Jack Burkman and Jacob Wohl
Attempting to save their clients from contempt of court findings on Friday morning, attorneys for conservative pranksters Jack Burkman and Jacob Wohl proposed a solution to comply with a court order and floated a bold defense in their ongoing criminal and civil proceedings in three states.
“Every single statement in that robocall was truthful,” the duo’s attorney David Schwartz insisted of the messages, which prosecutors in two states characterize as not only deceptive but also felonies.
Southern District of New York (SDNY) Judge Victor Marrero repeatedly upbraided the defendants’ failure to comply with his order mandating remedial messages be sent to every voter previously contacted by their racist robocalls targeting Black voters in Michigan and New York. But the defense pushed back in somewhat surprising fashion: by claiming that the scare tactics the messages employed told no lies.
As his voice rose to a timbre approaching anger, umbrage or the legal profession’s equivalent of excitement, Schwartz reiterated the defense’s theory of the case: “We will prove that every single statement in that robocall was truthful.”
Previously finding the calls false and illegal, Judge Marrero ordered the defendants to inform more than 85,000 of the people they contacted about those findings. The Friday proceedings started with Marrerro summarizing the case’s posture. The National Coalition on Black Civic Participation (NCBCP) sued Burkman and Wohl alleging violations of the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871.
After briefing the case and a short hearing in which the defendants represented themselves earlier this week, they were found in violation of the statutes and ordered to: (1) stop making any further robocalls; and (2) issue those aforementioned remedial phone calls admitting their original calls were both false and illegal.
“Defendants did not comply with the order,” Marrero noted, with the deadline for compliance having passed on 5 p.m. Thursday evening.
Schwartz, the duo’s attorney, began by arguing that his clients were generally unreachable the previous day and by noting that he was making his first court appearance in the matter–effectively making a bid for understanding from the court over Burkman and Wohl ignoring half of the court’s order.
In a Thursday night letter motion, Schwartz claimed that forcing his clients to send curative messages would be “wholly violative” of their Fifth and Sixth Amendment rights against self-incrimination and a fair trail. Schwartz added that making the curative calls would be tantamount to an “allocution” or admission of guilt that would unfairly prejudice potential jurors and potential witnesses, and which would definitely be used by the prosecutors in his clients’ upcoming criminal trials in Michigan and Ohio.
The defense attorney went on to argue the NCBCP plaintiffs got the facts wrong in their brief and that the judge himself made incorrect findings of fact when he issued his original order.
The conservative hoaxers’ criminal defense attorney in Michigan Scott Grabel began his own presentation with a bit of a softer landing by explaining he was only recently hired and was unable to deal with the case on Thursday because he was in court all day.
“Nobody was trying to thumb their nose at your order,” Grabel stressed before largely hewing to the apparent joint defense strategy which was outlined in the Thursday evening defense motion.
Grabel said the defense’s major concern in complying with the court order is that the information technology necessary to comply with the order is in the possession of a third party which has chosen to cut all ties with Burkman and Wohl: robodialer vendor Robert Mahanian of Messaging Communications.
The criminal defense attorney also joined with Schwartz in complaining that the SDNY’s proposed remedial calls would likely taint the potential witness pool, juror pool, and would, again, definitely be used to the prosecution’s advantage.
Judge Marrero dismissed those concerns outright.
“I fail to see the logic in your argument,” the judge said regarding the tainting concerns from Schwartz and Grabel. “Why would you call such a witness?” he asked–referring to a witness contacted by either the racist or curative robocalls.
“It’s not very compelling,” Marrero went on, at one point almost talking over the defense. “It may be your point but it’s not a very persuasive point for this court.”
The judge also took the defense to task for asserting that the court’s original order was lacking evidence. Marrero noted that Burkman and Wohl previously admitted to creating and distributing the robocall message. “So there was some evidence,” the judge dryly quipped. He also reminded the defense that “this is a civil case” and to save their constitutional arguments (constitutional protections work somewhat different in civil and criminal contexts; see here and here).
The court was, however, receptive to an idea from the defendants that the proposed remedial message be somewhat reworked collectively between the defendants and the plaintiffs. But after making that suggestion, Schwartz said he didn’t really want to take part in a conference hashing out a different message–he just wanted to remove his clients’ names from the message entirely.
The plaintiffs’ attorneys Aaron Gold and Rachelle Navarro were reticent about that suggestion. Navarro said that excluding Wohl and Burkman would give the already-harmed voters one less piece of relevant information.
“It’s all about the intimidation,” Navarro said.
Notably, Schwartz argued that it was “impossible” for his clients to comply with the court’s new deadline of 3 p.m. Friday.
Grabel added that he was “buried in discovery” and did not know where to find the relevant data (the contact information for the voters contacted by the robocalls).
Navarro countered that all the discovery in the case was electronic and that the defendants “should be able to locate it quickly.”
The hearing adjourned with both sides being ushered to a conference by the judge in order to see if there was any agreement that could effectuate a quick and tidy resolution of the curative calling issues. Proceedings were scheduled to reconvene at 12:30 p.m. EST.
[image via screengrab/NBC News]
