An Independent Judiciary?

Since the January 6 Event the Zhou Baiden regime--through its DoJ and media proxies as well as the usual suspects in Congress--has been feverishly seeking to to advance a narrative of a Right Wing extremist (anyone to the Right of ... Karl Marx?) "insurrection". An attempt to overthrow the government. We've been trying to keep an eye on developments in this regard, because the obvious objective of the Zhou regime is to gin up anti-GOP hysteria and keep this narrative going through Election 2022. It hardly needs saying that the continued military occupation of the Imperial City on the Potomac plays directly into the "insurrection" narrative--the Sedition Hoax.

The thing about this effort, however is that, while the Dems control the Legislative and Executive branches of government, to keep this narrative going requires the cooperation of the Judicial Branch. One of President Trump's great achievements was the appointment of an enormous new number of Appellate Court judges--and, yes, credit for this does go to Mitch McConnell. McConnell put priority on Appellate Court judges rather than District Court judges, and it paid dividends, as several Circuits were flipped. 

The one Circuit that remains firmly in Dem hands, however, is the DC Circuit, which was greatly expanded by Obama. For that reason one might assume that the DC Circuit as well as the many District Court judges in DC would prove friendly to the Sedition Hoax narrative. Such has not been the case. DC judges at both District and Appellate levels have, with some exceptions, shown a willingness to apply establish criminal justice standards regardless of the media and DC Eestablishment's dominant Sedition Hoax narrative. Notably, not only have Clinton judges shown this willingness but Obama appointees have also done so. 

In evaluating these developments it's important to remember that each defendant's case--and the FBI's nationwide dragnet has pulled in literally hundreds of people--must be considered on its own factual merits. The DoJ is seeking to bolster the Sedition Hoax by constructing a case for Seditious Conspiracy--please note that in this statute the use of actual force is a necessary element:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Anyone who's been following the January 6 Event and the Sedition Hoax will be aware that the elements of this offense--the conspiring and especially the element of force connected to planning for the event--are notably lacking. DoJ, in its early court filings, has attempted to press a uniform narrative for many of the defendants to advance that narrative of "conspiracy" and "use of force" and has also attempted to use that narrative to get around the Speedy Trial Act and to keep many defendants incarcerated indefinitely while DoJ attempts to find some actual evidence. This effort to keep defendants incarcerated while DoJ publicizes its Sedition Hoax narrative serves another very obvious purpose--it attempts to foster in the public the perception that something really serious actually did go on. Where there's smoke there must be some fire--right?

While many judges were initially sympathetic to DoJ, as these judges have come to realize that there really is no such evidence these judges have begun to push back.

In Why Do Federal Prosecutors Seem To Have A Problem With The Truth? we quoted very liberal judge Beryl Howell noting the "dearth of evidence", and ordering that a defendant be released. Howell also stated that federal prosecutors had "backtracked" and failed to substantiate allegations that Nordean was a ringleader, noting that

"What the government said in its original papers was that he directed the Proud Boys with specific plans, telling them to split up into groups and attempt to break in to the Capitol building," Howell said. "That's a far cry from what I heard at the hearing today."

In More Signs That DoJ's Sedition Hoax Is Faltering--just a few days ago--we detailed another Obama judge, Amit Mehta, taking DoJ to the woodshed. Mehta pointedly noted that the DoJ narrative keeps shifting, that facts have been altered or misrepresented, and that DoJ appears to be trying to influence the potential juror pool long before trial with outrageously unethical public statements. 

At that time we noted:

In other words--and you can be sure that this is not lost on the judges--the prosecutors are asking judges to keep defendants incarcerated without serious charges being brought against them. They're asking the judges to keep the defendants in jail while they investigate--with no guarantee that charges will ever be brought. 

Now things are taking another turn for the worse as far as DoJ is concerned--or very much for the better, if you're a defendant or a member of the minority party in Congress. A three judge DC Circuit panel has sent one of these cases back to the District court with some very pointed instructions regarding the proper standards to be applied in deciding on pre-trial release. The three judge panel included Obama, Clinton, and Trump judges and--without getting too deep into the legal weeds, it amounted to a 3-0 drubbing for DoJ. Most significantly, however, the ruling--by making it clear that the elements that would allow for pretrial incarceration were signally lacking--in effect also made it clear that the elements for Seditious Conspiracy are also lacking. Based on the evidence that was presented by DoJ.

Shipwreckedcrew has been covering these developments over the last few days, in two very informative articles:

District of Columbia Court of Appeals Orders New Bail Hearing in Important Decision for Jan. 6 Protest Prosecutions

The Justice Department Is Struggling With January 6 Protest Cases -- an Overview

This morning Clarice Feldman also examines these developments:

The January 6 Prosecutions Hit a Speed BumpThe January 6 Prosecutions Hit a Speed Bump

Without repeating their coverage--and I highly recommend these articles--I'll point out several important issues. 

Recall, just above, that I quoted an earlier post in which I maintained that the judges in DC must surely be closely examining the DoJ's requests for extended pretrial incarceration and delay of timely trials. In that regard, the opinion of the panel (i.e., not just of the Trump judge) sets out what had to be troubling the judges in what they were seeing:

In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.  The Bail Reform Act of 1984 authorizes one of those carefully limited exceptions by providing that the court “shall order” a defendant detained before trial if it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.”  In common parlance, the relevant inquiry is whether the defendant is a ‘flight risk’ or a ‘danger to the community.’”  Here, the District Court held that both Munchel and Eisenhart should be detained on the basis of dangerousness. (p. 10, quoting from SWC)

Not to put too fine a point on it, the Court went on to note that no evidence of "dangerousness" had actually been presented in the record they reviewed, so the district court had better take another and much closer look at the issue. Again citing from SWC's article (but with my font colors):

In making the [dangerousness] determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand.

For an Appellate court to tell a lower court that, Hey, how about explaining how you reached your conclusion when there was no evidence that we can see to support that conclusion, that's a serious slapdown.

In her article, Clarice Feldman goes on to present extensive and enlightening quotes for the separate opinion by Judge George Katsas. Follow the link above for more extensive quotes, but this sample will give you a very good flavor for what disturbed the entire panel (I've done some light editing:

Munchel and Eisenhart did not organize the election protest or the ensuing march to the Capitol, hatched no advance plan to enter the Capitol, and acted in concert with no other protestors. Nor did they assault any police officers or remove any barricades in order to breach Capitol security. They decided to enter the Capitol only after others had already done so forcibly. By the time they made their way to the building, police were making no attempt to stop or even discourage protestors from entering. To go inside, Munchel and Eisenhart walked through an open door. While there, they attempted neither violence nor vandalism. They searched for no Members of Congress, and they harassed no police officers. ... Their misconduct ... hardly threatened to topple the Republic. Nor, for that matter, did it reveal an unmitigable propensity for future violence. 

Munchel maintained employment until his arrest, has no history of violence, has no prior felony convictions, and is not a member of any anti-government or militia group. [snip] Both appellants voluntarily surrendered to the FBI. Munchel took affirmative steps to preserve the evidence in his cellphone and arranged to provide it to the government. Before her arrest warrant had even issued, Eisenhart established daily contact with the FBI so that she could turn herself in as soon as it did. The third factor thus cuts strongly in favor of release. 

In evaluating the “nature and seriousness” of any danger, the district court highlighted statements that Munchel and Eisenhart made to the media on January 7. Munchel said that “[t]he point of getting inside the building is to show them that we can, and we will,” while Eisenhart, invoking the American Revolution, said that she would “rather die and would rather fight” than “live under oppression.” To the district court, these statements indicated that the defendants pose “a clear danger to our republic” and that Eisenhart is a “would-be martyr.” But the defendants’ actual conduct belied their rhetorical bravado. During the chaos of the Capitol riot, Munchel and Eisenhart had ample opportunity to fight, yet neither of them did. Munchel lawfully possessed several firearms in his home, but he took none into the Capitol. 

Once again, while the Court is addressing the issue of pretrial incarceration, it's pretty clear that all of these factors also offer very strong defenses to any DoJ claims that there was a seditious conspiracy afoot on January 6--or before. You can bet that none of that was wasted on the defense attorneys.

There's another important ramification from this. SWC points out an important tactic that DoJ has been engaging in:

In the January 6 protest cases, the government is demanding that defense counsel agree that all materials produced in discovery related to its overall investigation be subject to a protective order, because the investigation remains ongoing and further arrests are contemplated.

...

First, any such protective order like the one being sought would prevent defense counsel in different cases from collaborating. They would not be able to communicate with each other about the strengths or weaknesses of the government’s cases against different sets of defendants. They would not be able to discuss inconsistencies in the government’s theories as applied in different cases, nor would they be able to exchange exculpatory information, unless they developed that information themselves, separate and apart from the material provided by the government under the protective order.

Second, the inability to make public filings challenging the nature of the evidence in the government’s cases prevents the public from scrutinizing what the government is doing in its name to some individuals who have done little more than express political opposition to the party in power. ...

Consider. If you're a defense attorney, in light of this Appellate decision how likely are you to submit to DoJ demands that you agree to a "protective order" and forego coordination with other defense attorneys? I think you'll want to fight against that quite strenuously in light of this decision.

I'm not going to speculate on what may be behind this burst of judicial independence--old fashioned civil liberties views? Whatever it is, it's certainly welcome and encouraging. The other district court judges handling these cases will already have taken note, and that could put pressure on DoJ to allow these cases to be resolved quickly and on non-Sedition Hoax grounds. The grand strategy for the Dems may be starting to crumble.