attacking a government facility that is “a physical manifestation of the U.S. government . . . suggests a desire to retaliate against or influence that government.” Id. at 199. That is why, “[u]nsurprisingly . . . , several courts have applied and upheld the terrorism enhancement for defendants who targeted government facilities.” Id. (citing cases). Clearly, attacking the seat of our government while the entire complement of legislators and the Vice President of the United States are inside performing their constitutional and statutory duties is a strong indication of intent to influence or affect the government.
In short, all of defendants’ offenses displayed a clear, shared intent to stop Congress from certifying the results of the election through the organized use of physical force and property destruction. That conduct is a quintessential example of an intent to influence and retaliate against Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 51 of 80
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government conduct through intimidation or coercion and warrants the application of the terrorism enhancement pursuant to Section 3A1.4.26
B. The Defendants’ Convictions on Counts Six and Seven are Qualifying Offenses for the Section 3A1.4 Adjustment
The second requirement for the Section 3A1.4 adjustment is that the offense was “involved, or was intended to promote,” one of the enumerated offenses listed at 18 U.S.C. § 2332b(g)(5)(B).
“[A] defendant’s offense ‘involves’ a federal crime of terrorism when his offense includes such a crime, i.e., the defendant committed, attempted, or conspired to commit a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5), or his relevant conduct includes such a crime.” United States v. Awan, 607 F.3d 306, 313–14 (2d Cir. 2010); see also United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (“the word ‘involved,’ as used in § 3A1.4, signifies that where a defendant’s offense or relevant conduct includes a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5)(B), then § 3A1.4 is triggered”); United States v. Fidse, 862 F.3d 516, 522 (5th Cir. 2017) (same); United States v. Arcila Ramirez, 16 F.4th 844, 850 (11th Cir. 2021) (same).
Count Six, on which all defendants were convicted, and Count Seven, on which Pezzola was convicted, charged felony Destruction of Government Property in violation of 18 U.S.C. § 1361. This offense is listed in 18 U.S.C. § 2332b(g)(5)(B)(i). Accordingly, because the intent requirement is satisfied as explained above, the defendants’ convictions on Counts Six and Seven qualify as “federal crimes of terrorism” and the Section 3A1.4 adjustment applies.
26 These facts also support the application of Note 4 of Section 3A1.4, which is discussed herein at Part V.C. In short, Note 4 authorizes a departure when the commission of an offense not specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) is nonetheless “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. §3A1.4, cmt. n.4. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 52 of 80
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Part 3 of 3

C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions
Significantly, an upward departure under Note 4 is also warranted for defendants’ convictions. The upward departure is unnecessary because the adjustment applies, but even if one applied the departure rather than the adjustment, the result would be the same: the aggravating factors described above would warrant offense levels commensurate with those reached by applying the Section 3A1.4 adjustment and the other enhancements sought by the government.
Note 4 states that even where defendants are not convicted of an offense enumerated in 18 U.S.C. § 2332b(g)(5), an upward departure is “warranted” if the defendants’ “offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Id., cmt. n.4(A). When it adopted Note 4, the Sentencing Commission explained that it is “an encouraged, structured upward departure,” the purpose of which is to provide courts with “a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis” and to “make[] it possible to impose punishment equal in severity to that which would have been imposed if the § 3A1.4 adjustment actually applied.” Sentencing Guidelines, App. C, amend. 637 (2002) (emphasis added).
The defendants’ offenses of seditious conspiracy (Count One), conspiracy to obstruct an official proceeding (Count Two), obstruction of an official proceeding (Count Three), conspiracy to prevent officers of the United States from discharging their duties (Count Four), and/or interference with law enforcement officers during a civil disorder (Count Five) are not enumerated under 18 U.S.C. § 2332b(g)(5), but—as introduced immediately above—these offenses were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. n.4(A). As their convictions and the underlying evidence reflects, the defendants conspired to, attempted to, and temporarily did
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prevent Congress from certifying the 2020 Electoral College vote and to physically prevent Members of Congress from performing their constitutional duties inside the Capitol building, all through the planned, threatened, and actual use of force.
Application of Note 4 to these defendants’ conduct is consistent with the application of Note 4 in this district and by other courts around the country. Judge Mehta applied upward departures ranging from one to six levels under Note 4 to all eight of the Oath Keepers defendants he has sentenced to date in United States v. Rhodes, et al., No. 22-cr-15.27 Even more recently, Judge Mehta applied a one level upward departure under Note 4 to Audrey Southard-Rumsey, who was convicted of interfering with law enforcement officers during the commission of a of civil disorder, assaulting law enforcement officers, and obstructing an official proceeding in connection with her rampage through the Capitol on January 6. United States v. Southard-Rumsey, No. 21-cr-387.
Other courts have applied Note 4 and, specifically, Note 4(A)—relating to offenses that are not enumerated in 18 U.S.C. § 2332b(g)(5)(B) but are “calculated” to influence or retaliate against the government—in different contexts. In United States v. Doggart, the sentencing court imposed
27 None of the defendants in the Rhodes and Minuta cases (21-cr-28 (APM)) were convicted of a specifically enumerated crime under 18 U.S.C. § 2332b(g)(5)(B). Judge Mehta nonetheless found that the crimes committed by members of the Oath Keepers conspiracy were calculated to influence and retaliate against government conduct and applied upward departures under Note 4 to those defendants’ crimes of conviction, e.g., Seditious Conspiracy and Obstruction of an Official Proceeding. By contrast, four Oath Keepers co-conspirators in the Parker case (22-cr-28 (APM)) were convicted of felony destruction of government property, in violation of 18 U.S.C. § 1361. While those defendants have not yet been sentenced, the government has taken the position that, although the Section 3A1.4 adjustment might apply, the Parker defendants are less culpable than their Rhodes and Minuta co-conspirators. The government therefore asked the Court to use the same methodology for the Parker defendants that it used with the Rhodes and Minuta co-conspirators, and to find that the appropriate Guidelines range is the one determined after application of the Note 4 upward departure. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 54 of 80
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a Note 4(A) upward departure where the defendant was convicted of soliciting the destruction of religious property in connection with his plan to burn down buildings in a Muslim community, seeking to “set[] in motion an armed insurrection against the government of the United States that would force the government of the United States either to respond to” the defendant’s planned attacks, “or to give in and capitulate.” No. 15-cr-39-CLC-SKL (E.D. Tenn. Sep. 16, 2020), ECF 343 at 6. The Sixth Circuit affirmed, agreeing that the defendant’s offense was “calculated to influence or affect government conduct by intimidation or coercion.” United States v. Doggart, No. 20-6128, 2021 WL 5111912, at *2-4 (6th Cir. Nov. 3, 2021). There, the sentencing court upwardly departed from an otherwise applicable guidelines range that called for 51 to 63 months of imprisonment (equivalent to offense level 24 at Criminal History Category I) to a range of 324 to 405 months of imprisonment (equivalent to offense level 41 at Criminal History Category I).28 Id. After departing upward, the court sentenced the defendant to the statutory maximum for his sole offense of conviction, ten years of imprisonment. Id. at *1.
In a separate case in the District of Oregon, the sentencing court applied Note 4 when sentencing multiple co-conspirators convicted of violations under 18 U.S.C. § 372 and related offenses for their roles as part of Ammon Bundy’s 2016 armed occupation of the Malheur National Wildlife Refuge, based on their disagreement with federal land management policies. These co-conspirators, some of whom were armed, formed a convoy, entered the Malheur refuge, and then set up a perimeter blocking the entrance of personnel from the Fish and Wildlife Service and other
28 Since the Court may upwardly depart under Note 4 to impose a sentence that does not “exceed the top of the guideline range that would have resulted if the adjustment under this guideline at been applied,” cmt. n.4, the Court is not limited to an offense level increase of 12 steps as contemplated in Section 3A1.4(a), but can depart higher because Section 3A1.4(b) also calls for an increase of the defendant’s Criminal History Category to Level VI. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 55 of 80
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federal agencies. As they indicated in public statements, the occupiers aimed to “adversely possess” the federal land at the Malheur refuge and to compel the release of two other ranchers who had been convicted of arson on federal land. Although some defendants involved in the occupation claimed their actions were peaceful, certain defendants carried firearms as they patrolled the refuge, including in a fire watchtower where they stood guard, and one of the defendants was a member of the “Washington III%” militia. The court applied a Note 4 upward departure to eleven of the thirteen defendants who had pled guilty (some of whom had agreed to the application of the departure in their plea agreements), departing upward two offense levels (one defendant), three offense levels (four defendants), five offense levels (three defendants), and ten offense levels (one defendant). See United States v. Patrick, No. 16-cr-51-BR-9 (D. Or. Feb. 18, 2018), Sent. Tr. at 43-45. The court then applied four- and two-level departures to two defendants convicted at trial. Id. at 46; United States v. Thorn, No. 16-cr-51-BR (D. Or. Nov. 21, 2017), Sent. Tr. at 12.
Other sentencing courts have also upwardly departed under Note 4, although under Note 4(B), a different subsection than the government relies on here, where defendants’ convictions “involved, or were intended to promote” an enumerated offense under 18 U.S.C. § 2332b(g)(5)(B) but the “terrorist motive was to intimidate or coerce a civilian population” rather than to influence or retaliate against government conduct. See United States v. Harpham, 11-cr-42 (E.D. Wash.), applied in United States v. Harpham, 2012 WL 220276 (E.D. Wash. Jan. 25, 2012) (three offense-level Note 4(B) departure applied to defendant who placed explosive device along the Martin Luther King, Jr. Day parade targeting parade participants); United States v. Cottrell, 04-cr-279 (C.D. Cal.), aff’d, United States v. Cottrell, 312 F. App’x 979, 981 (9th Cir. 2009) (per curiam), superseded on other grounds in 333 F. App’x 213 (9th Cir. 2009) (per curiam) (after application Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 56 of 80
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of Note 4(B), defendant sentenced to 100 months of imprisonment for participating in conspiracy to commit vandalism and arson of SUVs in connection with environmental extremist organization); United States v. Jordi, 03-cr-60259 (S.D. Fla.), aff’d, United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) (after application of Note 4(B), defendant sentenced to 10 years of imprisonment in connection with conviction for planned bombing of abortion clinics meant to dissuade doctors from performing abortions); see also United States v. Holzer, 19-cr-488 (D. Colo.), ECF 101 at 1-5 (finding that Note 4(B) applied to defendant convicted of attempted arson of a synagogue, but describing 235-month sentence of imprisonment as the result of an upward “variance”).
Here, the Section 3A1.4 adjustment applies to the defendants’ convictions for the federal destruction of property. The Court could also reach the same result by departing upward pursuant to Note 4, in lieu of applying the Section 3A1.4 adjustment and other sentencing enhancements, as the government submits that the appropriate upward departure would result in the same offense levels. The Court need not consider a Note 4 adjustment, though, because the Note 4 equities are adequately addressed by the Section 3A1.4 adjustment and other sentencing enhancements.


VI. CHAPTER THREE: OTHER ADJUSTMENTS
The PSRs apply the appropriate adjustments, given the defendants’ relevant conduct.
A. Section 3B1.1 (aggravating role)
The Guidelines provide for an increase in the offense level if the defendant played an aggravated role in the offense, as an “organizer” or “leader” (four levels) or “manager” or “supervisor” (three levels) of a criminal activity that involved five or more participants. U.S.S.G. § 3B1.1(a), (b). The PSRs correctly apply the aggravating role adjustment by assigning a four level Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 57 of 80
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adjustment to Tarrio, Biggs, and Nordean as organizers/leaders and a three level adjustment to Rehl for his role as a supervisor.
The following non-exhaustive factors are instructive in determining whether to apply the adjustment and, if so, whether to add three or four levels:
[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
United States v. Olejiya, 754 F.3d 986, 990 (D.C. Cir. 2014) (quoting U.S.S.G. § 3B1.1, cmt. n.4). “No single factor is dispositive.” Id. While the court must examine the degree of “control” the defendant exercised over other criminally culpable individuals, id., this factor “alone does not determine whether the sentence can be increased” pursuant to Section 3B1.1, United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994); see also United States v. Brodie, 524 F.3d 259, 270-71 (D.C. Cir. 2008) (noting the “several” factors that must be considered in addition to “control”).
The Circuit has further explained that it understands “control” to “connote some sort of hierarchical relationship” among the participants in the criminal enterprise. Olejiya, 754 F.3d at 990. “When confronted with a heavily stratified conspiracy, a court must superimpose the § 3B1.1 framework over the organizational chart of the conspiracy and, using the factors [in the commentary in Note 4 to the Guideline], decide where to draw the two relevant lines that determine who qualifies for a § 3B1.1 enhancement.” United States v. Graham, 162 F.3d 1180, 1185 (D.C. Cir. 1998). In this way, the three-point enhancement in Section 3B1.1(b) is a “middle-rung enhancement.” United States v. Otunyo, 63 F.4th 948, 958 (D.C. Cir. 2023).
The aggravating-role adjustment applies to a defendant who “managed” or “supervised” merely one other person, so long as the larger criminal activity that constituted the “relevant Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 58 of 80
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conduct” involved five or more participants. U.S.S.G. § 3B1.1(a), cmt. n.2. Multiple defendants can qualify as a “leader” or “organizer” of the same criminal conspiracy, subjecting them to the same four-level adjustment. Id., cmt. n. 4.
The D.C. Circuit has “found the requisite hierarchical relationship” in several cases. See, e.g., Olejiya, 754 F.3d at 991 (recruited some members and supervised others in check-cashing scheme); Brodie, 524 F.3d at 270-71 (recruited members and “coordinated the group’s efforts”); United States v. Wilson, 240 F.3d 39, 46-47 (D.C. Cir. 2001) (recruited and directed others in bank fraud scheme); United States v. Norman, 926 F.3d 804, 812 (D.C. Cir. 2019) (“recruited, managed-supervised, and took a large share of proceeds”). And when the Circuit has found the “hierarchical relationship” lacking, it is often because the defendant had a different type of relationship with his accomplice. See, e.g., United States v. Johnson, 64 F.4th 1348, 1352-53 (D.C. Cir. 2023) (finding that defendant did not have the requisite hierarchal relationship and control over his estranged wife, particularly given the spousal relationship and that she agreed to help him despite her anger with him).
Moreover, the Circuit has found that a defendant’s leadership position in a workplace, even for a defendant who did not recruit others or “initiate[]” the scheme, can support this managerial-role adjustment if the crime is related to the work. See, e.g., United States v. Bras, 483 F.3d 103, 113-14 (D.C. Cir. 2007) (defendant was manager at construction company and part of conspiracy to bribe government inspectors); United States v. Bikundi, 926 F.3d 761, 801 (D.C. Cir. 2019) (per curiam) (defendant was owner of home health care company and part of conspiracy to alter employee and patient records related to fraudulently obtaining government reimbursements).
The Circuit has also found the adjustment applicable for a defendant’s conviction for conspiring to violate 18 U.S.C. § 1512 based on his conduct, as a federal official, to solicit Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 59 of 80
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kickbacks and then conceal his activities. Kelley, 36 F.3d at 1129. The defendant “sought out both knowing and unwitting accomplices,” instructing them on what to do and how to do it. Id.
Importantly, the Circuit recently reiterated that this Chapter 3 role adjustment is determined by looking broadly at all relevant conduct rather than simply the offense of conviction. Otunyo, 63 F.4th at 958-59.; see also United States v. Olibrices, 979 F.2d 1557, 1560–61 (D.C. Cir. 1992) (holding that a sentencing judge should “take into account the contours of the entire conspiracy,” rather than merely the offense of conviction, when determining whether a Chapter Three adjustment applies to a defendant’s role in the criminal activity). In other words, a defendant should receive the adjustment even if he is not at the top of the hierarchy, so long as he played a managerial or supervisory role anywhere within the criminal activity.
Notably, to qualify for the adjustment, the defendant must have managed or led one or more participants in the scheme, rather than simply controlled the scheme itself. Bapack, 129 F.3d at 1324. However, there is no requirement that, to qualify as a “participant,” a person be “culpable in the same crime of which the supervising defendant was convicted.” Id. at 1325. And indeed, the “participant” need not have been convicted, or even charged. Id. In Bapack, the Circuit affirmed the imposition of the role-adjustment under Section 3B1.1, explaining that the adjustment does not require a finding that a defendant “supervised ‘participants’ who were unindicted co-conspirators or accessories in the crimes of which she was convicted. Rather, it is enough that the ‘participants’ she supervised were culpably involved in uncharged crimes ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)). Thus, the adjustment was correctly applied to a defendant who supervised nurses in creating a false document, because those nurses violated 18 U.S.C. § 1001, and even though neither the nurses nor the defendant were charged with that crime, it was part of the defendant’s “course
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of conduct or common scheme” of conspiring to defraud the government by submitting false Medicare and Medicaid claims. Id.
The evidence showed that Tarrio, Biggs, Nordean, and Rehl formed an agreement in advance of January 6 that was characterized by a degree of structure and organization that was uncharacteristic of the Proud Boys. The structure and organization centered on the MOSD. It was conceived of and created by Tarrio, who selected Nordean and Biggs as his top lieutenants. Rehl was hand-picked for a leadership role in the chain of command. Tarrio created an encrypted Telegram group chat for the leaders of the MOSD. Ex. 501-1. Those leaders in the chat group (the “MOSD Leaders” group) included Tarrio, Biggs, Nordean, and Rehl, as well as co-conspirators Charles Donohoe, Jeremy Bertino, and John Stewart.29 Id.
Tarrio implemented a set of rules, which were enforced by his deputies. First, the group would be made up exclusively of “hand selected” members who were specifically chosen by the MOSD leadership. Ex. 500-69. Second, the group was subject to strict secrecy requirements, with members forbidden from discussing it with outsiders or even with other Proud Boys. Ex. 613-P. Third, the members were required to observe the chain of command both by following direct orders without question (in one leader’s words, “turn your brains off and follow”) and by conforming at all times to the general norms and expectations set by leadership (“fit in or fuck off”). Ex. 613-E and 503-3.
These rules were introduced and implemented to the hand-selected men of the MOSD. Tarrio, Nordean, Biggs, and Rehl each selected men for the MOSD, and the men were invited into an encrypted message group for MOSD members that had been created by Tarrio. The hand-
29 The plea agreement of Charles Donohoe included a three-level adjustment for his role as manager of the conspiracy. United States v. Charles Donohoe, 21-cr-175-4 (TJK). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 61 of 80
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selected men were valued for their willingness to follow-orders and ability to dole out street-level violence. Once included in the MOSD, subordinate members of MOSD affirmed their eagerness to use violence as part of the group, sending messages to the chat about intentions to “log into minecraft,” Ex. 503-5, “beat the motherfuck” out of Antifa, Ex. 503-17, “break some legs,” id., “kick ass when… it’s time to kick ass,” Ex. 503-23, “storm everyone’s capitols,” Ex. 503-13, “let the bodies hit the floor,” Ex. 507-11, and “stack those bodies in front of Capitol hill,” Ex. 507-10. MOSD’s leaders never expressed any disapproval about such remarks, including those that specifically mentioned violence directed at the Capitol. See Tr. 8515-8517 (Dubrowski).
As January 6 approached, Tarrio was arrested for his public destruction of property on December 12.30 After Tarrio’s arrest, Nordean and Biggs assumed direct operational control over the MOSD, and they assured their subordinates that “the rally’s continuing” and that they had formed a “plan” about which they had consulted Tarrio. Ex. 510-9 and -23. In a private, encrypted message, Nordean instructed his men to meet at the Washington Monument at 10 a.m. and that “from there” the men would be “marching to the Capitol.” Ex. 551. The call to meet at 10 a.m. at the Washington Monument was also broadcast by other MOSD leaders to the MOSD members and Boots on Ground participants. Ex. 510-24 and 512-5.
The men met at the Washington Monument as instructed. Tr. 5482:11-15 (Greene). Consistent with the directives of Biggs, Tarrio, and other leadership, the assembled men were not wearing Proud Boys colors, but many wore tactical equipment such as helmets and plate carriers.
30 While the evidence was excluded under Fed. R. Evid. 403 at trial, Tarrio had bragged about the crimes and taunted law enforcement on social media—unequivocally sending a public message to his men that crimes in furtherance of the Proud Boys’ objectives were fully endorsed by the Chairman. See Tr. 4023-30, 4063-75 (Oral argument on Jan. 18, 2023, concerning the admission of Tarrio’s Parler exhibits). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 62 of 80
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Id. at 5481:20-22 (Greene); see also Ex. 1000 at 00:25-3:05. Nordean and Biggs prominently took control of the march, and Nordean and Biggs frequently addressed the men through a megaphone—telling them that in their view the police and government had failed them. E.g., Ex. 1000 at 4:10-5:33. On the march, Rehl played an integral organizational role, using his radio to ensure that the group of approximately 200 stayed together as it marched towards the Capitol. Id. at 8:15-8:30. He also communicated with co-conspirators who were not present, but who were monitoring events in Washington remotely, about how things were going on the ground. Ex. 509-29.
Nordean, Biggs, and Rehl maintained control over the group as they marched them away from the featured speakers at the Ellipse and, as planned, toward the Capitol. At 12:45 p.m., fifteen minutes before the certification of the Electoral College vote was scheduled to start, Nordean mustered the men into a column and marched them to the First Street side of the Capitol. Ex. 1000 at 19:05-19:20, Ex. 1001 at 00:50-1:15. Nordean, Biggs, and Rehl led the men away from then-President Trump’s speech, which was ongoing. Biggs, Nordean, Rehl, and their men played an integral role in the first breach of the restricted perimeter on January 6. At 12:53 p.m., approximately one minute after Biggs led a “Whose Capitol? Our Capitol!” chant, the crowd surged forward towards a police barricade manned by five officers. Ex. 1001 at 8:07. As the crowd surged forward, Nordean and Biggs attempted to organize the men to stay with and follow them. Id. at 8:18-8:37. Rehl moved to the front of the crowd while yelling, “Fuck them! Storm the Capitol!” Id. at 10:01-10:20; Tr. 12246:5-10 (Miller).
Even as the chaos unfolded, the men maintained command and control through the predetermined rule—follow the commands of leadership or as known in Proud Boys parlance, fit in or fuck off. As acknowledged by defense witness Travis Nugent, the men simply fell back on Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 63 of 80
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the chain of command and followed leadership in their assault on the Capitol. Tr. at 14643:24-14645:4 (Nugent).
The leaders’ command and control persisted throughout the siege. Nordean and Biggs led a smaller group around the grounds of the Capitol until the final push to the building, and Biggs continued to lead a smaller group of men as he twice rampaged through the Capitol. Rehl first asked, then led his group into the Capitol where they entered a private office where Rehl smoked and posed for pictures while flashing the Proud Boys hand gesture. Tr. 12635:8-23, 12639:16 – 12640:24 (Miller); Ex. 115x, 415x and 402-B. Nordean moved around the Rotunda with other Proud Boys, including a Proud Boys member who had twice entered the building with Biggs. And, watching from afar, Tarrio privately took credit for his accomplishment (e.g., “Make no mistake . . . we did this.” (500-84)) and publicly encouraged his men and the crowd to continue the attack (e.g., ““Proud of my boys and my country,” and “Don’t fucking leave.” (Ex. 600-59)).
The Court should therefore apply the PSR’s suggested adjustments to Tarrio, Nordean, Biggs, and Rehl, for an aggravating role.
B. Section 3C1.1 (obstruction of justice)
The PSRs correctly apply Section 3C1.1’s two-level enhancement for obstruction of justice to Tarrio, Biggs, and Rehl. This enhancement applies if “(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. The commentary to the Guidelines includes a non-exhaustive list of some of the ways that a defendant can obstruct justice. See, e.g., U.S.S.G. § 3C1.1, cmt. n.4(B) (committing perjury); cmt. n. 4(D) (deleting evidence or instructing others to Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 64 of 80
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do so, or attempting to do so); see also United States v. Dunnigan, 507 U.S. 87, 92-95 (1993) (confirming that perjury merits the obstruction enhancement under Section 3C1.1); United States v. Mellen, 89 F. App’x 268, 270 (D.C. Cir. 2004) (affirming application of the enhancement for “advis[ing]” someone else to destroy property to avoid detection, and then destroying the evidence himself). Each of the defendants’ obstruction manifested itself in different ways, and because the facts and circumstances of each defendants’ obstructive conduct was different, the bases for the adjustments are detailed in the sentencing addendums specific to each defendant. See Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
C. Section 3E1.1 (no acceptance of responsibility)
The PSRs correctly reject the defendants’ claims to an entitlement to a reduction in offense level based on any alleged acceptance of responsibility. Notably, Pezzola offered to provide pretrial services with a letter that would detail Pezzola’s “partial” acceptance of responsibility. That letter has not materialized. In any event, any such post-facto “partial” acceptance does not make an “acceptance of responsibility” reduction available to the defendants. The Guidelines commentary makes clear that an acceptance reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. n.2. It will be “rare” for a defendant who proceeds to trial to receive this adjustment. Id. That “rare” situation is when a defendant proceeds to trial to “preserve issues that do not relate to factual guilt.” Id. That is not the case here.
Regardless of any facts conceded by any defendant prior to or during trial, each defendant contested that the government proved the necessary mens rea for the defendant to commit the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 65 of 80
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conspiracy or obstruction of justice offenses. Each defendant, therefore, denied an essential factual element of guilt: his or her own intent. Indeed, in a different Capitol riot case, Judge Walton rejected this precise argument, holding that a defendant who went to trial and testified about his conduct but denied possessing the necessary mens rea to corruptly obstruct the official proceeding would “absolutely” not be entitled to a reduction for acceptance of responsibility. United States v. Thompson, 21-cr-161 (Nov. 18, 2022), Sent. Tr. at 64. Judge Walton’s conclusion echoes that of circuit courts, which routinely find that district judges do not abuse their discretion or clearly err in denying the acceptance-of-responsibility adjustment for defendants who proceed to trial in obstruction cases contesting whether they possessed the requisite corrupt intent. See, e.g.¸ United States v. Marinello, 839 F.3d 209, 226-27 (2d Cir. 2016), reversed and remanded on other grounds, 138 S. Ct. 1101 (2018); United States v. Petruk, 836 F.3d 974, 977-78 (8th Cir. 2016). A defendant who admits his physical actions but denies his intent necessarily denies his “factual guilt” under Section 3E1.1. See United States v. Jaynes, 75 F.3d 1493 (10th Cir. 1996) (affirming inapplicability of this adjustment for defendant who admitted conduct constituting forgeries but denied any intent to defraud government); United States v. Burns, 781 F.3d 688 (4th Cir. 2015) (affirming inapplicability of this adjustment for defendant who admitted to shooting into car but denied possessing intent to kill).
Moreover, the defendants who testified at trial made it abundantly clear that they have no remorse for their actions. At the conclusion of his testimony, including his lies to the jury about his assault on law enforcement, Rehl summed up his attitude about his conduct with a textbook non-apology, “[i]f you believe that I did anything wrong that day, I really do truly apologize.” The “I’m sorry you feel that way” apology communicates no remorse and accepts no responsibility. During his testimony, Pezzola played the same song with different lyrics. He laid the blame for his Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 66 of 80
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violent and assaultive conduct on the officers who were attempting to protect themselves and control Pezzola and the other rioters. He blamed COVID lockdowns; he blamed his military training; he blamed everyone but the person who was responsible for his actions.
Indeed, even in their PSR interviews, not a single defendant acknowledged their guilty conduct. None of them has “accepted responsibility” for their criminal actions.
VII. GROUPING ANALYSIS
As the PSRs correctly conclude, for each defendant, all counts of conviction should group. Under §3D1.2, “closely related counts” group. All the counts of conviction for each defendant should be placed into one group, as described more fully below.
Counts One, Two, Three, Six, and Seven. Under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. Counts One (seditious conspiracy), Two (conspiracy to obstruct an official proceeding), Three (obstruction of an official proceeding) involve the same victim (Congress or the government itself) and are part of the same common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Counts One, Two, and Three therefore group under §3D1.2(b). Similarly, Counts Six and Seven (destruction of government property) involve the same victim (Congress or the government itself) and were connected by a common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Were Counts Six and Seven determined to involve a different victim (e.g., the Architect of the Capitol), Counts Six and Seven would still group because they embody conduct that is treated as a specific offense characteristic in Counts One, Two and Three (i.e., §2J1.2(b)(1)(B) (“threatening to cause physical injury to a Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 67 of 80
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person . . . in order to obstruct the administration of justice.”)) See U.S.S.G. §3D1.2(c); see also, discussion, infra.
Count Four. Under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. Count Four (conspiracy to prevent officers of the United States from discharging their duties) embodies conduct that is treated as a specific offense characteristic in §2J1.2(b)(1)(B). In Count Four, the jury found the defendants guilty of conspiring to use “force, intimidation, or threat” to prevent Members of Congress and federal law enforcement officers from discharging duties. Those same elements – force, intimidation, or threat – support application of the specific offense characteristic in §2J1.2(b)(1)(B) of “threatening to cause physical injury to a person . . . in order to obstruct the administration of justice.”
Count Five. Just as with Count Four, under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. In Count Five, the jury found all five defendants guilty of interference with law enforcement officers during a civil disorder. That conduct supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” See discussion, supra at Part IV.A.2.
Count Nine. In Count Nine, the jury found Pezzola guilty of assault. As with Counts Four and Five, Pezzola’s assault also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Nine groups with Counts One through Three under U.S.S.G. §3D1.2(c). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 68 of 80
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In the alternative, the applicable guideline for Count Nine is §2A2.2 (and not §2A2.4) because the assault involved “an intent to commit another felony.” U.S.S.G. §2A2.2 n.1. Accordingly, if evaluated from the opposite direction, Count Nine groups with Counts Three, Four, and Five because those other felonies form the basis for the adjustment in the guidelines for Count Nine, i.e., the other felonies “embod[y] conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to” Count Nine.
Count Ten. In Count Ten, the jury found Pezzola guilty of robbery. As with Counts Four, Five, and Nine, Pezzola’s robbery also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Ten groups with Counts One through Three under U.S.S.G. §3D1.2(c).
In addition, under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. The assault charged in Count Nine involved the same officer from whom the property was robbed, i.e., Officer Mark Ode. Counts Nine and Ten were carried out as part of the same common criminal objective. Accordingly, the Counts Nine and Ten group, and for the reasons explained herein, supra, Counts Nine and Ten group with the other counts of conviction.
Were the Court to determine that any of the specifical offense characteristics or the adjustment for obstruction of justice do not apply to a particular defendant, then not all counts of conviction would group, and the Court would need to adjust the offense level according to the analysis in Part D of Chapter 3. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 69 of 80
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VIII. UPWARD DEPARTURES
The Court should depart upward from the Guidelines range for each of the defendants’ relevant conduct in this case for the bases explained below and in the sentencing allocution section for each defendant. Specifically, in addition to the application of an upward departure for a federal crime of terrorism under Note 4 of Section 3A1.4, other provisions in the Sentencing Guidelines provide independent bases for the Court to depart upwards from each defendant’s Guidelines range.
First, Section 5K2.7 provides that “[i]f the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.” U.S.S.G. § 5K2.7. This departure “ordinarily would not be justified when the offense of conviction is . . . obstruction of justice . . . unless the circumstances are unusual.” Id.; see also § 3A1.2, cmt. n.5; § 2A2.4, cmt. n.3 (regarding additional relevant bases for applying Section 5K2.7). Here, both the circumstances and the offense are unusual: the defendants sought to disrupt a government function that is integral to our democracy and is mandated by the Constitution itself—the Certification of the votes of the Electoral College. See U.S. Const. amend. XII. Further, seditious conspiracy is an egregious offense for which defendants are rarely convicted and sentenced—and very few defendants have been sentenced since the advent of the Sentencing Guidelines. But when defendants are sentenced for a seditious conspiracy conviction, they typically receive lengthy terms of incarceration. See Part IX.C (recounting other sentences for seditious conspiracy).
Second, an upward departure is equally appropriate under Section 5K2.0(a)(3) to account for the defendants’ “intent to frighten, intimidate, and coerce” federal lawmakers in manner that is Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 70 of 80
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not otherwise accounted for in the Guidelines. United States v. Tankersley, 537 F.3d 1100, 1116 (9th Cir. 2008); see id. at 1112-14 (upholding 12-level upward departure under Section 5K2.0 after the district court concluded that Section 3A1.4 did not apply). As explained in detail at Part V, the defendants intended to and did use force to oppose the government; and they took these actions in order to influence or affect the conduct of government by intimidation or coercion. Absent an application of the adjustment for a federal crime of terrorism, the Guidelines would not otherwise accurately reflect the seriousness of the defendants’ conduct.
IX. SECTION 3553(a) FACTORS APPLICABLE TO ALL DEFENDANTS
The Court’s sentence must be guided by the factors in 18 U.S.C. § 3553(a). The following factors are applicable to all five defendants: the nature and circumstances of the offense, § 3553(a)(1); the need for the sentence to reflect the seriousness of the offense and promote respect for the law, § 3553(a)(2)(A); the need for the sentence to afford adequate general deterrence, § 3553(a)(2)(B); and the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, § 3553(a)(6). These factors support the government’s requested sentences, through the Guidelines analysis (including an upward departure) and/or an upward variance. The remaining 3553(a) factors are discussed in the sentencing addendums specific to each defendant, see Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
A. Nature and Circumstances of the Offense and Need for the Sentence Imposed to Reflect the Seriousness of the Offense and Promote Respect for the Law
These defendants each played a role in an unprecedented conspiracy to oppose the transfer of presidential power. The attack on the U.S. Capitol on January 6 was a criminal offense unparalleled in American history. It represented a grave threat to our democratic norms; indeed, it was one of the only times in our history when the building was literally occupied by hostile Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 71 of 80
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forces—a fact that Biggs noted with pride in the days after January 6. Ex. 611B (Biggs: “The last time that happened was the 1800s, and it was by the British”).
These defendants planned for and launched an attack on the heart of our democracy. This was the “war” that they envisioned; the “revolution” that they had aimed to lead. As January 6 approached, Tarrio called for revolution, posting messages that read, “Let’s ring in this year with one word in mind. Revolt.” And “New Years Revolution.” Ex. 600-52 and -54. During a podcast on December 28, 2020, Nordean called for the use of force against law enforcement and government officials, explaining that “the only thing left is force.” Ex. 608-C. Nordean went on to explain that he didn’t “want” to use force against the government “because the repercussions are unknown” but that he was prepared to “prepare an army” that will “literally replace” the government officials in charge. Id. A few days later, on December 31, 2020, during a podcast recorded with co-conspirator Jeremy Bertino. Nordean explained that “when police officers or government officials are breaking the law . . . you have to use force.” Ex. 609-B. Per Nordean, “this [wa]s the organized militia part of our constitution,” and force is “literally the foundation of every prominent country.” Id. Biggs echoed the same sentiment, when on December 23, 2020, he told another user that he was not “gonna say things that’ll put me in jail tonight” but that “[w]e all know what needs to be done.” Ex. 603-39. Biggs was more explicit on January 2, 2021, when he posted a message that read, “Every law makers who breaks their own stupid Fucking laws should be dragged out of office and hung. The government should fear the people. Not the other way around. You work for us. You don't have ruling power over me. We only allow you to have that privilege. FAFO[.]” Ex. 603-55.
As events at the Capitol unfolded, Tarrio plainly revealed his objective. In a private message with Bertino, Tarrio declared, “this is it” and then referenced the “Winter Palace”—a plan Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 72 of 80
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that discussed storming of government buildings. Tarrio remarked to Bertino that the video of Pezzola breaking the window looked like “George Washington, Sam Adams, and Franklin.” Ex. 530-7. Biggs and Nordean posed with other Proud Boys on the west lawn of the Capitol for a celebratory video in which Biggs stated that “January 6 will be a day in infamy.” Ex. 400-LL and 500-84. Pezzola, once inside the building, filmed a video of himself having a “victory smoke in the Capitol,” and stating, “I knew we could take this motherfucker over if we just tried hard enough… Proud of your motherfucking boy.” Ex. 403-G.
In the days that immediately followed, the defendants continued to bask in the glory of their attack on democracy and attempt at a revolution. They called it precisely what it was. Biggs recorded a podcast-style interview in which he called January 6 a “warning shot” to the government that showed them “how weak they truly are” after being “bitch-slapped . . . on their own home turf.” Ex. 611-B. Biggs explained that “January 7th was warning shot to the government – look, we started this country this way and we’ll fuckin’ save it this way.” Ex. 611-D. Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that he “was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.” Ex. 470-B and -C. Rehl made social media posts calling January 6 a “historical day,” and he told his mother he was “so fucking proud” of the Proud Boys’ “raid of the capitol.” Ex. 602-52, 545-3.
None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 73 of 80
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electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.
For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.
B. Need for the Sentence to Afford Adequate General Deterrence
A significant sentence is necessary “to afford adequate deterrence to criminal conduct” by others. 18 U.S.C. § 3553(a)(2)(B). Here, the need to deter others is especially strong because these defendants engaged in acts that were intended to influence the government through intimidation or coercion—in other words, terrorism. And they were leaders of such efforts. Because these defendants not only contributed to the attack on the Capitol but helped to organize it, their sentences will be noted by those who would foment such political violence in the future.
The attack on the Capitol on January 6 was calculated to interfere with, and did interfere with, one of the most important democratic processes we have: the peaceful transfer of power. As noted by Judge Moss during a different sentencing hearing,
[D]emocracy requires the cooperation of the governed. When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble. The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.
United States v. Hodgkins, No. 21-cr-188, Sent. Tr. at. 69-70. Indeed, the attack on the Capitol means “that it will be harder today than it was [before January 6] for the United States and our diplomats to convince other nations to pursue democracy. It means that it will be harder for all of Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 74 of 80
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us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation.” Id. at 70.
The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.
The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.
C. Need to Avoid Unwarranted Sentencing Disparities
The crimes these defendants committed align closely with acts of terrorism for which courts have imposed lengthy sentences in other seditious conspiracy cases. And, these defendants are distinct from all other January 6 defendants, including the Oath Keepers, because of their role
31 health.ucdavis.edu/vprp/pdf/Political-Violence-Fact-Sheet%201_7-21-22.pdf Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 75 of 80
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in coordinating and instigating the attack on the Capital with their large numbers. Sentencing these defendants to significant sentences of incarceration will not run afoul of Section 3553(a)(6).
1. Defendants sentenced for seditious conspiracy in other contexts
Since the advent of the Sentencing Guidelines, there have only been a handful of cases in which defendants were sentenced for committing seditious conspiracy in violation of 18 U.S.C. § 2384. In each of these cases, courts imposed lengthy sentences, often imposing the maximum sentence of 20 years of incarceration on this count and finding the conduct was tantamount to waging war against the United States under Section 2M1.1(a)(1). For instance, in United States v. Rahman, ten defendants were found guilty of seditious conspiracy in connection with terror plots related to the 1993 World Trade Center bombing and additional plans to bomb other locations and murder the Egyptian president. Each of the ten defendants, while receiving overall sentences ranging from 25 years to life imprisonment, was sentenced under the Treason guidelines to 20 years for their conviction of 18 U.S.C. § 2384. See 189 F.3d 88 (2d Cir. 1999) (affirming these sentences).
In United States v. Battle, No. 02-cr-399 (D. Or. 2004), the court adopted the sentencing guidelines for Treason and sentenced two co-defendants to 18 years of incarceration after they pled guilty to seditious conspiracy and admitted that the purpose of their conspiracy was to travel to Afghanistan to fight alongside al Qaeda and the Taliban against American and allied forces. See No. 02-cr-399, ECF 373, 374, 537 at 2.
In United States v. Batiste, No. 06-cr-20373 (S.D. Fla. 2009), the defendant was convicted of multiple charges, to include seditious conspiracy, for providing material support to the planning of attacks on federal and civilian targets in the United States. See No. 06-cr-20373, ECF 1451 (Gov. Sent. Memo). Despite never collecting any weapons or harming any victims, the court Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 76 of 80
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adopted the sentencing guidelines for Treason and sentenced Batiste to 13-and-a-half years for his conviction under Section 2384. See No. 06-cr-20373, Sent. Tr. at 46-47, 148.
In United States v. Khan, No. 03-cr-296-2 (E.D. Va. 2004), the defendant was originally sentenced to the statutory maximum of 20 years for violating Section 2384, and life imprisonment overall. In Khan, the defendant attended a terrorist training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops. See United States v. Khan, 309 F. Supp. 2d 789, 801-18 (E.D. Va. 2004), aff’d in part, remanded in part on other grounds, 461 F.3d 477 (4th Cir. 2006); see also Khan, No. 03-cr-296-2, ECF 602 (explaining procedural history, including that the incarceration term for the Section 2384 count was later decreased on resentencing after Booker and Dimaya).
In United States v. Al-Timimi, No. 04-cr-385 (E.D. Va. 2004), the defendant was convicted of violating Section 2384 among other charges for encouraging individuals to travel to Pakistan to receive military training from Lashkar-e-Taibi, a designated foreign terrorist group, in order to fight U.S. troops in Afghanistan. The defendant was sentenced to life in prison, including 10 years for violating Section 2384. ECF 132.
These other seditious conspiracy cases show that courts have imposed decades-long sentences of incarceration even for planning and preparing for violence (but not using actual violence) against the United States government. Indeed, the seditious conspiracy statute was created to address such existential threats to our system of government. See Dec. 11, 2022 Mem. Op. (ECF 586) at 4-5 (explaining that the predecessor to the seditious conspiracy statute was enacted at the outset of the Civil War; reenacted the statute in 1871 to “combat private violence by the Ku Klux Klan and like organizations,” and Congress raised the maximum penalty to twenty years after an attack on the Capitol in 1954.); see also United States v. Ali, 528 F.3d 210, 265 (4th
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Cir. 2008) (“[T]hough the district court accurately noted that [the defendant] never ‘injured any people’ and ‘no victim was injured in the United States[,]’ this should not trivialize the severity of his offenses. . . . [W]e cannot wait until there are victims of terrorist attacks to fully enforce the nation’s criminal laws against terrorism.”). Here, the defendants, in fact, acted on their seditious agreement—causing and threatening injury and harm on January 6, and damage to the country’s faith in our electoral process. To avoid unwarranted disparities with other seditious conspiracy cases, the defendants’ sentences should be lengthy.
2. Defendants sentenced in other January 6 cases
These defendants stand out among other January 6 defendants because they literally led the attack on the Capitol—contributing to four pivotal breach points in the first 80 minutes of the riot. The defendants executed these crimes as a result of the steps that they had taken in advance to bring a fighting force to the Capitol on January 6. No other group of defendants had a bigger impact on the events of January 6 than these defendants and the men in their command.
Perhaps the closest corollary to these defendants are the Oath Keeper defendants, who were recently sentenced by Judge Amit Mehta to between three and 18 years of incarceration. Those who led the Oath Keeper defendants repeatedly advocated for civil war—both before and after January 6, 2021—amassed a stockpile of weapons that they brought to the Capitol region, and ultimately directed their members to storm the Capitol, with more than a dozen of their members heeding the call. This conduct warrants sentences consistent with the kinds of sentences historically imposed when defendants are convicted of seditious conspiracy. The conduct of these defendants is more egregious than that of the Oath Keeper defendants and warrants greater sentences. By the time that Stewart Rhodes mustered his group to begin marching towards the Capitol at 1:25 pm (sending the Signal message “Pence is doing nothing. As I predicted.”), these Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 78 of 80
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defendants had already stormed the First Street gates, destroyed the black metal fence, entered the West Plaza, assaulted Officer Ode and robbed him of his shield, and regrouped on the lawn, where Nordean and Biggs took a video of themselves boasting that they had “just stormed the Capitol” and taken the “motherfucking place back.” By 2:32 pm, when Kelly Meggs directed 12 members of Stack One to begin climbing the steps on the east side of the Capitol, these defendants had already pushed through a line of officers to climb the concrete stairs under the scaffolding, Rehl had sprayed an officer in the face, Pezzola had broken open the window at the Senate Wing Door with his stolen riot shield, Biggs had entered and exited the Capitol, and Nordean had ascended to the Upper West Terrace. And unlike the Oath Keeper defendants, whose numbers were limited to a core group of roughly two dozen men and women, these defendants led nearly 200 like-minded men onto Capitol grounds, who also engaged in violent attacks on law enforcement and destruction of government property, thus enabling the defendant’s calculated attempt to forcibly stop the lawful transfer of power.
Any disparity between these defendants and others sentenced for crimes on January 6, including members of the Oath Keepers, is fully warranted based on the defendants’ conspiracy and conduct.
X. CONCLUSION
For the reasons set forth above and further supported by the memoranda filed herewith, the government recommends that the Court impose a lengthy sentence of imprisonment on each defendant. Specifically, Enrique Tarrio should serve 33 years in prison; Joseph Biggs and Zachary Rehl, 30 years; Ethan Nordean, 27 years; and Dominic Pezzola, 20 years. Additional support for these sentencing recommendations is set forth in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 79 of 80
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Respectfully Submitted,
MATTHEW M. GRAVES
United States Attorney
D.C. Bar No. 481052
By: /s/ Jason B.A. McCullough
JASON B.A. MCCULLOUGH
NY Bar No. 4544953
ERIK M. KENERSON, OH Bar No. 82960
NADIA E. MOORE, NY Bar No. 4826566
On Detail to the District of Columbia
Assistant United States Attorneys
601 D Street NW
Washington, D.C. 20530
/s/ Conor Mulroe
CONOR MULROE, NY Bar No. 5289640
Trial Attorney
U.S. Department of Justice, Criminal Division
1301 New York Ave. NW, Suite 700
Washington, D.C. 20530
(202) 330-1788
Conor.Mulroe@usdoj.gov
Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 80 of 80

[admin]

Trump 2020 lawyer admits misrepresenting stolen election claims: Jenna Ellis made the admissions in a Colorado disciplinary proceeding.
by Kyle Cheney
Politico
03/08/2023 11:59 PM EST
https://www.politico.com/news/2023/03/0 ... s-00086256

[x]
Jenna Ellis is the latest Trump attorney involved in the former president’s post-election efforts to face discipline. | Jacquelyn Martin/AP Photo

Jenna Ellis, an attorney for Donald Trump who helped drive his false claims about the 2020 election results, has admitted in a Colorado disciplinary proceeding that she misrepresented evidence at least 10 times during Trump’s frantic bid to subvert his defeat.

“Respondent made these misrepresentations on Twitter and on various television programs, including Fox Business, MSNBC, Fox News, and Newsmax,” Colorado’s top disciplinary judge Bryon Large wrote in a six-page opinion. “The parties agree that by making these misrepresentations, Respondent violated [a state attorney rule of conduct], which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Large issued a public censure of Ellis for her stipulated conduct.

Ellis is the latest Trump attorney involved in the former president’s post-election efforts to face discipline. Rudy Giuliani had his license temporarily suspended and is awaiting a final ruling from a bar discipline proceeding in Washington, D.C. John Eastman is preparing for disciplinary proceedings in California. And Jeffrey Clark has temporarily delayed bar discipline proceedings against him in Washington while attempting to bring the fight into federal court.

But Ellis is the first attorney of the group to acknowledge she misrepresented the evidence of fraud. Among her admitted misrepresentations:

"Giuliani's stipulation concedes what we have always known to be true — Ruby Freeman and Shaye Moss honorably performed their civic duties in the 2020 presidential election in full compliance with the law; and the allegations of election fraud he and former-President Trump made against them have been false since day one," Gottlieb said in a statement.

-- Rudy Giuliani admits to making "false" statements about 2 former Georgia election workers, by Melissa Quinn

— Ellis claimed on Nov. 13, 2020 that Hillary Clinton didn’t concede the 2016 election.

— On Nov 20, 2020, Ellis claimed Trump’s team had evidence of a “coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret.”

— On Nov. 30, 2020, Ellis said on Fox that Trump “won in a landslide.”

— On Dec. 5, 2020, Ellis claimed the Trump team found 500,000 illegal votes had been cast in Arizona.

Both Ellis’ attorney and the disciplinary attorneys bringing the case against her agreed that there was no precedent for the case against Ellis — an effort to aid a sitting president’s bid to undermine confidence in the American election system.

Large noted that Ellis wasn’t Trump’s counsel of record in any lawsuits challenging the election. But he also noted that Ellis admitted her actions violated “her duty of candor to the public.”

“The parties agree that two aggravators apply — [Ellis] had a selfish motive and she engaged in a pattern of misconduct — while one factor, her lack of prior discipline, mitigates her misconduct,” Large determined.

[admin]

Letter from Fani T. Willis, Fulton County District Attorney to Congressman Jim Jordan, Re His letter dated 8/24/23, attempting to Unconstitutionally Interfere with and Obstruct Prosecution of State Criminal Cases.
September 7, 2023

OFFICE OF THE FULTON COUNTY DISTRICT ATTORNEY
ATLANTA JUDICIAL CIRCUIT
136 PRYOR STREET SW, 3RD FLOOR
ATLANTA, GEORGIA 30303

TELEPHONE 404-612-4639

Fani T. Willis
District Attorney

September 7, 2023

Congressman Jim Jordan
Chairman, Committee on the Judiciary
United States House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515
Via electronic mail to Brock.Snyder@house.mail.gov and overnight delivery.

Dear Mr. Jordan:

I have received your letter dated August 24, 2023. On August 14, 2023, a Fulton County Grand Jury returned a true bill of indictment charging nineteen defendants with felony violations of Georgia law, including violation of Georgia’s Racketeering Influence Corrupt Organizations Act (“Georgia RICO”), O.C.G.A. § 16-14-1 et. seq. Beyond that recitation of the charges, your letter contains inaccurate information and misleading statements. The true bill of indictment returned on August 14, 2023, is attached as Exhibit A.

(1) Your Attempt to Interfere with and Obstruction This Office’s Prosecution of State Criminal Cases is Unconstitutional.

As you know, Chairman Jordan, the congressional power of inquiry “is not unlimited.” Watkins v. United States, 354 U.S. 178, 187 (1957). Congress is not “a law enforcement or trial agency”; that function is reserved only for “the executive and judicial departments of government.” Id. Moreover, “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. More fundamentally, “a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting Watkins, 354 U.S. at 187).

Your letter offends each and every one of these settled principles. Its obvious purpose is to obstruct a Georgia criminal proceeding and to advance outrageous partisan misrepresentations. As I make clear below, there is no justification in the Constitution for Congress to interfere with a state criminal matter, as you attempt to do. Furthermore, your note calls to mind another letter recently submitted to a House select committee: “This unprecedented action serves no legitimate legislative purpose and would set a dangerous precedent for future Congresses . . . the American people deserve better.” See Letter from Rep. Jim Jordan to Chairman Bennie Thompson dated January 9, 2022.

a. Your letter offends principles of state sovereignty.

The demands in your letter—and your efforts at intruding upon the State of Georgia’s criminal authority—violate constitutional principles of federalism. Criminal prosecutions under state law are primarily the responsibility of state governments. Congress’s lawful prerogative to interfere with states’ administration of their criminal laws is extremely limited. See Charles W. Johnson, et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House at 254 (GPO 2017) (“The investigative power cannot be used ... to inquire into matters ... which are reserved to the States.”).

As the Supreme Court held in United States v. Lopez, “under our federal system, the States possess primary authority for defining and enforcing the criminal law.” 514 U.S. 549, 561 n3 (1995); see also United States v. Morrison, 529 U.S. 598, 618 (2000) (“We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of . . . crime and vindication of its victims.”). Indeed, because the power to create and enforce state criminal law is “an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505 U.S. 144, 156 (1992) (emphasis added). The Supreme Court has thus recognized a “fundamental policy against federal interference with state criminal prosecutions.” Younger y. Harris, 401 U.S. 37, 44 (1971); accord Mesa v. California, 489 U.S. 121, 138 (1989); Cameron v. Johnson, 390 U.S. 61 1, 618 (1968). Pursuant to that rule, the federal government must observe a strict policy of “no interference” with state officers who are “charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done.” Younger, 401 U.S. at 45; see also Rose v. Mitchell, 443 U.S. 545, 585 (1979) (“This Court repeatedly has recognized that criminal law is primarily the business of the States, and that absent the most extraordinary circumstances the federal courts should not interfere with the States’ administration of that law.”); Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1278 (11th Cir. 2012). What is true of federal courts is doubly true of federal legislators: given state sovereignty over state criminal law, Congress has hardly any role to play in meddling with its sound administration.

In light of these principles, your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution. The defendants in this case have been charged under state law with committing state crimes. There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution. That violation of Georgia’s sovereignty is offensive and will not stand. See Puerto Rico v. Sanchez Valle, 579 U.S. 59, 69 (2016) (holding that states enjoy the authority to undertake criminal prosecutions by virtue of their position as “separate sovereigns”).

b. Your letter transgresses separation of powers principles.

In addition, your demand for information regarding an ongoing criminal prosecution—a core executive function—is offensive to any notion of separation of powers that recognizes the distinct roles of the executive and legislative functions of government. As the Supreme Court has explained, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683 (1974). Congress, in contrast, is barred by precedent from using investigations for “law enforcement purposes.” Watkins, 354 U.S. at 187; see also Kilbourn v. Thompson, 103 U.S. 168, 194 (1881) (holding that Congress may not invoke its subpoena power to “interfere with” a case “pending in a court of competent jurisdiction”). You have thus violated the basic constitutional rule that “the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn v. United States, 349 U.S. 155, 161 (1955).

Indeed, given that two of your requests concern any documents or communications among federal officials, we must note the position taken on similar matters by the United States Justice Department. As a leading scholar writes, “Congress seems generally to have been respectful of the need to protect material contained in open [federal] criminal investigative files.” Todd David Peterson, Congressional Oversight of Open Criminal Investigations, 77 Notre Dame L. Rev. 13 73, 1410 (2002). More recently, DOJ explained that “[l]ongstanding Department policy prevents us from confirming or denying the existence of pending investigations in response to congressional requests or providing non-public information about our investigations.” Letter from Assistant Attorney General Carlos Uriarte to Chairman Jordan, dated January 20, 2023, at page 3-4. As DOJ emphasized: “The Department’s mission to independently and impartially uphold the rule of law requires us to maintain the integrity of our investigations, prosecutions, and civil actions, and to avoid even a perception that our efforts are influenced by anything but the law and the facts. So does the Department’s obligation to protect witnesses and law enforcement, avoid flight by those implicated in our investigations, and prevent additional crimes and attacks.” Id. Those points are equally true here.

Given that your inquiry implicates core federalism and separation of powers concerns, the “careful inquiry” imposed by Mazars further constricts your lawful authority. See 140 S. Ct. at 2035. Under that test, federal courts must (1) “carefully assess whether the asserted legislative purpose warrants the significant step of involving the [target of the investigation,” including by asking whether “other sources could reasonably provide Congress the information it needs,” (2) “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective,” (3) “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose,” and (4) “assess the burdens imposed... by a subpoena.” Id. at 2035-36. For the reasons set forth in this letter, it is clear that you cannot satisfy any of these constitutional requirements—let alone all of them—in the inquiry you describe.

c. Your letter improperly interferes with the administration of criminal justice.

There are extremely good reasons why congressional committees have historically avoided interfering with criminal trial proceedings. Sharing non-public information about pending criminal matters may violate local and state confidentiality obligations and professional ethics rules. It may also prejudice defendants, victims, or witnesses, or affect the overall integrity of proceedings. In some cases, it could produce a bizarre dual-track discovery scheme that circumvents court rules that are carefully calibrated to ensure compliance with principles of sound criminal procedure. For these reasons, objections to a criminal investigation or prosecution are properly raised—at least in the first instance—at courts with lawful jurisdiction, not through partisan legislative inquiries. The courts in the State of Georgia are fully up to the task of adjudicating the rights of all parties at issue.

Returning to first principles, federal courts have long recognized the need for a zone of noninterference around prosecutorial decision-making. Within our criminal justice system, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Federal courts are therefore “properly hesitant” to review prosecution decisions under the United States Constitution, since “examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.” Wayte v. United States, 470 U.S. 598, 607 (1985).

Congress has even less of an appropriate basis to interfere in criminal matters. As an expert on the subject writes: “The Constitution excludes Congress from any involvement in prosecutorial decisions in individual cases even more forcefully than it excludes the judiciary [and] . . . requires federal prosecutorial independence from congressional interference in order to protect individual liberty and preserve the integrity of the criminal justice system.” Todd D. Peterson, Federal Prosecutorial Independence, 15 Duke J. Const. L. & Pub. Pol’y 217, 260-61 (2020). Of course, while it is disturbing for Congress to involve itself in federal cases, it is even more troubling for Congress to tread upon state criminal matters that are doubly beyond its constitutional authority.

Here, your letter seeks the revelation of non-public and privileged information concerning my office’s investigation and prosecution of a specific case. Your public statements and your letter itself make clear that you lack any legitimate legislative purpose for that inquiry: your job description as a legislator does not include criminal law enforcement, nor does it include supervising a specific criminal trial because you believe that doing so will promote your partisan political objectives.

This leads me to a critical point: “[E]very President takes office knowing that he will be subject to the same laws as all other citizens upon leaving office. This is a feature of our democratic republic, not a bug.” House Comm. on Ways & Means y. U.S. Dept of Treasury, 45 F.4th 324, 338 (D.C. Cir. 2022). Indeed, even Mr. Trump himself has acknowledged before the U.S. Supreme Court that “state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term.” Trump v. Vance, 140 S. Ct. 2412, 2426-27 (2020). For the rule of law to prevail, nobody should be permitted to violate state criminal law with impunity.

d. Your letter burdens the deliberate process privilege.

Beyond the many problems that I have already identified, your letter fails to recognize the deliberate process privilege. This privilege protects information regarding a government official’s decision-making process to allow her the ability to engage in the necessary investigative and deliberative process to make informed decisions. See, e.g., Fla. House of Representatives v. United States Dep't of Commerce, 961 F.2d 941, 948 (11th Cir. 1992); In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997); Fed. Home Loan Bank of Atlanta v. Countrywide Fin. Corp., 2011 Ga. State LEXIS 324 (Fulton County State Court Civil Action 11EV011779G, Dec. 23, 2011). Your attempts at probing communications among and involving counsel in my office are wholly improper.

(2) My voluntary responses to portions of your letter are below.

While settled constitutional law clearly permits me to ignore your unjustified and illegal intrusion into an open state criminal prosecution, I will take a moment to voluntarily respond to parts of your letter.

Chairman Jordan, I tell people often “deal with reality or reality will deal with you.” It is time that you deal with some basic realities. A Special Purpose Grand Jury made up of everyday citizens investigated for 10 months and made recommendations to me. A further reality is that a grand jury of completely different Fulton County citizens found probable cause against the defendants named in the indictment for RICO violations and various other felonies. Face this reality, Chairman Jordan: the select group of defendants who you fret over in my jurisdiction are like every other defendant, entitled to no worse or better treatment than any other American citizen.

a. Your notion that different standards of justice should apply to a select group of people is offensive.

Here is another reality you must face: Those who wish to avoid (felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia. In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility. Persons’ socioeconomic status, race, gender, sexual orientation, or political prominence does not entitle them to an exemption from that basic standard.

b. Defendant Trump’s status as a political candidate cannot make him legally immune from criminal prosecution.

The basic premise of your letter is wrong. The criminal defendant about which you express concern was fully aware of the existence of the criminal investigation being conducted by the Fulton County District Attorney’s Office at the time he announced his candidacy for President. I have no doubt that many Americans are the subject of criminal investigations and prosecutions at any given moment. An announcement of a candidacy for elected office, whether President of the United States, Congress, or state or local office, is not and cannot be a bar to criminal investigation or prosecution. Any notion to the contrary is offensive to our democracy and to the fundamental principle that all people are equal before the law.

c. An explanation of the basic obligations of a prosecutor is below.

Your letter makes clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.

I direct your attention to O.C.G.A. § 15-18-6. Subsection (4) imposes upon me as District Attorney the duty “[t]o draw up all indictments or presentments, when requested by the grand jury, and to prosecute all indictable offenses.” Subsection (11) requires me “[t]o assist victims and witnesses of crimes through the complexities of the criminal justice system and ensure that the victims of crimes are apprised of the rights afforded them under the law;” and (12) requires that District Attorneys “perform such other duties as are or may be required by law or which necessarily appertain to their office.”

As I explain above, the defendants about whom you express concern have been indicted by a Fulton County Grand Jury. That indictment identifies victims. The State of Georgia’s Constitution and laws impose a duty upon me to protect, serve, and seek justice on their behalf. I will fulfill that duty in this case, notwithstanding your attempt to interfere.

Furthermore, I have exercised my duties as the chief law enforcement officer for Fulton County independently and based on my obligations to the citizens of Georgia under our Constitution and laws — and nothing will deter me from the just, fair, and proper enforcement of the law.

d. Your questioning of the overt and predicate acts listed in the indictment is misinformed.

Your questioning of the inclusion of overt and predicate acts by the defendants in the indictment’s racketeering count shows a total ignorance of Georgia’s racketeering statute and the basics of criminal conspiracy law. Allow me the opportunity to provide a brief tutorial on criminal conspiracy law, Chairman Jordan.

As I explained to the public when announcing the indictment, the overt and predicate acts are included because the grand jury found probable cause that those acts were committed to advance the objectives of a criminal conspiracy to overturn the result of Georgia’s 2020 Presidential Election.

For a more thorough understanding of Georgia’s RICO statute, its application and similar laws in other states, I encourage you to read “RICO State-by-State.” As a non-member of the bar, you can purchase a copy for two hundred forty-nine dollars [$249].

e. Your questioning of the length of the investigation and timing of the indictment in unfounded.

Your letter raises questions about the length of time this investigation has taken. This investigation began with my office believing that critical witnesses would cooperate.

Several witnesses did, in fact, voluntarily come forward and cooperate, and we were able to collect pertinent evidence during calendar year 2021. Many witnesses, however, were uncooperative and required subpoenas to compel their cooperation. As a result of this resistance, we requested and received authorization from the Fulton County Superior Court judges to convene a Special Purpose Grand Jury (SPGJ) to compel testimony and production of documentary evidence. You will find attached as Exhibit B my letter dated January 20, 2022, to then-Chief Judge Christopher S. Brasher requesting an SPGJ.

On January 24, 2022, the Fulton County Superior Court judges authorized a SPGJ to be empaneled on May 2, 2022, the beginning of the third term of court of that year. The order granted my request that the SPGJ be empowered to investigate “possible criminal disruptions” of Georgia’s administration of its 2020 Presidential Election. The empaneling order is attached as Exhibit C.

Rather than accept service of lawful subpoenas from the SPGJ, multiple out-of-state witnesses chose to resist compliance and forced my office to litigate in multiple state and federal courts to obtain orders compelling their appearance. For example, Senator Lindsey Graham, the Ranking Minority Member of the Senate Judiciary Committee, was a witness who refused to voluntarily comply and required my office to obtain a decision affirming his obligation to testify from the United States Supreme Court. See Exhibit D. That is but one example of the use of litigation by a witness to resist providing information to this investigation and to delay justice.

As a result of the litigation necessary to overcome this resistance, the SPGJ required eight months to complete its investigation, and was released in January 2023. It should be noted that this was four months before the expiration of their term on May 2, 2023.

If you are sincerely interested in improving federal law, I encourage you to make it incumbent upon your Congressional colleagues to Cooperate with lawful investigations without requiring intervention by the highest court in the land. That would be a productive federal initiative.

f. The Fulton County District Attorney’s Office has used federal grant funding for its intended purposes.

You have no basis for your implication that this office has inappropriately spent federal funds. This office receives federal grant funds via United States Department of Justice (USDOJ) programs and has received local and national recognition for its work with community partners on grant-funded programs.

I have attached a summary of our programs funded with federal grant dollars as Exhibit E. You will note that the grant-funded programs include our nationally recognized initiative to process long-neglected sexual assault kits and prosecute dangerous sexual offenders who are identified via DNA results. These prosecutions are handled through the Sexual Assault Kit Initiative (S.A.K.I.) grant. We also receive federal grant funds for our groundbreaking hate crimes prosecution program, our community violence interruption efforts, and our programs with at-risk children.

If you and your colleagues follow through on your threats to deny this office federal funds, please be aware that you will be deciding to allow serial rapists to go unprosecuted, hate crimes to be unaddressed, and to cancel programs for at-risk children. Such vengeful, uncalled for legislative action would impose serious harm on the citizens we serve, including the fact that it will make them less safe.

Please note the USDOJ keeps meticulous records of our grant funding and I invite you to request this information from them. You will undoubtedly be proud of the amazing work that has been done to serve victims with this funding, and you will discover that this office is in compliance with the terms of its grant funding.

To educate you on the important work that our partnership with the federal government funds, you may watch “'I felt like I got let out of prison:’ Atlanta rape victim gets justice after 22 years — WSBTV Channel 2 - Atlanta (wsbtv.com).” It is a compelling example of the work our S.A.K.I. Unit does with the federal grant funding provided by the USDOJ.

Our Community Violence Interruption program, also funded by a USDOJ grant, has been nationally recognized. The United States Attorney General singled out our program for praise at a national conference on February 16, 2023. The leader of our program was honored as a presenter on July 19, 2023, at a conference on protecting children from violence sponsored by Centers for Disease Control and Prevention.

Those are the sort of joint federal-state initiatives that you and your colleagues are threatening to “defund” because you are offended that a select group of people have been indicted.

g. Your allegations that I have used this prosecution for political benefit are unfounded.

Your letter makes allegations that I have somehow used the investigation and prosecution about which you have inquired in a political manner. Nothing could be further from the truth.

In fact, the allegations that you raise are thoroughly debunked and rated “False” by independent fact checking website PolitiFact in “PolitiFact | Did Fulton County DA Fani Willis campaign to ‘get Trump"? No, she didn’t say that.”

h. Below are Suggestions for Productive Activity by the U.S. House Judiciary Committee.

I do have some suggestions on how you can engage in productive legislative activity.

First, victim-witness advocates, who take care of vulnerable victims and witnesses in prosecutors’ offices across the United States, are grossly underpaid. Many have advanced degrees and specialized training on serving people in distress. Fulton County, Georgia, like many jurisdictions, face significant challenges in recruiting and retaining such highly trained, dedicated public servants at current pay rates. Congress should provide more funding to states and localities for victim-witness advocate pay and ensure that such funding flows to the jurisdictions that need it most.

Second, the federal government — as noted above — has admirably provided funding so that local prosecutors can investigate old rape cases via the S.A.K.I. grant. Federal grant funding has allowed us to test a portion of untested old rape kits. That testing revealed that in a batch of approximately 1,500 untested Fulton County kits dating back to the 1990s, DNA from 40 different serial rapists was found. Federal grant funding should be increased to allow the testing of ALL untested rape kits, as well as the capacity for the successful investigation and prosecution of offenders identified by that testing. That initiative would make America a much safer place.

Third, the federal government is funding a program to turn children around who find themselves in trouble with the criminal justice system. We partner with the United States Attorney’s Office in Atlanta to sponsor the Credible Messengers program, which matches at-risk youth with adults who have been in trouble and who can share their own life experiences and serve as mentors who show them a better way. You can learn more about the program by watching “Program aims to keep kids out of gangs — WSB-TV Channel 2 - Atlanta (wsbtv.com)”. This program, while valuable, has a very limited capacity and leaves too many youths in need unserved. Congress should greatly expand it.

Fourth, state crime labs across the nation are not properly funded. In fact, Georgia’s State Crime Lab is so overwhelmed its leadership informed me that it does not have the capacity to test drugs like Fentanyl or firearms used in violent crimes in a timely manner and referred us to private testers to obtain necessary evidence. Further, Georgia’s State Crime Lab does not have the adequate financial resources to properly pay their scientists, test rape kits, drugs, or other scientific evidence in a timely manner.

Congress must take action to address this crisis by providing resources to state crime labs to test evidence so that cases can be moved expeditiously.

i. The safety of persons serving in the criminal justice system should be a primary concern of yours.

As it seems you have a personal interest in the Fulton County District Attorney’s Office, you should consider directing the USDOJ to investigate the racist threats that have come to my staff and me because of this investigation. For your information, I am attaching ten examples of threats this office has received. See Exhibits F through O. I am providing these examples to give you a window into what has happened to my staff and me as I keep the promise of my oath to the United States and Georgia Constitutions and do not allow myself to be bullied and threatened by Members of Congress, local elected officials, or others who believe lady justice should not be blind and that America has different laws for different citizens.

Yours in Service,

Fani T. Willis
Fulton County District Attorney
Atlanta Judicial Circuit

Attachments

cc: The Honorable Jerrold L. Nadler, Ranking Member, via electronic mail to Aaron.Hiller@mail.house.gov and Christina.Calce@mail-house.gov, as well as overnight delivery.