Legal AF by MeidasTouch - Prosecutors WRECK Trump’s ESCAPE PLAN with PERFECT THEORY

Episode Date: September 4, 2024

Michael Popok examines the 3 different ways the DOJ figured out how to continue to use Obstruction of an Official Proceeding felony counts against Trump and other Jan6 insurrectionists, starting with this past week’s sentencing of the first insurrectionist to breach the Capitol —Michael Sparks—and his 53-month sentencing. Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Visit https://meidastouch.com for more! Join the Legal AF Patreon: https://Patreon.com/LegalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

I'm going back to university for $0 delivery fee, up to 5% off orders and 5% Uber cash back on rides. Not whatever you think university is for. Get Uber One for students. With deals this good, everyone wants to be a student. Join for just $4.99 a month. Savings May 3. Eligibility and member terms apply. This is Michael Popak, Legal AF. We're watching the Department of Justice adjust their tactics on how to deal with obstruction of an official proceeding to use it, 28 USC 1512 B1, to use that statute, which was one of their big parts of their arsenal against Gen 6 insurrectionists, against Donald Trump,

how to use it since the June decision in US versus Fisher, in which the United States Supreme Court said, you basically can't use that unless you have some sort of actual fake evidence being used in the certification process. That opened up two avenues. One of them has to do with Donald Trump, I'll talk about here, and the other one has to do with all the other Jan 6 defendants, including ones that just got sentenced, including Michael

Sparks, who has the infamy of being the first Jan 6th insurrectionist to go through the window into the Capitol, leading the mass chaos behind him. And he just got sentenced to 53 months in jail, well above what even the US Probation Department recommended to the judge, Judge Tim Kelly, a Republican appointment. How is the Department of Justice handling the cards they've been dealt by the United States Supreme Court in their 6-3 decision? In that decision, they said, even though the expressed language of the statute that was passed by Congress in 2002, even though it says literally that somebody who did exactly what the Jan 6th insurrectionists did, which was tried to obstruct the official

proceeding of the certification and the count of the Jan 6th certificates, even though that literally is what it says, that's not what it meant. Supreme court said, you could only use it in a similar destruction of evidence type role. So if you don't have the facts that support destruction of the actual physical certificates, although we all know that's what the Jan 6th insurrectionists are trying to do, they were trying to hang Lynch in an angry mob and burn down the Capitol and stop the count. That was the purpose of being there, but not to this United States Supreme Court,

which sits in some hermetically sealed right wing ivory tower. So the Department of Justice now has to deal with it. On the Trump side, it was relatively easy because a path was given to them by both Katanji Brown Jackson and Sonia Sotomayor on the moderate side of the court, if you will. In their concurrence, Kitanji Brown Jackson said, there is a path to continue to use 1512 obstruction of an official proceeding if you can tie it closely to the count, to the certificates. In other words, if you get a re-indictment, you can do it that way.

And they went one thing further, in the majority opinion, citing back to Justice Sotomayor when she was a judge on the Second Circuit Court of Appeals before she was elevated. She said basically if there's fake evidence involved or the fabrication of fake documents, that could also support a 15-12 count. So on the Trump side, that's why the new superseding indictment coming out of the new grand jury preserved the 1512 counts against Donald Trump by leaning into the fabrication of false elector certificates by Donald Trump and his minions as a last gasp effort to cling to power. False evidence, fake certificates equals a path, narrow as it may be, to get a 1512 conviction to withstand Supreme Court

scrutiny. Now, what do you do with all the other Jan 6 insurrectionists? Let's use, for instance, two examples. One of them is Michael Sparks, who just got sentenced, and the other one is Thomas Robertson, who also is about to be resentenced. I'm going to use those two examples of how the Department of Justice is craftily, creatively coming up with a way around, instead of continuing to hit their wall in the brick wall of the United States Supreme Court, find a way around it. They did it in two different ways. In the Michael Sparks case, where he just got sentenced several days ago to one of the highest sentences

of somebody that wasn't a proud boy or an oath keeper, 53 months in jail. Just to show you as a point of reference, the probation department said 21 months was okay. The Department of Justice asked for 57 and Judge Kelly sided basically with them, citing all the reasons Michael Sparks was really a bad guy. He followed in Dominic Pizzola, Dominic Pizzola, a proud boy who broke the window. The next one in was Michael Sparks. Michael Sparks, as Officer Eugene Goodman testified at his trial,

Eugene Goodman was the person, the valiant soldier, valiant Capitol police officer, who was able to once confronted with a dozen of these guys, including Sparks, was able to distract them, have them chase him while members of Congress and their staff sheltered in place until they could be removed from the Capitol. Because if these guys had gotten into there, now we're talking about assassinations. Now we're talking about death and bloodshed. And so Goodman testified that he was struck initially by Michael Sparks himself being so aggressive among many aggressive people.

He was the most aggressive and the scariest to Goodman. The first person he confronted when he got through the Capitol was actually Sergeant Victor Nichols. Victor Nichols wisely did not use his service revolver. Had he done that and shot sparks right there, that would have been, no pun intended, a spark that could have made this attack on the Capitol even worse, and he valiantly decided not to do that discretion, being the better part of valor. But he testified as a victim at the sentencing for Michael Sparks, with tears in his eyes. This is a police officer, and said how scared he was and how this could have gone even worse in the annals of history.

That Michael Sparks, six counts of felonies. Now the Department of Justice dropped and therefore Sparks was not sentenced on obstruction of an official proceeding after Fisher. Discretion being the better part of valor, prosecutorial discretion, and they dropped it. But that doesn't mean that a judge can't use conduct, uncharged conduct, even dismissed counts in the sentencing. That's a little known fact. Sentencing judges have tremendous discretion in evaluating conduct and behavior, even that which is not charged,

uncharged crimes, dropped crimes. So Judge Nichols was able to use and was urged to use by the Department of Justice, the obstruction conduct, even though they weren't able to keep the obstruction count in front of the jury for the conviction, which happened several months ago. Traditional bedsheets,

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and use the code Legal AF to claim your free three piece towel set and save over 40% off. Again, that's trymiracle.com slash Legal AF to treat yourself. Thank you Miracle Made for sponsoring this episode. So let me just explain that one more time because it's a little confusing, but I'm gonna unpack it. Uncharged crimes, even crimes that have been dismissed by the prosecutor and not considered

by the jury, can still go into the mix of sentencing and the factors for sentencing and the conduct that a judge refers to in sentencing. And here the judge was able to use the obstruction of an official proceeding conduct, even though it wasn't officially charged or it was dropped by the prosecutors in coming up and calculating the 53-month sentence under the federal sentencing guidelines. Guidelines allow for a lot of leeway for the trial judge in taking in data points and information and using them to fashion inappropriate sentence. And that's how we handled it in the Sparks case.

Drop the count, but argue that the conduct of obstruction should still be used. The other way the Department of Justice is handling this is borne out an example involving Tom Robertson. Tom Robertson was already convicted including of obstruction of an official proceeding. His sentence issue got sent back by an appellate court to the trial judge because there was a mistake that was made independent of this obstruction of justice count. There was a mistake that was made on how something was calculated.

So they'd said, well, while you're there, figure out how you're gonna deal with Fisher and the decision by the United States Supreme Court about obstruction of justice, obstruction of an official proceeding, sorry. So the Department of Justice in the Robertson case said, we're gonna drop that count, Your Honor. We're gonna drop that count,

but everything in the sentencing memo stays the same. You should be able to still evaluate the obstruction conduct even though it's not a charged crime. There, the judge is going to have to evaluate whether the 87 months that was previously given to Tom Robertson, a former Virginia member of law enforcement who assaulted and battered, no thumbs up there, who assaulted and battered two different police officers with a wooden pole and used his military training and police training to lead people into some of the most violent battles against Metro and Capitol Police, whether that 87 months should

stay the same. And here, very smartly, the Department of Justice is saying, Judge, even if you drop the obstruction of an official proceeding, you still have obstructive conduct, including that Roberson deleted many, many things from his social media. At the time, just before and just after he received a warrant from a search warrant from the FBI, he started deleting. He even joked that he threw his laptop into a lake, that the laptop took a lake swim, that he threw away his GoPro, and he started deleting everything. Well, we have a word for that in law enforcement and in the justice system. It's called obstruction

of justice and an obstruction of an official proceeding. And so they're leaning into that, and the Department of Justice in their memo saying, judge, the numbers stay the same, keep it at 87 months. Even if we drop the first count against him for obstruction of an official proceeding, look at all the obstruction conduct that you can still consider in rendering your decision. So now we've got three examples of how the Department of Justice is operating in a post-Fisher environment.

Trump, we're keeping the counts, 1512B1, obstruction of an official proceeding because of the use of fake and phony evidence, which is the fake elector certificates. These other two gentlemen will drop the counts, but lean into the obstructive behavior and conduct and mention, if you can, if it fits, that they destroyed evidence of their crime, including on their social media, GoPros, video, audio, and the like, and use that to argue to the judge that the count, the sentencing, should be almost the exact same, if not the exact same.

So this is how they're picking up the pieces or cleaning up behind the elephants, the Department of Justice, post-Fisher. And I think it's wise and it's smart, where you can and you can make that connection that Katanji Brown Jackson said and Judge Sotomayor anticipated with use of faker evidence and tie it tightly to the certificates, do it.

That's Donald Trump. Keep the counts. When you can't, discretion is the better part of prosecutorial discretion is the better part of valor. Drop the counts, lean into the obstruction as conduct that can be considered by the judge and come out the other side in the federal sentencing guidelines with almost the same, if not the exact same, recommended months or years of sentence. And that's how they're handling it.

So for those that threw up their hands in June and said, oh boy, everything's gone, all of these floodgates are gonna open, all these Jan six defendants are gonna be released. Listen, I might've said something like that at one point in legal AF. We don't have to worry about it. We know that the Department of Justice

already built into a plea deal. So if they took a plea deal with somebody that had 1512 as part of their accounts, they already built in that if something ever happened to 1512, knowing that the Supreme Court is the Supreme Court, they could retry, re-indict, plead deal over, or the prosecutors could keep the plea deal at their discretion.

So they already had that. And there's only out of 1,600, 2,000, whatever the total number is of Jan 6th insurrectionists, there's only a very small handful, like less than one hand, that were just indicted for obstruction of an official proceeding. The 99% of them were indicted for multiple felonies. So there's different ways, you know, it's like a math table.

There's different ways to get to 10. Seven and three and five and five and eight and two, it all adds up to 10. And that's the really good belt, belt, suspender, suspender for our people overseas, braces, braces, belt, belt method of just really prudent approach to what if and making sure that they had airtight cases, airtight convictions, and airtight sentencing. That's the job of our Department of Justice

and prosecutors. We'll continue to follow how in each individual case, the Department of Justice deals with the post-Fisher world out of the United States Supreme Court decision in June, right here on the Midas Touch Network and on Legal AF. Join us on Wednesdays and Saturdays at 8 p.m. Eastern Time, where we bring you the cutting edge. We sit at the intersection of law and politics so you don't have to.

And we curate the top three or four stories at the intersection of law and politics as practicing lawyers bringing it to you straight. We're no censorship. We're unplugged. We're unvarnished. We're unhinged in defense of democracy in our justice system. And then if you don't want to watch us on Wednesdays and Saturdays at 8 p.m. Eastern time on this YouTube channel, and you can live chat with us at that time, pick us up wherever you get audio podcasts from. Just plug in Legal AF. So until my next hot take, until my next Legal AF, this is Michael Popak reporting.