Stewart Rhodes, Witness At David Eastman Trial Found Very Guilty [UPDATED 5/8/23]

Exhibit 1:  Alaska Constitution Article XII

§ 4. Disqualification for Disloyalty

No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.  (emphasis added)

Exhibit 2: Head of Texas House General Investigative Committee on why a Republican member should be expelled from the House for having sex with an intern (from Austin-American Statesman):

"The expulsion of a fellow member is a level of punishment we don't take lightly," [Republican Rep. Andrew] Murr said to House members. "It's not meant to punish the member. Rather it is intended to protect the integrity and dignity of this legislative body and to provide accountability to everyone who works and serves in this building."

[UPDATE May 8, 2023 - Texas State Rep. Bryan Slaton resigned today.]

Exhibit 3:  Below - link to and excerpts from the Sentencing Memorandum for nine Oath Keepers after conviction of multiple crimes related to Jan. 6, 2021.   

Tying the threads together:

A.  Alaska state House member David Eastman is a life member of the Oath Keepers.   Its leader, Steward Rhodes was convicted this week of, among other things,  

". . . the jury found through its guilty verdict, that Rhodes led a conspiracy to use any means necessary, up to and including the use of force, to oppose the lawful transfer of power from President Trump to President-Elect Biden. Numerous co- conspirators testified that Rhodes’ repeated messages urging forcible resistance to the election results are what caused them to join the attack on the Capitol on January 6." 

B.  A lawsuit filed after the November 2022 election against then reelected, but not yet sworn in, Rep. Eastman by one of his constituents charged that he should not be sworn in because his membership in the Oath Keepers violated the state constitution provision cited above [Exhibit 1].  See ADN Dec. 6, 2022

The trial judge found that Eastman belonged to such an organization in violation of the Constitution, however, the judge also ruled that the First Amendment of the US constitution trumped Article XII Section 4.  

C.   Steward Rhodes was a key witness for Eastman in the trial, testifying electronically while in custody.

This past week Stewart Rhodes, the head of the Proud Boys, was convicted of a number of charges relating to his organization of and promotion of the attack on the US Capitol on January 6, 2021.  The prosecutors are arguing that he be sentenced to 25 years, by far the longest sentence of any Jan 6 defendant so far.  

Below are excerpts from the sentencing memorandum from the prosecutors to the judge - for Rhodes and the eight other Oath Keepers who were convicted with him.  

The first excerpt is the opening of the memorandum dealing with the group as a whole.  The second excerpt is a couple of pages the begins the 20 page justification for Rhodes' sentencing recommendation which begins at page 81.  (The whole document is 183 pages, so you can see Rhodes takes up a good portion.)

I offer this to remind the Alaska Legislature who their colleague is.  He has a life membership in this organization which he very easily could have ended, but chose not to.  

Excerpt 1:

"GOVERNMENT’S OMNIBUS SENTENCING MEMORANDUM AND MOTION FOR UPWARD DEPARTURE

These defendants were prepared to fight. Not for their country, but against it. In their own words, they were “willing to die” in a “guerilla war” to achieve their goal of halting the transfer of power after the 2020 Presidential Election. As a co-conspirator recognized, their actions made these defendants “traitors.”1

Using their positions of prominence within, and in affiliation with, the Oath Keepers organization, these defendants played a central and damning role in opposing by force the government of the United States, breaking the solemn oath many of them swore as members of the United States Armed Forces. To support their operation, they amassed an arsenal of firearms across the Potomac River and led a conspiracy that culminated in a mob’s attack on the United States Capitol while our elected representatives met in a Joint Session of Congress. Two juries found all nine defendants guilty of participating in this grave conduct. These defendants are unlike any of the hundreds of others who have been sentenced for their roles in the attack on the Capitol. Each defendant therefore deserves a significant sentence of incarceration."

Excerpt 2:

"A. Stewart Rhodes

Rhodes led a conspiracy to oppose by force the lawful transfer of power following the 2020 U.S. Presidential Election. He exploited his vast public influence as the leader of the Oath

[Table of Penalty Enhancements here]

Keepers and used his talents for manipulation to goad more than twenty other American citizens into using force, intimidation, and violence to seek to impose their preferred result on a U.S. presidential election. This conduct created a grave risk to our democratic system of government and must be met with swift and severe punishment. A 25-year (300-month) sentence is compliant with the Sentencing Guidelines and necessary to satisfy the factors this Court must consider under 18 U.S.C. § 3553(a) in imposing a sentence.

All of these counts group. Accordingly, the total adjusted offense level for Rhodes would be the highest of the offense levels for the three counts, which is 33.

The government also submits that an upward departure of six levels is warranted under Note 4 for the degree to which Rhodes’ offense conduct “was 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. And Rhodes deserves no credit for “acceptance of responsibility.” This would bring the defendant’s offense level to 39, for a recommended sentence of 21.8 to 27.25 years (262 to 327 months) of incarceration. The government’s recommended sentence of 25 years (or 300 months) of incarceration is just above the mid-point of that range.

a) Additional Factual Support for the Specific Offense Characteristics

The relevant conduct of Rhodes’ co-conspirators caused and threatened to cause physical injury to the law enforcement officers protecting the Capitol on January 6 and substantial damage to the building. It is appropriate to apply Section 2J1.2(b)(1)(B) simply for the relevant conduct of the conspirators he led. But there is more.

The evidence at trial established, and the jury found through its guilty verdict, that Rhodes led a conspiracy to use any means necessary, up to and including the use of force, to oppose the lawful transfer of power from President Trump to President-Elect Biden. Numerous co- conspirators testified that Rhodes’ repeated messages urging forcible resistance to the election results are what caused them to join the attack on the Capitol on January 6. See, e.g., 10/18/22PM Tr. at 4099 (testimony of Jason Dolan that Rhodes’ words constituted a call “to take up arms and fight back”); messages “regalvanized” him to “resist the fraud” and to come to D.C. on January 6 prepared to fight against “[t]he corrupt elements in the government that were allowing the election to proceed, and obviously leftists and extremists and whoever else was in the way”); 1/3/23PM Tr. at 2556-57 (testimony of Caleb Berry that he believed, based on the messages of Defendants Rhodes and Meggs, that he and his fellow Oath Keepers had a duty to “defend the Constitution” by “fight[ing] against the federal government if I had to,” because “[w]e needed to act or we would die”). And a preponderance of the evidence shows that Rhodes ordered his co-conspirators to join in the attack on the Capitol, both directly and indirectly. Indirectly, Rhodes sent his followers knowing words of approval of the riot, like his message that “the founding generation -stormed the governors mansion in MA . . . . They didn’t fire on them, but they street fought. That’s where we are now. Next comes our ‘Lexington.” Directly, Rhodes spoke on the phone with Meggs moments before Meggs led Stack One to breach the Capitol. Gov. Ex. 1500. Accordingly, this Court can and should find that Rhodes, through his offense conduct and that of his co-conspirators, caused and created a risk of injury to others and damage to property."

Message to the Alaska legislature:

Rep. Eastman acknowledged membership in the Oath Keepers, acknowledged his continuing membership in the Oath Keepers, and that he was on the Capitol grounds on January 6 (though he did not enter the Capitol).  He has not announced that he has cancelled his membership in the Oath Keepers.  In fact, Stewart Rhodes was a key witness in Eastman's December trial.  

Eastman's membership is in clear violation of the Alaska Constitution Article XII, Section 4.  

Keep in mind the words of the Texas Investigation Committee Chair, Rep. Andrew Murr:  

"'Rather [the purpose of expulsion] is intended to protect the integrity and dignity of this legislative body and to provide accountability to everyone who works and serves in this building.'"

I'd also note that Article II, Section 12 gives the Alaska legislature the power to expel a member with a 2/3 vote.  The limits on the judge in Eastman's trial do not apply here.  

§ 12. Rules

The houses of each legislature shall adopt uniform rules of procedure. Each house may choose its officers and employees. Each is the judge of the election and qualifications of its members and may expel a member with the concurrence of two-thirds of its members. Each shall keep a journal of its proceedings. A majority of the membership of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day and may compel attendance of absent members. The legislature shall regulate lobbying. [emphasis added]

I realize that there are reasons both the Republicans and the Democrats in the Alaska House feel it might be in their best interests to leave Eastman in the House.  I realize that minor compromises must often be made to pass legislation.  But harboring a member who is a member of an organization that tried to overthrow the US presidential election, and a supporter of its leader, who was convicted of multiple crimes related to Jan 6, is not a minor compromise.  

Integrity of the legislative body is also important.  Doing the right thing only when it doesn't possibly threaten your own best interests is NOT integrity.  

[I'd note that the Texas House has not yet voted to expel Rep. Rep. Bryan Slaton as I post this, nor can I find any indication that he has resigned.]  

POP. 1208 - Small Town Texas Around 1917 As Described In 1964

 

I'd have never read this book if it hadn't been one of the book club choices.  Chosen by a member who is also an author.  As I read the book, I did think about why an author would pick this book. And at the book club meeting, he said he read it because it was on a list of books given to him by another author.  The 25 books that most influenced him as a writer.  And he also acknowledged some hesitation about recommending it to our group.  It was a test, of sorts, of us.  

It begins like this:

"Well, sir, I should have been sitting pretty, just about as pretty as a man could sit.  Here I was, the high sheriff of Potts County, and I was drawing almost two thousand dollars a year - not to mention what I could pick up on the side.  On top of that, I had free living quarters on the second floor of the courthouse, just as nice a place as a man could ask for, and it even had a bathroom so that I didn't have to bathe in a washtub or tramp outside to a privy, like most folks in town did. I guess you could say that Kingdom Come was really here as far as I was concerned.  I had it made, and it looked like I could go on having it made --being high sheriff of Potts County --as long as I minded my own business and didn't arrest no one unless I just couldn't get out of it and they didn't amount to nothin'.

And yet I was worried. I had so many troubles that I was worried plumb sick."

That really is a good way to start this book.  It foretells lots of the troubles without giving nothin' away.  Whoops.  It's catching.   

So what's wrong with this book?  Well, it's narrated by the main character, a very small town Sheriff, who is more than flawed.  It's all from his point of view and it's all in his colorful language.  The most difficult parts for me were the vivid descriptions of the town's black population.  

Why did that bother me?  Yes, of course, the N-word liberally spit out in some parts of the book.  And the disgustingly racist attitudes and situations portrayed.  But it was published in 1964 (and so written before the Civil Rights Act passed) and those were different times.  White folks still were the only editors of public speech back then.  And it describes a time almost 50 years earlier.  We shouldn't censor history because we don't like the words and situations that existed then.  We should learn from them and not in cleaned up versions.  And, if I recall correctly, Leonard Pitts' The Last Thing You Surrender - a 2019 novel by a black author - uses the N-word - and includes a very troubling lynching.  

But I'm not using that word in this post.  Mostly because I'm thinking of one particular friend who would probably be disturbed -rather than offended - seeing me spell it out.  

And I think that's what disturbed me about reading this book for the book club.  I didn't ask the man who recommended the book this question:  "If we had an African-American in our group, would you have recommended the book?"  The fact that the book club is all white men over 50 means that we can read a book like this without any of us personally feeling demeaned by the language and situations.  None of our families were the subject of this particular kind of inhumanity.  And the fact that the things done in the book to blacks was done by whites, adds to the awkwardness.  Women weren't treated well either.  Actually, no one was treated well in this story

Yet, I find that I can pretty much tell you the whole story, though not in quite the same colorful language as the high sheriff of Potts County.  

And the subject matter of this book seems to come from personal experience.  From Wikipedia:

"Thompson's father was sheriff of Caddo County, Oklahoma. He ran for the state legislature in 1906, but was defeated. Soon after he left the sheriff's office under a cloud due to rumors of embezzlement. The Thompson family moved to Texas."

Also from Wikipedia:

 Stephen King says he most admires Thompson's work because "The guy was over the top. The guy was absolutely over the top. Big Jim didn't know the meaning of the word stop. There are three brave lets inherent in the foregoing: He let himself see everything, he let himself write it down, then he let himself publish it."^[2]

There's no doubt that Thompson was using the sheriff to shine light on everything that was wrong about small town life in Oklahoma and Texas.  

Talking about his (the sheriff's) father:

"But that's the way my daddy was -- like those people.  They buy some book by a fella that don't know a god-dang thing more than they do (or he wouldn't be having to write books).  And that's supposed to set 'em straight about everything.  Or they buy themselves a bottle of pills.  Or they say the whole trouble is with other folks, and the only thing to do is get rid of 'em.  Or they claim we got to war with another country.  Or . . .  or God knows what all."

Seems those folks are still with us today.  Lots of them.  These are the folks who went to lynchings.  These are the folks who stormed the Capitol on January 6.  And the folks who rather take advice from Tucker Carlson that Dr. Fauci.  

I guess there was a lot in this book.  I think I knew it when I was reading it.  I just didn't like any of the people in the book.  Yes, there was probably something decent in them all, but the Sheriff was focused on the other parts.  If you asked me if would recommend the book, I'd answer using the sheriff's favorite phrase: "I wouldn't say that I would, but then I wouldn't say that I wouldn't."

Texas Abortion Law Part II: What To Do Next

Part I was a look at parts of the law itself and the Supreme Court dissents.   

I was hoping here to start a list of things to do in response to the Texas abortion law ("The Texas Heartbeat Act"), but I still had questions that reading the law itself doesn't clarify. Articles and comments offer conflicting interpretations. So let me list some of my original questions:

1. What's a fetal heartbeat? 
2. What's the difference between a fetus and an unborn child?
3. Who may be sued?
4. Who may sue/prosecute someone for performing an illegal abortion?
5.  Can people be sued for helping Texas women get abortions outside of Texas?
6. What are the penalties for performing or aiding and abetting an illegal abortion?

Question #1 Since the law makes hearing a fetal heartbeat the point when abortion may not be performed,  medical opinions (which differ from what the law makers apparently intended) on when the fetal heartbeat can be heard may well be significant.  

#2 probably does not have significant legal consequences, though people will argue about this endlessly.

#3  The answer appears to be people who help people get abortions and doctors who perform them, but not the women who get abortions.  Though 'help' is pretty vague.

#s 4 and 5 are key issues.  #4 because the law was designed to avoid being blocked by courts because governmental entities can't prosecute.  #4 because the law doesn't seem clear on this.  

#6 I'm still having trouble figuring out.

Finally, I suspect that they threw all kinds of crap into this law to:

• See what would stick
• Jam up the courts
• Scare people out of seeking and offering abortions
• Because they could

What's a fetal heartbeat?

This piece From NPR says sonogram 'heartbeats' are really noises generated by the machine and aren't real heartbeats.

"The Texas abortion law that went into effect this week reads: "A physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child."

"When I use a stethoscope to listen to an [adult] patient's heart, the sound that I'm hearing is caused by the opening and closing of the cardiac valves," says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists.

The sound generated by an ultrasound in very early pregnancy is quite different, she says.

"At six weeks of gestation, those valves don't exist," she explains. "The flickering that we're seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you 'hear' is actually manufactured by the ultrasound machine."  [emphasis added]

So, will the time frame be challenged to when an actual heart beat and not a synthetic sonogram machine heart beat is heard?

 

What's the difference between a fetus and an unborn child?

The Texas law definitions include:

"(7)AA"Unborn child" means a human fetus or embryo in any stage of gestation from fertilization until birth."

But (again from NPR):

"In fact, "fetus" isn't technically accurate at six weeks of gestation either, says Kerns, since "embryo" is the scientific term for that stage of development. Obstetricians don't usually start using the term "fetus" until at least eight weeks into the pregnancy."

But, I guess legislatures can create legal definitions that differ from scientific definitions.  All you need is a majority.  

Who may be sued?

It's clear from the law that the physician performing the abortion and anyone aiding or abetting someone getting an abortion, including paying for the abortion may be sued.  But some people think the woman herself can't be prosecuted.  The law says:

("b)AA This subchapter may not be construed to:

(1)AA authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter;"

But is that only for that subsection of the law?   This AP article agrees that abortion patients can't be sued:

"It allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who “aids or abets” a woman getting the procedure. Abortion patients themselves, however, cannot be sued."

The following passage from a Texas Planned Parenthood site also suggests the woman herself is exempt:

"This provision lets anyone sue an abortion provider and anyone else who helps a patient access abortion care that is prohibited by SB 8. Anyone who successfully sues an abortion provider will be entitled to at least $10,000 and a court order preventing them from providing abortions in the future."

But what exactly does 'aid and abet' or 'help' mean?  If I tell someone where they can get an abortion, is that against the law?  Presumably not because the law states:

"(g)AA This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution, or by Section 8 Article I,TexasConstitution."

Using the logic of Citizens United, people could argue that giving a woman money or an airplane ticket is a form of free speech.  (Of course you can argue anything.  But it has to persuade the judges.)

There are also some issues that arise because an abortion before the heartbeat is still legal in Texas.  What if aid is given earlier but the eventual abortion is later?

Who can sue someone for performing an illegal abortion?

[An attorney friend pointed out, when I used the word 'prosecute' that citizens can sue, but not prosecute.  Only governmental units can do that.  And probably, but I'm not sure, agencies like Departments of Justice or Legal Departments.] 

I think this is relatively clear.  No governmental entities can prosecute.  Only private individuals anywhere can sue.  From Planned Parenthood again:

"That means anyone, anywhere in the country — from anti-abortion protesters to out-of-state lobbyists — can sue an abortion provider, abortion funds, or anyone who “aids and abets” someone seeking an abortion that is prohibited by SB 8, regardless of whether they are directly involved or even know the patient."

Here's the law:

"shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section171.208. 

Preventing the state or state subdivisions from prosecuting was done to avoid the law from being blocked by the courts.

However, although they can't prosecute:

(h)AANotwithstanding any other law, this state, a state official, or a district or county attorney may not intervene in an action brought under this section. This subsection does not prohibit a person described by this subsection from filing an amicus curiae brief in the action.

  I don't completely understand this, but my understanding is a court could block a government entity from taking action.  But it can't block all potential people who might sue, before the fact.  That's the logic argued by the five member majority of the Supreme Court.  

Can people be sued for helping Texas women get abortions outside of Texas?

My assumption has been 'no.'  How could they forbid Texans to do something that's legal in another state?  That would be like saying gambling and smoking marijuana are illegal in Texas and Texans can't do those things in states where they are legal. I've searched the new law for the word "Texas" and it shows up 16 times - mainly before Constitution and various Codes.  Since women having abortions can't be sued by this statute.  They could do this.  And since the doctors and clinics aren't in Texas, it doesn't seem likely Texas would have jurisdiction over them.  That leaves people who might help pregnant women get out of Texas for an abortion.  I'm guessing they just left it vague and are leaving it up to their vigilantes to test this in court.  I haven't been able to find this exact question addressed online.  

If an attorney or two can clarify this that would be helpful.

What are the penalties for performing or aiding and abetting a women to get an abortion? 

There's a minimum $10,000 per abortion performed by doctors for the doctors.  And for people who aided and abetted.

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this chapter, and for each abortion performed or induced in violation of this chapter that the defendant aided or abetted; 

It gets even stickier:

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter;

So, first we get "knowingly engages in conduct" but at the end we get "regardless of whether the person knew."   Perhaps they mean if you knew you were taking someone to get an abortion, but even if you didn't know it would be an illegal one.  So, if you take someone to get a legal abortion, but it turns out there's a fetal heartbeat and the abortion is performed anyway, you would be liable.  There is language that says it's "an affirmative defense" if the defendant can prove they conducted research that led them to believe that the doctor would comply with the law.  But the proof "with a preponderance of evidence" of that the research is on the defendant.  

That can only be intended to stop people from getting legal abortions as well as illegal abortions.    

Defendants who win their cases cannot be awarded legal fees.

(i)  Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.

So if you're wrongfully accused, you still have to pay all your attorney fees.  I don't think, though, that if an organization provides free attorneys, they could be sued for 'aiding and abetting.'  But maybe only because the legislators didn't think of it.  

Conclusions 

• The intent of this law was to make it as difficult as possible for women to get abortions in Texas by making it illegal
• to perform an abortion after a fetal heart beat can detected
• to assist anyone trying to get an abortion
• The law was written so that Governmental entities couldn't prosecutors and allowing ordinary citizens to sue.  This was done to avoid having the law blocked by a court. (It worked with the Supreme Court's initial ruling.)
• The penalties $10,000 per abortion are high enough to discourage most doctors from performing proscribed abortions and to scare most people from helping women to get an abortion
• Unclear to me is whether the legislators think this will also prevent Texas women from getting abortions outside of Texas
• They probably don't have jurisdiction, but since ordinary citizens will file the lawsuits, there's a good chance that many will even for abortions outside of Texas
• We can only start imagining some of the consequences:
• I've already seen one Tweet where a guy was going to get women pregnant and then claim the $10,000 award for turning them in.  (He didn't realize you can't sue the women.) 
• This adds to the encouragement of vigilantes that Trump began and we can see predators pursue pregnant women and the people around them
• There will be a surge of revenge law suits filed against people whether they've been involved in a legal abortion, illegal abortion, or no abortion at all
• Planned Parenthood's income will rise steeply
• Rape and incest are not excepted in this legislation.  Any man who wants to father as many children as possible will be tempted.  
• Relations between sexual partners will change
• perhaps birth control use will go up for women and some men
• men could sue or threaten to sue anyone they think might help their pregnant girl friend or spouse get an abortion, including her parents
• Underground abortions will increase and more women will die from them
• There will be a market for bogus, but profitable, abortion potions/techniques that 
• probably won't work
• could harm the mother and/or fetus
• There will be political consequences because a fairly large majority of US citizens approve of abortion.  They will become more active running for office and voting

That's just a couple minutes of conjuring up ideas.  I'm sure you can think of many I've missed.  The next step is determine the most effective ways to fight this law and to help Texas women who need an abortion to get one.  

[NOTE:  I'm not an attorney.  I'm trying to glean from the law itself and from what reputable reporters have to say about the law.  I understand that statues are complicated and may seem clear in one section, but there may be another section that voids it.   Don't base any medical or legal action on this blog post.  It's just my way of sorting out some of the issues.]