Big J6 Development

Is something going on with the SCOTUS? Most readers will be aware that early in the week the SCOTUS heard oral arguments regarding Trump’s claim of immunity from prosecution. Most observers—right and left—agreed that the SCOTUS appeared favorable to Trump. There are a number of ways the SCOTUS could go. One would be to send the case back down for further deliberations—probably meaning punting past the election. With luck, from the SCOTUS’ point of view, Trump would win and they wouldn’t have to engage in a sweeping decision on a difficult issue. The SCOTUS, or certainly this one, prefers narrowly defined issues. Notably, CJ Roberts, for the second oral argument in recent days, came out swinging at the government very aggressively. Is it possible that the conservative justices are seeing political developments that are causing them considerable anxiety? Do they feel pressured to get more involved than they would prefer? Obviously speculative questions. But …

I’ve been silent regarding the J6 cases because I don’t have the type of legal expertise to comment intelligently, when there are other writers out there who can. Obviously, what’s going on is a travesty of the rule of law, just like the lawfare assault on Trump, but readers hardly need me to come to that conclusion.

However, today has seen what could be a significant development. I came across this news at TGP. TGP mostly quotes other sources. I’ll include their main source in the second link. The two titles will give you an idea of how big this could be. Not guaranteed, but the SCOTUS action is highly unusual.

In Rare Move, SCOTUS Justices Signal They May Grant Certiorari in Case of Peaceful J6 Protestor Russell Alford Who Received Maximum Sentence! Justices Ask DOJ to Defend Their Conviction of Alford by May 23

SCOTUS asks DOJ to defend disorderly conduct convictions of J6 protestors who were not disorderly

High Court could vacate more than one thousand sentences

Got that picture? The significant part in this is: DoJ waived their right—which they typically exercise on a routine basis—to respond and argue against a grant of certiorari. In other words, they explicitly stated that they would not attempt to argue that the SCOTUS should not accept the appeal. My read on that is that DoJ did not want to go on record on the merits of this case, beyond what had happened at the trial court and on appeal already. Today came the SCOTUS response, which was, in effect: Not so fast! The SCOTUS “requested” a response from DoJ. A “request” from the SCOTUS is, for most intents and purposes, a command.

The heart of the appeal is the ruling that

Alford appealed his convictions on the two charges requiring the government to prove “disorderly or disruptive conduct.” The trial court refused Alford's motion to acquit on those charges, despite the lack of any evidence of such conduct, arguing that he should be held guilty on account of the actions of (a small minority) the other protestors:

Mr. Alford’s mere presence inside the Capitol disturbed the public peace or undermined public safety” and that “his presence was an aspect of the disorder and disruption of the Capitol.” [Emphasis added].

“Even passive, quiet and nonviolent conduct can be disorderly”

The appellate court agreed with prosecutors and the lower court:

The D.C. Circuit Court of Appeals ruled Friday that trespassers in the Capitol during the riot did not need to be acting "disorderly" or "disruptive" to be found guilty of disorderly conduct, because such definitions “are nebulous but time has given them concrete contours in two ways important here.”

"First, it is well-established that whether conduct qualifies as disorderly depends on the surrounding circumstances," the court wrote …

"Second, it is equally clear from caselaw that even passive, quiet and nonviolent conduct can be disorderly," the ruling continued. [Emphases added].

The SCOTUS request for a response from DoJ doesn’t guarantee a grant of certiorari. Upon perusal of the response four justices will need to vote for the grant. On the other hand, odds for a yes vote do seem favorable. My guess is that if this goes to the SCOTUS the focus will be on that second point:

"Second, it is equally clear from caselaw that even passive, quiet and nonviolent conduct can be disorderly," the ruling continued. [Emphases added].

Without having done any research, my guess—and certainly my argument if I were representing the defendant—would be that for any “passive, quiet and nonviolent conduct” to be disorderly there must be an intent to be at least disruptive. So, something like a sit in, etc. In this case the defendant appears to have been a mere onlooker. The bigger significance is that the defendant was virtually the only one to refuse a plea deal, but a favorable ruling could lead to vacating over a thousand sentences. That’s big.

Follow the links above for more details. Here’s some commentary from Julie Kelly that will also help in understanding what’s going on and why it could matter bigly (edited a bit for length):

Julie Kelly @julie_kelly2

Apr 23

As Josh Gerstein just reported at Politico, SCOTUS requested a response from DOJ in petition for writ of cert filed by Russell Alford, convicted by a DC jury of 4 misdemeanors for J6. This doesn't mean SCOTUS will take up the case but it does mean they want some answers. The…

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I mean, this is pretty surprising since it relates to a very common J6 misdemeanor. US Solicitor General Elizabeth Prelogar--who defended DOJ in 1512c2 SCOTUS hearing last week--told the court the govt won't file a response to Alford's petition unless SCOTUS requested one. So…

So SCOTUS called DoJ’s bluff.

Keep in mind--the DC Circuit seems to be delaying what likely will be a reversal of DC district court interpretation of another 1752 trespassing misdemeanor. Oral arguments in appeal of Couy Griffin's 1752 conviction were heard on Dec 4--no ruling posted yet. If SCOTUS grants cert on this--and reverses 1512c2 in the meantime--it's hard to describe what a rebuke both decisions will represent to DOJ and DC federal courts. And the courts have not even considered seditious conspiracy charges/convictions or terror sentencing enhancements appeals yet....

11:12 AM · Apr 23, 2024