Case 1:22-cr-00015-APM Document 84 Filed 04/12/22 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES *
vs. * Case No.: 22-cr-15-APM
THOMAS E. CALDWELL
(U.S. v. Elmer Stewart Rhodes) *
* * * * * * * * * * *

MOTION TO DISMISS COUNTS 1, 2, 3, & 4 OF THE INDICTMENT

The Defendant, Thomas E. Caldwell, by and through his attorney, David W.

Fischer, Esq., moves this Honorable Court, pursuant to Federal Rule of Criminal

Procedure 12(b)(3)(B)(v), to dismiss Counts 1-4 of the Indictment as set forth infra.

Procedural Background

On January 12, 2022 the grand jury returned a multi-count Indictment (“the

Indictment”) charging Thomas E. Caldwell (“Caldwell”) and eleven other defendants

(“the Rhodes defendants”)1 with Count 1, seditious conspiracy (18 U.S.C. § 2384); Count

2, conspiracy to obstruct an official proceeding (18 U.S.C. § 1512(k)); Count 3,

obstruction of an official proceeding and aiding and abetting (18 U.S.C. § 1512(c)(2), 2);

Count 4, conspiracy to prevent an officer from discharging any duties (18 U.S.C. § 372);

1
On March 3, 2022 co-defendant Joshua James entered a guilty plea in this matter. (ECF
60).

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Count 5, destruction of government property and aiding and abetting (18 U.S.C. § 1361,

2); Counts 6-7, civil disorder and aiding and abetting (18 U.S.C. § 231(a)(3), 2); Count 8,

assaulting, resisting, or impeding certain officers (18 U.S.C. § 111(a)(1)); and Counts 9-

17, tampering with documents or proceedings and aiding and abetting (18 U.S.C. §§

1512(c)(1), 2).

The Indictment in this case is an off-shoot of the Government’s previous

indictments in United States v. Caldwell (APM-21-28). The Court denied various

motions to dismiss certain counts in Caldwell. See Caldwell, (ECF 558). The Court has

made clear that the Rhodes defendants, to the extent applicable, may rely on the

previously filed and argued motions to dismiss in Caldwell as “the law of the case” in the

instant matter for purposes of appeal. In addition to those preserved motions, Caldwell

files the instant motion to dismiss as to Counts 1-4 of the Rhodes Indictment.

Factual Background

The Rhodes defendants were charged in relation to events surrounding their

alleged involvement in the unfortunate events that occurred at the United States Capitol

Building on January 6, 2021 (“J6”). As a motion to dismiss centers on the allegations

stated within the four-corners of the Indictment, and as the Court is obviously familiar

with the factual background of J6 and the Rhodes defendants, Caldwell will dispense with

a lengthy statement of facts.

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Legal Standard

The Federal Rules of Criminal Procedure state that an indictment must include “a

plain, concise, and definite written statement of the essential facts constituting the offense

charged.” Fed. R. Crim. P. 7(c). A motion to dismiss may challenge “a defect in the

indictment” if “the basis of the motion is then reasonably available and the motion can be

determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3)(B). If, for

example, the indictment fails to “state an offense,” a defendant can move for dismissal.

Fed. R. Crim. P. 12(b)(3)(B)(v). In ruling on a defendant’s motion to dismiss, the Court

must assume that the factual allegations in the indictment are true and limit its review to

“the face of the indictment, and more specifically, the language used to charge the

crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 59-60 (D.D.C. 2009) (internal

quotation marks omitted). The issue that the Court is required to address in response to a

defendant’s motion to dismiss is thus: “[W]hether the allegations, if proven, would be

sufficient to permit a jury to find that the crimes charged were committed.” United

States v. Bowdoin, 770 F. Supp. 2d 142, 146 (D.D.C. 2011).

Summary of Argument

The Rhodes defendants seek dismissal of Counts 1-4 on the grounds that the

Indictment fails to state an offense as to each count. Count 1, seditious conspiracy

pursuant to 18 U.S.C. § 2384, requires proof that the purpose of the defendants’ seditious

conspiracy was to forcibly obstruct a person authorized to execute a law, while that

person was attempting to execute the particular law opposed by the defendants. The

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Indictment alleges that Members of Congress were obstructed in executing the election

laws. Per binding precedent, however, Members of Congress are constitutionally

prohibited from “executing any law of the United States.” Additionally, per binding

precedent, the Electoral College certification process did not constitute the “execution of

any law of the United States.” Accordingly, the Indictment fails to state an offense as it

does not allege that the Rhodes defendants conspired to forcibly obstruct a person duly

authorized to “execute any law of the United States” in their actual, or attempted,

execution of the opposed law.

Counts 2 & 3, which charge conspiracy and obstruction in relation to an official

proceeding under, respectively, 18 U.S.C. § 1512(k) and § 1512(c)(2), fail to state

offenses, because the plain language of 18 U.S.C. § 1512(c) confirms that this statute

only applies to obstructive acts related to tangible evidence spoliation. The word

“otherwise” in § 1512(c)(2) is a conjunctive adverb which, by traditional grammatical

rules, means that the adverbial clause, i.e., subsection (c)(2), is not independent but,

rather, modifies the opening clause, i.e., subsection (c)(1). Accordingly, subsection

(c)(2) was intended by Congress to criminalize similar, but unenumerated, conduct as

outlined in subsection (c)(1). As the Rhodes defendants’ actions were unrelated to

tangible evidence spoliation, Counts 2 & 3 fail to state offenses.

Count 4 charges the Rhodes defendants with conspiracy to prevent an officer from

discharging any duties in violation of 18 U.S.C. § 372. Binding precedent holds that the

terms “office,” “officer,” and “officer of the United States,” as used in federal criminal

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statutes, are, absent unambiguous language to the contrary, presumed to have their

“constitutional meaning” as set forth in the Appointments Clause of the Constitution

(Article II, § 2, cl. 2). The “officers” cited as victims in Count 4 are Members of

Congress, who are not “officers” under the Appointments Clause. As Members of

Congress are not Article II “officers,” they likewise are not “officer[s] of the United

States” as that term is used in § 372. Additionally, § 372’s reference to preventing a

“person from accepting . . . any office, trust, or place of confidence” clearly excludes

Members of Congress, who do not “accept” their offices but, rather, assume them. The

phrase “office, trust, or place of confidence,” moreover, is a clear reference to language

used in presidential commissions issued to “officers of the United States,” confirming

that Members of Congress, who do not receive commissions, are not protected by the

statute. Accordingly, Count 4 must be dismissed, as it fails to state an offense.

I. Count 1 Fails to Allege a “Seditious Conspiracy”

Count 1 of the Indictment charges the Rhodes defendants with seditious

conspiracy pursuant to 18 U.S.C. § 2384. The Indictment alleges that the Rhodes

defendants “did knowingly conspire . . . by force to prevent, hinder, and delay the

execution of any law of the United States[.]” (ECF 1, ¶15). The purpose of the

seditious conspiracy, according to the Indictment, was

to oppose the lawful transfer of presidential power by force, by preventing,

hindering, or delaying by force the execution of the laws governing the

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transfer of power, including the Twelfth and Twentieth Amendments to the

Constitution and Title 3, Section 15 of the United States Code.

(ECF 1, ¶16). Section 2384, which sets forth the crime of “seditious conspiracy,” in turn

states:

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.

18 U.S.C. § 2384 (emphasis added). The Indictment specifically charges the Rhodes

defendants with the italicized portion of § 2384, i.e., a conspiracy to forcibly “prevent,

hinder, or delay the execution of any law of the United States.” (ECF 1, ¶15).

For purposes of the instant motion, the Rhodes defendants concede that the

Government has alleged2 a conspiratorial agreement to use force intended to disrupt the

2
While a motion to dismiss addresses the Indictment’s facial sufficiency and not the
weight of the evidence, the Rhodes defendants emphasize that the Indictment is an
obscenely one-sided, selectively edited, and inaccurate representation of their actions and
statements. Counsel for the Rhodes defendants have combed through a mountain of
discovery, which includes the cell phone “dumps” of every defendant. Included within
discovery for every Rhodes and Crowl defendant are their text messages, Facebook
messages, phone records, encrypted chats, etc. Literally tens of thousands of private
communications within the Oath Keepers organization have been provided, including
encrypted messages specifically addressing preparations for J6. Additionally, multiple
302s, witness statements, un-Mirandized statements, etc. from multiple Oath Keeper-
related witnesses and defendants have been reviewed. At least 20 FBI and ATF assets
were embedded around the Capitol on J6. Additionally, discovery proves that the Oath
Keepers were being monitored and recorded prior to J6. Yet, to this day, defense

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Electoral College certification on January 6, 2021. The issue presented to the Court,

accordingly, is whether the Rhodes defendants, per the factual allegations in the

Indictment, conspired to obstruct the “execution” of the elections laws. As explained

infra, the Indictment makes no such allegation.

A. A plain reading of § 2384 suggests that a seditious conspiracy must be

targeted at a person authorized under Article II to execute the opposed law.
A plain reading of § 2384 suggests that, to violate the statute, the conspiracy

alleged must be specifically aimed at a person authorized under Article II of the

Constitution to execute the law opposed by the defendants. Section 2384 criminalizes

conspiracies to “[forcibly] prevent, hinder, or delay the execution of any law of the

United States.” 18 U.S.C. § 2384 (emphasis added). Importantly, § 2384 does not

focus on conspiracies to obstruct “any law of the United States.” Instead, the statute’s

text squarely targets conspiracies to obstruct “the execution of any law of the United

States.” This distinction is critical: obstructing a law is not the same as obstructing the

execution of a law. Since laws do not “execute” themselves, the target of the seditious

conspiracy, logically, must be both the federal law itself and at least one person

attempting to execute that law. Next, as the statute protects at least one person

“executing” a law, it can be logically inferred that, to be included within the statute’s

counsel have not found one iota of proof that the Rhodes or Crowl defendants had any
plan, intention, design, or scheme to specifically enter the Capitol Building on J6. And
every scrap of evidence reviewed confirms that the “QRFs,” which were utilized on
numerous prior dates, were intended as rescue forces in the event that the Oath Keepers
were attacked by Antifa or a similar contingency, and not to attack the Capitol Building.

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reach, the person executing the opposed law must be authorized to do so. It would seem

odd, after all, for Congress to punish conspiracies aimed at individuals unauthorized to

execute the law. Finally, “execution of [the] law” is a constitutionally loaded term,

which strongly suggests that the 1) person; 2) who is authorized; 3) to execute; 4) the

federal law in question falls under Article II of the United States Constitution, i.e., under

the authority of the President of the United States, who has plenary power to “execute”

federal law.

The historical context surrounding the passage of what is now § 2384 reifies this

plain reading of the statute. The seditious conspiracy statute was not passed in a

vacuum. Originally enacted on July 31, 1861 during the Civil War, the “Act to Define

and Punish Certain Conspiracies” (“1861 Act”) provided that if two or more persons

conspired together

. . . [t]o overthrow, or to put down, or to destroy by force, the Government

of the United States, or to oppose by force the authority of the Government
of the United States; 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 against the will or contrary to the authority of
the United States; or by force, or intimidation, or threat to prevent any
person from accepting or holding any office, or trust, or place of
confidence, under the United States . . . [they] shall be guilty of a high
crime. . .[.]

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12 Stat. 284 (1861). The 1861 Act was the product of a special session of Congress

convened on July 4, 1861, which was summoned by President Lincoln to address the

growing rebellion in the South.3

In his April 15, 1861 proclamation requesting the special session of Congress,

Lincoln called forth 75,000 men, to be drawn from the militia of the states, for the

purpose of quashing the accelerating Southern exodus from the Union:

Whereas the laws of the United States have been for some time past and
now are opposed and the execution thereof obstructed in the States of
South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and
Texas by combinations too powerful to be suppressed . . . I . . . call forth[]
the militia of the several States of the Union to the aggregate number of
75,000 in order to suppress said combinations and to cause the laws to be
duly executed.4

When Congress passed the seditious conspiracy statute in July of 1861, eleven Southern

States had already seceded and scores of forts, outposts, installations, ships, and civilian

departments belonging to the U.S. Government had been seized throughout the South.5

3
See Address of President Lincoln to a Special Session of Congress (July 4, 1861)
(transcript from Miller Center of the Univ. of Virginia), https://millercenter.org/the-
presidency/presidential-speeches/july-4-1861-july-4th-message-congress.
4
Proclamation No. 80 of President Lincoln (April 15, 1861) (Univ. of Cal. at Santa
Barbara), https://www.presidency.ucsb.edu/documents/proclamation-80-calling-forth-
the-militia-and-convening-extra-session-congress (emphasis added).
5
See Lincoln Address to Congress (July 4, 1861), supra at n. 3.

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Accordingly, Lincoln federalized the state militias, thus putting them under his Article II

wings,6 and used them to enforce martial law in the South and border states.

It’s no coincidence that Congress passed a sweeping statute combatting

conspiracies to obstruct the “execution of laws” just as Lincoln had called forth tens of

thousands of men to “cause the laws to be duly executed” by countering those who “now

are opposed” to the laws. And unlike the crime of treason, which required an “overt act”

to complete the crime, the 1861 Act’s list of crimes required no such overt act.7 In other

words, the military and federalized Article II militia were empowered to preemptively

6
Lincoln’s authority to federalize the state militias and place them under his Article II
authority was pursuant to the Militia Act of 1795, which stated:
That whenever the laws of the United States shall be opposed or the
execution thereof obstructed . . . by combinations too powerful to be
suppressed . . . it shall be lawful for the President of the United States to
call forth the militia . . . to suppress such combinations, and cause the law
to be duly executed.
Militia Act of 1795, § 2 (1795).
7
Enacting the crime of seditious conspiracy accomplished two things for the Union war
effort. First, as the crime did not require an overt act, the threshold for probable cause to
arrest was much lower than treason. Second, as it would have been politically
impossible for Lincoln to seek the death penalty (the punishment for treason) against
hundreds of thousands of Confederates and their sympathizers, this new statute provided
a non-capital alternative. As Professor Wharton noted: “[Holding all] persons engaged
in countenancing the rebellion to be guilty of treason, and, upon prosecution and
conviction, to sentence them to be hung, would by making the crime national, prevent it
from being punished.” 3 WHARTON, A TREATISE ON THE CRIMINAL LAW, 2299, § 2142,
n. 7 (12th ed. 1912) (cited in C. Tarrant, To “insure domestic Tranquility”: Congress and
the Law of Seditious Conspiracy, 1859-61, 15 Amer. J. of Legal Hist. 107, 118 (1971)).

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arrest Confederate sympathizers, who in turn could be held indefinitely, as Lincoln had

suspended writs of habeas corpus.8

It was against the backdrop of Lincoln invoking martial law in rebellious areas and

suspending habeas corpus writs that what is now § 2384 passed. The purpose of § 2384

was to suppress the potential destruction of the Union by providing military authorities a

hammer to silence dissenters by proactively arresting and detaining Confederate

sympathizers (i.e., those opposed to military force against the South) on grounds that

would shock modern civil libertarians.9 Not surprisingly, “no convictions during the

Civil War period can be found . . . for indictments which were brought for [seditious

conspiracy]” as the “[Lincoln] Administration preferred simply to detain individuals with

or without indictments as the situation required[.]” See Catherine Tarrant, To “insure

domestic Tranquility”: Congress and the Law of Seditious Conspiracy, 1859-1861, 15

AMER. J. OF LEGAL HIST. 107, 121-22 (1971). While all criminal statutes should be

strictly construed, § 2384, which was passed during a rebellion, should be particularly

scrutinized.

8
See supra, n. 3.
9
For example, on August 7, 1861 Lincoln ordered the arrests of all Confederate-
sympathizing members of the Maryland General Assembly, even those who were not in
favor of secession.
https://www2.umbc.edu/che/tahlessons/pdf/Maryland_During_the_Secession_Crisis_RS_
7.pdf

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B. The Supreme Court has ruled that a seditious conspiracy must be aimed at
those authorized to execute the opposed law.
In Baldwin v. Franks, the United States Supreme Court set forth the elements of

seditious conspiracy. In Baldwin, the defendant was charged with seditious conspiracy

for conspiring to kidnap and expel a group of Chinese immigrants from their homes and

businesses in a central California town. Baldwin v. Franks, 120 U.S. 678, 681

(1887). The defendant’s actions took place subsequent to the approval of a treaty

between the United States and China, wherein the United States agreed to take steps to

protect Chinese immigrants from mistreatment. Id. at 681-82. The Court held that the

defendant’s conduct did not support a charge of seditious conspiracy because the use of

force was exerted against the Chinese immigrants, not against the government in its

efforts to protect them under the terms of the treaty:

[T]he second . . . offence consists in preventing, hindering, or delaying the

government of the United States in the execution of its laws. This . . .
means something more than setting the laws themselves at defiance. There
must be a forcible resistance of the authority of the United States while
endeavoring to carry the laws into execution. The United States are bound
by their treaty with China to exert their power to devise measures to secure
the subjects of that government lawfully residing within the territory of the
United States against ill treatment, and if in their efforts to carry the treaty
into effect they had been forcibly opposed by persons who had conspired
for that purpose, a state of things contemplated by the statute would have
arisen. But that is not what Baldwin has done. His conspiracy is for the ill
treatment itself, and not for hindering or delaying the United States in the
execution of their measures to prevent it. His force was exerted against the
Chinese people, and not against the government in its efforts to protect
them.

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Id. at 693-94 (emphasis added). According to Baldwin, to be guilty of seditious

conspiracy, “there must be forcible resistance” against federal authorities while

“endeavoring to carry the laws into execution.” Id. at 693. The crime was not “setting

the laws [protecting Chinese immigrants] themselves at defiance”; rather, to engage in

“seditious conspiracy,” the Government had to prove that the purpose of the conspiracy

was “hindering or delaying the United States in the execution of their measures[.]” Id.

(emphasis added).

In the aftermath of World War I, two federal appellate courts applied Baldwin to

seditious conspiracy cases. In Anderson v. United States, a case out of the U.S. Court of

Appeals for the Eighth Circuit, the defendants were convicted of seditious conspiracy for

obstructive acts relating to World War I and conscription laws including, inter alia,

distributing subversive periodicals and organizing labor strikes in war-related factories.

Anderson v. United States, 273 F. 20, 22-23 (8th Cir. 1921). The Eighth Circuit

overturned the defendants’ convictions, finding that the Government “wholly fail[ed] to

charge an offense.” Id. at 27. The Anderson Court first cited Baldwin v. Franks, noting

that “[t]he elements of [seditious conspiracy] are definitely stated [in that case.]” Id. at

25. The Anderson Court, following Baldwin, opined:

There must, therefore, be found in the [seditious conspiracy] count a charge

that the purpose of the conspiracy was the exertion of force against those
charged with the duty of executing the laws of the United States, or the
language used in the count must be such that from it the inference
reasonably follows that that was the purpose and object of the conspiracy[.]

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Id. at 26 (emphasis added). While the indictment in Anderson averred the use of force, it

was defective as the alleged force “was to be exerted, not against those whose duty it

should be to execute the laws, and while attempting to do so, but its application was to be

made against . . . commercial activities . . . by lawless acts during strikes for the purpose

of . . . destruction of the present civil compact.” Id. at 26-27 (emphasis added).

The Seventh Circuit, likewise following Baldwin, held that the crime of seditious

conspiracy requires that the purpose of the conspiracy must be to forcibly obstruct a

person authorized to execute the challenged law:

Section 6 [, the seditious conspiracy statute,] should not be enlarged by

construction. Its prima facie meaning condemns force only when a
conspiracy exists to use it against some person who has authority to execute
and who is immediately engaged in executing a law of the United States.

Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (emphasis added).

Accordingly, the Court ruled that the actions of a socialist group’s members in

encouraging worker strikes in war plants and draft avoidance, as well as other anti-war

activities, did not constitute a seditious conspiracy to stop the “execution of any law of

the United States.” Id. at 799-800.

To adequately plead a seditious conspiracy pursuant to the elements set forth in

Baldwin, the Government must allege, inter alia, that the Rhodes defendants’ purpose in

conspiring together was to use force against a person “who has authority to execute and

who is immediately engaged in executing a law of the United States.” Id.

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C. Members of Congress do not “execute the laws” of the United States.

Count 1 is defective because, inter alia, it fails to identify, as the target of the

conspiracy, an individual authorized to execute the election laws. Instead, the

Indictment alleges that the purpose of the Rhodes defendants’ seditious conspiracy was to

“oppose the lawful transfer of presidential power by force[.]” (ECF 1, ¶16). In other

words, the Government’s Indictment asserts that the Rhodes defendants acted for the

purpose of “setting the laws themselves at defiance,” Baldwin, 120 U.S. at 693, which is

not a seditious conspiracy. On this ground alone Count 1 should be dismissed for failure

to state an offense.

Second, assuming that Members of Congress can be divined from the Indictment’s

language as the human targets of the seditious conspiracy, Count 1 still must be

dismissed because the Supreme Court has made clear that Members of Congress are

constitutionally prohibited from executing the law. Bowsher v. Synar, 478 U.S. 714,

726-27 (1986). In Bowsher, the Supreme Court struck down the Gramm-Rudman-

Hollings Act under which Congress delegated to the Comptroller General significant

budget cutting authority but, controversially, reserved its right to remove this officer. Id.

at 725-26. The Court observed that the Comptroller General was essentially under the

control of Congress, but was simultaneously empowered to execute the laws, which

intruded on the executive branch’s authority in violation of the separation of powers

doctrine. Id. 726-27. The Court declared:

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To permit the execution of the laws to be vested in an officer answerable

only to Congress would, in practical terms, reserve in Congress control
over the execution of the laws. . . . The structure of the Constitution does
not permit Congress to execute the laws; it follows that Congress cannot
grant to an officer under its control what it does not possess.

Id. (emphasis added). See also Myers v. United States, 272 U.S. 52, 138-39 (1926)

(listing the three exceptions in the Constitution, i.e., treaty-making, confirming nominees,

and granting letters of marque and reprisal, where Congress shares executive authority

with the President).

As used in § 2384, the phrase “execution of any law of the United States” was

obviously intended to apply to actions by the President and those acting under his

authority. The Founding Fathers “clearly understood that the executive power was the

power to execute laws.” Saikrishna Prakash, Article II: The Essential Meaning of

Executive Power, U. Ill. L. Rev. 701, 716 (2003). Simply stated: “[T]he Constitution

vests the executive power only in the president's hands, [and] those who execute the law

should be viewed as receiving their authority to execute from the president.” Id. at 720.

The Rhodes defendants did not engage in a seditious conspiracy, as the target of their

alleged conspiracy, Members of Congress, had no authority vis-a-vis the “execution of

any law of the United States.” Accordingly, it was legally impossible for the Rhodes

defendants to have forcibly “prevented, hindered or delayed” Congress’s “execution” of

the election laws on J6. Seditious conspiracy, as Baldwin demands, requires proof that

the defendants conspired for the purpose of forcibly challenging the authority of someone

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duly authorized to execute the law being challenged. The Indictment makes no such

allegation, requiring dismissal of Count 1.

D. Congress, in certifying the Electoral College, was not “executing a law.”

That Members of Congress are constitutionally prohibited from executing the laws

is clear. Equally clear is that the actions of Congress in relation to the Electoral College

certification on J6 were not synonymous with “executing a law of the United States.” In

fact, the Supreme Court has specifically held that Congress’s alleged “execution” of the

Electoral College certification via the 12th Amendment is manifestly not an executive

action at all.

In Buckley v. Valeo, the Supreme Court struck down portions of the Federal

Elections Campaign Act of 1971, including a provision that gave Congress the power to

directly appoint commissioners to the FEC. Buckley v. Valeo, 424 U.S. 1, 134 (1976).

Emphasizing that the FEC's mandate included the power to execute laws, opponents

argued that Congress’s appointment of commissioners violated the separation of powers

principle embodied in the Appointments Clause of Article II of the Constitution. Id. at

124-26. The Court struck down this provision, ruling that the Commission, as

constituted with congressional appointees, could not constitutionally exercise its authority

to execute the law. Id. at 140-42.

In so doing, the Buckley Court held that the Electoral College certification process

under the 12th Amendment was not executive but, rather, “judicial in character”:

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Appellees also rely on the Twelfth Amendment to the Constitution insofar as

the authority of the Commission to regulate practices in connection with the
Presidential election is concerned. This Amendment provides that
certificates of the votes of the electors be "sealed [and] directed to the
President of the Senate," and that the "President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted." The method by which
Congress resolved the celebrated disputed Hayes-Tilden election of 1876,
reflected in 19 Stat. 227, supports the conclusion that Congress viewed this
Amendment as conferring upon its two Houses the same sort of power
"judicial in character," Barry v. United States ex rel. Cunningham, supra,
at 613, as was conferred upon each House by Art. I, § 5, with respect to
elections of its own members.

Id. at 133-34 (emphasis added). Importantly, the 19th century statute referenced, 19 Stat.

227, which the Buckley Court found “supports the conclusion that Congress viewed [the

12th Amendment] as conferring [to it]. . . ‘judicial in character’ [power],” has been

codified as 3 U.S.C. § 15 et. seq. In other words, the Supreme Court held that the very

statute that the Rhodes defendants, per the Indictment, allegedly conspired to obstruct the

“execution” of, i.e., Title 3, Section 15, was itself definitive proof that the Electoral

College certification process set forth in the 12th Amendment was a “judicial in

character” function of the Congress. Accordingly, Congress clearly was not engaged in

the “execution of any law of the United States” when it was conducting the Electoral

College certification.

The Indictment fails to allege a seditious conspiracy, as it does not allege that the

Rhodes defendants’ conspiratorial purpose was to obstruct those with the duty of

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executing the laws of the United States while they were executing a law.10 The

Indictment’s raison d’etre is clear: the Rhodes defendants conspired to forcibly obstruct

Congress’s “execution” of the 12th Amendment and 3 U.S.C § 15 by interrupting the

certification of the Electoral College. Members of Congress, however, are

constitutionally prohibited from executing federal law. Additionally, as Buckley makes

clear, the Electoral College certification process pursuant to 3 U.S.C. § 15 and the 12th

Amendment is not the execution of a law. Accordingly, on J6, Congress was not

“executing” election laws but, rather, complying with its non-executive constitutional

obligations. Accordingly, Count 1 must be dismissed.

II. Counts 2 & 3 Fail to State Offenses.

The Rhodes defendants are charged in Counts 2 & 3 of the Indictment with

conspiracy to obstruct an official proceeding, 18 U.S.C. § 1512(k),11 and the substantive

offense of obstruction of an official proceeding and aiding and abetting in violation of 18

U.S.C. §§ 1512(c)(2), 2. (ECF 1, ¶¶135-38). The Indictment’s central claim is that the

10
The Capitol Police and other police departments, it should be noted, have no authority
to “execute” the 12th Amendment and 3 U.S.C. § 15.
11
In the original set of indictments from United States v. Caldwell, Caldwell and others
were charged with violating 18 U.S.C. § 371, conspiracy to violate 18 U.S.C. § 1512(c),
and not 18 U.S.C. § 1512(k), conspiracy to violate § 1512(c)(2), which is charged in the
instant Indictment. See Caldwell, (ECF 558). For the purpose of protecting the record,
Caldwell makes clear that all statutory and constitutional arguments previously made in
relation to Count 1 of the indictment in Caldwell as to § 371, which were rejected by the
Court, are reasserted in the instant motion to dismiss as to Count 2, § 1512(k).

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Rhodes defendants conspired to, and physically obstructed, the certification of the

Electoral College by breaching the Capitol Building. Id. (re-alleging ¶¶1-13, 18-134).

The Indictment does not allege that the Rhodes defendants’ actions were targeted at

tangible evidence spoliation which, as explained infra, is an essential element of §

1512(c)(2). Accordingly, Counts 2 & 3 must be dismissed.12

A. Congress used the word “otherwise” to connect subsections (c)(1) and (c)(2).

A plain reading of § 1512(c) confirms that this section was intended to exclusively

cover obstructive acts aimed at tangible evidence spoliation. As noted in previous

filings in United States v. Caldwell, the statute’s title and context clearly suggests that

protecting the adversarial process by outlawing obstructive acts aimed at tangible

evidence was Congress’s goal. The issue is whether subsection (c)(2), which was added

to § 1512’s original language, was intended to be a separate and distinct crime or,

alternatively, that subsection (c)(2) is inextricably tied to subsection (c)(1), thus limiting

12
The argument Caldwell presents is similar to that which was made in a Motion to
Reconsider (ECF 566) the Court’s ruling in United States v. Caldwell, (ECF 558), on the
§ 1512 issue. Caldwell reasserts his “plain meaning” argument for three reasons. First,
it was unclear from the Court’s previous ruling (ECF 596) on Caldwell’s Motion to
Reconsider whether the arguments contained therein were preserved for appeal. Second,
as the Government did not address the arguments set forth in his Motion to Reconsider,
(ECF 573), Caldwell again offers the Government an opportunity to address the merits of
his “plain meaning” argument, specifically on the issue of whether the word “otherwise,”
as used in § 1512, is a “conjunctive adverb.” Finally, one Judge of this District has
recently granted dismissal in a J6 case based upon his view that § 1512(c)(2) is
ambiguous as to whether the statute applies to the conduct of defendants on J6. United
States v. Miller, 1:21-cr-119-CJN (Mar. 7, 2022) (ECF 72).

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the former subsection’s reach to obstructive acts similar to those listed in subsection

(c)(1).

The most obvious contextual evidence that Congress intended subsection (c)(1)

and subsection (c)(2) to be interconnected is § 1512’s repeated use of the disjunctive “or”

throughout other areas of the statute as a way of demarcating plainly separate and

independent conduct. In fact, the word “or” is used nine times in 18 U.S.C. § 1512 to

create twenty separate and independent methods of obstructing justice. For example,

“or” is used in § 1512(a)(1) to demarcate three separate methods of obstructing justice by

murder or attempted murder.13 Similarly, “or” twice appears in § 1512(a)(2), effectively

demarcating seven distinct methods of obstruction through threats or physical force.14 In

13
(a)(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official
proceeding;
(B) prevent the production of a record, document, or other object, in an
official proceeding; or
(C) prevent the communication by any person to a law enforcement officer
or judge of the United States of information relating to the commission or
possible commission of a Federal offense or a violation of conditions of
probation, parole, or release pending judicial proceedings[.]
18 U.S.C. § 1512(a)(1)(A)-(C) (emphasis added).
14
(2) Whoever uses physical force or the threat of physical force against any
person, or attempts to do so, with intent to—
(A) influence, delay, or prevent the testimony of any person in an official
proceeding;
(B) cause or induce any person to—
(i) withhold testimony, or withhold a record, document, or other object,
from an official proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the
integrity or availability of the object for use in an official proceeding;

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stark contrast, Congress, unlike in twenty surrounding places, inserted “otherwise”

between subsections (c)(1) and (c)(2) of § 1512(c), which states:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other
object, or attempts to do so, with the intent to impair the object’s integrity
or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or
attempts to do so, shall be fined under this title or imprisoned not more than
20 years, or both.

18 U.S.C. § 1512(c) (emphasis added).

As the Court can see, when Congress set out to create plainly separate and

independent acts of obstruction of justice, it did so twenty times by carefully inserting the

word “or” (without the word “otherwise”) between sections. Accordingly, the Achilles’

heel of the Court’s interpretation of § 1512(c) in Caldwell is, respectfully: Why would

Congress, after using “or” to unambiguously demarcate twenty plainly separate and

independent methods of obstructing justice, insert the word “otherwise” between

subsections (c)(1) and (c)(2) for the exact same purpose? In other words, Congress

(iii) evade legal process summoning that person to appear as a witness, or

to produce a record, document, or other object, in an official proceeding; or
(iv) be absent from an official proceeding to which that person has been
summoned by legal process; or
(C) hinder, delay, or prevent the communication to a law enforcement
officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense or a violation of
conditions of probation, supervised release, parole, or release pending
judicial proceedings;
shall be punished as provided in paragraph (3).
18 U.S.C. § 1512(a)(2)(A)-(C) (emphasis added).

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could have “underscored” that (c)(1) and (c)(2) involve different obstructive conduct by

omitting “otherwise” from the statute altogether. Logically, therefore, “otherwise” must

have been intended by Congress to have a purpose different than, as the Court found,

(Caldwell (ECF 558 at 26-27)), underscoring disjunction between the subsections.

To accurately read the statute, the Court should consider the language of § 1512(c)

sans “otherwise”:

(1) [Whoever corruptly] alters, destroys, mutilates, or conceals a record,

document, or other object, or attempts to do so, with the intent to impair the
object’s integrity or availability for use in an official proceeding; or
(2) [Whoever corruptly] obstructs, influences, or impedes any official
proceeding, or attempts to do so[.]

Without “otherwise,” (c)(1) and (c)(2) are disjunctive, independent clauses, clearly

delineate separate conduct, and make perfect sense on their own. In other words,

without using the word “otherwise,” (c)(1) and (c)(2) describe plainly separate and

independent conduct consistent with the Court’s interpretation of the statute. Stated

another way, as “or” (without “otherwise”) 100% effectively disjoins the clauses,

“otherwise” could not have been included in the statute for the purpose of underscoring

disjunction. Why would Congress delineate--twenty times--separate types of obstructive

conduct by using “or,” but then insert the word “otherwise” in § 1512(c) for the same

purpose? Contrary to the Court’s holding, respectfully, “otherwise” in § 1512(c)(2)

must have been inserted for a reason other than disjunction.

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B. The Court, Respectfully, Misapplied the Dictionary Definition of

“otherwise.”
The Court’s opinion in Caldwell referenced multiple dictionaries in reaching its

conclusion that “otherwise” in (c)(2) refers to “in a different way or manner” or in

“another way.” (Caldwell (ECF 558 at 26)). The Court observed that “otherwise” acts as

an “adverb” within § 1512(c). Id. Accordingly, the Court substituted the words “in a

different manner” for “otherwise,” finding that “the acts prohibited by (c)(1) are

‘different’ from those prohibited by (c)(2).” Id. At 27. Respectfully, the Court applied

the wrong grammatical analysis to the term “otherwise.”

C. Conjunction Junction, What’s Your Function?

The Court’s finding that “otherwise” is used as an “adverb” in § 1512(c) is

technically correct but, respectfully, flawed. There are six types of adverbs in the

English language: adverbs of time, manner, place, degree, frequency, and conjunction.15

The first five types are similar in nature and used to modify (typically) verbs within their

clauses or sentences.16 The sixth type of adverb is the “conjunctive adverb,” which “is

an adverb that acts like a conjunction.”17 In § 1512(c), “otherwise” operates as a

conjunctive adverb, which, as will be explained infra, should cause the Court to

reconsider its prior holding and grant the Rhodes defendants’ motion to dismiss.

15
https://www.thesaurus.com/e/grammar/types-of-adverbs/ (online thesaurus).
16
Id.
17
Id. A “conjunctive adverb” is sometimes called an “adverbial conjunction.”

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That “otherwise” in § 1512(c)(2) is a conjunctive adverb is clear. According to a

well-respected dictionary:

When used to connect two related clauses, otherwise is usually classified as

a conjunctive adverb, which by grammatical tradition should be preceded
either by a semicolon or by a period.18

Notably, “otherwise” appears in § 1512(c)(2) after a semicolon, a blaring grammatical

siren that it’s indeed a conjunctive adverb.19 Additionally, “otherwise” is interspersed

between two independent clauses, another classic tip-off that it is functioning as a

conjunctive adverb.20 Additionally, as the Court noted, “otherwise” is an adverb that

“connects the two provisions[.]” (Caldwell (ECF 558 at 27, fn. 6)) (emphasis added).

Just as compelling, “otherwise,” which the Court and the Rhodes defendants both agree is

used as an adverb, does not modify any words that appear after it in subsection (c)(2).

An adverb’s grammatical duty is to act as a “modifier,” i.e., “add information to another

18
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th Ed. 2020),
https://www.ahdictionary.com/word/search.html?q=otherwise, (Usage note) (emphasis
original).
19
William & Mary Writing Resource Center,
wm.edu/as/wrc/newresources/handouts/the-semicolon.pdf (listing “otherwise” as a
common conjunctive adverb placed after a semicolon).
20
Id. See also Jennifer Gunner, M.Ed. (Education),
https://grammar.yourdictionary.com/parts-of-speech/adverbs/con-adverb.html
(“Conjunctive adverbs can follow a semicolon or a period and typically have a comma
after them.”). While the modern MLA style of writing suggests that a comma should be
placed after a conjunctive adverb, this grammatical preference does not necessarily apply
to “otherwise,” which is one of the few conjunctive adverbs that doesn’t end with –ly.
See, e.g. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th Ed. 2021),
https://www.ahdictionary.com/word/search.html?q=otherwise (usage note regarding
“otherwise”) (“When introducing a new clause, otherwise is often followed by a
comma.”) (emphasis added).

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element in the sentence.”21 “Otherwise” in subsection (c)(2), by contrast, does not add

information about the words “obstructs, influences, or impedes,” which logically means

that, by process of elimination, “otherwise” in (c)(2) acts as a conjunctive adverb.

D. A “conjunctive adverb” conjoins and modifies two separate clauses.

Respectfully, the Rhodes defendants are not being grammatically nit-picky.

Analyzing (correctly) the word “otherwise” as a conjunctive adverb substantially changes

the calculus of interpreting § 1512(c). The difference between “otherwise” the “adverb”

and “otherwise” the “conjunctive adverb” is significant. An “adverb” modifies a word

within the clause it resides. Conjunctive adverbs, by contrast, do not modify adjacent

words; instead, these grammatical renegades relate the entire adverbial clause back to

the preceding clause, thus modifying, in some respect, the first clause:

Most of the time, adverbs are words that we use to modify verbs,
adjectives, or other adverbs. … A conjunctive adverb acts differently
than other adverbs by connecting independent clauses that can stand alone
as sentences. In this way it is still acting as a modifier by using one clause
to modify another.22

21
University of Ottawa Writing Center,
https://arts.uottawa.ca/writingcentre/en/hypergrammar/modifiers
22
Dictionary.com (online dictionary and thesaurus),
https://www.thesaurus.com/e/grammar/conjunctive-adverbs/ (emphasis added). See also
Renee Banzhaf, M.Ed. in English Education, https://grammar.yourdictionary.com/parts-
of-speech/adverbs/list-of-conjunctive-adverbs.html (“Conjunctive adverbs function as
both conjunctions (by joining ideas) and as adverbs (by modifying parts of the
sentence).”); Andrew Smith, Global Business Language Consultant, We Speak Business,
https://www.we-speak-business.com/blog/conjunctive-adverbs (“The role of the
conjunctive adverb is to turn the clause that it introduces into an adverbial modifier of the
previous clause.”).

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A “conjunctive adverb” is “a word that modifies a whole previous statement.” Frederick

Crews, THE RANDOM HOUSE HANDBOOK 403 (6th ed. 1992). A “conjunctive adverb . . .

brings together two complete thoughts like a conjunction[] [and] use[s] the second clause

to modify the first clause like an adverb.”23 In other words, contrary to the Court’s

holding, “otherwise” was not intended to signify disjunction, i.e., “to underscore that the

acts prohibited by (c)(1) are ‘different’ from those prohibited by (c)(2).” (Caldwell

(ECF 58 at 27, fn. 6)). Au contraire, respectfully, the use of “otherwise” as a

conjunctive24 adverb is proof positive that Congress intended to inextricably tie these

clauses together with the adverbial clause (“obstructs, influences, or impedes”) modifying

the opening clause.

The Court and the Rhodes defendants agree that, in § 1512(c), “otherwise” is used

as an “adverb” that connects subsections (c)(1) and (c)(2). A flaw in the Court’s

reasoning, respectfully, is that when used as an “adverb” to “connect” two clauses,

“otherwise” is, by definition, a conjunctive adverb, which means that the “otherwise,” or

adverbial, clause is not modified itself but, instead, modifies the opening clause. In

other words, (c)(2)’s “obstructs, influences, or impedes” modifies language in subsection

(c)(1), and is manifestly not an independent clause.

23
Jennifer Gunner, M.Ed. (Education), YourDictionary.com,
https://grammar.yourdictionary.com/parts-of-speech/adverbs/con-adverb.html
24
In Latin, “conjunction” literally translates to “join together.”

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E. So what did Congress intend?

By adding the conjunctive adverb “otherwise” to § 1512(c), Congress intended

three things. First, Congress, in contradistinction to twenty other portions of 18 U.S.C. §

1512, created a connection between (c)(1) and (c)(2). Second and related, Congress

intended the adverbial clause, i.e., “obstructs, influences, or impedes,” to modify in some

way the language in the opening clause. Third “otherwise” was obviously intended by

Congress to widen the net beyond the acts of obstruction enumerated in (c)(1). Collins

Dictionary, in one paragraph, illustrates how “otherwise” operates in § 1512(c)(2):

Otherwise--
ADVERB [ADV before v]
You use otherwise to indicate that other ways of doing something are
possible in addition to the way already mentioned.25

To paraphrase Collins Dictionary: Congress used “otherwise” to indicate that other

ways of “obstruct[ing],” “influenc[ing],” or “imped[ing]” an official proceeding by

tangible evidence spoliation are possible in addition to the ways already mentioned, i.e.,

“alter[ing], destroy[ing], mutilat[ing], or conceal[ing]” documents and records.

Accordingly, a fair reading of the statute is: “Whoever corruptly alters, destroys,

mutilates, or conceals a record, document, or other object with the intent to impair the

object’s integrity or availability for use in an official proceeding, or in other ways

25
COLLINS DICTIONARY (online version) (English learner’s edition),
https://www.collinsdictionary.com/us/dictionary/english/otherwise.

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engages in tangible evidence spoliation not specifically enumerated,” is guilty under §

1512(c).

Such a reading of § 1512(c) takes into account that the term “otherwise” does two

things: it creates a connection between (c)(1) and (c)(2), while it expands the reach of

the verbs of proscription in subsection (c)(1). Congress’s intent was to proscribe

obstructive conduct regarding the integrity and production of documents and objects that

might otherwise slip through the cracks without a broad residual clause. Some examples

include:

1) A person feigns a COVID infection and quarantines himself to avoid producing

documents under a time-sensitive grand jury subpoena.

2) A corporate executive, knowing that he could be indicted for fraud, hands over to
the Government, in response to a subpoena, three tractor-trailers full of non-
germane documents, knowing that the smoking-gun document is buried at the
bottom, ensuring that prosecutors miss the statute of limitations.

3) A person under grand jury investigation with the IRS, knowing that a windstorm is
about to hit his residence, sets all of his incriminating documents on a table next to
an open window, where they proceed to be blown away, making them unavailable
for an official proceeding.

4) A lawyer files multiple frivolous challenges to a court order or subpoena to avoid

document production for use in an official proceeding.

5) A person, knowing that their iPhone contains incriminating texts messages, deletes
selected, non-incriminating texts, which changes the context of other texts
messages, deliberately making them look less incriminating to the grand jury.

In the above scenarios, the wrong-doers likely did not “alter[], destroy[], mutilate[], or

conceal[]” a record as enumerated in subsection (c)(1), but their conduct could still be

prosecuted under § 1512(c)(2). Congress’s intent was to criminalize obstructive conduct

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technically not captured or anticipated under (c)(1), not to hand prosecutors a sweeping,

over-lapping obstruction of justice statute equipped with a 20-year maximum penalty

sledgehammer.

As the Supreme Court has emphasized “over and over,” when “expounding a

statute, we must not be guided by a single sentence or member of a sentence, but look to

the provisions of the whole law, and to its object and policy.” U.S. Nat’l Bank v.

Independent Ins. Agents of Amer., 508 U.S. 439, 455 (1993) (internal citations omitted).

The current version of § 1512(c) was enacted as part of Sarbanes-Oxley, which Congress

intended to improve the accuracy of corporate disclosures by penalizing those who

obstruct justice “by impairing the integrity or availability of records, documents, and

other tangible objects.” United States v. Hutcherson, No. 6:05CR00039, 2006 U.S. Dist.

LEXIS 6652, at *6-7 (W.D. Va. Feb. 3, 2006). Accordingly, “the amended § 1512(c)

created a specific subsection dealing with tampering with tangible evidence, in what was

otherwise a statute that previously dealt only with tampering of persons.” Id. Section

1512 was not intended to create two separate crimes but, instead, was “meant to

criminalize difficult to enumerate conduct that would otherwise slip past Section

1512(c)(1)’s specific proscription.” Id.

Respectfully, the Court should reconsider its ruling in Caldwell and grant the

Rhodes defendants’ motion to dismiss as to Counts 2 & 3 of the Indictment, as the

defendants’ alleged criminal conduct on J6 had no connection to tangible evidence

spoliation.

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III. Count 4 Must be Dismissed, as Members of Congress are not

“officer[s] of the United States” Under 18 U.S.C. § 372.

Count 4 of the Indictment alleges that the Rhodes defendants violated 18 U.S.C. §

372. (ECF 1, ¶¶ 139-40). Specifically, the Government charges that the Rhodes

defendants

did knowingly conspire and agree together and with each other to prevent
by force, intimidation, and threat, any person, that is, Members of the
United States Congress, from discharging any duties of any office, trust,
and place of confidence under the United States, and to induce by force,
intimidation, and threat, any officer of the United States, that is, Members
of the United States Congress, to leave the place where their duties as
officers were required to be performed.

Id., ¶ 140 (emphasis added). Title 18 U.S.C. § 372, in turn, provides:

If two or more persons in any State, Territory, Possession, or District

conspire to prevent, by force, intimidation, or threat, any person from
accepting or holding any office, trust, or place of confidence under the
United States, or from discharging any duties thereof, or to induce by like
means any officer of the United States to leave the place, where his duties
as an officer are required to be performed, or to injure him in his person or
property on account of his lawful discharge of the duties of his office, or
while engaged in the lawful discharge thereof, or to injure his property so
as to molest, interrupt, hinder, or impede him in the discharge of his official
duties, each of such persons shall be fined under this title or imprisoned not
more than six years, or both.

18 U.S.C § 372 (emphasis added). Count 4, notably, alleges that “Members of the

United States Congress” were the individuals targeted by the Rhodes defendants. Count

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4 must be dismissed, as Members of Congress do not hold “any office, trust, or place of

confidence” and are not “officer[s] of the United States” within the meaning of § 372.

A. As used in § 372, “officers of the United States” are appointees, not elected
officials.

While there is a dearth of case law directly addressing the issue of whether a

Member of Congress is an “officer of the United States” under § 372, the United States

Supreme Court has made clear for more than 150 years that this term, as used in federal

statutes, mirrors its usage in Article II, § 2, cl. 2 of the Constitution (the Appointments

Clause). Because Members of Congress are not “officer[s] of the United States” as that

term is used in the Appointments Clause, see infra, they likewise are not “officers” for

purposes of § 372.

In United States v. Hartwell, the Supreme Court set forth the common 19th century

understanding of the terms “office” and “officer” as used in federal criminal statutes.

The defendant, a Treasury Department clerk, was indicted under a federal statute

punishing those who embezzled, including “officers and other persons charged by [The

General Appropriation Act] with the safe-keeping . . . [of] the public money[.]” United

States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). The defendant argued that he was

not an “officer” within the meaning of the statute, as he was not “appointed” by the

President. Id. at 392-93. The Court ruled against the defendant, but first provided the

Court’s understanding of the term “office”: “[A]n office is a public station, or

employment, conferred by the appointment of government.” Id. at 393 (emphasis

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added). Implicitly, the Court held that the term “officer” in the statute was intended by

Congress to have the same meaning as in the Appointments Clause. Id. at 394, n. 9.

Finding that the (appointed) Secretary of the Treasury was, in turn, authorized to appoint

clerks in his department, the Court reasoned that the defendant was an “officer” under the

Appointments Clause and, thus, an “officer” within the meaning of the statute. Id.

A decade later in United States v. Germaine, the defendant, a surgeon hired by the

Commissioner of Pensions, had been indicted for extortion while serving as, allegedly, an

“officer of the United States.” United States v. Germaine, 99 U.S. 508, 509 (1878)

(citing 4 Stat. 118, § 12 (1825)). Arguing for the indictment’s dismissal, the defendant

“insist[ed] that art. 2, sect. 2, of the Constitution, prescribing how officers of the United

States shall be appointed, [was] decisive of the case before” the Court. Id. at 509. The

Court agreed, holding that the defendant was not an “officer of the United States” within

the meaning of the extortion statute. Id. at 512. The Court explained that, absent

unambiguous language to the contrary, the term “officer of the United States,” when used

in criminal statutes, is limited to individuals appointed pursuant to the Appointments

Clause:

It is, therefore, not to be supposed that Congress, when enacting a criminal

law for the punishment of officers of the United States, intended to punish
any one not appointed [under the Appointments Clause]. If the punishment
were designed for others than officers as defined by the Constitution, words
to that effect would be used, as servant, agent, person in the service or
employment of the government[.]

Id. at 509-10 (emphasis added). Accord United States v. Smith, 124 U.S. 525, 531-32

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(1888) (“A person in the service of the government who does not derive his position from

[the Appointments Clause] is not an officer of the United States in the sense of the

Constitution.”); United States v. Mouat, 124 U.S. 303, 307 (1888) (“Unless a person in

the service of the Government . . . holds his place by virtue of [the Appointments Clause],

he is not, strictly speaking, an officer of the United States.”).

Accordingly, when used in federal criminal statutes, the terms “office,” “officer,”

and “officer of the United States,” absent unambiguous language to the contrary, refer to

government appointees. As the Supreme Court, summarizing the aforementioned cases

in 1925, observed: “It is quite true that the words ‘officer of the United States,’ when

employed in the statutes of the United States, is to be taken usually to have the limited

constitutional meaning.” Steele v. United States, 267 U.S. 505, 507 (1925) (emphasis

added).

B. Members of Congress are not “officers” under the Appointments Clause.

Members of Congress are not “officers” under the Appointments Clause and,

accordingly, are not “officers” under § 372. As the Supreme Court recently noted:

“The people do not vote for the ‘Officers of the United States.’ U.S. CONST. ART. II, § 2,

cl. 2.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 551 U.S. 477, 498

(2010) (quoting The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)).

“[N]o person who is an officer of the United States may serve as a Member of the

Congress.” Bowsher, 478 U.S. at 722. As confirmed by the Supreme Court, Members

of Congress are not “officers” under the Appointments Clause and, as such, they are not

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“officers” for purposes of § 372.

C. Members of Congress do not accept or hold “offices, trusts, or places of

confidence.”

Section 372 outlaws conspiracies aimed at “prevent[ing] any person from

accepting or holding any office, trust, or place of confidence under the United States[.]”

18 U.S.C. § 372. Members of Congress clearly do not hold an “office, trust, or place of

confidence.” Most telling: an “office, trust, or place of confidence” are stations held by

those who accepted their positions. Members of Congress do not “accept” their

offices—they assume or take office. A person “accepting” an “office, trust, or place of

confidence,” moreover, presupposes that someone offered that person the “office, trust, or

place of confidence” they accepted. Since these positions are “under the United States,”

the offeror of the jobs, logically, has authority to dole out government jobs, e.g. the

President via the Appointments Clause. Members of Congress, by contrast, run for their

offices and are elected by the voters. They do not “accept” government job “offers.”

Accordingly, the phrase “office, trust, or place of confidence” in § 372 obviously does

not include Members of Congress.

Congress’s use of the word “accepting” shuts the door on any suggestion that §

372 was intended to cover elected officials. Additionally, Congress’s use of the phrase

“any person . . . holding any office . . . under the United States” in § 372 further proves

that Members of Congress are not covered by the statute’s language. This language,

tellingly, appears to have been lifted from the Constitution’s “Ineligibility Clause,”

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wherein Members of Congress are prohibited from simultaneously holding offices:

“[N]o Person holding any Office under the United States, shall be a Member of either

House during his Continuance in Office.” U.S. CONST., ART. I, § 6, cl. 2 (emphasis

added). It is beyond belief that Congress intended to include itself in § 372 by using

verbatim language from the Constitution’s Ineligibility Clause, which bans Members of

Congress from holding offices.

Consistent with Supreme Court precedent in Hartwell, Germaine, Smith, Mouat,

and Steele, the terms “office” and “officer of the United States” are presumed to have,

absent unambiguous language to the contrary, their “constitutional meaning.” Congress

clearly was sticking to the “constitutional meaning” when they drafted § 372. First, by

the statute’s plain language, to secure an “office, trust, or place of confidence,” a person

must accept that position, confirming that these stations are appointed, not elected,

positions. Second, § 372’s protections apply to “a person . . . holding any office . . .

under the United States”; by comparison, the Constitution, in practically identical

language, states that “no Person holding any Office under the United States” shall be a

Member of Congress. U.S. CONST., ART. I, § 6, cl. 2. Accordingly, the stations listed

in § 372 unambiguously exclude Congress.

D. Members of Congress do not hold places of “trust” and “confidence.”

Historical context is important to understanding the phrase “office, trust, or place

of confidence.” The obvious question: What prompted Congress to enact a statute

aimed at protecting government officials who, apparently, were being frightened away

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from their posts? As noted supra, Congress, responding to Southern secession in 1861,

passed a sweeping statute prohibiting conspiracies, including punishing those who,

by force, or intimidation, or threat [ ] prevent any person from accepting

or holding any office, or trust, or place of confidence, under the United
States . . .[.]

12 Stat. 284 (1861). President Lincoln, just before passage of the 1861 Act, told

Congress that “[w]ithin [the southern] States all the forts, arsenals, dockyards, custom-

houses, and the like, including movable and stationary property in and about them, had

been seized and were held in open hostility to this Government.”26 Accordingly,

historical context suggests that the terms “office, trust, or place of confidence” relate to

military and civilian officers, who Congress knew were literally being ambushed away

from their posts by Confederate forces and sympathizers.

The terms “office, trust, or place of confidence” are not opaque. The phrase

unambiguously refers to presidential appointees, i.e., military officers, executive branch

officials, and federal judges. In fact, the terms “office,” “trust,” and “confidence” are

used in every commission signed by the President in relation to officers appointed

pursuant to the Appointments Clause. For example, military officers receive a

commission stating that the President has “trust and confidence” in their abilities to

“discharge the duties of”—another phrase used in § 372-- their “office”:

Know Ye that, reposing special trust and confidence in the patriotism,

valor, fidelity and abilities of . . ., I [the President] do appoint [John Doe]
[an Ensign] in the Navy to rank as such[.] . . . This Officer will therefore

26
See, supra, note 3.

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carefully and diligently discharge the duties of the office to which

appointed[.]
https://www.expressmilitary.com/navy-dd-1.htm. (emphasis added). Postmasters in the

19th century received similarly-worded commissions.27 Federal judges, such as the

esteemed Honorable E. Barrett Prettyman, receive a commission noting the President’s

“trust and confidence” in their ability to handle their “office.”28 The wording of

Presidential commissions remains virtually unchanged since America’s founding.29

The phrase “office, trust, or place of confidence” in § 372 refers, accordingly, to

the ubiquitous commissions that have been issued since the founding to “officers of the

United States” by the President. Presidential commissions of “trust and confidence” are

issued to “officers” pursuant to the Commissions Clause of the Constitution. Const. Art.

II, § 3, cl. 4 (“[The President] shall commission all the officers of the United States.”).

A Member of Congress does not receive a commission because he or she, unlike federal

judges, executive branch appointees, and military officers, is not an “officer of the United

States” and, hence, does not hold an “office, trust, or place confidence.”

27
See, e.g., Embry v. United States, 100 U.S. 680, 683 (1879) (reprinting language for a
Postmaster commission: "Know ye, that, reposing special trust and confidence in the
integrity . . . of Bowling Embry, I have . . . appoint[ed] him deputy postmaster at
Nashville . . . to execute . . . the duties of that office[.]”).
28
https://dcchs.org/wp-content/uploads/2019/03/HarryTrumanLarge.jpg
29
R. Swain & A. Pierce, The Armed Forces Officer, Nat’l Defense U. Press (2017),
https://ndupress.ndu.edu/Portals/68/Documents/Books/AFO/Armed-Forces-Officer.pdf.

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E. Constitutional provisions confirm that Members of Congress are not

“officers.”

Early constitutional provisions, moreover, confirm that Members of Congress do

not hold an “office, trust, or place of confidence” within the meaning of § 372. First, the

Constitution makes clear that Members of Congress cannot simultaneously hold offices.

See U.S. CONST., ART. I, § 6, cl. 2 (“no Person holding any Office under the United

States[] shall be a Member of either House[.]”). Next, the Constitution’s plain text

demonstrates that Members of Congress do not hold an “office of trust”:

Each State shall appoint . . . a Number of Electors, equal to the whole

Number of Senators and Representatives to which the State may be entitled
in the Congress: but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall be appointed an
Elector.

U.S. CONST. ART. II, § 1 (emphasis added).30 In fact, state constitutions in the Founder’s

generation invariably distinguished between elected officials and those who held

“offices” or “places” of “trust.”31 Accordingly, § 372’s list of stations, i.e., “any office,

30
At common law, an “office of trust” or “office of profit” referred exclusively to
employees of the executive and judiciary, not to legislators. See Benjamin Cassidy,
You’ve Got Your Crook, I’ve Got Mine: Why the Disqualification Clause Doesn’t Always
Disqualify, 32 Quinnipiac L. Rev. 209, 278-80 (2014).
31
See, e.g., DEL. CONST. of 1776, art. XXII (“Every person who shall be chosen a
member of either house, or appointed to any office or place of trust . . . shall take [an]
oath . . . .”); KY. CONST. of 1799, art. II, § 26 (“No person . . . whilst he holds or
exercises any office of profit under this commonwealth, shall be eligible to the general
assembly . . . .”); LA. CONST. of 1812, art. VI, § 14 (“No members of Congress, nor
person holding or exercising any office of trust or profit under the United States . . . shall
be eligible as a member of the general assembly of this State, or hold or exercise any
office of trust or profit under the same.”); MD. CONST. of 1776, art. II (“[N]o member of

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trust, or place of confidence,” refer to appointed positions, not elected officials. The

Congress that passed § 372 understood that the phrase “office, trust, or place of

confidence” did not include them.

As the term “office,” “officer,” and “officer of the United States” are, under

binding precedent, presumed to have, absent unambiguous language to the contrary, their

“constitutional meaning,” Members of Congress are not included in § 372. Steele, 267

U.S. at 507 (“It is quite true that the words ‘officer of the United States,’ when employed

in the statutes of the United States, is to be taken usually to have the limited

constitutional meaning” under the Appointments Clause); Cf. Lamar v. United States,

241 U.S. 103, 112-13 (1916) (holding that a Member of Congress was an “officer” within

the meaning of Penal Statute § 32 because of that statute’s “comprehensive terms,”

including the phrase “any officer of the Government,” which evinced a congressional

intent to go beyond Appointments Clause “officers.”).

Conclusion

WHEREFORE, defendant Thomas E. Caldwell respectfully requests that this

Congress, or person holding any office of trust or profit under the United States, shall be
capable of having a seat in the general assembly . . . or holding any office of trust or
profit under this State . . . .”); MASS. CONST. of 1780, ch. VI, art. II (“[N]o person . . .
shall ever be admitted to hold a seat in the legislature, or any office of trust or importance
under the government of this commonwealth . . . .”); N.C. CONST. of 1776, art. XII
(“[E]very person, who shall be chosen a member of the Senate or House of Commons, or
appointed to any office or place of trust . . . shall take an oath . . . [.]”).

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Honorable Court dismiss Counts 1-4 of the Indictment in this matter with prejudice.

Respectfully submitted:

/s/
David W. Fischer, Esq.
Federal Bar No. 023787
Law Offices of Fischer & Putzi, P.A.
Empire Towers, Suite 300
7310 Ritchie Highway
Glen Burnie, MD 21061
(410) 787-0826
Attorney for Defendant

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of April, 2022, a copy of the foregoing
Defendant Caldwell’s Motion to Dismiss Counts 1,2,3 and 4 of the Indictment was
electronically filed with the Clerk of the United States District Court using CM/ECF,
with a notice of said filing to the following:

Counsel for the Government: Office of the United States Attorney

Kathryn Rakoczy, AUSA
555 4th Street, NW
Washington, DC 20001

/s/
David W. Fischer, Esq.

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