Friday, August 13, 2021

SWC: Signs Of DoJ Desperation In January 6 Case

Shipwreckedcrew has been reporting on what could turn out to be a significant development in the DoJ's prosecutorial pursuit of January 6 Event protesters. You can read the full account at the link, and I'll try to summarize it from a big picture viewpoint, without getting into the procedural weeds too far:

Government Commits Prosecutorial Misconduct to Deny a Jan. 6 Defendant his September Trial Date.

THIS is a sign of desperation from DOJ

Here's the short version.

Defendant Federico Klein was arrested on March 4, 2021. He was indicted on March 19 and charged with both felony and misdemeanor crimes.

Keep in mind that once an indictment is returned, the Speedy Trial Act clock starts running. There are extenuating circumstances to slow that down, but a federal judge's job is to monitor all this and, if need be, insure that DoJ is not abusing the rights of the defendant.

What happened next is that, well, not too much happened at all. Specifically, what didn't happen was that the DoJ didn't provide the defendant with discovery material that it was required to provide.

The day before a scheduled status hearing (July 13) DoJ told the judge (Bates) that they wouldn't be able to provide the material for many months, because of the press of handling so many cases. DoJ was looking at a time frame of some time in 2022.

The judge didn't buy that dog-ate-my-homework excuse and set a trial date of September 12--2021.

All clear? Now follow what happened next.

DoJ, knowing they couldn't comply, proceeded to engage in some sharp procedural maneuvering. Although the Klein case had been handled separately for five months, yesterday DoJ claimed that they were going to charge Klein in conjunction with a different case involving multiple other January 6 defendants. The effect of this move was to have the Klein case reassigned to the judge handling the other case (McFadden). Klein's prosecution would also conform to that case, for purposes of the Speedy Trial Act. The trial date would be extended.

SWC is totally unimpressed with this procedural sleight of hand. Not to put too fine a point on it, he leads with this:

The Biden Justice Department committed prosecutorial misconduct today in one of the January 6th cases.

The nub of SWC's critique is that, having examined the claims by DoJ that Klein's prosecution should be joined to the other case

None of that explains why it has taken the government from March to August to determine that there is a common set of facts and evidence that applies to all nine defendants, now including Klien [sic]. The government had an obligation under the local rule to “immediately notify in writing” the Court about related cases.

Why is it that four weeks prior to Klien’s trial date, after he’s been a solo defendant for five months, and only after the DOJ told the court it cannot comply with its discovery obligations in time for Klein’s trial, did it suddenly decide he should be tried with the defendants in the McCaughey case? Everything about what the DOJ has done here with the Klein case reeks of bad faith and manipulation to get away from Judge Bates and the Sept. 12th trial.

Now, SWC points out a line of argument that Klein's lawyer could advance to argue against the reassignment. However, SWC also argues that this is a case in which a judge should step in to prevent this sort of bad faith manipulation of the judicial process. Judges don't often like to get confrontational with DoJ, but ...

In effect, the government has used this procedural device in an unethical manner — to gain the additional time needed to provide the discovery required by law and avoid having to go to trial in the Klein case without having done so.

If Judge McFadden has any integrity at all he should sever Klein from the other defendants and send his case back to Judge Bates. Judge Bates should tell the prosecutors to show up on September 12, 2021, having complied with all their discovery obligations and prepared to pick a jury.

Judge Bates — appointed by Pres. Bush 43.

Judge McFadden — appointed by Pres. Trump.

I know what some will say. "Integrity"? What's Shipwrecked talking about? After the last 5 years, and he's talking "integrity"?

Nevertheless, there have already been signs that the DC judges--of all political persuasions--are unhappy about the way these January 6 cases are being handled. That includes DoJ playing fast and loose with the usual standards of Due Process, as regards the defendants. Further, as SWC says, these maneuvers amounted to "DOJ pretty much “gave the finger” to Judge Bates and his September 12th trial date."

Judges belong to a third branch of the government--theoretically independent. As such they don't like for any judges to be flipped off by prosecutors. Not even with the approval of a former federal judge--Merrick Garland. In fact, that circumstance could make this seem even more obnoxious to the DC judges. We'll see.


  1. Why has not one republican or any other begun the 24/7 vigil outside the jail, which we know where they mostly are, to attract thousands more to his/her cause?

    I would venture a guess that with even one "leader" showing up to make it clear this is a deep injustice, they would have tens of thousands more by their side, 24/7, within a couple days.

    if we would like this to end without anarchy, we had better start figuring out how to resist and refuse out in the open, loudly, and SOON.

  2. Hopefully Klein's attorney latches on to this and puts up a fight and the judge holds a line. The DOJ has been off the reservation for decades now and rarely gets held in check.

    I'm crossing my fingers on the first few cases getting hammered out correctly for these poor souls. Hopefully it will create a path for others to follow but I don't think I can apply any optimism to their situation.

    I can't help but touch on the fact these these people have become tools discarded by Trump and left rot by the so called party of their choosing. Everything with this is on par with how republicans see and treat their supporting base and it's just disgusting.

    1. Glad you brought this up, dm.

      I have been trying to find any statement however tepid from President Trump in support of the J6 political prisoners and I can't find it. This is real sore spot for me as he openly invited people to come to DC on the 6th with an ambiguous statement that something big would happen etc... It feels like he's abandoned these people and I don't know why. Very disconcerting.


    2. @Quake

      This is my own version of bat*hit crazy consparicy but...

      I honestly wonder if during the ramping up of the second impeachment Trump and the party didn't cut a deal where he continues to support the "R" brand in exchange for doing / not doing certain things post office. In reply the party would make sure the impeachment / other legal didn't hold ground.

      Several subjects were HOT topics and you saw him flirting with them.

      It was obvious the party had completely duped him in the election. He was VERY clear on that for several weeks. That narrative was dropped and all we heard after that point was "democratic, democratic, democratic".

      At the same time there was a massive calling for a new party for several weeks... You saw him flirt and tease the idea, then drop it like the same hot potato.

      He then also at the same time bailed on the supporters which he has previously been nonstop calling for.

      Then he rolled out the same ole party trick of trying to convince everyone we can "out vote" the RINOs by replacing a R with a R going forward. That con job hasn't panned out in the 30 years I've been paying attention to it and it's not gonna pan out now. I probably still have copies old conservative and libertarian political snail-mail news letters late 80s early 90's when that was all the rage then.

      I don't know... Either the guy was coning us from day one or he just happened to make 4 years of the most disasterous and horrible mistakes physically possible a "conservative" could make... Which were plainly obvious to may at the moment they were happening.

      That said.. What I can't help notice as well is ALL of "the mistakes" absolutely favored the parties agendas almost too perfectly to be accidental.

      I'll now remove my tinfoil hat and resume regular cynicism.

    3. I think Angelo Codevilla summed up Trump and America perfectly in American Greatness last week:

      I am increasingly convinced that Trump was simply way out of his league as president. He was a great verbal fighter, but he rarely if ever truly punished his enemies meaningfully. And it took him far too long to figure out his personnel mistakes and rectify them.

      Trump is not the guy to lead the next phase of the battle. I don't know who is--and if Trump ends up atop the GOP heap again I'll vote for him--but this time I will have far less patience for his weak close advisors, unforced errors, kid glove treatment of his enemies, and his lousy SCOTUS picks (all three stunk—if you disagree regarding Gorsuch please check out his Bostock opinion that legally conflates sex and gender).

      I thought Codevilla's most interesting observation was that within months of his inauguration nobody in Washington D.C. feared Trump. How was it that Trump himself never figured that out?

    4. As usual Codevilla is grossly simplistic when he discusses Trump.

    5. Granted that Codevilla has often presented Trump's worst side without counterbalance, but I don't see how anyone can look at Trump’s last year in office without seeing a string of unforced errors, timidity, and poor judgment. How many times in how many arenas did we wonder why he refused to act at all—let alone act boldly? Declassification? Barr-Durham? Unconstitutional election rule changes left unchallenged by the DoJ? The Fauci-Birx show running open loop without any countervailing expertise input (Kulldorff, Gupta, Ioannidis)? The worthless Christopher Wray’s incessant foot-dragging? The Joint Chiefs of Staff seditious intransigence? Trump’s Twitter page never made a dent in any of these critical battles.

      Perhaps Trump and/or his family were threatened with harm? If so, I could understand his lack of action. Short of that, waking up every day for two years feeling like a character in Waiting For Godot was probably the most frustrating political time of my life. Because we all knew dang good and well that if the Democrats regained power we were going to see exactly what we are seeing now—the most radical push to destroy the country ever (e.g., Obama’s 3rd Term and the final phase of the Fundamental Transformation). It sure appeared to me that in the fell clutch of circumstance Trump faded away. We may not know why, but to me it is beyond argument that he did. Our next leader must do so—certainly not without taking large numbers of our enemies down with him.

    6. In this day and age, no human being can be a One Man Executive Branch--which is what you and Codevilla blame Trump for not being.

    7. Sorry. I do not think it fair to suggest that I expected Trump to be a One Man Executive Branch. I simply reject the notion that he was utterly helpless. How was suffering Fauci, Wray, and Durham perfidy not his own choice? The fact that Trump was remarkable at retaining his sanity in the face of five years of intractable opposition only increases my curiosity as to why he went out with a whimper.

    8. "Fauci, Wray, and Durham"

      Aren't you leaving out some names? This is typical of the 'fire 'em all' notion--as if that would have been possible. Firing those three wouldn't have made a dent in the problem, since they were backed up by more of the same ilk. And Trump couldn't have gotten his replacements confirmed if he actually had 'fired 'em all'.

      In fairness to Trump, I never heard him whimper.

    9. Okay. He walked into a buzz saw and there is nothing he could have done to ameliorate his plight. Is that about right? Sheesh.


    10. I thought Codevilla's most interesting observation was that within months of his inauguration nobody in Washington D.C. feared Trump. How was it that Trump himself never figured that out?

      How did Cpdevilla know this? He didn’t. How could he state this as fact? Codevilla has never "approved of” Trump. These “non-approvers” use very broad brushes in attempts to bolster what amounts to their personal bias.

    11. Only those with zero knowledge of corporate business, let alone the morass that is politics at the DC level, would believe that a new CEO could walk in and immediately start firing everyone. And the corporate CEO wouldn’t have to worry about congressional approval of replacements. “off with their heads!” may have been fine for Alice’s Red Queen, but it is not the way things work in the real world.

      I keep thinking “armchair quarterbacks” (now we could say “laptop quarterbacks”) who always seem to know how someone could have done something better, faster, etcetera, etcetera. That is when the marvelous words of Teddy Roosevelt come to mind.

      "It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

      He knew what it was like. We don’t.

    12. Curious to see what made Codevilla so sure of himself, I just read his bio. I’d wondered for some time what gave him so much critical authority. Essentially an academic, who for periods of time was a government staffer - particularly his connection with the United States Senate Select Committee on Intelligence via Sen. Malcolm Wallop. During the Trump administration the USSSCI had the dubious distinction of being called “the most corrupt committee in Congress.

      The titles of Codevilla’s published works show that he is a critic. But what has he actually done? What makes him an expert on being the President of the United States?

      These people may be interesting to read, but they are hardly “experts” on what they are critiquing.

  3. There should be massive resignations by DOJ and FBI members if any still had any integrity. These people are political prisoners of the Democrats. Have we become a banana republic. These two organizations have educated,intelligent employees that know better and are looking the other way. Judges are complicit as well

    1. was just reading someone saying somewhere else there should be massive resignations at DOD and other agencies over all the lies told to American people and servicemen over the whole Afghan fiasco... Let's not hold breath...the types of people who cause these fiascos don't really care about the outcomes or proper procedures, or the truth or anything...except No. 1...

    2. They believe they're fighting the heirs of Timothy McVeigh.

      As such, the abuse is simply just desserts.

    3. The fact that there are none should be prima facia evidence that we are not just talking about a "few bad apples" at the top. the entire organization, top to bottom, must be dismantled, if there is ever to be a just reconciliation in this country again.


    4. @anon

      You have to understand this didn't happen overnight. As Mark has pointed out before, he saw a real change at the Bureau by the time he retired. All of these dc agencies have been selectively hiring for decades now, choosing people they think will be good little drones if not avid collectivists. We are wasting our time thinking that there are any significant number of people in these places above secretarial pay grade who are not cool with the persecution of political enemies regardless of law.


  4. Replies
    1. Thanks. I've been reading Techno Fog about that article.

    2. I think that article confirms the shift we saw back a few months ago. Durham's focus has moved to the NGOs and suppliers of (dis)information. Which would make sense of a dozen things we've NOT seen out of his probe. (lack of grand jury leaking, lack of defence attorneys on CNN whining to get a head of narratives, etc)

      It also allows him to defect away from the beloved "insututions" and their responsibility and misdoings.

      AKA it will be the Boston field office all over again. Lots of "he said, she said" and very little responsibly held. The DOJ ilk (past or present) can not be trusted to hold it's self or it's pet monkeys responsible.

      I know, I'm so positive I can't stand myself some days!!!

      Speaking of... Has anyone seen any updates of the Carter Page/DOJ suit? That kinda vanished.