STATE OF NEW MEXICO 1 COUNTY OF SANTA FE 2 FIRST JUDICIAL DISTRICT COURT 3 4 STATE OF NEW MEXICO, ex rel., MARCO WHITE, MARK MITCHELL, 5 and LESLIE LAKIND, 6 Plaintiffs, 7 vs. NO. D-101-CV-2022-00473 8 COUY GRIFFIN, 9 Defendant. 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 14 On the 16th day of August, 2022, at approximately 9:00 15 a.m., this matter came on for Trial on the Merits before the 16 HONORABLE FRANCIS J. MATHEW, Judge of the First Judicial 17 District, State of New Mexico, Division I. 18 The Plaintiffs appeared in person and by Counsel of 19 Record, JOSEPH GOLDBERG, FREEDMAN BOYD HOLLANDER & GOLDBERG, 20 20 First Plaza NW, Suite 7800, Albuquerque, New Mexico 87102; and 21 CHRISTOPHER A. DODD, DODD LAW OFFICE, LLC, 20 First Plaza, 22 Albuquerque, New Mexico 87102; DANIEL A. SMALL, COHEN MILSTEIN 23 SELLERS & TOLL, PLLC, 1100 New York Avenue NW, Fifth Floor, 24 Washington, D.C. 20005; NIKHEL SUS, CITIZENS FOR RESPONSBILITY 25 AND ETHICS IN WASHINGTON, 1331 F Street NW, Suite 900, TR-1 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Washington, D.C., 2004; 2 The Defendant COUY GRIFFIN, appeared in person. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TR-2 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 I N D E X 2 Page 3 APPEARANCES 4 4 PRELIMINARY MATTERS 5 MARK AARON GRABER 6 Direct Examination by Mr. Goldberg 5 7 Cross-Examination by Mr. Griffin 54 8 Redirect Examination by Mr. Goldberg 86 9 Recross-Examination by Mr. Griffin 88 10 DR. RACHEL KLEINFELD 11 Direct Examination by Mr. Small 89 12 Cross-Examination by Mr. Griffin 139 13 Plaintiffs rest 182 14 Defendant rests 183 15 Closing Argument 16 Mr. Griffin 184 17 Certificate of Court Reporter 192 18 19 20 21 22 23 24 25 TR-3 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 At which time, the following proceedings were had: 2 * * * * * * * * * * * * 3 THE COURT: We're on the record in the matter of 4 State of New Mexico, ex. rel., Marco White, Mark Mitchell and 5 Leslie LaKind versus Couy Griffin, Santa Fe County Cause No. 6 D-101-CV-2022-00473. 7 May I have appearances, please, and I'll take them 8 from the Plaintiff first. 9 MR. GOLDBERG: Yes, good morning, Your Honor. 10 Joseph Goldberg of Freedman Boyd Hollander & Goldberg, for the 11 Plaintiffs. With me is Chris Dodd, Dan Small and Nik Sus. 12 THE COURT: Thank you. 13 Now for the Defendant, please. 14 MR. GRIFFIN: Good morning, Your Honor. Couy 15 Griffin, pro se. 16 THE COURT: Thank you. 17 We are here on the continuation of the trial on the 18 merits. 19 Mr. Goldberg. 20 MR. GOLDBERG: Yes, Your Honor. We call our next 21 witness, Professor Mark Graber. 22 THE COURT: Professor Graber. Professor, if you'll 23 come up here, please. 24 (Witness sworn by the Court.) 25 THE COURT: Please have a seat and speak right into TR-4 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the microphone. 2 DIRECT EXAMINATION 3 BY MR. GOLDBERG: 4 Q. Professor Graber, will you state your full name, 5 please. 6 A. Mark Aaron Graber. 7 Q. Would you spell your full name for the benefit of 8 the court reporter? 9 A. M-A-R-K, A-A-R-O-N, G-R-A-B-E-R. 10 Q. Where are you currently employed, Professor Graber? 11 A. I am employed as a professor at the University of 12 Maryland, Francis King Carey School of Law. 13 Q. How long have you been employed by the University of 14 Maryland School of Law? 15 A. I first started teaching at the law school in 2002. 16 The law school became my primary place of employment in 2007. 17 Q. What's your current position at the University of 18 Maryland School of Law? 19 A. I am presently the Regents Professor of Law -- in 20 the University of Maryland system, Regents Professor of Law. 21 Q. What is the Regents professorship? 22 A. The Regents professorship is the highest honor in 23 the University of Maryland system. Only seven people have 24 accorded the honor. I am the seventh Regents Professor. 25 Q. How long have you been at the University of Maryland TR-5 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 faculty? 2 A. I have been at the University of Maryland system for 3 30 years. I began teaching the political science department in 4 College Park in 1993. Starting in 2002, I had a joint 5 appointment, both College Park and the law school. By 2012, I 6 had moved over to full-time in the law school. 7 Q. What do you currently teach? 8 A. I presently teach the Constitutional Law Sequence, 9 Constitutional Law 1, Structures of Government, Constitutional 10 Law 2, and Civil Rights. I also teach a one-credit course in 11 Comparative Constitutional Democracy, and I started teaching a 12 course directly taught by the University of Maryland and the 13 National University of Ireland in Galway, again on topics in 14 Comparative and Constitutional Democracy. 15 Q. I want to ask you a little bit about your education, 16 Professor. Will you describe to the Court your post high school 17 education. 18 A. I received an A.B. from Dartmouth College in 1978. 19 In 1981, I received a J.D. from Columbia Law School. I received 20 an M.A. in philosophy and a Ph.D. in political science at Yale 21 University. The Ph.D. was awarded in 1988. 22 Q. With both a J.D. degree and a Ph.D. in political 23 science, you have an area of specialty? 24 A. I work in an area called American Political and 25 Constitutional Development. In some ways, it's a fancy way for TR-6 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 American political and constitutional history. The difference 2 is the people who work in that area were not simply interested 3 in describing what happened in the past, but trying to explain 4 why is it that one of them followed from another. Was it sort 5 of determined, was it contingent, was it a product of human 6 choice? Those are the questions we sort of look at. 7 Q. How many books have you written or are an editor of? 8 A. Fifteen. 9 Q. Are any of those books particularly pertinent to 10 your work in this case? 11 A. The main one is the one I am presently finishing 12 called "Punish Treason, Reward Loyalty." It's a study of the 13 Fourteenth Amendment. The central argument is that while we 14 emphasize Section 1 of the Fourteenth Amendment, which includes 15 the due process clause, the equal protection clause, the 16 privileges, immunities clause, the ones that are frequently 17 litigated in courts across the country, it turns out, with rare 18 exception, the framers of the Fourteenth Amendment were far more 19 concerned with Sections 2, Sections 3 and Sections 4. 20 Part of the book describes their interest, pointing 21 out that the debate that is far more over Section 2 and Section 22 3 than Section 1. I also try to explain their understanding of 23 Constitutions and their political situation as to why they have 24 emphasized Section 2, Section 3 and not Section 1. 25 Q. How many book chapters have you written? TR-7 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Thirty-six. 2 Q. How many scholarly articles have you written? 3 A. Eighty-seven. 4 Q. Do you consider yourself to be an expert in the 5 history of the enactment of Section 3 of the Fourteenth 6 Amendment? 7 A. I believe I am an expert. I am one of two to three 8 people who have ever done a thorough reading of that history. 9 Q. Have you ever testified in court as an expert? 10 A. This is my first time. 11 Q. It's great to do it in Santa Fe. 12 I want to turn to the work that you've done in this 13 case. Before I do that, the work that you did do in this case, 14 your investigation and the formulation of your opinions, is that 15 the type of work that you would do in your scholarly research 16 and writing? 17 A. The same. 18 Q. Then let's turn to the work you did in this case. 19 What research were you asked to perform in this case? 20 A. I was asked to answer three questions. 21 Q. Let me stop you for a second. 22 MR. GOLDBERG: Joe, would you bring up 23 Demonstrative Number 1. 24 A. All three questions concern how knowledgeable people 25 in the Nineteenth Century and the persons responsible the TR-8 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Section 3 to the Fourteenth Amendment would understand certain 2 events. First, would they consider an Otero County Commissioner 3 or County Commissioner, in general, to hold an office that was 4 subject to the disqualifying provisions of Section 3 of the 5 Fourteenth Amendment? 6 Second, how did knowledgeable people in the 7 Nineteenth Century understand what an insurrection was, and 8 would they and the persons responsible for Section 3 of the 9 Fourteenth Amendment regard the events of January 6, both 10 immediately before and after, as an insurrection as insurrection 11 was used in the Constitution? 12 And third, assuming it was an insurrection, would 13 there be evidence that Mr. Griffin participated or engaged in 14 that insurrection, again as knowledgeable people of the time 15 understood participate or engaged? 16 Q. And did you do that investigation, Professor Graber? 17 MR. GOLDBERG: Joe, would you bring up Demonstrative 18 2. 19 A. Yes, I did. 20 BY MR. GOLDBERG: 21 Q. Would you describe generally what you did in your 22 investigation? 23 A. The first thing you do is you start with Section 3 24 in the 39th Congress First Session, which is the session that 25 drafted Section 3. I read the entire Congressional globe as TR-9 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 well as the Journal of the Joint Committee on Reconstruction, 2 which was responsible for drafting specific language. 3 I then looked particularly at various drafts of 4 Section 3. Section 3 changed in the early months of 1866. I 5 wanted to know why it changed and sometimes why it didn't 6 change. Various proposals were voted down. I then looked at 7 events before 1866 trying to figure out how Americans at the 8 time used words. I spent particular time on loyalty oaths. 9 Because Congress during the Civil War passed a 10 variety of loyalty oaths requiring officials to swear to their 11 loyalty. The language in the loyalty oaths was nearly identical 12 to the language of Section 3, moreover, members of Congress said 13 the language was identical. So in fact, I could assume they 14 understood the language in the loyalty oaths one way, that's 15 probably how they understood Section 3. Then I looked at the 16 history of insurrections in the United States through 17 presidential confirmations, judicial opinions and various legal 18 and political treatises. I then explored how Section 3 was 19 understood immediately after ratification by Presidents, by 20 Courts and by Congress. 21 Then I reviewed the very limited literature on 22 Section 3. Not much is written, but I read it. Given that I 23 was asked to explore the particular status of a New Mexico 24 office under Section 3. I looked at New Mexico Constitutional 25 legislative provisions respecting the office of Otero County TR-10 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Commission. Given I was asked to determine whether 2 knowledgeable people of the time would consider January 6 an 3 insurrection, I looked at various videos of January 6 and 4 various government employees. 5 Q. This type of investigation that you just described, 6 is that the type of research that you and other scholars in your 7 area would do for scholarly research? 8 A. Yes. 9 Q. Were the sources that you reviewed the types of 10 materials that other scholars in your area would look at to 11 reach the opinions and conclusions that you reached are going to 12 describe here? 13 A. Yes. 14 Q. Was the type of investigation and research that you 15 just described the same as any lawyer or, with all due respect, 16 Judge Mathew may do in answering these questions? 17 A. No. There are differences between historians and 18 lawyers, which is not to say I can't show you one historian is 19 more like a lawyer and one lawyer is more like a historian, but 20 there are general differences in the fields. To begin with, I 21 live in the middle Nineteenth Century. Most lawyers only visit. 22 The result is I know a great deal more about the 23 people, the personalities, the events, than a lawyer who was 24 just there because they have a case. To take an example that 25 may be relevant today. The Attorney General of the United TR-11 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 States, Henry Stanbery in the Johnson administration 2 vehemently opposed -- 3 Q. Let me stop you for a second. The Attorney General 4 of the United States in the Johnson administration in the mid 5 Nineteenth Century. 6 A. In the mid Nineteenth Century. This is Andrew 7 Johnson, not Lyndon Johnson. My apologies. 8 The Attorney General of the United States and the 9 Andrew Jackson administration strongly opposed Section 3 and did 10 their best to limit it. So I reviewed the opinions of the 11 Attorney General with in mind that this will not be an expansive 12 reading. 13 Second, and related difference, historians are 14 interested in context. I'm interested not simply in precise 15 readings, but what is the broader context. So when I talked 16 about my book, one of the crucial features of understanding the 17 middle provisions of the Fourteenth Amendment was the obsession 18 of the Republican party that drafted the Fourteenth Amendment 19 with the possibility of rebel rule. 20 Republicans in 1866 don't think the Civil War is 21 over. They all worry that rebels will rule, that traitors will 22 again gain office. They are particularly concerned that the 23 leadership class of the south, the officeholders before the 24 Civil War not be returned to office after the Civil War. 25 Finally, historians tend to answer different kinds TR-12 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 of questions. I am concerned and intend to testify of 2 identifying broad consensus. When there is a broad consensus on 3 something, I will say so. But quite frequently, I discovered, 4 guess what, there is disagreement. A lawyer, particularly a 5 judge who has to decide the case, has to adjudicate the 6 disagreement in the present time. I can simply tell the Court 7 there was a disagreement or people at that time really didn't 8 consider this problem. I don't have to adjudicate it as an 9 historian. 10 Q. Jumping ahead a little bit. When you offer opinions 11 to the Court in this case, would it be fair to say that the 12 Court can assume then that you are offering opinions based on a 13 broad consensus, you are not making it up? 14 A. Yeah. Everything I will testify to, I found in 15 judicial opinions, presidential proclamations, legal treatises, 16 political treatises of that sort to be powerful agreements. 17 Q. Did you reach opinions on the basis of the research 18 that you have described to the judge? 19 A. I did. 20 MR. GOLDBERG: Joe, will you bring up Demonstrative 21 Exhibit 3. 22 BY MR. GOLDBERG 23 Q. And Professor, will you describe generally what the 24 opinions were. Summarize the opinions. 25 A. The first conclusion was that knowledgeable people TR-13 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 at the time, particularly the persons responsible for Section 3, 2 would have regarded County Commissioners -- indeed did regard 3 County Commissioners as state, executive or judicial officers as 4 state, executive or judicial officers was understood in Section 5 3. 6 County Commissioners in Otero County take an oath of 7 allegiance to support the Constitution of the United States. If 8 we examine their understanding of a state officer and an officer 9 in general, an executive in judicial, we'll see that County 10 Commissioners were consciously covered. 11 Second, there was a consensus in the Nineteenth 12 Century on what an insurrection was. An insurrection occurred 13 when there was an assemblage of people resisting the enforcement 14 of any or all federal laws. That body had a common public 15 purpose, and they were seeking to achieve their purpose by 16 violence, force and intimidation. 17 My review of the events of January 6 -- 18 Q. Can I stop you for a second. You said violence, 19 force and intimidation. 20 A. My apologies. 21 Q. That's my job. We want to make a good record. 22 THE WITNESS: My apologies, Your Honor. First time 23 nervousness. 24 A. Again, we see January 6 there was clearly an 25 assemblage. They were trying to resist the legal processes that TR-14 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 would have certified a Biden presidency. They had a public 2 purpose. They were trying to stop what they believed was a 3 stolen election. And I saw substantial evidence of violence, 4 force, and here I do mean and intimidation. 5 Third, there is substantial evidence that 6 Mr. Griffin participated in the events of January 6, as 7 knowledgeable people in the Nineteenth Century would have 8 understood participation. One of the principles of Nineteenth 9 Century law is in treason, there are no accessories. Everybody 10 who is involved in an insurrection is a principal actor. 11 We'll see that Mr. Griffin, whether the evidence was 12 in lead with the other insurgents, acted in concert with them 13 and was aware of the violence and intimidation around him. We 14 will see evidence of overt acts that aided and support the 15 insurrection. 16 Q. Thank you, Professor Graber. I want to turn now 17 then to your first opinion. That's the opinion that an office 18 like Otero County Commissioner would be subject to the 19 restrictive strictures of Section 3. 20 Explain to the Court, where did you start? 21 A. I started with, again, the language of the document 22 and tried to work out how people at the time would understand 23 the language. I particularly focused on proposals to change the 24 language. 25 Q. Let me stop you for a second. TR-15 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 MR. GOLDBERG: Joe, would you bring up Demonstrative 2 Exhibit 4. 3 BY MR. GOLDBERG: 4 Q. Go ahead. 5 A. As this exhibit shows, shows two proposals to 6 change. First, Democrats made a motion that Section 3 should be 7 limited to people in office. That motion was rejected. There 8 was another motion to say only people who held federal offices 9 should be subject. That was rejected. 10 There was another motion not listed here saying 11 there should be a ten-year time limit. If you held office 12 before 1851, you weren't disqualified. That was rejected. 13 Moreover, if we look at earlier versions of Section 3, we see 14 references to the late rebellion or references specifically to 15 the Civil War. Those references were taken out of the final 16 version. The final version speaks on any insurrection or 17 rebellion and not simply the Civil War as a particular 18 insurrection or rebellion. 19 Q. You talked about two examples that are on 20 demonstrative exhibit, and you said these proposals were made by 21 Democrats. 22 Were Democrats supportive of Section 3 of the 23 Fourteenth Amendment or were Democrats generally resistant to 24 Section 3? 25 A. With the exception of Section 4, Democrats uniformly TR-16 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 opposed all provisions of the Fourteenth Amendment. 2 Q. Was there other information that you uncovered in 3 your investigation that supports your opinion that the language 4 of Section 3 should be interpreted broadly? 5 MR. GOLDBERG: Joe, please bring up Demonstrative 6 Exhibit Number 5. 7 A. As this Demonstrative points out, I researched the 8 post ratification history of Section 3 and discovered that the 9 courts, the federal, executive and Congress, agree that county 10 offices who took an oath of allegiance to the United States were 11 covered by Section 3. 12 So there are two cases on Section 3 in the courts. 13 Those cases concern specifically county officers, but the Court 14 said any officer, any officer who takes an oath of allegiance to 15 the United States, is subject to Section 3. 16 The Johnson administration disagreed. Henry 17 Stanbery and two opinions of the Attorney General said, while I 18 agree that county officers who take an oath of allegiance to the 19 United States are covered by Section 3. Section 3 does not 20 cover municipal officers, say, the mayor of Santa Fe, who have 21 taken an oath of allegiance. 22 Congress disagreed with Stanbery and passed the 23 Third Reconstruction Act. Lyman Trumbull, Senator from 24 Illinois, was the chief sponsor of the Act, chair of the 25 judiciary committee, and in introducing the bill that became the TR-17 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Third Reconstruction Act. He said the bill agrees with Stanbery 2 that all county officials who take an oath of allegiance to the 3 United States are covered, but we believe municipal officers who 4 implement state law or have judicial functions are also covered. 5 So the important take-home points is there was a 6 broad consensus on county officials. There was not a consensus 7 on municipal officials. 8 Q. In your investigation, Professor, did you find any 9 dissent on whether Section 3 applied to county officials who 10 otherwise then would satisfy the criteria of Section 3 taking an 11 oath of office, exercising executive and judicial functions? 12 A. I found no case, no legal treatise, no opinion of 13 the Attorney General or the Johnson administration or no 14 Republican support of the Fourteenth Amendment who claim that 15 county officials were not covered. 16 Q. Let's turn to the part of your opinion that the 17 drafters of Section 3 and other knowledgeable people in the 18 Nineteenth Century would interpret this broad language to cover 19 the Otero County Commission office, or generally County 20 Commission offices in the State of New Mexico. How did you 21 reach that opinion? 22 MR. GOLDBERG: Joe, please bring up Demonstrative 23 Exhibit 6. 24 A. Well, I looked at, again, the language of Section 3. 25 It speaks of executive or judicial officers of any state. This TR-18 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 means we need to explore, and I needed to explore what's an 2 executive or judicial, what's an office, what is a state for 3 these purposes. 4 What I discovered first was a crucial marker of a 5 state office was, was this office created by the state 6 constitution or state law and did the state law of the state 7 constitution declare this person to be an officer. Then I 8 looked at Article 10 of the New Mexico Constitution. 9 And first thing is, Article 10 authorizes the 10 creation of County Commissioners which are then created by 11 statute. Article 10 refers to those people as officers. 12 I then looked to see do Otero County Commissioners 13 have executive or judicial functions. It's high school civics 14 that the executive implements or executes the law. I saw 15 through New Mexico law and through the websites of various 16 County Commissions, including Otero County Commission, that 17 County Commissioners in New Mexico are responsible, among other 18 things, for implementing state election law. They are 19 responsible for implementing state highway construction law. 20 Perhaps of more importance to many citizens, they 21 are responsible for the county participation in the State Fair. 22 All are executive functions. All also require a degree of 23 discretion, which has historically been considered a marker of 24 an officer as opposed to an employee 25 Q. In your investigation, did you see other evidence of TR-19 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the Otero County Commission acting like an executive officer or 2 office? 3 A. My conclusions were buttressed by a review of the 4 minutes of the Otero County Commission that I found on the Otero 5 County Commission website. 6 MR. GOLDBERG: Joe, please bring up Plaintiffs' 7 Exhibit 5 -- 7. Thank you, Joe. 8 Let me try that once more, Your Honor. 9 BY MR. GOLDBERG: 10 Q. Let me show you -- 11 MR. GOLDBERG: And Joe, would you bring up 12 Plaintiffs' Exhibit 7. 13 BY MR. GOLDBERG: 14 Q. What does this show you? 15 A. Well, what we see here is the Otero County 16 Commission approving payments. Now, it's a very classic 17 division of function in Anglo-American law that, while the 18 legislature or a body with legislative functions may appropriate 19 funds, only the executive may spend the fund. 20 So a simple example: The legislature may say that 21 we're going to pay our highway construction workers $25 an hour, 22 but it is the executive who determines how many hours I work on 23 highway construction and it's the executive who cuts the check. 24 Q. Let me clear up the record. This morning I'm making 25 a terrible record. TR-20 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 MR. GOLDBERG: What is on the screen is 2 Demonstrative Number 7, but Demonstrative Number 7 are pullouts 3 from Plaintiffs' Exhibit 5. I want to make sure the record is 4 clear on that, Your Honor. And I apologize. 5 BY MR. GOLDBERG: 6 Q. Let's turn to your second general opinion, the one 7 that addresses insurrection, as used in Section 3 of the 8 Fourteenth Amendment. Please explain to the Court how you 9 reached that opinion. 10 A. There are three wonderful websites or databases. 11 The first is by the American Presidency Project out of 12 University of California, Santa Barbara. It contains all the 13 official papers of every president. What I did was I typed in 14 insurrection from George Washington to William McKinley, looked 15 at the results, read the results. 16 I then went to Westlaw, which I suspect Your Honor 17 knows has all cases decided in American history by both state 18 and federal courts. Again, I went from about 1789 to 1876, hit 19 insurrection. So what happened? I looked at the cases. 20 Then there is online something called "The making of 21 modern law." It comes out of Harvard Law School. It is a 22 surgical collection of every legal treatise written before 1926. 23 Hit insurrection, keywords. So what happened? It built up a 24 collection of events that Americans in the Nineteenth Century 25 described as insurrections and the elements that Americans in TR-21 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the Nineteenth Century saw constituted an insurrection. 2 Q. In that investigation, did you come up with a number 3 of incidents of insurrections? 4 A. I found numerous incidents that were described as 5 insurrection by people living in the Nineteenth Century. And I 6 do want to emphasize this is not me coming up with a definition 7 of insurrection and then applying it to events that were not 8 called insurrection. 9 Q. Let me stop you for a second. 10 MR. GOLDBERG: Joe, would you bring up Demonstrative 11 Number 8. 12 BY MR. GOLDBERG: 13 Q. Go ahead, Professor. 14 A. All the incidents on this demonstrative were called 15 insurrections by the people living at the time. 16 Q. So we have a record, would you just go through, not 17 in detail, but just describe each one of these incidents so we 18 have a record on them. 19 A. Well, first in 1787 we have Shays' insurrection, 20 which is resistance by Western Massachusetts farmers to the 21 programs by which Massachusetts was attempting to pay the 22 Revolutionary War debt. 23 We have the Whiskey insurrection in Western 24 Pennsylvania in 1793-'94, which is resistance to an excise tax 25 on whiskey and distilling. TR-22 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 We have Fries' insurrection, 1799, which is 2 resistance in Western Pennsylvania to increase taxation to 3 support the American undeclared war with France. 4 We have the Aaron Burr insurrection in the first 5 decade of the Nineteenth Century, which concerned Burr's alleged 6 attempt to create an independent state in the west. 7 We have the Dorr insurrection in Rhode Island in the 8 1840s, which concerned an effort by a group of Rhode Islanders 9 to form a separate state Constitution. 10 We have the rescue of islanders of fugitive slaves 11 in the 1850s, which was described as an insurrection by many 12 prominent authorities at the time. 13 There was a Mormon insurrection in Utah in 1857. 14 John Brown's raid was described as an insurrection. 15 Indeed, Brown was hung for being an insurrectionist by Virginia 16 authorities. 17 Americans describe the Civil War as an insurrection. 18 Members of Congress in particular were more likely to use the 19 phrase "insurrection" than "war." 20 Then clan and White Supremacists, otherwise known as 21 redeemer violence in the post-reconstruction south, was often 22 described by President Grant as an insurrection. 23 Finally, unsurprisingly, shortly after the first 24 person was enslaved, there was slave revolutions. And slave 25 revolutions throughout American history were described as TR-23 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 insurrections. 2 Q. Let me ask you a couple of questions. Let's take 3 Shays' insurrection and the Whiskey insurrection and Fries' 4 insurrection, the first three. In any of those insurrections 5 were the people involved seeking to overthrow the government of 6 the United States? 7 A. Certainly not in the Whiskey insurrection and in the 8 Fries' insurrection. There is some dispute about the precise 9 intentions in the Shays' insurrection. 10 Q. Thank you, Professor. I will want to discuss some 11 of these insurrections more fully with you, but before I do I'd 12 like you to describe what types of historical materials did you 13 review about these insurrections? 14 A. As noted, I looked first at official presidential 15 documents. I then looked at various cases that concern whether 16 someone could be punished for insurrection. I then looked at 17 the legal treatises and political treatises of the time that 18 discussed insurrection, treason, the meaning of levy war against 19 the United States. 20 Q. Did you find much case law or other judicial 21 material that dealt with insurrections in the latter half of the 22 Eighteenth Century and the first three-quarters of the 23 Nineteenth Century? 24 A. With exception of Shays' rebellion, which took place 25 before the ratification of the Constitution, and the Mormon TR-24 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 rebellion in Utah, I found each of the insurrections came with 2 several judicial opinions in the case of the Civil War, numerous 3 jury charges by judges setting out what they believe were the 4 elements of insurrection. 5 Q. Were there civil cases as well as criminal cases 6 that addressed the issue of what is an insurrection? 7 A. There were. 8 Q. How does that question arise in civil cases? 9 A. It turned out that persons who brought slaves and 10 needed those slaves transported insured them. But insurance 11 companies did not want to pay if the slave died not from natural 12 causes but because of an insurrection. So in fact, there are a 13 lot of cases, you'll find them in Westlaw, where there is a 14 lawsuit by a slave owner against an insurance company where the 15 slave owner claims the slave died from natural causes, pay up. 16 The insurance company said, no, there was an insurrection, we 17 don't have to pay. 18 Q. So these insurance case are not a uniquely Twentieth 19 Century phenomenon, Your Honor. Of course, I'm not surprised at 20 insurance companies in the Nineteenth Century didn't like to pay 21 either. 22 What did your review of these historical materials 23 lead you to conclude, Professor? 24 MR. GOLDBERG: Joe, would you bring up 25 Demonstrative Number 9. TR-25 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. A very broad consensus existed among knowledgeable 2 people that an insurrection had four elements: An assemblage of 3 persons tending to prevent or resist the execution of any or all 4 federal laws of public or general purpose, and the conduct must 5 involve violence, force or intimidation. 6 BY MR. GOLDBERG: 7 Q. Again, I want to emphasize this was a consensus 8 among knowledgeable people at that time? 9 A. Yes, among presidents, judges, legal treatise 10 writers, political treatise writers. 11 Q. Why do you say, as you do in Number 2, intended to 12 prevent the execution of one, some, many or all federal laws? 13 Why did you limit it to federal laws here? 14 A. Section 3 only refers to an insurrection against the 15 federal government. If I were to engage as a former office 16 holder -- I'm not -- but if I were a former officeholder to 17 engage in an insurrection against the State of New Mexico, I 18 could be punished and sanctioned by New Mexico laws. But that 19 would not be a disqualification for federal office under Section 20 3. 21 So John Brown, who was found guilty of insurrection 22 against Virginia, had he been a public official before the Civil 23 War, had he not been hung and lived after the Civil War, he 24 would not be disqualified under Section 3. 25 Q. In element Number 3 on Demonstrative 9, you talk TR-26 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 about a "public closed." Would you explain to the Court what 2 you mean by a public purpose? 3 A. Both the judges and the treatises were clear that 4 enact, prevent or resist the execution of federal law that was 5 done for a private or personal reason was not an insurrection. 6 So there is a case that was often cited, United States versus 7 Hoxie. Hoxie's boat was seized by custom agents for violating 8 the Embargo Act. Hoxie violently retrieved his boat, killing a 9 federal custom agent in the process. He was tried for 10 insurrection. The Judge said no. The evidence shows Hoxie just 11 wanted his boat back, that he was not resisting the Embargo Act, 12 in general. He didn't think the Embargo Act was 13 unconstitutional, he didn't think it was oppressive. He just 14 wanted his boat back. 15 Q. Finally in element Number 4, you talk about 16 intimidation by numbers. What do you mean by intimidation by 17 numbers? 18 A. Again, legal authorities, the knowledge of the 19 people are clear. There needs to be the threat of force but 20 there need not be force. So in Fries' insurrection, angry 21 Pennsylvania farmers marched to the tax collector. The tax 22 collector looks at the group and gets out of town. Does not 23 enforce the law. Fries was convicted and sentenced to death as 24 an insurrectionist because he resisted the execution of the law 25 through intimidation and intimidation by numbers. It didn't TR-27 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 matter that there was no evidence that anyone fired a shot, 2 anyone threw a stone, anyone threw a punch. 3 Q. In your research, did you find any disagreement 4 about these elements of insurrection you just described? 5 A. I did find one treatise, and it's a prominent 6 treatise that suggested the American census was not a good one 7 by Joel Prentiss Bishop. What Bishop said was "I agree that 8 this is the law of England, that Americans have adopted the law 9 of England, but I, in fact, would define insurrection more 10 narrowly so it would require the full overthrow of the federal 11 government." 12 Q. Was there any general acceptance of that view? 13 A. After discovering that treatise, I did a search for 14 the next 20 years to see if any judge, any treatise, any 15 president, adopted Bishop's understanding, either directly by 16 citing Bishop or indirectly by saying that's the law. I could 17 not find an example before 1876. 18 Q. So did you stop in your investigation there when you 19 found this consensus on these elements or did you do further 20 research? 21 A. Well, I looked into the facts. 22 Q. Bad question. In your research, did you find any 23 consensus as to what was not an insurrection? 24 A. Okay. I'm sorry. 25 Q. Nope. That's because I changed the nature of the TR-28 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 question. 2 A. Okay. Yes. One of the things the law is clear on 3 is until condition one is met, there is no insurrection. So 4 until there is an assemblage of persons. There may be a 5 conspiracy if you and I say, everyone, let's meet in the parking 6 lot to resist federal parking laws. That is a conspiracy to 7 engage in insurrection, but it is not an insurrection, as 8 understood by Section 3 of the Fourteenth Amendment or by 9 knowledgeable legal people at the time. 10 Q. Anything else? 11 A. Well, the other thing I discovered is it doesn't 12 matter what the motive is. So we go back to public purpose. 13 Good motive, bad motive, doesn't matter. So take fugitive 14 slaves. We might agree that freeing slaves is a moral 15 obligation. Many people then and, by the way, today think the 16 Fugitive Slave Act of 1850 was unconstitutional. The mere fact 17 that you were acting because you believed a law 18 unconstitutional, because you believed the law burdensome, but 19 you firmly believe you were acting for the good of your country, 20 that was, in fact, not a defense to insurrection, but an 21 element. It was the public purpose element. You were not 22 acting for personal or private reasons. 23 Q. Let's go back and discuss several of the specific 24 and Eighteenth and Nineteenth Century insurrection. Can you 25 describe to the Court Fries' insurrection. How do you pronounce TR-29 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Fries? Is it Fries or Fries (pronouncing)? 2 A. I'm not entirely sure. 3 Q. No consensus. 4 A. There doesn't appear to be a consensus. 5 Q. Go ahead and please describe it. 6 A. As noted, the United States fought an undeclared 7 Naval war with France in the late 1790s. That required taxes to 8 be raised, and the burden fell very heavy on farmers. Western 9 Pennsylvania farmers organized, they harassed tax collectors. 10 They intimidated tax collectors. Some tax collectors fled. 11 Others would come out and sign a pledge, don't worry, I'm not 12 going to enforce the federal tax. 13 Fries was arrested, tried and convicted for 14 insurrection and sentenced to death. He was then pardoned by 15 President Adams, President John Adams, I, made clear in the 16 pardon that he regarded Fries as a very wicked insurrectionist, 17 but he said Fries has repented, he has agreed to obey the law. 18 And I think as president, it's best to forgive. 19 Q. What was important to you for your work in this case 20 from the Fries insurrection? 21 A. The Fries' insurrection is the first time it becomes 22 clear that the American law of treason, insurrection, levying 23 war will borrow from the English understanding of the same words 24 in that it will have all four elements in particular: The 25 legal authorities are clear that it didn't matter that Fries had TR-30 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 no intention of going to Washington and overthrowing the 2 government. 3 What was important was he was intending to resist 4 the execution of a single federal law, had a public purpose and 5 his conduct involved violence, force and intimidation. 6 Q. Let's turn to the Aaron Burr insurrection. Would 7 you describe briefly to the Court that insurrection. 8 A. The details of the Aaron Burr insurrection are still 9 controversial among historians. They didn't fully know what was 10 going on. We don't really know what was going on. What we know 11 is Aaron Burr was the third vice president of the United States. 12 But when President Jefferson ran for office in 1804, he dropped 13 Burr from the ticket. Burr went west seeking his fortune. 14 Exactly what he did has never been fully determined, but 15 Jefferson believed Burr was attempting to create an independent 16 state in the western United States. Jefferson had Burr 17 arrested, tried for treason. He was tried in the Circuit Court 18 of Richmond, Virginia. The trial was presided over by Chef 19 Justice John Marshall, acting as a Circuit Court judge. And in 20 part, because of some things Marshall said, including the notion 21 that a conspiracy to engage in insurrection is not an 22 insurrection, Burr was found not guilty. 23 Q. What was important to you from the Burr 24 insurrection? 25 A. Two things stood out from the Burr incident. First TR-31 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the Burr trial itself. Marshall endorsed, Chief Justice of the 2 United States, all four elements of an insurrection. The 3 assemblers, can be a single law, public purpose, violence, force 4 or intimidation by numbers. Second, the companion case to Burr, 5 more minor people case called Ex Parte Bollman and Ex Parte 6 Swartwout, Marshall made clear that Americans had adopted the 7 English rule I spoke of earlier in treason, there are no 8 accessories. So if I were to sell someone here a gun knowing 9 they were going to murder their neighbor, I might be considered 10 an accessory to the murder, but not the murderer. 11 According to American law as spelled out by Marshall 12 and adopted by other knowledgeable people at the time, if I were 13 to sell someone a gun knowing they were going to use that gun in 14 an insurrection, I am an insurrectionist just as much as the 15 person who uses the gun. 16 Q. Let's turn to the incidents of insurrections that we 17 labeled as the "Rescue of Fugitive Slaves." Would you describe 18 that to the judge. 19 A. There had always been rescue of fugitive slaves. We 20 know of the underground railroad. Those rescues became more 21 intense and more violent after Congress passed the Fugitive 22 Slave Act of 1850. There was a violent slave rescue in 23 Christiana, Pennsylvania, which resulted in several people being 24 brought to trial for insurrection against the United States. 25 There were violent slave rescues in Boston which led TR-32 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 to Supreme Court Justice Benjamin Curtis and District Judge 2 Sprague charging grand juries of the rules of indicting the 3 people who engaged in these violent fugitive slave rescues. 4 Q. What was important to you from your review of these 5 incidents of the rescue of fugitive slaves resulting in 6 consideration of whether they were insurgents? 7 A. First -- 8 Q. I said insurgents, I meant insurrectionists. 9 A. First that both Justice Robert Greer, Supreme Court 10 Justice Robert Greer sitting on circuit and Supreme Court 11 Justice Benjamin Sprague and the District Court Judges involved 12 in the case endorsed the previous understanding of insurrection 13 that I spoke about, endorsed all four elements. 14 Second is, in fact, their opinions were frequently 15 quoted in Grand Jury charges during the Civil War. This told me 16 that, in fact, the understanding of insurrection in 1810 17 remained the understanding during the Civil War and immediately 18 afterwards. 19 A second point is that these cases emphasized and 20 the judges emphasized to the Jury we don't care what you think 21 of the morality of slavery. We know Curtis thought slavery 22 immoral. The mere fact that people were resisting the execution 23 of a single law for the best of moral reasons still made what 24 they were doing under the understanding of the Nineteenth 25 Century an insurrection. TR-33 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. We now are at the point in your investigation where 2 you've come up with your consensus of what constitutes an 3 insurrection to knowledgeable people in the Nineteenth Century. 4 But you then turn to whether the events of January 6 satisfy 5 those elements. 6 Would you describe to the Court what you did to 7 reach that part of your opinion? 8 A. Well, preliminarily -- 9 MR. GOLDBERG: Joe, would you bring up Demonstrative 10 Number 10. 11 A. Obviously, living in the United States, you hear 12 some things and you watch some television on January 6. What I 13 tried to focus on, however it was, not what I learned simply 14 because I happen to watch television every now and then, but 15 what I learn from several sources that a scholar would use, 16 namely there are official reports on January 6. One by the 17 Senate, several by the GAO. I then watched videos, one produced 18 by the Congressional Committee on January 6. The others are 19 exhibits in this trial and I tried to make up my mind based on 20 that information. 21 Q. Please identify for the judge your findings based on 22 this investigation that you made. 23 A. Based on these documents and sources, first somewhat 24 obvious, there was an assemblage. Many people were involved in 25 the attack on the Capitol and many of those people were acting TR-34 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 in concert. Their purpose was to prevent or resist the 2 execution of those federal laws that would lead Congress to 3 declare that Joe Biden had been elected president. 4 Their purpose was a public one. The protestors 5 believed the election had been stolen, that there had been 6 fraud. They were not there for any private or personal reason. 7 And the evidence showed numerous instances of violence, force 8 and intimidation 9 Q. Let's talk about some of the evidence of this. What 10 evidence did you see of violence? 11 A. I read reports of documented violence. I watched 12 videos which depicted violence. 13 Q. Let's talk about the reports first. I want to turn 14 to the Senate report that you referenced. Joe, would you bring 15 up Demonstrative Number 11. 16 MR. GOLDBERG: Your Honor, Demonstrative Number 11 17 and some following demonstratives are excerpts from Plaintiffs' 18 Exhibit 12, which is depicted on the left-hand side of 19 Demonstrative 11. 20 BY MR. GOLDBERG: 21 Q. Professor, would you explain what you learned from 22 the Senate report with respect to violence? 23 A. The report says that -- highlighted, indicated, that 24 on January 6 there was a violent attack on the U.S. Capitol. It 25 declares there were attacks on members of law enforcement and TR-35 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 there were threats to the safety and lives of government 2 officials. 3 MR. GOLDBERG: Joe, would you bring up Demonstrative 4 Exhibit 12. This is still from Plaintiffs' Exhibit 12. This is 5 the Senate report, Your Honor. 6 BY MR. GOLDBERG: 7 Q. Professor Graber, would you explain what you learned 8 from this part of the Senate report. 9 A. Well, first, this report speaks of an assemblage, 10 rioters acting in concert to breach the upper West Terrace, to 11 breach the final barricade and to smash windows. Not only are 12 they acting in concert, but they are using violence and force to 13 achieve their objectives. 14 MR. GOLDBERG: Joe, would you please bring up 15 Demonstrative Number 13. 16 Your Honor, again, this is still from Exhibit 12. 17 BY MR. GOLDBERG: 18 Q. Explain to the Court what you learned from this part 19 of the report. 20 A. Again, we have an assemblage acting in concert. The 21 rioters breached the building. We have successful, at least 22 temporarily, resistance to the implementation or the execution 23 of federal law. Congress is adjourned and evacuated. We have 24 absolutely brutal, violent, physical abuse. 25 Q. Why was it important to you, Professor, that these TR-36 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 findings are made by a government report in this case, the 2 Senate? 3 A. It's an official report. It's not something I watch 4 on the news. These are our elected officials. Official 5 documents are things historians would use. For example, I spoke 6 earlier of the opinions of the Attorney General in 1866, 1867. 7 I would presume when future historians want to examine what 8 happened on January 6, these are the sort of documents they'll 9 turn to. 10 Q. You spoke also of other reports, GAO reports; is 11 that correct? 12 A. Yes. 13 Q. GAO stands for? 14 A. Government Accountability Office. 15 Q. Is it correct you looked at three separate GAO 16 reports? 17 A. That's correct. 18 Q. Let's turn to the first GAO report entitled "Capitol 19 Attack: Federal Agencies' Use of Open Source Data and Related 20 Threat Products Prior to January 6, 2012 [sic]." 21 MR. GOLDBERG: That's Plaintiffs' Exhibit 13, Your 22 Honor. 23 Joe, would you bring up Demonstrative 14. 24 BY MR. GOLDBERG: 25 Q. Would you explain with reference to Demonstrative 14 TR-37 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 this part of the GAO report, Plaintiffs' Exhibit 13, how that 2 influenced your investigation and opinion. 3 A. As I have noted, the assemblage has to have an 4 intent. What this indicates for at least some members of the 5 assemblage, there was an intent to achieve goals through 6 violence, force and intimidation that was formed prior to 7 January 6, 2021. 8 Q. What was your understanding of what a threat product 9 is, as used in this report? 10 A. Well, understand a threat product is simply a 11 government agency says -- writes a report saying we've noticed 12 in social media and elsewhere a series of threats, violence, 13 force and intimidation to be used to prevent the certification 14 of the election of President Elect Biden. 15 MR. GOLDBERG: Joe, would you bring up Demonstrative 16 15. This is the same GAO report that is Plaintiffs' Exhibit 13. 17 BY MR. GOLDBERG: 18 Q. Would you explain to the Court what -- what was 19 important from this part of the GAO report? 20 A. Well, in the 30 highlighted words, we see all four 21 elements of what knowledgeable people in the Nineteenth Century 22 would regard as an insurrection. We see individuals traveling 23 to Washington, D.C. as a group. They have a plan to disrupt the 24 counting of the electoral votes. They have a public motive, 25 Stop the Steal. They believe the election was fraudulent. TR-38 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Finally, the report speaks of violent actions. So all four 2 elements are there in those 30 words or so. 3 Q. Now I want to turn to the next GAO report, 4 Plaintiffs' Exhibit 14. 5 MR. GOLDBERG: Joe, would you bring up Demonstrative 6 16. 7 BY MR. GOLDBERG: 8 Q. Would you explain to the Court what you learned from 9 this GAO report. 10 A. This passage speaks to the scope of the violence 11 that an additional 2,000 personnel were needed to quell the 12 violence. This suggests the violence was not one, two or three 13 people who got out of hand during the protest, but was integral 14 to the protest itself. 15 MR. GOLDBERG: I want to turn to the final or the 16 third GAO report, and that is a report, Your Honor, called 17 "Capitol Attack: Additional Actions Needed to Better Prepare 18 Capitol Police Officers for Violent Demonstrations." 19 Your Honor, that's Plaintiffs' Exhibit 15. 20 Joe, would you bring up Demonstrative 17. 21 BY MR. GOLDBERG: 22 Q. Would you explain to Judge Mathew what was important 23 to you from this part of that GAO report? 24 A. Again, we go through the elements. Thousands of 25 demonstrators. We have an assemblage. Dispute the outcome of TR-39 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the 2020 Presidential election. We have a purpose to resist or 2 prevent the implementation or execution of some federal law. 3 Assault police officers, including 114 U.S. Capitol police. We 4 have violence in force, and again sufficient violence in force 5 to lead us to suspect this is not simply some protestors getting 6 out of hand, but that the violence, force and intimidation is 7 integral to the protest. 8 MR. GOLDBERG: Your Honor, I'm done with the 9 reports. Now we're going to turn to the videos. Your Honor can 10 see I'm an older man. Would this be a good time for a break? 11 THE COURT: We'll go ahead and take a 15-minute 12 break. So we'll be in recess for 15 minutes. 13 Professor, you may step down. 14 (Court in recess at 10:07 a.m.) 15 THE COURT: We're back on the record. Mr. Goldberg. 16 MR. GOLDBERG: Thank you, Your Honor. 17 BY MR. GOLDBERG: 18 Q. Professor Graber, we talked about the four federal 19 reports that you reviewed. Did you receive any other evidence 20 relevant to whether there was violence or force or intimidation 21 by numbers on January 6? 22 A. Yes. I reviewed some of the exhibits in this case, 23 some other videos, and a video in particular made by the 24 Congressional Committee on January 6. 25 Q. What was it that impressed you about -- let me go TR-40 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 back. 2 MR. GOLDBERG: The video that you just mentioned, 3 that's Plaintiffs' Exhibit, Your Honor, 136. 4 Joe, would you just bring up the video, don't play 5 it yet. 6 BY MR. GOLDBERG: 7 Q. Did you ask that various clips from that video be 8 put together so that you could explain to the Court why you 9 found this video important to your investigation? 10 A. Yes, I did. 11 MR. GOLDBERG: Joe, would you play those excerpts 12 from PX 136. 13 (Note: The video is played to the Court.) 14 BY MR. GOLDBERG: 15 Q. Explain to the Court why you felt these excerpts 16 from Plaintiffs' Exhibit 136 were important. 17 A. First, in all the excerpts, we see peoples part in 18 assemblage, acting in concert. In the first, third and the 19 fifth, they're acting in concert with respect to violence and 20 force. People smashing in the window of the Capitol building, 21 the group attacking police officers in the third and fifth 22 excerpts. In the second and fourth excerpts, we see people 23 acting in concert to intimidate, "hang Mike Pence," the noose. 24 And in the American political tradition that I 25 studied, the noose is a classical form of intimidation. If you TR-41 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 have a noose up there, you don't want Mike Pence out to explain 2 Indiana politics. It's a threat of violence. 3 We saw 50, maybe 100 people climbing the Capitol 4 steps to the office of the Speaker chanting "Nancy, Nancy, 5 Nancy." That is exceptionally intimidating. 6 Q. Let me show you Plaintiffs' Exhibit 162. 7 MR. GOLDBERG: Your Honor, this is an exhibit of 8 Mr. Griffin on his way to Washington, D.C. in Woodlands, Texas, 9 which is just outside of Houston. There are some snippets or 10 some excerpts from this video that he asked to be put together. 11 Would you play it, Joe, and then I'll ask you some 12 questions. 13 (Note: The video is played to the Court.) 14 BY MR. GOLDBERG: 15 Q. Very short. Why don't you explain to the judge why 16 did we pick out these two very short snippets from the video 17 from Woodlands, Texas? 18 A. All this goes to part one, the assemblage, acting in 19 concert. Be there, let's do it together. It may not be the 20 precise phrasing, but that's approximately what I heard. 21 Q. The first snippet was one introducing Mr. Griffin 22 and talking about calvary, why is that important? 23 A. Calvary -- you call for the calvary when you 24 anticipate violence or force. It's a military term. The 25 metaphor does intend to be used, you call for the calvary when TR-42 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 you intend a peaceful protest. 2 Q. Can you summarize your opinions for the Court as to 3 whether the events of January 6 and surrounding events were an 4 insurrection as understood by the framers of the Fourteenth 5 Amendment and knowledgeable people? 6 A. We saw an assemblage, acting in concert, chanting 7 "hang Mike Pence" in concert, attacking police officers in 8 concert. We saw that they were there to prevent the execution 9 of those laws that would have certified that Joe Biden won the 10 Presidential election. We saw that they were there was because 11 they believed in the public purpose, that the election had been 12 fraudulent, had been stolen. That they wanted it corrected. We 13 saw no evidence of anyone acting on a private or personal 14 agenda. And we saw, particularly in the excerpt of the 15 Congressional one, substantial violence, force and intimidation. 16 Q. Let's turn to your last opinion that the framers of 17 Section 3 and other knowledgeable people in the Nineteenth 18 Century were to consider Mr. Griffin's activities on January 6 19 and the surrounding time as participating in the insurrection. 20 What did persons in the Nineteenth Century believe constituted 21 participating or engaging in an insurrection? 22 A. As I have already noted, Nineteenth Century people 23 believed with respect to levying war, insurrection, treason, all 24 people who participated were principals. There are no 25 accessories. They use a phrase called leagued. The question TR-43 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 is: Was the person leagued? 2 Q. What do you mean by "leagued"? What do you 3 understand they meant by "leagued"? 4 A. They meant one of two things. First, the person 5 acted in concert. The phrase they sometimes use is marched with 6 others knowing that the group intended to achieve its purpose in 7 part by violence, force or intimidation, or the person performed 8 an overt act knowing that overt act would aid or support the 9 revolution. It didn't have to be for the intention. 10 So there is a wonderful case, it occurs in Congress, 11 where a senator was taking the oath. It was discovered he was 12 loyal to the Union, but he -- when his son said I'm joining the 13 Confederate Army, he said, "Please don't go." The son said, 14 "I'm going." He says, "Here's $100 to help you out." He would 15 have preferred his son spend the money, you know, just drinking 16 it away, but he gave him $100 knowing that would aid the 17 confederacy, and the Senate said he could not take the oath to 18 become a senator. 19 Q. So when you say either or, either an overt act or 20 doing something in concert with, either one of those would 21 satisfy the definition of "leagued"; is that correct? 22 A. That is correct. 23 Q. Did you find evidence in your investigation that 24 Mr. Griffin was, and I'll use the word leagued with the 25 insurgents, insurrectionists on January 6? TR-44 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. There were a number of videos that I saw the people 2 of the Nineteenth Century would agree constituted evidence of 3 being leagued. 4 Q. Did he express solidarity with the January 6 5 insurrection? 6 A. Yes. In those videos, you will see consistently the 7 use of the first person plural. "We are doing this. We believe 8 this. We will not stop." 9 MR. GOLDBERG: I'm going to play -- and the Court 10 has already heard a fair amount of Plaintiffs' Exhibit 37. 11 Your Honor, I'll make sure the record is clear. 12 Plaintiffs' Exhibit 37 is the extended talk to social media 13 audience by Mr. Griffin in Roanoke, Virginia the day after the 14 insurrection. 15 BY MR. GOLDBERG 16 Q. We have a number of excerpts from that that I want 17 to play for you, Professor Graber. 18 MR. GOLDBERG: Joe, would you bring up Plaintiffs' 19 Exhibit 37. Let's start with three minutes and 14 second to 20 four minutes and 40 seconds. 21 (Note: The video is played to the Court.) 22 BY MR. GOLDBERG: 23 Q. What is important about this except from the Roanoke 24 spot to your opinion that Mr. Griffin was a participant in the 25 insurrection? TR-45 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. I counted six uses of the first person plural, "we." 2 "We marched. We heard. We did this." Also in the video, 3 Mr. Griffin acknowledges that the police said "Do not go here." 4 Then he said "The assemblage went here." He then also 5 acknowledges he witnessed some of the "we" fighting. That is, 6 he now knows the people he is in concert with are engaged in 7 violence and force. 8 Q. Thank you, Professor. 9 MR. GOLDBERG: Joe, would you play one minute and 10 ten seconds to one minute and 40 seconds. 11 (Note: The video is played to the Court.) 12 BY MR. GOLDBERG: 13 Q. What was it about this excerpt that formed your 14 opinion that Mr. Griffin had joined the insurrection? 15 A. That one did not come up. I heard the words -- the 16 video itself did not come up on my screen. 17 Q. I'm terribly sorry. Go ahead -- 18 A. I -- 19 Q. Do you want it played again? 20 A. I don't need it to be played again. Again, the use 21 of "we." "We're in a war." That again, implies some violence. 22 So this is similar to the first excerpt we saw. There is 23 acknowledgment that this is a "we," that he does not depict 24 himself as an outsider observing events. But as part of events 25 he calls historic and identifies with all that he sees TR-46 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 beforehand. 2 Q. Professor Graber, if the video doesn't turn up on 3 your screen, if you can turn around and look up above you. I 4 don't know that you can see the video there. 5 MR. GOLDBERG: Joe, will you bring up the excerpt 6 from five minutes to five minutes and 36 seconds. 7 (Note: The video is played to the Court.) 8 BY MR. GOLDBERG: 9 Q. What was it about that excerpt that informed your 10 opinion that Mr. Griffin had joined the insurrection? 11 A. Again, we. "That was us down there," taking credit 12 for all that happened on that day. 13 MR. GOLDBERG: Joe, would you play the excerpt from 14 PX 37. It starts at seven minutes and 45 seconds and it goes to 15 8 minutes and 4 seconds. 16 (Note: The video is played to the Court.) 17 BY MR. GOLDBERG: 18 Q. What was it about that excerpt that informed your 19 opinion that Mr. Griffin was one of the insurrectionists? 20 A. Again, the "we." "We are not going to lose." "This 21 is a revolution." He talks about Second Amendment rights. "You 22 have a need for a Second Amendment right when you expect to use 23 a weapon. 24 Q. Were the phrases that he used, "We are networked, we 25 are connected, we all have the same heart," were they relevant TR-47 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 to your investigation? 2 A. Again, that is talking about an assemblage with a 3 common purpose, acting in concert. 4 MR. GOLDBERG: Finally, Joe, would you play the 5 excerpt that starts at nine minutes and 45 seconds and goes to 6 ten minutes and 40 seconds. 7 A. My picture appears to be appearing again. That's 8 why I'm staring at my screen. 9 BY MR. GOLDBERG: 10 Q. What was it about that excerpt that was important to 11 you -- to your opinion that Mr. Griffin had joined the 12 insurrection? 13 A. As with the other excerpts, the use of the second 14 person -- first person plural, but also the identification of 15 the common purpose, to prevent Joe Biden from becoming 16 President, to prevent Kamala Harris from becoming President 17 [sic]. To prevent China from exercising increasing influence of 18 the United States. All of these are public purposes as 19 insurrection is understood by legally knowledgeable people in 20 the Nineteenth Century. 21 Q. I want to show you Plaintiffs' Exhibit 152. 22 MR. GOLDBERG: Your Honor, that's the January 9 23 video in San Diego of Mr. Griffin talking to folks in the 24 parking lot. 25 Play the video, Joe, from one minute 40 seconds to TR-48 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 one minute to 52 seconds and two minutes to 40 seconds to the 2 end. 3 (Note: The video is played to the Court.) 4 BY MR. GOLDBERG: 5 Q. In either of these excerpts from Plaintiffs' Exhibit 6 152, did you see Mr. Griffin separating himself from the 7 violence that he had observed at the insurrection? 8 A. No, I did not. 9 Q. So what was important to you from these excerpts 10 from Plaintiffs' Exhibit 152? 11 A. Again, the first person plural. Again, the 12 acknowledgement that the goal of the assemblage is to prevent 13 the certification of Biden. But also the statements that not 14 only did Mr. Griffin witness violence, but he regarded violence 15 as integral to the efforts to prevent the certification of the 16 Biden presidency, that he does not describe and was 17 unfortunately a couple of demonstrators got out of hand, but as 18 something "we did to advance our cause." 19 Q. Let me go back to a video of one of the speeches or 20 one of his talks that Mr. Griffin made on one of the stops on 21 his way to Washington. 22 MR. GOLDBERG: This is PX 171. Joe, will you pull 23 up and play the excerpt from four minutes and 45 seconds to five 24 minutes and 35 seconds. 25 (Note: The video is played to the Court.) TR-49 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 BY MR. GOLDBERG: 2 Q. Explain to the judge why this video was -- this 3 excerpt from the video, Plaintiffs' Exhibit 176, was important 4 to your opinion -- it's 171, I'm sorry. 5 A. Notice the gender use of language, particularly of 6 men, that Mr. Griffin acknowledges. He is not using "men" in a 7 generic sense as in all men are created equal, but calling for, 8 in fact, people who are male. Moreover, he's calling for men in 9 the heat of battle, in the fight to stand shoulder to shoulder. 10 Now, if we're talking metaphors, the war on poverty, 11 women in traditional understandings can fight metaphorical 12 battles as well as men. But when violence, force, intimidation 13 are integral to a group's plan, that is when, on a traditional 14 understanding, you need men in the biological sense. 15 Q. Did you see any evidence in your investigation, 16 Professor Graber, that Mr. Griffin performed overt acts that 17 aided and supported the insurrection? 18 A. Yes, I did. I saw three examples of acts that at 19 least people in the Nineteenth Century would regard as evidence 20 of an overt act. 21 Q. Let me show you Plaintiffs' Exhibit Number 25. 22 MR. GOLDBERG: Joe, would you play the excerpt from 23 five minutes and 40 seconds to six minutes and 20 seconds. 24 (Note: The video is played to the Court.) 25 BY MR. GOLDBERG: TR-50 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Explain why this is evidence of an overt act 2 supporting the insurrection. 3 A. Knowledgeable legal people of the Nineteenth Century 4 might understand this is an overt act in two different ways: 5 First, as I noted, anyone who marches with an insurrection, 6 knowing what the group is about, has committed an overt act. 7 Simply if, in fact, there are a group of people marching on, 8 say, this courthouse for the purpose of violently preventing the 9 implementation of federal laws and somebody joins them knowing 10 the purpose, that's an overt act. 11 Second, we see Mr. Griffin crossing a barricade 12 getting closer to, in fact, the Capitol. The closer he is to 13 the Capitol, the increase in intimidation. Again, I emphasize 14 it's simply one more person. The authorities say it's minute. 15 When you have an insurrection, there are lots of people. If the 16 Confederate Army had had one soldier more or less, the outcome 17 would have been the same. But an overt act is not measured by 18 how much it contributes, but simply does it contribute in any 19 minute sense. One more person closer to the Capitol to aiding 20 and supporting as it was understood by knowledgeable people in 21 the Nineteenth Century. 22 Q. Let me show you Plaintiffs' Exhibit 153. 23 MR. GOLDBERG: Joe, would you play the video. 24 You've seen this also before, Your Honor. This is 25 Mr. Griffin speaking in the car after the insurrection. TR-51 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 (Note: The video is played to the Court.) 2 BY MR. GOLDBERG: 3 Q. Why does this show an overt act, Professor Graber? 4 A. Here, we see as the violence is actually taking 5 place. Mr. Griffin is in the crowd encouraging the people he is 6 in concert with to attack police officers. Again, it's one more 7 voice, but legally knowledgeable people of the Nineteenth 8 Century said one more voice is one more person who is involved 9 in the insurrection. 10 Q. In order to have been part of the insurrection, did 11 Mr. Griffin have to have been personally involved in violent 12 acts? 13 A. No. The case law and, in fact, the legal treatises 14 are all very clear. So, for example, in Powell, Powell 15 purchased a substitute to join the Confederate Army, he never 16 fired a shot, never raised a fist or never threw a stone. But 17 his purchase of a substitute aided and contributed to the 18 Confederate cause. He was deemed unable to hold office under 19 Section 3. 20 Q. Mr. Griffin states in his deposition and to this 21 Court that he was animated by religious fervor, the Holy Spirit 22 in his actions in going to Washington and being there. Is this 23 a defense to being part of an insurrection, Professor? 24 A. No, that is a statement of public purpose, not 25 private or personal. John Brown claimed to be animated by the TR-52 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Holy Spirit. He was executed in Virginia. And though some 2 anti-slavery advocates objected to the excuse, no one said his 3 defense was legitimate because he was ordained by God. Many of 4 the people involved in fugitive slave rescues believed 5 evangelical Christians who sincerely believed God commanded them 6 to do whatever was possible to help runaway slaves. Again, 7 there was no morality, religious defense to insurrection. 8 Q. Would you summarize for the Court your opinion as to 9 why knowledgeable people in the Nineteenth Century would have 10 considered Mr. Griffin's conduct as participating in the 11 insurrection? 12 A. Well, again, what we saw was an admission that he 13 was acting in the constant use of "we" to refer to the 14 protestors. Even when the protestors are engaged in violence, 15 we see the first person. So we have someone who has joined a 16 group, knowing the group was likely to try to achieve its goals 17 by force, violence and intimidation. We saw the reference to 18 calling of men, another instance that violence is likely to be 19 integral to the effort. 20 We saw the overt acts, marching with the group, 21 crossing the barricade with the group and encouraging the 22 members of the group to attack law enforcement officials. 23 MR. GOLDBERG: Thank you, Professor Graber. I have 24 no further questions. 25 THE COURT: Thank you. TR-53 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Mr. Griffin? 2 CROSS-EXAMINATION 3 BY MR. GRIFFIN: 4 Q. Mr. Graber, I appreciate you being here today and 5 I'm honored to be able to have this conversation with you about 6 something that is as brave as insurrection as we know. But as 7 you opened, I know you are a man of a great accomplishment, 8 intellectual accomplishment and have had many successes in that. 9 You may have to have patience with me. I didn't get my 10 education in a classroom. I got my education in real life 11 experiences. So if we could keep our questions and responses 12 rather down on a level where we can all understand and, in 13 general, I'd appreciate that. 14 In your reference to insurrection and the references 15 that you've made, this is something that our country hasn't had 16 to consider them as of late. As you mentioned the laws in 17 regard to insurrection came mostly in part during the Civil War. 18 As those actions were considered to be insurrection 19 during that time, I'd like to ask you, those were organized, 20 collaborated on their face, if I'm correct? 21 A. There were, as I noted, numerous insurrections 22 before the Civil War. That's where the law originally comes 23 from. Not from the Civil War itself. The Civil War borrowed 24 law already created. As I said, they were -- one element of an 25 insurrection is it had to be acting in concert. TR-54 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. In the case of the Civil War with the Confederacy, 2 that was a -- the Confederacy had an organized government, if 3 you will, including an Army, correct? 4 A. That is correct. 5 Q. And in that effort they wanted to, in a sense, 6 remove and replace the existing government of the United States, 7 correct? 8 A. That is incorrect. They wanted to establish a 9 separate government in the States that seceded. They had no 10 intention of removing the government from Washington, D.C. 11 Q. Sure. So they wanted their own separate government. 12 In line with that, and you're right in your response, would you 13 say that that is what January 6 was? Did it look like those 14 that came on January 6 were trying to instigate or have their 15 own government? 16 A. I found no evidence that suggests it influenced 17 January 6. 18 Q. Again, in regards to insurrection in your testimony 19 of today could very well be used to impact many -- I mean, 20 myself here today, as well as many others that were -- 21 participated in January 6. So we need to be very clear in what 22 exactly insurrection is. 23 And so, you know, to -- to consider January 6, in my 24 opinion, what took place on that day and in your opinion what 25 took place on that day, I think probably just to kind of really TR-55 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 get to the meat of it would be I would like to ask you, in your 2 opinion, what's the difference between a protest and an 3 insurrection? 4 A. Both a protest and an insurrection involve an 5 assemblage of people. An insurrection involves people resisting 6 the execution of any or all laws. Federal law for federal 7 insurrection, state for a state insurrection. 8 A protest may simply be an objection or a call to 9 pass new laws. An insurrection must have a public purpose. As 10 I understand the definition of protest -- and I should 11 emphasize, Your Honor, I do not -- I have not researched the 12 Nineteenth Century understanding of what was a protest. 13 But I understand a protest, people maybe there for 14 their own private or personal reasons. Finally and most 15 important, an insurrection requires violence, force, 16 intimidation. A First Amendment protected protest has none of 17 those. 18 Q. As we sat as a nation and currently watched many 19 violent protests after the Supreme Court overruled Rowe versus 20 Wade, would you consider those to be insurrection? 21 A. I have not done a study of any protests in the 22 United States other than January 6. I don't have the evidence 23 to make a professional conclusion. 24 Q. But in a protest as such that I just mentioned in 25 regard to Rowe v. Wade, that was the Supreme Court, the highest TR-56 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 court in our nation, overturned Rowe v. Wade and set precedence. 2 And we have protestors who have acted very violently all the way 3 to the point of going outside of our Supreme Court Justice's 4 homes and carrying firearms, making death threats against our 5 Supreme Court Justices, and it's collaborated, coordinated and 6 strategic. 7 So again, in your definition of what an insurrection 8 is, I would like to ask you: Would those protests be considered 9 insurrection? 10 A. I have not reviewed or know of the existence of the 11 being facts you discuss so I cannot offer a professional 12 opinion. What I can say in a professional opinion is it is 13 entirely possible that any protest, whether to resist abortion 14 laws, presidential transition laws, tax laws, could become an 15 insurrection under the right conditions. I simply haven't done 16 the research that I can answer your question in my professional 17 capacity. 18 Q. As I know that you are a man who keeps up with the 19 media and as you are sitting here under oath today, do you 20 remember reading a story about a man that traveled from 21 California to Justice Brett Cavanaugh's home armed with the 22 intent to murder? 23 A. I don't recall that story. 24 Q. But if this happened, which it did -- well, I can't 25 say that it did because it came from the media, but if it so was TR-57 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 true, would this man be guilty of insurrection? 2 A. To begin with, notice an insurrection requires an 3 assemblage. 4 Q. Sure. 5 A. That's more than one person. 6 Q. Okay. So with the assemblage of many protestors who 7 act violently in front of Supreme Court Justice homes, would 8 those people who have willful intent of violent acts against 9 Supreme Court Justices that ruled inside of the law in Rowe v. 10 Wade, would they be considered insurrectionists? 11 A. By Nineteenth Century standard, and that's all I'm 12 testifying to is Nineteenth Century standards, if 13 hypothetically, and I emphasize hypothetically, we had an 14 assemblage of people united by a common purpose to resist the 15 implementation of State bans on abortion, that their purpose was 16 public, they believe women had a right to abortion and they had 17 no personal and private agenda and violence, force and 18 intimidation were integral to their efforts, that would be an 19 insurrection. 20 Again, I want to emphasize this is simply 21 hypothetical. I have no evidence on which I can make a 22 professional judgment as to any particular protest now taking 23 place in the United States. 24 Q. As a constitutional scholar, and which I'm not, but 25 in a case in which the government passes a law that the people TR-58 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 don't feel that that is a law that they want to accept or they 2 agree with, are they within their rights together, together, to 3 protest against the law that the government implies? 4 A. Every legal commentary, political commentary I read 5 in the Nineteenth Century would agree with your assessment. 6 Q. Which is? 7 A. That merely protesting a law you do not like is not 8 an insurrection. Most of the treatises begin with that comment. 9 Q. So in all of the videos that you've seen and my 10 actions, would those fall inside of the realm -- could they 11 possibly fall inside of the realm of a protest where I'm 12 speaking against -- speaking my own grievances on a personal 13 level? Do I have the right to do that as a free American? Or 14 if we do that as Americans, could we be subject to be viewed as 15 insurrectionists? 16 A. If as Americans our protests spill over to illegal 17 actions, either we perform them ourselves or we encourage 18 members in our group of which we are acting together, to engage 19 in violence and intimidation, at that point in the Nineteenth 20 Century, we are no longer in the realm of legitimate protest. 21 We are in the realm of insurrection. 22 Q. In regard to January 6, on that day, for you, in 23 your view and in your opinion, was that day a rebellion against 24 the United States? 25 A. I would describe it as an insurrection against the TR-59 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 United States. 2 Q. How is that? Why would you consider it an 3 insurrection? 4 A. Primarily because I focused on the term 5 insurrection, and it met all the conditions for insurrection. I 6 also looked at the word "rebellion" because, in fact, Section 3 7 speaks of "insurrection" or "rebellion." What I discovered was 8 some knowledgeable people said "insurrection" and "rebellion" 9 are synonymous. Others said a rebellion is an insurrection with 10 a lot of people. 11 So Fries is an insurrection because there were 100 12 farmers. Civil War is rebellion because we have a million 13 people in arms. Still others said it's an insurrection if it's 14 resistance to the law on a small scale. Fries, it's a rebellion 15 confederacy. Crucial thing is, I couldn't find any consensus on 16 the relationship between an insurrection or rebellion. I did 17 find a consensus on insurrection, so that's what I testified to. 18 Q. Believe me, I want to be very clear that I in no 19 way, shape or form would ever condone overthrowing or rebelling 20 against our government, but we just want the laws followed. In 21 saying that, if you can kind of just start afresh and let me 22 give you this scenario and let me ask you if this would fall 23 under the realm of insurrection. 24 If you had a nation with the population that 25 questioned the legitimacy of the election, and that population TR-60 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 was driven -- their suspicions were driven by videos that they 2 had seen by sworn affidavits that they had read, and by sworn 3 personal testimony that they had heard. And that population 4 believed, didn't know, but had suspicion that the electorate 5 could very well have been compromised and only wanted their 6 government to slow down in the certification process and follow 7 a more stringent certification, if you will. 8 So that population traveled to Washington, D.C. to 9 assemble to bring this protest, to try to allow their voices to 10 be not only heard but recognized by their federal government 11 because they deep down had a conviction that the electorate was 12 not a fair and legal electorate. And they didn't assemble in 13 Washington, D.C. because they wanted to rebel against the law or 14 overthrow the government. They simply wanted the Vice President 15 of the United States to deny the certification of the elections 16 legally well within inside of his bounds so that electorate 17 could go back to the States for further examination. 18 If a person went to Washington, D.C. on that day 19 with that intent, would that person, in your opinion, be guilty 20 of insurrection? 21 A. If as you describe we have a person, and not simply 22 a person, people acting in concert, they travel to Washington, 23 D.C. to communicate to the federal government they believe there 24 is fraud in the election, they believe the process should be 25 slowing down, and all they do is attempt to communicate. They TR-61 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 do not use violence, do not use force, they do not intimidate. 2 They do not violate the laws of the country or the laws of the 3 place where they are at, that's a protest. 4 Q. And that would be well within inside the law and 5 well within inside of our constitutional right to participate in 6 such an event, correct? 7 A. Absolutely. 8 Q. What if -- as I laid the scenario out and it 9 unfolded, what if there was a coordinated effort by others who 10 wanted to undermine these people and possibly make them look 11 bad, if you will, or maybe even worse, look like 12 insurrectionists? So this coordinated effort had people that 13 were placed inside of the crowd that broke windows out, that 14 assaulted Capitol Police officers, that coordinated with people 15 on the inside in order to unlock the front door of the Capitol 16 in order to, I believe, as Metropolitan Capitol [sic] Police 17 Officer Daniel Hodges referred to yesterday as luring them 18 around to another door. If there was people in this effort and 19 this took place, could people that were just there in a peaceful 20 manner on their own accord be entrapped, if you will, and 21 tainted as insurrectionists, even though they were only there 22 trying to stay with -- well within the bounds of the law and 23 stand on their constitutional rights? 24 A. What you are describing is a version of the facts in 25 United States versus Hanway, an 1851 fugitive slave case. TR-62 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Hanway was a miller. He hears a commotion in the neighborhood 2 and wants to find out was happening. It turns out it's a 3 fugitive slave rescue, and he was caught in the middle. He does 4 not help the police. They say he's a Quaker. He is put on 5 trial for insurrection. The Court charge was very clear. The 6 mere presence of a person at the time an insurrection is taking 7 place is not sufficient. If that person was not leagued with 8 the insurrectionists, did not know what was going on and did not 9 perform an overt act that aided or comforted the insurrection. 10 So to the extent the facts or anybody meet the 11 conditions of United States versus Hanway, that person is not an 12 insurrectionist, as the Nineteenth Century would have understood 13 insurrection. 14 Q. I believe that testimony because I believe that it 15 further vindicates myself. Because you have seen so many 16 videos. The Plaintiffs have combed through every statement that 17 I've made, every video that I've made. Many videos and 18 statements that were recorded that I didn't even know they were 19 being recorded. I am an open book before you today as all of my 20 laundry has been aired. 21 And I would like to ask you: Have you seen one 22 example or one instant in which it looked as though I was 23 collaborating or coordinating with any other party in an attempt 24 or an effort to cause any kind of insurrection on January 6? 25 A. Well, we can start with the number of things I TR-63 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 testified to. So for example, there is the video of 2 acknowledging when protestors were attacking police officers -- 3 Q. But that's not answering my question. 4 MR. GOLDBERG: Your Honor, I object. He's 5 interrupting the witness. 6 MR. GRIFFIN: It's not answering my question. 7 MR. GOLDBERG: Your Honor, I am objecting. 8 MR. GRIFFIN: I'm just trying to bring him back to 9 my question. The question is simple. 10 THE COURT: Okay. You have to understand the 11 procedure. One person speaks at a time. 12 MR. GRIFFIN: Yes, sir. Okay. 13 THE COURT: The objection is let the witness finish 14 the answer. Then you can ask your next question. 15 MR. GRIFFIN: I'm sorry, Your Honor. Yes, sir. 16 A. I'll stick with a single instance where you 17 acknowledge saying "heave-ho, heave-ho." You acknowledge to be 18 encouraging the people who were attacking the police officers. 19 I think -- and I think -- this only is evidence. The trier of 20 fact determines what is truth. But a legally knowledgeable 21 person in the Nineteenth Century would consider this evidence 22 that you were acting in concert with people engaged in violence. 23 BY MR. GRIFFIN: 24 Q. Specifically, though, did you specifically see on 25 any videos, any Facebook posts, any e-mails, any media where I TR-64 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 was in direct correspondence with any single individual or 2 organization? 3 A. I'm not sure what you mean by "correspondence." I 4 apologize. 5 Q. Any back and forth, any -- any conversations or any 6 of my media directed at any specific individual or organization 7 that pointed to an attempt to overthrow our government? 8 A. I did not review anything in your social media. 9 Q. Well, believe me, if any of it was out there, you 10 would have seen it today. Believe me. 11 MR. GOLDBERG: I object. I move that it be struck. 12 That's not a question. He's trying to testify. 13 THE COURT: Again, Mr. Griffin, keep your questions 14 to the witness. 15 MR. GRIFFIN: Yes, sir. Thank you. 16 BY MR. GRIFFIN: 17 Q. I'd like to ask you once again on something that you 18 referenced earlier in the case of U.S. versus Hoxie. Could you 19 once again revert back to that? 20 A. You want me to -- 21 Q. Just give us another definition of what U.S. versus 22 Hoxie is. 23 A. U.S. v. Hoxie is a case that arises in New England, 24 I think 1807, it might be 1808. The issue is the Embargo Act of 25 1807. Mr. Hoxie has a boat that was seized by custom officials TR-65 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 for violating the Embargo Act. He then attempted to violently 2 get back his boat. He killed a custom official in doing this. 3 He was tried not for murder but for insurrection. 4 And what the Court said was this was not an 5 insurrection. It was a lot of other crimes, but it was not an 6 insurrection because Mr. Hoxie was not there for a public 7 purpose. He didn't think the Embargo Act was fraud. He didn't 8 think it was unconstitutional. He had think it was oppressive. 9 He had no interest in reflecting anybody else's interest. He 10 just wanted his boat. And if you just want your boat, it's not 11 an insurrection. 12 So to take a very silly example. Imagine there is 13 somebody -- 14 Q. That's fine, if I may. 15 A. Okay. 16 MR. GRIFFIN: I thought he was done with the 17 question. I'm sorry, Your Honor. 18 BY MR. GRIFFIN: 19 Q. The point that I wanted to make by referencing that 20 is when I traveled to Washington, D.C., I did so on my own 21 accord. I didn't go in my official capacity as a County 22 Commissioner. I didn't go to Washington, D.C. to represent 23 Otero County. I went to Washington, D.C. in my private 24 capacity. 25 And so I would like to ask you in regard to that, TR-66 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 if I go in my private capacity as a private citizen not speaking 2 as Otero County, not representing Otero County because I have 3 already had this conversation in Otero County and that's the 4 reason why I sit alone today, because the County says they have 5 no -- you're on your own. You weren't representing us. We have 6 no connection to any of your dealings in Washington, D.C. 7 So I would like to ask you today, as you stated 8 earlier that I was in violation of my oath, I would like to ask 9 you once again if I was in Washington, D.C. as a private citizen 10 with no association to Otero County and by Otero County's own 11 position by refusing me counsel today is proof, would I have 12 been in violation of my oath of office in Washington, D.C. in 13 January 6? 14 A. I think we have a confusion on the different 15 meanings of private. When legal treatises, political treatises 16 speak of a private motive being a defense to insurrection, they 17 don't mean a person acting as a private citizen. Rather, they 18 mean a person who is seeking things only for themselves. So if 19 a person had gone to Washington, D.C., say, for the purpose of 20 stealing furniture from the Capitol and breaks a window for the 21 purpose of stealing furniture, that's a crime. It's a lot of 22 crimes. But it's not insurrection because their motive was 23 private, personal, relating only to themselves. 24 If a person went to Washington, D.C. because they 25 sincerely believed the election was stolen, they were not acting TR-67 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 to benefit themselves. They were acting on their notion to 2 benefit the community. But that, in fact, is an element of 3 insurrection. As I talked about the rescue of fugitive slaves, 4 they believed what they were doing was best for the community. 5 They believed what they were doing was moral. They believed 6 what they were doing was correcting an unconstitutional law, as 7 commanded by God. But it was still an insurrection because that 8 is the meaning of common public purpose as opposed to private 9 purpose, not acting as a private citizen versus acting as a 10 public official. 11 Q. I think there are a lot of weeds that we just went 12 through in your response. I would like to go back and ask you 13 once again. You are a constitutional scholar. You are a man of 14 great accomplishments inside studying the law. I would like to 15 ask you once again, simply yes, no. In what I said about my 16 attendance in Washington, D.C. on my own accord inside of my own 17 private capacity, not representing Otero County and Otero County 18 not having me represent them, would I have been in violation of 19 my oath on January 6th simply for traveling to Washington, D.C. 20 and attending this protest? Without all the other, well, you 21 said this and she said that. Just in your own opinion, is that 22 a violation of my oath? 23 A. Yes. 24 Q. And how so? 25 A. Again, let's go through the elements. You were TR-68 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 acting in concert with other people. You watched with them. 2 That's what the tapes clearly show. You had a purpose; to 3 prevent the certification of Joe Biden to be President. It was 4 a public purpose. You didn't think Donald Trump was going to 5 benefit you personally. You thought the election was stolen. 6 You thought China was exercising undue influence -- 7 MR. GRIFFIN: Please, Your Honor. He doesn't -- the 8 witness doesn't need to be trying to put what I was thinking or 9 what I was doing. This is my time with the witness and what I 10 was doing there, if I can -- 11 THE COURT: Excuse me, Mr. Griffin. 12 MR. GRIFFIN: Yes, sir. 13 THE COURT: He's answering your question. 14 MR. GRIFFIN: But he's making accusations all the 15 same. 16 THE COURT: Well, you were asking him were you doing 17 something, and he was explaining that he said yes. 18 MR. GRIFFIN: But he was putting his own -- he was 19 making -- he was saying, yeah, because you were doing this and 20 because you were doing that. 21 THE COURT: Mr. Griffin -- 22 MR. GRIFFIN: I'd like to object. 23 THE COURT: Mr. Griffin, you are going to be able to 24 follow up, but you need to let him finish. 25 MR. GRIFFIN: Okay. TR-69 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 THE WITNESS: May I finish? 2 THE COURT: You may finish. 3 A. Purpose was you believed, and I heard -- you said 4 several times that this was demonstrating undue influence. 5 Communist China. This is, in fact, a public purpose. There 6 were videos and tapes in which a Nineteenth Century fact finder 7 would interpret as evidence, not as a final conclusion, as 8 evidence that when you acted in concert, you were aware that 9 violence, intimidation and force were integral to the 10 demonstration, and that, indeed, you performed several overt 11 acts that advanced the violence, force and intimidation. Again, 12 I'm talking about what people would consider evidence. There 13 may be other evidence. 14 BY MR. GRIFFIN: 15 Q. Okay. As you make those statements right now, I 16 would like to ask you what statements of violence did I say that 17 were direct statements of violence against the government did 18 you heard me say? 19 A. First, there is the "heave-ho" exhibit that we saw. 20 We saw, for example, just to highlight, the statement that "we 21 need men in the heat of battle standing shoulder to shoulder for 22 the fight." That, again, would be evidence, according to the 23 Nineteenth Century, that you understood that violence, force and 24 intimidation would be integral. It is only evidence. 25 Q. It's amazing that you can say that that's a direct TR-70 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 statement of violence against the United States whenever I spoke 2 about somebody digging a hole for themselves and being in a 3 hole. That can be translated so many ways. 4 You're -- you're -- you're drawing assumptions to 5 things that aren't there, and, unfortunately, that's what we see 6 so many times in the courts and in different circles. 7 MR. GOLDBERG: Your Honor, I object. This is not a 8 question. This is closing argument. 9 BY MR. GRIFFIN: 10 Q. As well -- 11 THE COURT: Mr. Griffin, get to your question. 12 MR. GRIFFIN: Okay. 13 BY MR. GRIFFIN: 14 Q. As well as to address whenever -- over the course of 15 the last few years, as you've followed the media, have you seen 16 the Antifa in the streets and the Black Lives Matters protestors 17 in the streets causing tremendous violence upon people? 18 A. I have seen protests by Black Lives Matter. It's 19 unclear whether Antifa is a sort of entity that would be 20 described as a group of clearly people who identify as Antifa 21 have been out on the streets. I have not reviewed for this 22 case, or any other, the scope of the behavior to be able to make 23 a professional opinion on precisely whether those are protests 24 or insurrections, as insurrections are understood in the 25 Nineteenth Century. TR-71 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. I just asked you, Mr. Graber, in the protests that 2 you have seen the last few years, three or four years, in our 3 streets headed by Black Lives Matter and with Antifa's 4 involvement, have you seen harsh physical violence upon people 5 in the news, in videos? Have you seen violence in the 6 streets -- 7 MR. GOLDBERG: Your Honor, Mr. Griffin is asking 8 questions and not listening to the answers. Because he asked 9 that question just before and Professor Graber gave the answer 10 and said he saw violence but didn't investigate whether that 11 violence constituted an insurrection. 12 MR. GRIFFIN: I'm sorry, Your Honor. I didn't hear 13 him say that he saw violence. 14 THE COURT: He did say he saw violence. 15 BY MR. GRIFFIN: 16 Q. So you will say -- you will admit before the Court 17 today that many of the protests that we've seen have been very 18 violent in nature? 19 A. No. What I said was that I saw some violence on -- 20 perhaps it was TV news, perhaps it was a clip someone may have 21 sent me. What I have not investigated are information about the 22 extent of the violence, the purpose of the violence, the 23 knowledge of the violence, all the sorts of things I would need 24 to do a professional investigation to reach a conclusion as to 25 how the Nineteenth Century would understand my concerns. TR-72 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Could you understand my concern -- whenever I said 2 "we would call on the men to show up," could you understand 3 possibly my concern at that time that there could have been 4 violent acts that could have been done against us? 5 A. It is my job or at least it's not my expertise to 6 figure out what's in anyone's mind, because I can't do it. What 7 I can say is that statement would be understood in the 8 Nineteenth Century as evidence, merely evidence. Of course, if 9 this was a trial in the Nineteenth Century, I would presume 10 people would present counter-evidence, different 11 interpretations. All I can say is saw the statement, this is 12 what the statement signifies to a Nineteenth Century historian 13 or student of political development to be more accurate. That's 14 all I can testify to in light of my expertise. 15 Q. Mr. Graber, you just state that you can't tell 16 what's in anybody's mind, but isn't that what you've been doing 17 the whole time you've been sitting there is trying to say what 18 was in our minds on January 6 by referencing that I wanted to 19 stop the transition of power, that I wanted to disrupt the 20 transition of power because, as I stated, would it be possible 21 that we were there on that day only to express our grievances in 22 what we do believe and what has been confirmed to be fraudulent 23 elections in 2020 and only to want the law to be followed for 24 Mike Pence to refuse the certification of the election and roll 25 those elections back to the State? TR-73 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. I have no expertise in anyone's inner mental states. 2 What I can say is I largely agree that is what I saw in public 3 were lots of signs saying "Stop the Steal." That is, under the 4 Nineteenth Century, a common public purpose. A Nineteenth 5 Century person probably won't ask "Everyone who is carrying a 6 banner saying 'Stop the Steal,' what are they really thinking 7 inside of their head?" They wouldn't ask that. I can't ask 8 that. They see the banners, they see the crowd chanting "Stop 9 the Steal." That's the purpose of the enterprise. 10 Q. I'd like to ask you, Mr. Graber, if you know a man 11 who participated in January 6 by the name of Ray Epps. Have you 12 seen the videos of Ray Epps under oath? 13 A. The name is not familiar to me. I do not recall it. 14 It's possible, of course, I may have read something somewhere, 15 but as of now under oath I can testify that I cannot recollect 16 the name. 17 Q. You can't recall any of the videos that Ray Epps 18 made on January 6 or that were recorded of Ray Epps? 19 A. I have never been shown such a video. I do not know 20 what those videos exist, what they say or what their 21 significance is. 22 Q. If there was a man named Ray Epps and he made videos 23 the evening before January 6 where he told a large crowd of 24 people, "Tomorrow we go into the Capitol. Tomorrow we charge 25 into the Capitol." And the same man, Ray Epps, the next day was TR-74 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 filmed on a street corner directing people down to the Capitol, 2 and he was saying, "Come on, everybody, the Capitol is this way. 3 Let's go. Let's go inside the Capitol," and this same man, Ray 4 Epps, was later filmed at the initial breach of the bike racks 5 whisper into the ear of another man by the name of Ryan Samsel, 6 and Ryan Samsel was one of the first men to charge through with 7 Ray Epps following him. 8 In that short description of what I told you about 9 Ray Epps, would Ray Epps possibly be found guilty of 10 insurrection? 11 A. Assuming your hypothetical is correct, I'd want to 12 know -- it looks like Ray Epps is acting with an assemblage. 13 Seems very -- I'd like a little more if I could find it. I'd 14 want a little more of what his purpose was, but it probably was 15 the purpose of the assemblage. I need to know is it a common 16 public purpose. I need to know more about his relationship to 17 the violence, force and intimidation. It is unclear, at the 18 most, whether a Nineteenth Century would regard mere trespass 19 without intimidation, violence or force is sufficient for an 20 insurrection. My research simply can't come to a conclusion on 21 that point. 22 Q. In the trial today you have stated that you would 23 find me guilty of insurrection, correct? 24 A. No. 25 Q. That I had participated in an insurrection? TR-75 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. I have said that knowledgeable people in the late -- 2 I'm sorry, in the Nineteenth Century, would find evidence to 3 support that conclusion. I have been very careful, I hope, to 4 emphasize that what I have been pointing to are matters of 5 evidence. They are not matters that end the fact inquiry or the 6 legal inquiry. 7 Q. Yes, sir. So in your expert witness and you are 8 very knowledgeable of the law and you are well-rounded and you 9 have seen all of the evidence that you have seen here today in 10 regard to my participation of January 6 and all the statements 11 that I have made. If you were sitting in a punishment of 12 insurrection was by death and you had the gavel in your hand and 13 the verdict was to be read, you would not find me guilty of 14 insurrection or you would find -- or you would sentence me to 15 death of insurrection? 16 A. I think that's an issue for you and counsel to argue 17 and for His Honor to decide. 18 Q. That's not my -- 19 MR. GRIFFIN: He's getting around my question. 20 BY MR. GRIFFIN: 21 Q. That's not my question. My question is to you: In 22 your scope, which is respected, and if you were the final judge 23 considering the evidence that you've seen and my participation 24 in that day by statements that I've made, would you sentence me 25 to death for going to Washington, D.C. on January 6 and standing TR-76 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 in that crowd as I did on that day? 2 A. One answer to that question, unfortunately, is I 3 would be excused because I am morally opposed to the death 4 penalty and I would simply announce in advance. Now, this I 5 know is avoiding -- I simply want to make a point that I would 6 not sentence anyone to death for anything. 7 Q. Okay. 8 A. Now, if you're asking me what I think you I think 9 you really want to ask me, and I apologize for putting words in 10 your mouth, would I convict you. And if Your Honor doesn't 11 mind, and all I had was opening statements, didn't have closing 12 statements, didn't have any evidence you would choose to admit 13 to the Court. All I had was what I viewed, I would view you 14 under Nineteenth Century standards. By the way, be told 15 Nineteenth Century standards, not Twenty-First Century, under 16 Nineteenth Century Standards, I would say yes, this is an 17 insurrection. 18 Q. And the Nineteenth Century standards -- in the 19 Nineteenth Century, there wasn't social media. In the 20 Nineteenth Century, there wasn't every conversation that you 21 have behind a closed door was recorded. We live in a world 22 nowadays -- would you agree, that we live in a world nowadays 23 that can be very much more critical, very more harsh to anything 24 that is said? And more than that, things that you have said 25 that can be misconstrued as in the video, if you will -- if you TR-77 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 can revert -- 2 MR. GRIFFIN: I wish I had videos some videos to 3 play, but I'm sorry I have to keep referring back to you, but 4 the second video that you played from Roanoke, it was right 5 before 152 -- 6 MR. GOLDBERG: Do you want the second excerpt? 7 MR. GRIFFIN: Please, Mr. Goldberg. 8 BY MR. GRIFFIN: 9 Q. Before you play it, I want you to listen to this 10 video because in this video that is going to be played, I 11 specifically say this isn't against the Democrats. This is 12 against China. 13 MR. GRIFFIN: Play the video, please. 14 (Note: The video is played to the Court.) 15 BY MR. GRIFFIN: 16 Q. It's not against the Democrats. It's against China. 17 Do you fall under grounds of an insurrection if you speak 18 against a Communist country that you're concerned about taking 19 your own country over? Would that be insurrection? 20 A. Again, as I've said, with respect to element three, 21 element three is a common purpose, a fear of undue Chinese 22 influence. Undue -- in the Nineteenth Century, it would be a 23 fear of undue influence. If people meet the other three 24 elements of insurrection and their purpose is a sincere effort 25 to prevent fraud, to limit the influence of a foreign nation, it TR-78 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 is, nonetheless, an insurrection. 2 MR. GRIFFIN: Can we play video 152. 3 BY MR. GRIFFIN: 4 Q. Again, these are videos that the Plaintiffs -- these 5 are videos that I'm listening to as I'm sitting there in my 6 chair. Again, I want you to listen. The direction of this 7 content was against China, not the United States. 8 MR. GRIFFIN: Play the video, please. 9 (Note: The video is played for the witness.) 10 BY MR. GRIFFIN: 11 Q. So again, China. China. And the technology that is 12 being used in our Dominion machines can be compromised by 13 outside countries, so -- outside countries, so I would like to 14 ask you: If outside countries -- if you have concern that an 15 outside country, such as China, is influencing the technology 16 that counts our vote in the machines that we use, and I speak 17 out harshly against a Communist country and their possible 18 intervention in our elections, would that be considered 19 insurrection? 20 A. If all you are doing is speaking out harshly against 21 what you believe to be undue Chinese influence on American 22 elections, that is not an insurrection. 23 Q. What about if you gather in a crowd and you voice 24 the same concern in a large crowd, such as which that was 25 gathered outside the Capitol on January 6, would that be TR-79 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 considered insurrection? 2 A. If you have a large crowd where they are lawfully 3 entitled to be, speaking out as a group harshly against the 4 influence of Communist China on American elections, that is not 5 insurrection. 6 Q. What if inside of that crowd there are people that 7 are acting at their own will and they're doing very foolish, 8 disgusting things, like fighting with police officers and 9 breaking windows out, if those random actions were taking place, 10 but they were coming outside of this crowd, would you consider 11 the crowd to be insurrectionists? 12 A. What you are describing is really two crowds? And 13 what someone in the Nineteenth Century would do would be to try 14 to figure out who acted in concert with those people who engaged 15 in the acts of violence, force and intimidation, who supported 16 the people with overt acts in their violence, force and 17 intimidation, who had no knowledge of this, provided no support 18 and did not act in concert. That is what would have been done 19 in the Nineteenth Century in the hypothetical you give. 20 Q. So somebody like in the example that I made earlier 21 of Ray Epps, someone inside of that capacity, if he was doing 22 the things that I said that he was doing, in your opinion, 23 should someone like that be investigated and brought before a 24 Court? 25 A. I have no idea and no control and no expertise on TR-80 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the reasons why we might investigate or prosecute anyone. 2 That's not my area of expertise. 3 Q. But you just mentioned specifically I was talking 4 about two different crowds, which I was. And I was talking 5 about one crowd with individuals that had infiltrated this one 6 crowd that were acting maybe in a coordinated effort amongst 7 each other or maybe just individually, but they were making 8 actions of violence. Would you say that that's an expression of 9 that crowd and you would say that those are insurrectionists? 10 A. What I would say is the answer I gave to the 11 previous question, which is what we really have here is not one 12 crowd, but two. And police, prosecutors, judges and juries in 13 the Nineteenth Century would have the extraordinary difficult 14 job of trying to figure out who was in the crowd, was seeking to 15 resist the execution of federal law for a common public purpose 16 through persuasion and simply where a lot of people disagree, 17 and who was in the crowd seeking the same goals through 18 violence, force and intimidation. 19 Q. I'd like to ask you, would you automatically 20 translate the mention of war as violence? 21 A. I would make a rebuttable inference. 22 Q. What if somebody said political war, would that be 23 -- would you consider that to be a violent statement? 24 A. Depending on the context. 25 Q. We're in a political war today. TR-81 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. That's too divorced from any context. 2 Q. So you can't say if that's a violent statement or 3 not a violent statement? 4 What about if it's an ideological war, would you 5 consider that to be violence -- if I said "Today we're in an 6 ideological war and this is a war that we will not lose. We 7 will win this war. We will conquer our enemy and we will not 8 lose this ideological war." Would you -- would you translate 9 that as a violent rhetoric? 10 A. I think here I'm speaking more of a political 11 scientist than a Nineteenth Century legal historian, but 12 ideological war does seem to imply battle of ideas. So my 13 rebuttable presumption would be that this is not a call to arms. 14 Q. So you would not say that that was a violent 15 statement then, in simple terms -- in simpler words? 16 A. Well, I have to use a phrase rebuttable presumption. 17 If I hear more or learn more, I might change my mind. But my 18 instinctive reaction, political war I am unclear because some 19 political wars are violent. But ideological wars, most of the 20 time when that phrase is used as a political scientist, it is 21 used to talk about a battle of ideas and not a physical battle. 22 Q. What about if a person was to say "I will not be 23 intimidated, I will not be threatened and I will not back down" 24 would that be violent rhetoric to you? 25 A. Again, context is everything. My rebuttable TR-82 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 presumption on that one is probably not. 2 Q. What about if a person was to say this, "We're going 3 to push through this at all costs and we're going to get to the 4 other side and we're going to stay the course and we will never 5 back down," would you say that that was violent rhetoric? 6 A. It depends on the context. What are you pushing 7 through? If in the context you are pushing through other human 8 beings, you're pushing through property barriers, I would say 9 yeah. If it was simply as a coach of a sports team who might 10 say it's the fourth quarter, "we have to push through," that is 11 clearly not violence. 12 Q. What if it was in a political realm? What if it was 13 my political agenda and I stood before a crowd and I said "We 14 are not going to lose this. We're going to push through. We 15 are not going to be back down. We are not going to be 16 intimidated," and I was talking about a political agenda and I 17 was trying to really just garnish support for my agenda, would 18 you translate that to be violent rhetoric? 19 A. That use of "pushing through" sounds like a high 20 school basketball coach, push through to fourth quarter. 21 Q. How many times have we said in basketball games, "I 22 hope we kill our opponents this weekend. I hope we annihilate 23 the other side," would -- if you heard a fan, some old grandma 24 sitting up in the stands and you walked by and she stood up and 25 she said, "Go get 'em, Junior, and kill them today, annihilate TR-83 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 them, let's beat them to a pulp," would you -- would you 2 consider that to be violent rhetoric? 3 A. Not in that context. 4 Q. A lot can be taken out of context, and a lot of what 5 you have seen here and testified on has been just that, taken 6 out of context. And we have to be very careful, especially 7 whenever we are dealing with a charge -- 8 THE COURT: Mr. Griffin, do you have a question? 9 MR. GRIFFIN: No. He -- yeah. 10 BY MR. GRIFFIN: 11 Q. I guess my final question would be, and I appreciate 12 your patience with me, Mr. Graber, is that in all of your 13 expertise and knowledge of the law and particularly focused on 14 the point of insurrection, and with everything that's been said 15 in America about January 6, and with all of the videos that have 16 come out, and with all of the pointed attacks on individuals, 17 I'd like to ask you: Why hasn't anybody been charged with 18 insurrection in the United States today? Because there hasn't 19 been one person that has been charged -- not convicted, 20 charged -- with insurrection? So in all your knowledge, why is 21 that? 22 A. Nothing in my expertise qualifies me to answer that 23 question. 24 Q. But -- so you can't give an answer to a question as 25 simple as why hasn't anybody been charged with insurrection? TR-84 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. That is a decision that would be made by the Biden 2 Justice Department. 3 Q. But you are an expert witness. This is inside of 4 your realm. This is inside of your area of expertise. You are 5 a law professor. 6 MR. GOLDBERG: Your Honor, I object. He asked the 7 question and he got the answer. He just doesn't like the 8 answer. 9 THE COURT: I am not understanding the relevance of 10 the question myself. 11 MR. GRIFFIN: Well, I -- because I am here in a 12 civil court today being accused of insurrection, charged, not -- 13 not to the letter, but I'm being accused of insurrection today. 14 And if Your Honor, at the end of this trial, feels that I was 15 guilty of insurrection, that's going to weigh in on your 16 decision and that's going to remove me from my office in Otero 17 County. So I believe that it's relevant in the fact that nobody 18 in America has been charged with insurrection today. I'm the 19 only one on trial for insurrection in the United States today. 20 THE COURT: I don't know that to be the case, 21 Mr. Griffin. If memory serves me, there has been a charge of 22 conspiracy. 23 MR. GRIFFIN: Yes, sir, but that's not insurrection. 24 THE COURT: Conspiracy to -- 25 MR. GRIFFIN: Said conspiracy, but I think it -- I TR-85 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 mean -- I just -- it's a heavy charge, is what I say. It's a 2 heavy charge, and it's a charge that should be heavy because it 3 should be -- it's a very serious charge whenever it comes to the 4 point of wanting to overthrow the greatest government that's 5 ever been established in the world, and that's the United States 6 government. 7 THE COURT: If I understand what you're telling me, 8 there is a decision that has to be made at the end of this 9 trial. 10 MR. GRIFFIN: Okay. Well, I appreciate your 11 patience with me, Your Honor. I apologize if I overstepped in 12 any way. 13 Mr. Graber, I thank you for your answers. 14 THE COURT: Redirect, Mr. Goldberg? 15 MR. GOLDBERG: I have a very short redirect. 16 REDIRECT EXAMINATION 17 BY MR. GOLDBERG: 18 Q. Professor Graber, in the cross-examination, 19 Mr. Griffin referred to Plaintiffs' Exhibit 152, and he referred 20 to the breaking out of the windows as foolish and disgusting 21 acts. I took that language down. Foolish and disgusting acts. 22 MR. GOLDBERG: Joe, would you apply Plaintiffs' 23 Exhibit 152. 24 (Note: The video is played to the Court.) 25 BY MR. GOLDBERG: TR-86 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Did you hear Mr. Griffin talk about pushing out 2 those windows as foolish and disgusting acts? 3 A. He identified with these, "What do we do?" 4 Q. You anticipated my next question. Was he separating 5 himself from that violence or was he associating himself with 6 that violence? 7 A. When he says "What do we do," after he says "I saw 8 that," I interpreted that as associating himself with the 9 violence, or at least, again, people of the Nineteenth Century 10 would regard this as evidence -- mere evidence that he was 11 leagued with the people breaking the windows and pushing on the 12 police. 13 Q. Earlier -- earlier in his cross-examination of you, 14 Professor Graber, Mr. Griffin gave a long and complicated 15 hypothetical that led to an assertion that he was entrapped, 16 that was his word, he was entrapped into an insurrection. In 17 all of your investigation in this case, did you find any 18 evidence that Mr. Griffin was entrapped in an insurrection? 19 A. No, I did not. 20 MR. GOLDBERG: Thank you. 21 MR. GRIFFIN: Can I respond? 22 THE COURT: May you respond? It's not argument at 23 this point, Mr. Griffin. Did you have a question? 24 MR. GRIFFIN: Yes, sir. 25 THE COURT: Based upon the redirect? TR-87 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 MR. GRIFFIN: Yes, sir. 2 THE COURT: If it's based upon the redirect and it's 3 a question. 4 RECROSS-EXAMINATION 5 BY MR. GRIFFIN: 6 Q. Mr. Graber, in your opinion on that video that you 7 just watched, and your response, would you say that I had a 8 sense of despair at that time? 9 A. I'm not really qualified to determine whether you 10 had a sense of despair. 11 Q. When somebody says "What do we do," is that a place 12 where you're in despair? 13 A. My expertise, I'm sorry, has run out. I'm sorry. I 14 just can't -- I don't have expertise on whether people are in a 15 state of despair. I have no training in psychology or 16 psychiatry. 17 Q. In your opinion, Mr. Graber, if I would have been 18 proud of that at that time, would my nature have been "We broke 19 the windows out. We showed them," or my demeanor at that time 20 was going, "What do we do," because that's what I said. "What 21 do we do?" It's despair. It's "What do we do?" 22 MR. GOLDBERG: I object, Your Honor. One, he's not 23 asking a question. He's making an argument. It's a litigation 24 argument. It's not a fact argument. 25 THE COURT: I think that's part of your argument at TR-88 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the conclusion of your case. 2 MR. GRIFFIN: Thank you, Your Honor. 3 THE COURT: Professor, you are excused from any 4 further obligation here. 5 THE WITNESS: Thank you. 6 THE COURT: Ladies and gentlemen, at this time, 7 we'll take our lunch recess. We'll be back on the record at 8 1:15. 9 (Court in recess at 12:01 p.m.) 10 THE COURT: We're back on the record. Next witness 11 for the plaintiff? 12 MR. SMALL: Your Honor, the Plaintiffs call 13 Dr. Rachel Kleinfeld to the stand. 14 THE COURT: Dr. Kleinfeld. 15 MR. SMALL: While we're waiting for her, let me 16 introduce myself. I'm Daniel Small with Cohen Milstein Sellers 17 & Toll, for the Plaintiffs. 18 THE COURT: Thank you. 19 Doctor, if you'll come up to the witness stand, 20 please. 21 (Witness sworn by the Court.) 22 THE COURT: Please speak right into the microphone. 23 DIRECT EXAMINATION 24 BY MR. SMALL: 25 Q. Could you state your full name for the record, and TR-89 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 spell it for the court reporter, please. 2 A. Rachel Rebecca Kleinfeld, R-A-C-H-E-L, 3 R-E-B-E-C-C-A, K-L-E-I-N-F-E-L-D. 4 Q. Thank you. You're here as an expert witness. How 5 would you describe your expertise? 6 A. I'm considered one of the foremost experts in the 7 world on political violence and democracy, and particularly on 8 political balance in the United States in the contemporary 9 period. 10 Q. Do you have any expertise on the last election cycle 11 in this country? 12 A. Yes. I followed the Stop the Steal movement very 13 closely and was engaged with the National Task Force on Election 14 Crises in order to monitor political violence. 15 Q. What education have you had, Dr. Kleinfeld, that you 16 believe has contributed to your expertise? 17 A. I have a B.A. from Yale University in ethics, 18 politics and economics, and I have an MPhil and DPhil from 19 Oxford University, which I attended as a Rhodes Scholar. 20 Q. What experience have you had that has contributed to 21 your expertise? 22 A. I'm a Senior Fellow at the Carnegie Endowment for 23 International Peace where I have researched and written on these 24 topics for over a decade. I have spent 20 years researching and 25 writing on these issues in general, and I have served on the TR-90 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 National Task Force on Election Crises where I monitored these 2 issues. I have served -- I was asked to give written testimony 3 to the January 6th Select Committee. 4 And I serve on the boards of the National Endowment 5 for Democracy, which is a governmental organization that 6 supports democracy globally; the Board of Freedom House, which 7 is a cross-partisan organization that supports democracy 8 globally; and States United for Democracy, which is also a 9 cross-partisan organization that supports democracy in the 10 States and works with law enforcement and States regarding 11 political violence. 12 Q. You mentioned that you follow the Stop the Steal 13 movement. Why did you do that? 14 A. As part of my research duties and also my duties for 15 the National Task Force on Election Crises, there was 16 significant concern about violence post election through the 17 inauguration. It was my particular duty on the National Task 18 Force to monitor security issues, political violence issues and 19 issues regarding the military. That's where my expertise lies. 20 Q. Have you worked with any international groups of 21 scholars? 22 A. Yes. Part of that monitoring effort was a 24/7 23 monitor on extremist groups, social media sites where we were 24 seeing calls for violence as one part of that. And when we 25 would see a credible call, we would report it to the relevant TR-91 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 law enforcement in the relevant state. 2 Q. Have you written scholarly articles or books in your 3 area of expertise? 4 A. Yes. My last two books were on the rule of law, how 5 to build the rule of law and on political violence in 6 democracies. I have written many scholarly articles for the 7 Journal of Democracy and Annual Review of Political Science. I 8 write popularly for the Wall Street Journal, National Review, 9 Washington Post, all sorts of places. 10 Q. Are you currently employed? 11 A. I am. 12 Q. Where? 13 A. The Carnegie Endowment for International Peace. 14 Q. What is your job there? 15 A. I am a senior fellow in a democracy conflict and 16 governing space. 17 Q. What are your principal responsibilities in that 18 position? 19 A. I advise the U.S. government and allied governments 20 on issues of security, security service reform, police and 21 military issues, democracy issues. I advise the Defense 22 Department and the State Department, the Department of Justice 23 sometimes, on issues on the rule of law and democracy. I work 24 with the business community and philanthropists to strengthen 25 democracy in the United States, and I research and write and TR-92 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 speak a lot with regard to those topics. 2 Q. Were you retained as an expert witness in this case 3 by Plaintiffs' counsel? 4 A. I was. 5 Q. Is this the first time you have been retained as an 6 expert witness? 7 A. It is. 8 Q. Did we ask you to address certain issues in this 9 case? 10 A. You did. 11 Q. Was a demonstrative exhibit prepared at your 12 direction that listed the issues you were asked to address here? 13 A. It was. 14 Q. Would that demonstrative exhibit assist you in 15 testifying fully and accurately here? 16 A. Definitely. 17 Q. Let me show you and the Court Demonstrative Exhibit 18 RK2. Is this the demonstrative exhibit you were just referring 19 to? 20 A. It is. 21 Q. Which issues did Plaintiffs' counsel ask you to 22 address in this case? 23 A. I was asked whether Mr. Griffin participated in an 24 insurrection. If so, what his role was in that insurrection, 25 what the objectives of that insurrection were and whether TR-93 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Mr. Griffin likely shared that objective, whether Mr. Griffin 2 would likely have expected violence at the U.S. Capitol on 3 January 6, 2021, and whether Mr. Griffin was appropriately 4 characterized as a protestor or insurrectionist. 5 Q. Does your expertise in political violence help you 6 answer these questions? 7 A. It does. 8 Q. How so? 9 A. I have studied how mobs and violence groups are 10 mobilized for insurgencies, coups, insurrections and so on. I 11 have studied the ways in which the Stop the Steal movement used 12 violence and mobilized violence in the period at the state level 13 prior to January 6, on January 6th itself and then up to the 14 inauguration. 15 I have studied the dynamics of crowds and how crowds 16 become violent, the psychology of that. I have studied the 17 roles that are played in the insurrection and the different 18 roles that different individuals play. 19 Q. Have you looked at all how at the issue before this 20 case of how a protest might differ from an insurrection? 21 A. Sure, the differences between these different forms 22 of activity. 23 Q. Now, did you do an investigation for this case to 24 address these questions we've asked you to address? 25 A. I did. TR-94 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. What sources of information did you look at as part 2 of your investigation? 3 A. I looked at a lot of social media posts during the 4 period in real time and then again more recently, a video of 5 Mr. Griffin, news reports, and then a lot of research and data 6 that I do on the trends in political violence in the United 7 States and what's been happening over the last few years. 8 Q. Are these sources of information among those that 9 you relied on in your professional work? 10 A. Yes. 11 Q. Is there any particular knowledge acquired 12 independently of this case that you rely on for your opinions 13 here? 14 A. Yes. 15 Q. What is that? 16 A. I was asked to give written testimony to the January 17 6 Select Committee on trends and armed violence in the United 18 States that led up to January 6. Since January 6, I researched 19 the data on those trends. I was part of this 24/7 social media 20 watch during the period of election through inauguration. I 21 speak to many senior Homeland Security officials, Department of 22 Justice officials and military officials about these issues of 23 the security in the United States. 24 Q. Have you specifically studied the events on and 25 leading up to January 6 for your professional work outside of TR-95 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 this case? 2 A. I have. 3 Q. For what particular work did you look at those 4 events? 5 A. For the testimony to the January 6 Select Committee 6 and also for the National Task Force on Election Crises is my 7 particular arena to look at the ways in which political violence 8 is being mobilized. And then if the threat of the misuse of the 9 insurrection act became probable to the national security 10 community, I was asked to draft a memo, a white paper, on the 11 proper use of the Insurrection Act and the proper use of the 12 National Guard because there were credible fears within the 13 national security community of misuse. I did that with other 14 people. 15 Q. Dr. Kleinfeld, I'd like to ask you about some 16 important context for your opinions. You mentioned that you 17 followed the Stop the Steal movement. What is the Stop the 18 Steal movement? 19 A. So then President Trump was attempting multiple 20 methods to remain in power through the courts and legal 21 challenges and so on. The Stop the Steal movement was the part 22 of that effort that was mobilizing mob intimidation and violence 23 in order to not allow the transfer of Presidential power. It 24 was really mobilized for three ends. It was mobilized at the 25 state level to try to get states to rerun their elections, to TR-96 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 declare their elections fraudulent, send a fake slate of 2 electors. 3 When that failed, the -- and it put a lot of 4 pressure, I should say, on State officials to do that. When 5 that failed, it was redirected toward January 6, the last legal 6 day of changing the direction of the transfer of Presidential 7 power. And it was meant to mobilize pressure on that day. And 8 then when that failed, there was an attempt to mobilize violence 9 for the inauguration. That one was fourth. 10 Q. Were there particular groups that were engaged as 11 part of this movement to try to exert that pressure you just 12 described? 13 A. Yes. There were three different groups. So there 14 were what I would call violence specialists. These are groups 15 that use violence as part of the course of their goals, The Oath 16 Keepers, The Proud Boys, groups like that. There were groups 17 that could mobilize armed intimidatory presence. They might not 18 be violent at all, but the presence that they could mobilize 19 particularly elements could threaten. And then there was the 20 regular members of the mob, just adding bodies. 21 Q. As part of your professional work, did you learn 22 about a group called Cowboys for Trump? 23 A. I did. 24 Q. Was Cowboys for Trump one of the three types of 25 groups that you just described? TR-97 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Yes. They were the middle groups where they could 2 mobilize armed supporters to threaten or make people feel 3 intimidated. 4 Q. As more background for your opinions, can you tell 5 us at a high-level what was your understanding of what happened 6 at the U.S. Capitol in Washington, D.C. on January 6 and how 7 that came about. 8 A. So the Stop the Steal movement had put pressure on 9 multiple dates. January 6 was the most important national date 10 by far. And the goal of the mob pressure on January 6 was to 11 bring these three kinds of groups together, the violence 12 specialists, the armed intimidating presence, and the unarmed to 13 add mass. And to use that presence to first pressure Mike 14 Pence, the Vice President, to not certify the election for 15 President Elect Biden, but to somehow seize power and certify it 16 for President Trump. 17 There was also a goal of intimidating members of 18 Congress so that they might make objections. Each member can 19 make their own objection and draw the process out for a very 20 long time. And there was a hope somehow that by doing that, the 21 President, President Trump, would call an Insurrection Act, 22 which was known popularly martial law and somehow seize power. 23 Then the group there might assist, be deputized, they hoped, by 24 the President to capture a member of Congress or assist in 25 making sure that Trump remained in power. TR-98 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Dr. Kleinfeld, have you reached any opinions on the 2 issues you were asked to address in this case? 3 A. I have. 4 Q. Was a demonstrative exhibit prepared at your 5 direction that lists the opinions you have reached? 6 A. It was. 7 Q. Would that demonstrative exhibit help you in 8 testifying fully and accurately here? 9 A. It would. 10 Q. Let me show you Demonstrative RK 3. Is this the 11 demonstrative exhibit you were just referring to? 12 A. It is. 13 Q. What opinions have you reached in this case, 14 Dr. Kleinfeld? 15 A. It's my opinion that Mr. Griffin engaged in the 16 insurrection, including the January 6 attack on the U.S. 17 Capitol, as a mobilizer of a mob and inciter of that mob on the 18 day of and also as a normalizer of the violent specialist 19 groups. That the purpose of the insurrection, including the 20 January 6 attack, was to prevent the transfer of Presidential 21 power and to use violence and intimidation to do that. 22 And that Mr. Griffin's actions and comments suggest 23 that he shared that objective of using intimidation to prevent 24 the transfer of Presidential power. Violence was very 25 predictable on January 6. In fact, it was predicted. TR-99 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Mr. Griffin likely knew there was a substantial threat of 2 violence, and he helped to create that threat. And Mr. Griffin 3 was an insurrectionist. He was not a protestor. 4 Over several weeks -- really several months before 5 that, he participated in a multifacet effort to prevent the 6 transfer of Presidential power through violence or the threat of 7 violence. 8 Q. Thank you. I'd like you to explain what the key 9 evidence is that you rely on for these opinions that you just 10 summarized and how that evidence supports those opinions. But 11 first, let me ask you, Dr. Kleinfeld, as part of your 12 investigation in this case, did you review all of the evidence 13 that you are about to discuss here? 14 A. I did. 15 Q. Do you rely on all of that evidence for your 16 opinions in this case? 17 A. Yes, I do. 18 Q. Let's go in chronological order, beginning with the 19 evidence you rely on of events before January 6, 2021. Was a 20 series of demonstrative exhibits prepared at your direction that 21 contain excerpts of the evidence predating January 6, 2021 that 22 you rely on for your opinions? 23 A. Yes. 24 Q. Would those demonstrative exhibits assist you in 25 testifying fully and accurately here? TR-100 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Yes. 2 Q. Let's look at Demonstrative Exhibit RK 4. Is this 3 the first of the demonstrative exhibits in the series you just 4 mentioned? 5 A. Yes. 6 Q. Let's play the video that's embedded in this 7 Demonstrative. 8 (Note: The video is played to the witness.) 9 BY MR. SMALL: 10 Q. How does that clip support your opinions in this 11 case? 12 A. This is Mr. Griffin speaking at a rally in Truth or 13 Consequences, which is a couple hours south of here. 14 THE REPORTER: I'm sorry. Could you start over, 15 please. 16 A. This is a speech Mr. Griffin gives in a rally at 17 Truth or Consequences, a couple hours south of here. He says, 18 "The only good Democrat is a dead Democrat." He immediately 19 backtracks that statement, but the fact is you really can't 20 unring a bell like that once you've rung it. This video got 21 picked up by President Trump who retweeted it. That retweet 22 sent Mr. Griffin's social media skyrocketing. He got many, many 23 more followers after that moment. So not only did he make the 24 incendiary comment, even though he backtracked it afterward, but 25 he knew the reaction that got from many, many follow who joined TR-101 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 him because of this statement -- joined his social media I 2 should say, because of this statement. 3 Q. What was the effect of making that statement, 4 according to your expertise? 5 A. It's a form of normalizing violence, making a part 6 of the political sphere. 7 Q. What effect did it have on potential perceptions of 8 Democrats or people that Mr. Griffin believes are on the other 9 side of this issue? 10 A. It's a form of vilifying potentially dehumanizing, 11 making it seem like wicked people. 12 Q. Let's go to RK 5. Let's go ahead and -- there is no 13 clip on that one. Can you explain to us what we're seeing in 14 this demonstrative and how it supports your opinions. 15 A. Yes. So this is an Article in the Daily Beast. 16 It's a political newspaper. It reports that Griffin said that 17 certain democratic governors should be tried for treason or 18 should be executed. I don't know if he actually said they 19 should be tried, simply that they should be executed. He says 20 "You get to pick your poison. You either go before a firing 21 squad or you get the end of the rope." 22 Q. What's the significance of that information? 23 A. This is further normalizing violence as part of our 24 political Democratic sphere. It particularly is targeting 25 political officials, Democratic governors, which will be one of TR-102 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the groups that is intimidated and threatened by his supporters 2 later. This comes after he has had social media uptick, all 3 these new supporters. So he's further normalizing violence for 4 this group of followers against Democratic governors 5 particularly. 6 Q. Let's go to the next Demonstrative Exhibit RK 6. 7 Please explain to us what we have in this exhibit and how it 8 supports your opinions. 9 A. This is an article about a Black Lives Matter 10 protest and counterprotest that occurred in Rio Rancho about 45 11 minutes south of here. It was a protest that turned a little 12 testy. There was pushing. As Cowboys for Trump rode in on 13 horses, they also were speaking the Three Percenters were there, 14 which is one of the violent specialist groups I mentioned. The 15 New Mexico Civil Guard was also there. So by showing up as a 16 counterprotester with these other groups in the arena of a 17 protest, it's really normalizing these violence groups as part 18 of the political sphere saying these militias and so on are part 19 of protest activity now. 20 Q. Let's go to the next demonstrative, which is RK 7. 21 Please explain to us what we see in this exhibit and how it 22 supports your opinions. 23 A. This is the Santa Fe New Mexican on November 7. 24 This is right after the election. This is the first of the Stop 25 the Steal events. Stop the Steal has now been organized TR-103 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 nationally. They've called for rallies at the state level all 2 over the country. Cowboys for Trump takes it upon itself to 3 rally here at the Roundhouse. The Roundhouse is also right next 4 to the building where our election officials do their work, so 5 it's the same arena. 6 At this rally, there is armed participants. That's 7 legal in New Mexico. He gives speeches. There are people who 8 have guns in the audience and they are sort of rallying a group 9 of activists here. 10 Q. Let's go to RK 8, the next Demonstrative exhibit. 11 Please explain to the Court what we see in this demonstrative 12 and how you rely on it for your opinions. 13 A. This is the following week they have protested at 14 the Roundhouse. Now they're down in Albuquerque. It's again 15 part of the plan national Stop the Steal movement. The national 16 Stop the Steal movement had a protest in Washington, D.C.. They 17 called for state level protests because right now is the period 18 during which the goal of this intimidation is to put pressure on 19 state officials. This is when Rusty Bowers is being pressured 20 in Arizona to enable fake slate of electors and his daughter is 21 dying inside and so on. 22 Here in New Mexico, that protest took part in 23 Albuquerque, heavily armed. The New Mexico Civil Guard was 24 there at this point. The State of New Mexico had declared a 25 civil action against the New Mexico Civil Guard for being an TR-104 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 illegal militia. This is again normalizing violence, rallying 2 this group of people who can provide an armed intimidatory 3 presence to state officials at this point. They're trying to 4 put pressure on for decertifying the election, declaring it 5 fraudulent, asking for a fake slate of electors. There is some 6 violence. The counterprotesters -- but mostly this is really 7 about again normalizing these violence groups and making them a 8 part of political discourse. 9 Q. Let's go to RK 9. Please explain what we see here 10 and why you rely on it for your opinions in this case. 11 A. This is the third week. It's the third rally. 12 We're back here in Santa Fe outside the Roundhouse in our 13 executive building. Again, armed groups of people rallying 14 there, speeches that are hoping that the Supreme Court changes 15 the directionality of the Presidential election. 16 This is also -- to put it in context, our Secretary of 17 State was docked (phonetic), I believe, just after this. As a 18 result of violence and intimidation that she was facing, she had 19 to send her child to live with a relative and go move into a 20 safe house with State Police presence. So this kind of 21 intimidation at the state level is starting to have an effect on 22 election officials. 23 Q. Thank you. Let's go to the next demonstrative 24 exhibit, which is RK 10. Here we have another video embedded in 25 this exhibit. Let's listen and watch it and then I would like TR-105 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 you to explain what the significance is of that video clip. 2 (Note: The video is played to the witness.) 3 BY MR. SMALL: 4 Q. What is the significance of that video clip for your 5 opinions in this case? 6 A. It's my understanding that Griffin is coming back 7 from the march on Washington that had just happened. The Proud 8 Boys were there. This is where Enrique Tarrio, the head of the 9 Proud Boys, was arrested after this for pulling down the banner 10 of the Black Lives Matter church. There was significant 11 violence against Proud Boys as well as by the Proud Boys at this 12 march in Washington, D.C.. And so to be seen the next day, 13 these are good guys, they're helping little old ladies across 14 the street, having just witnessed newspaper reports coming out 15 about the level of violence this group was causing and was 16 having directed at them is a way of normalizing their activity 17 as if these are some form of civic group and downplaying the 18 violence that was happening in Washington. 19 Q. Thank you. Let's keep moving to Demonstrative RK 20 11. Here we have another video. Let's play that video and then 21 I'd like you to explain to us how that supports your opinions in 22 this case. 23 (Note: The video is played to the witness.) 24 BY MR. SMALL: 25 Q. How does that video clip support your opinions? TR-106 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. First, I'd like to say what's going on here -- 2 Q. Yes, please. 3 A. Women for America First is the organization that 4 applied for the park rally permit for the January 6 events in 5 Washington, D.C.. That group that applied for the park permit 6 in January 6 in D.C. had a bus tour where they took speakers 7 across the country going to Washington, D.C. for the 6th. The 8 goal of the bus tour was to rally crowds and get people to come 9 to the 6th. 10 And Commissioner Griffin agreed to be a speaker on 11 this bus tour. That's the first clip of him I have of him going 12 across the country rallying the crowds. In this one, he's 13 calling on the legitimacy of his elected office, being a County 14 Commissioner here in New Mexico, and he's calling on the 15 legitimacy of knowing President Trump personally. 16 Q. Let's go to the next demonstrative, RK 12. As you 17 just heard, there is a video embedded in this exhibit. Let's 18 now go ahead and listen and watch it and then I'd like you to 19 explain what's going on and what it's significance is for your 20 opinions. 21 (Note: The video was played to the witness.) 22 BY MR. SMALL: 23 Q. Go ahead. 24 A. Same speech. He just said "I'm a County 25 Commissioner. I know President Trump." Now he's saying the TR-107 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 goal of January 6 is to make sure that the certification is 2 going in a direction for President Trump. And after that, there 3 will be a declaration of martial law. This was widely 4 understood by people in this social media universe to be likely 5 because for Foreign National Security Advisor Michael Flynn had 6 been calling for insurrection, and calling it martial law -- 7 sorry calling for an Insurrection Act declaration and calling it 8 martial law. 9 Q. Let's go to RK 13. This is the next in our series 10 of pre January 6 evidence that you rely on. Let's listen to 11 that video and then I'd like you to explain its significance. 12 (Note: The video is played to the witness.) 13 BY MR. SMALL: 14 Q. What's going on in that video and what significance 15 do you take from it, particularly where Mr. Griffin refers to 16 the most corrupt, wicked, vile people in places of power? 17 A. Sure. So first, it gets to the desire of previous 18 to this to affect the state-level elections, to have them rerun 19 their elections or redo those elections. That's failed by this 20 time. We're at January 3rd. But then what he's doing -- so 21 most normal adults don't commit violence. It's actually very 22 rare except for aggressive personalities on either side of the 23 ideological spectrum. 24 There are two ways to get normal people to commit 25 violence: One is to place that violence in the context of TR-108 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 somewhere where it's sanctioned, like a war. In a war, patriots 2 can commit violence, that's okay. So that's one way. Another 3 way is to make it seem defensive so you won't commit aggressive 4 violence, but you might do violence for self-defense to protect 5 your children, to protect your values. And that can lower 6 inhibitions to violence. 7 And the third is to dehumanize people. If you make 8 people seem like a threat that you are defending against and 9 that's somewhat less than human, that lowers inhibitions to 10 violence. And that third thing is what is going on here, vile, 11 wicked, corrupt. These are all ways of positing people as a 12 threat and also kind of lowering their status of their humanity. 13 Q. I think we skipped over RK 13. Can we go back to 14 that. This is on the tour with Women for America First; is that 15 right? 16 A. That's right. This is part of the earlier video set 17 where he was talking about being a County Commissioner, knowing 18 President Trump. 19 Q. Let's play the video embedded in this exhibit, 20 please. 21 (Note: The video is played to the witness.) 22 BY MR. SMALL: 23 Q. What's the significance you attribute to that short 24 clip? 25 A. This is mobilizing more people to be at the Capitol TR-109 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 on that day. That's part of the third group I was talking 2 about, just a mob. More people to be present. That helps in 3 intimidation. 4 Q. Let's go to RK 15. I believe we're still on the 5 tour with Women for America First. So let's watch that and then 6 explain what we're seeing and what significance it has. 7 (Note: The video is played to the witness.) 8 BY MR. SMALL: 9 Q. What's going on here and how do you rely on that for 10 your opinions? 11 A. Two things are going on here: One is that it's the 12 first intimidation that we have that he expects violence to take 13 place. First thing he says "Some of us might lose our lives," 14 but then he invokes Jesus. And Jesus -- God is often used by 15 both sides of the war to make your side feel like you have 16 morale justice on your side. I think that's what's going on 17 here. 18 Q. Let's go to Demonstrative RK 16 and let's watch the 19 video here. And then I'm going to ask you to explain what's 20 going on and how you rely on it. We're still on the bus tour, 21 right? 22 A. Uh-huh. 23 (Note: The video is played to the witness.) 24 BY MR. SMALL: 25 Q. What's the significance of that, Dr. Kleinfeld? TR-110 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. He's still on this bus tour across the country 2 trying to rally people to come to the Capitol and he's rallying 3 people to come to the Capitol and he's telling them that the 4 President is asking them. Now, of course, most of us, if our 5 President asks us to serve in some way, want to answer that call 6 of service, and so it adds legitimacy to the goals of the 6th. 7 Q. Let's look at the next demonstrative exhibit, RK 16. 8 This has another video embedded in it. Let's go ahead and watch 9 that, please. This should be 16. 10 (Note: The video is played to the witness.) 11 BY MR. SMALL: 12 Q. I'm sorry. It is the next one, RK 17. My 13 apologies. 14 (Note: The video is played to the witness.) 15 BY MR. SMALL: 16 Q. Set the context for us, please, on what's going on 17 here and then how you rely on this video clip to support your 18 opinions. 19 A. Sure. So he's still on the bus tour. It's not 20 clear whether he's speaking to a group of people or speaking to 21 a camera. This really goes to show his state of mind and his 22 understanding of what's happening on January 6, that the goal is 23 first to get Mike Pence to act in the right way. That was why 24 we understood in -- among his community to certify the election 25 for President Trump, through some seizure of power that he TR-111 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 didn't constitutionally have. And then to create pressure on 2 the senators to object to the election. So he's stating these 3 are the two things that are likely to happen on the 6th. 4 Q. Let's go to the next demonstrative, which is RK 18. 5 Here we have another video embedded in this exhibit. Let's go 6 ahead and watch this video. 7 (Note: The video is played to the witness.) 8 BY MR. SMALL: 9 Q. Set the context and then explain the significance of 10 this video, please. 11 A. So again, this is showing state of mind. He's 12 saying that he'll never accept a Biden presidency, that the 13 normal rules of democracy are suspended somehow. And that 14 Cowboys for Trump are not supporters and will never give in and 15 allow that to happen. 16 Q. Let's go to RK 19 now. Here we have another video 17 embedded. Let's go ahead and watch this one. 18 (Note: The video is played to the witness.) 19 BY MR. SMALL: 20 Q. What are we seeing here, Dr. Kleinfeld, and how do 21 you rely on it for your opinions? 22 A. So he's now making threats. We don't know if anyone 23 saw those threats, but it goes to his state of mind that 24 Republicans and only the Governor of Arkansas are people that 25 they're going to go after. Violence at this point is largely TR-112 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 directed at Republicans, actually, during this period. So these 2 are credible activities. And they're also normalizing that form 3 of violence, which is happening to a significant extent, the 4 threats and intimidation against Republicans who are at this 5 point trying to allow the election process to move smoothly. 6 Q. The next demonstrative is RK 20. Here we have 7 another video. Let's go ahead and play that, please. 8 (Note: The video is played to the witness.) 9 BY MR. SMALL: 10 Q. What's the context and how do you regard it? 11 A. He's still on the bus tour moving across the 12 country. Here he's starting to step outside Democratic norms. 13 "In a democracy, losing has to be an option. That's how it 14 works." To say "If you don't within it in a ballot box you'll 15 within it in the street," is acknowledging that violence could 16 be used to effect the transfer of power and that that's somehow 17 legitimate. 18 Q. The next video is embedded in RK 21. Let's go ahead 19 and watch that. 20 (Note: The video is played to the witness.) 21 BY MR. SMALL: 22 Q. Why do you rely on this video clip for your 23 opinions? 24 A. So now he's talking about a battle on January 6. It 25 could be that he's talking metaphorically, but he's talking TR-113 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 about only men. So it strikes me that he's trying to normalize 2 the idea of a battle and of violence occurring that day. Also, 3 he's trying to normalize that violence in the context of war. 4 As I said earlier, that's one of the ways you get normal people 5 to commit violence, is you put it in a context where it's 6 allowing it. 7 Q. Let's watch the next video which is embedded in RK 8 22. Go ahead and play the video, please. 9 (Note: The video is played to the witness.) 10 BY MR. SMALL: 11 Q. How do you rely on that video clip? 12 A. So it's the same speech and it's less metaphorical 13 at this point. "If it comes down to a fight, we're going to 14 need men shoulder to shoulder." That's a physical presence, and 15 he's saying that that's something he might expect on January 6, 16 that it might come down to a fight. 17 Q. Mr. Griffin has told this Court during this trial 18 that when he was referring to a war, a battle, fighting, terms 19 like that, he meant a spiritual war or a political war. How do 20 you respond to that claim in light of the video we just watched 21 and the one before? 22 A. It doesn't seem to me to be what he's talking about 23 in this case. That if it's a spiritual or metaphorical war, why 24 don't we call the men and he's talking about fight. But even if 25 that is his intent to speak metaphorically, the people who are TR-114 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 listening to this are going to take what they take from it and 2 they might not be assuming it's metaphorical, he's talking about 3 a fight with men shoulder to shoulder for now. 4 Q. The next demonstrative exhibit, which is RK 23. 5 Here we have another video. Let's go ahead and watch and listen 6 to this video. 7 (Note: The video is played to the witness.) 8 BY MR. SMALL: 9 Q. We had a little car traffic there. Were you able to 10 hear what he was saying? If so, tell us why you rely on that. 11 A. Yes. So now it's the day before January 6. He's in 12 Maryland right outside the Capitol. He's telling his men 13 "Losing is not an option." Again, "Every card is on the table." 14 "It feels to me like we're a nation at war." So again, it's a 15 way of placing violence within an acceptable context for people, 16 lowering their inhibitions to violence and calling again on men. 17 You can see the people in the group nodding their heads and 18 joining along with that understanding. 19 Q. Let's go to RK 24, the next demonstrative exhibit. 20 Mr. Griffin has now made it to Washington, D.C.. Let's watch 21 that video and then discuss it. 22 (Note: The video is played to the witness.) 23 BY MR. SMALL: 24 Q. What did you rely on that? 25 A. He's saying the day before January 6 that -- first TR-115 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 of all, this is about Mike Pence, that Mike Pence in this 2 context of not certifying the election for President Elect Biden 3 but for President Trump. This is in a context on January 5 that 4 was a big happy rally basically going on in the Washington, D.C. 5 area, making a lot of noise. Someone, I can't remember who, 6 testified at the January 6 Select Committee that it was loud 7 enough for President Trump to open his window and his door so he 8 could hear the rally. And of course, Vice President Pence's 9 office is right next to his. So hearing this rally, Pence is 10 feeling the pressure from many people that's being put on him. 11 Q. This is the last of our exhibits of events before 12 January 6. Did you prepare or have prepared under your 13 direction a series of demonstrative exhibits about events on 14 January 6? 15 A. I did. 16 Q. Would having -- reviewing and seeing those 17 demonstrative exhibits assist you in testifying fully and 18 accurately here? 19 A. Yes. 20 Q. Let's go to the first of those demonstrative 21 exhibits of events on January 6 and then I'll ask you to explain 22 its significance. Go ahead and play, please, RK 25. 23 (Note: The video is played to the witness.) 24 BY MR. SMALL: 25 Q. What are we seeing in this clip and why do you rely TR-116 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 on it? 2 A. This is early, early morning on January 6. This 3 crowd could be there for a lot of reasons. It could be there 4 for just a protest. He's sort of walking along the crowd and 5 he's normalizing violence to the crowd. So he's saying -- there 6 is a sign "Pence, deliver us from evil." He says, "If he 7 doesn't, he's going to have to find a real dark hole to crawl 8 in." I'm sorry, I forget the exact thing he says after that, 9 but it's basically normalizing the idea that we're going to go 10 after him if he doesn't do the right thing. So it's again about 11 pressuring Vice President Pence, that that's the goal of all of 12 these people is to put pressure on the Vice President to certify 13 the election for someone who didn't win the election, and the 14 threat of violence going after someone is on the table. 15 Q. Let's go to RK 26. Here we have another embedded 16 video. Let's go ahead and play that. 17 (Note: The video is played to the witness.) 18 BY MR. SMALL: 19 Q. That was very short, but set the context of what 20 we're seeing and why it's significant to you. 21 A. So it's still early morning. He's walking along 22 this crowd, chatting with people. There is a guy who is dressed 23 a silly in a kind of marching band outfit. That's really common 24 at protests in D.C.. This man might think he's there for a 25 protest. You usually don't show up to a war in a marching band TR-117 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 outfit. This guy is being asked by Griffin, "Where is your gun 2 at? That's what I want to know." 3 And it's again normalizing the use of violence for 4 this crowd. Guns are illegal in Washington, D.C., and he's kind 5 of making the crowd think about violence in this normal type of 6 thing. 7 Q. Next demonstrative exhibit is another in the series 8 of events on January 6, it's RK 27. Let's go ahead and play 9 that video. 10 (Note: The video is played to the witness.) 11 BY MR. SMALL: 12 Q. What are you hearing in this video and why is that 13 significant to you? 14 A. This is a few minutes after the first group had 15 broken into the Capitol which happened at 1:30. There was a 16 rumor that went around that Pence had certified it for President 17 Elect Biden, but actually it hadn't happened. But the crowd 18 believes the rumor and now they're saying "Decertify." So they 19 are still believing that there is a way to change Mike Pence's 20 mind, change his actions and change the outcome of the 21 Presidential election, which is the reason they're there. 22 Q. Let's go to RK 28. Let's go ahead and play the 23 video. 24 (Note: The video is played to the witness.) 25 BY MR. SMALL: TR-118 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. What are we seeing in this video and why do you rely 2 on that for your opinions? 3 A. So this is seven minutes after Trump tweeted that 4 the Vice President didn't do what with we needed him to do. I 5 can't remember the exact wording of the tweet, but it was the 6 tweet that said Mike Pence failed to certify for President 7 Trump. And people are pouring over this wall which is a barred 8 area. They've been told it's an area that they're not supposed 9 to go into. This is important because the crowd is now aroused. 10 They're getting angry. They're crossing a barrier. 11 And crowd psychology is really important to keep 12 people following the rules because there is a slippery slope 13 with crowds. Once they start breaking rules, the ability to 14 stop them becomes much harder. This is a real small wall 15 they're jumping over, but it's a really big step because they 16 just heard that Vice President didn't do what they wanted them 17 to do and now they're pouring into a barred area. And Griffin, 18 "Is there a question?" 19 Q. Let's to go the next demonstrative, which is RK 29, 20 and let's look at the video, please. 21 (Note: The video is played to the witness.) 22 BY MR. SMALL: 23 Q. What did we see briefly there and what's its 24 significance? 25 A. So now violence has been happening for over an hour TR-119 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 at the Capitol. Someone in the crowd says they have a right to 2 a militia, and he said, "That's right." Cuoy Griffin says, 3 "That's right." This is normalizing the violence that's 4 happening around them, saying that a militia is okay. We do 5 have a constitutional right to a militia, but in this context 6 it's a little bit different. It's really about these people 7 forming some sort of militia that it's okay after they've been 8 inside the Capitol for an hour and a half now. 9 Q. Let's go to RK 30, the next demonstrative exhibit in 10 our series, and let's watch the embedded video, please. 11 (Note: The video is played to the witness.) 12 BY MR. SMALL: 13 Q. What did we see briefly here and why is it 14 significant to your opinions? 15 A. So now he's crawling up a tunnel -- walking up a 16 tunnel on the inauguration stage. This is very much a 17 prohibited area. And he's saying "I love the smell of napalm in 18 the morning." Now, that's a quote from Apocalypse Now, a war 19 movie. And he's basically aware at this point that he's going 20 to a place that he's not allowed to be in and that they're 21 breaching rules. He's putting this activity in the context of a 22 battle, a war, in which violence is okay. 23 Q. Let's go to RK 31. This has another video embedded 24 in it. Please play that video. 25 (Note: The video is played to the witness.) TR-120 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 BY MR. SMALL: 2 Q. What did we see here and why does it matter to your 3 opinions? 4 A. So this is about 15 minutes after Ashli Babbitt has 5 been shot. You're seeing this man with a bloody bandage on his 6 head walking down from the inauguration stage and then kind of 7 improvise a weapon of some sort next to him. And so this shows 8 what he's seeing, that he's well aware at this point people have 9 been in the Capitol for about two hours, a woman has been shot, 10 there is violence going on all around him. He's still there and 11 he's attained high ground. 12 Q. The next exhibit is RK 32. Here we have another 13 video, which we'll watch now. 14 (Note: The video is played to the witness.) 15 BY MR. SMALL: 16 Q. What was Mr. Griffin doing in this video and how 17 does that support your opinions? 18 A. There are a couple of things going on here. First 19 is that Mr. Griffin is very -- assuming a leadership role now. 20 He's grabbed somebody -- or asked for somebody's bullhorn. He's 21 trying to lead the crowd. He's trying to get attention, and he 22 succeeds at that. He's on high ground, way up on the 23 inauguration stage. That matters in crowd psychology. Just 24 like breaking rules is sort of a slippery slope, attaining high 25 ground is a way of increasing emotional arousal of a crowd. TR-121 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 It's so much so that in Las Vegas, on the strip for 2 New Year's Eve, they grease all the poles so people can't -- the 3 police grease the poles so people can't attain high ground. 4 Because it increases emotional arousal. And when a crowd is 5 aroused, that can lead them to do things they wouldn't otherwise 6 do, like commit violence. In this case, he's further increasing 7 the emotional arousal of the crowd by praying. 8 Now, I'm not going to interpret the contents of that 9 prayer, but he's getting the crowd more and more worked up. And 10 you can hear that from the crowd in the video that they start 11 off quiet and then they get really worked up. That can enable 12 the violence. And in this context, there has been violence 13 going on for two hours. So he's driving the emotional arousal. 14 He's also speaking to a particular group in this 15 crowd. Many, many people in this crowd are holding banners and 16 flags that indicate they are Christian nationalists. Christian 17 nationalists tend to be evangelical Christians who believe that 18 Trump was sent by God to lead our nation. By invoking God on 19 the side of the nation, they're also saying Trump should stay. 20 So he's speaking particularly to that group. 21 Q. Thank you. Let's go to the next Demonstrative 22 Exhibit RK 33. Here we have another video embedded in this 23 exhibit. Please play that video. 24 (Note: The video is played to the witness.) 25 BY MR. SMALL: TR-122 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. As best we could hear it and there is the 2 captioning. Griffin says, "It's an historical day. A woman in 3 the crowd says, "It's horrible," and then Griffin responds. Mr. 4 Griffin responds to that. What's the significance of that? 5 A. This is a few minutes after Trump has sent a tweet 6 saying "Go home peacefully." And so Mr. Griffin stayed until 7 the end, contributing to the crowd himself. And the events that 8 he saw caused at least the person next to him -- the woman next 9 to him to say "This was horrible." But he normalizes that 10 violence and says, "Sometimes it's necessary to send a signal. 11 It's a historic day." 12 Q. I believe this is the last of our exhibits of events 13 on January 6. Did you prepare another demonstrative exhibit of 14 a few videos of events after January 6? 15 A. Yes, I did. 16 Q. Would that demonstrative or series of demonstrative 17 exhibits assist you in testifying accurately and fully here? 18 A. Yes, it would. 19 Q. Let's look at the first of these post January 6. 20 Please play the video. 21 (Note: The video is played to the witness.) 22 BY MR. SMALL: 23 Q. What did you hear Mr. Griffin to say here and what's 24 the significance of that to your opinions? 25 A. This is the end of the same day. He's back at his TR-123 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 hotel, I believe, in Roanoke. He's saying "Everyone I saw was a 2 good guy, one of us, a patriot." Again, normalizing the 3 violence that he saw that day, and he stayed until the very end 4 of -- I guess not the extreme end. I don't know if he stayed 5 until 6:00 when they cleared out the Capitol, but until Trump 6 told them all to go home, contributing to the mob. 7 Q. I believe he said "Everyone I spoke to was concerned 8 about Mike Pence." What's the significance of that? 9 A. So it's again saying that the purpose of this crowd 10 was really to stop the transfer of Presidential power. It was 11 to put pressure on Mike Pence first and foremost, and then the 12 senators and stuff to ensure that the transfer did not happen or 13 that Trump was somehow named as the next President. 14 Q. The next video, Doctor, is embedded in Demonstrative 15 Exhibit RK 35. Let's go ahead and play that video, please. 16 (Note: The video is played to the witness.) 17 BY MR. SMALL: 18 Q. Why is that video important for your opinions? 19 A. This is state of mind. He was aware that going into 20 the grass -- I believe that's over the Olmsted wall -- was 21 prohibited, and his approach or whatever, and that his state of 22 mind was that "This is our house." He's putting it all in a 23 different context in which the rules don't apply to him. 24 Q. The next is exhibit is RK 36. I believe this has 25 another embedded video. He's still in Roanoke on the evening of TR-124 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 January 6. Let's watch that video, please. 2 (Note: The video is played to the witness.) 3 BY MR. SMALL: 4 Q. Why is this video clip important to you, 5 Dr. Kleinfeld? 6 A. So if one didn't see from the man with the bloody 7 bandage and saw that he had probably witnessed violence, he's 8 saying, you know, saw the frictions going on with the police, 9 and I think the use of "frictions" means the violence against 10 over hundred police officers -- 11 THE COURT REPORTER: Can you please repeat that. 12 A. Sure. I can't remember exactly what I said. 13 But the "friction" he's referring to, I believe are 14 the violence over a hundred police offices that day, some of 15 which he's suggesting he saw. 16 BY MR. SMALL: 17 Q. We have just a couple more post January 6 videos. 18 Let's go to the next one, which is RK 37. I believe Mr. Griffin 19 is still in Roanoke, but it's the next morning. Let's look at 20 that video. 21 (Note: The video is played to the witness.) 22 BY MR. SMALL: 23 Q. Why is that video clip important to you, 24 Dr. Kleinfeld? 25 A. A lot of people saw the events of January 6 as TR-125 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 horrible, but the individuals who took part in it and spoke on 2 social media, many of them actually saw it as a big success and 3 a real rallying cry. They didn't think it was over. They 4 thought that there was going to be another bite at the apple to 5 prevent the transfer of Presidential power. The date that was 6 eventually settled on was inauguration day when they hoped to 7 use violence to finally stop the transfer from happening. 8 Q. Let's go to RK 38, the next series of our post 9 January 6 videos. 10 (Note: The video is played to the witness.) 11 BY MR. SMALL: 12 Q. What's the significance of that video clip? 13 A. Again, he's normalizing the idea of violence in the 14 political sphere. After having just witnessed a day of 15 significant violence, he's continuing to say "Give me liberty or 16 give me death," is something that many people in the crowd 17 believed and continued to feel. 18 Q. The next Demonstrative exhibit is RK 39. We are 19 still in Roanoke. I believe this is a continuation of the prior 20 video clip. Please play that. 21 (Note: The video is played to the witness.) 22 BY MR. SMALL: 23 Q. Why is that video clip where he talks, among other 24 things, about "Blood running out of the building," important to 25 your opinions? TR-126 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Again, this is in a time period when a lot of 2 individuals on January 6 were talking about what's next, what's 3 the next step. And he's saying, we could have a Second 4 Amendment rally. Of course, guns are illegal in Washington, 5 D.C. And he's suggesting that "Blood could run out of 6 building," which really sounds to me like an intimation of 7 violence being on the table. 8 Q. Again, how do you view that video clip in terms of 9 Mr. Griffin's claim here in Court that when he was talking about 10 war and fighting and things like that, he meant it only as a 11 political or spiritual war? 12 A. It's a little hard for me to believe that the day 13 after seeing the events of January 6, reflecting on it the next 14 day that he's speaking purely spiritually about blood running 15 out of the Capitol with the Second Amendment rally on the steps, 16 having just seen what we've all seen. 17 Q. Let's go to RK 40. We're still in Roanoke. Let's 18 play that video, please. 19 (Note: The video is played to the witness.) 20 BY MR. SMALL: 21 Q. Why is that important to your opinions? 22 A. We've just had a certification of a Presidential 23 election. That was really the last moment at which you could 24 have theoretically stopped the transfer of Presidential power 25 without a great deal of violence. Obviously, there was TR-127 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 violence. The fact that he's still saying "Joe Biden will never 2 be President" suggests that they are going to prevent Joe Biden 3 from being President some other way. At this point, the only 4 other way is actually through some form of physical violence. 5 Q. The next demonstrative exhibit is RK 41. I believe 6 we have seen this video with other witnesses, but I want to get 7 what significance you attribute to it. Let's go ahead and play 8 that. 9 (Note: The video is played to the witness.) 10 BY MR. SMALL: 11 Q. Dr. Kleinfeld, why was that video clip important to 12 you in forming your opinions in this case? 13 A. So he's genial, but admitting that he knew he wasn't 14 supposed to be up on the inauguration stage and he went anyway 15 along with the crowd of Trump supporters. 16 Q. The next in our series is RK 42. This is a 17 continuation of the same video. Please play this clip. 18 (Note: The video is played to the witness.) 19 BY MR. SMALL: 20 Q. Why do you rely on that, Dr. Kleinfeld? 21 A. So he's admitting what he saw, that he saw windows 22 getting broken, that he saw police officers getting pushed, as 23 he put it. You know, earlier we saw that he normalized that 24 violence, that he led the crowd in further arousal after seeing 25 these types of things. So he's well aware violence was taking TR-128 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 place as he was taking more of a leadership role and rallying up 2 the crowd. 3 Q. Next is RK 43. It's brief, but let's play that and 4 then I'll ask you why it's significant to your opinions. 5 (Note: The video is played to the witness.) 6 BY MR. SMALL: 7 Q. It's very short. Why is that important? 8 A. It's almost a week after January 6. He's again 9 saying -- he still believes there won't be a Biden presidency. 10 "It has to be stopped somehow." And at this point, as I said 11 before, the only way to stop it would be through violence. 12 Q. The next demonstrative exhibit is RK 44. Now we're 13 in a very different venue. Please play this clip and then I'll 14 ask you a question about it. 15 (Note: The video is played to the witness.) 16 BY MR. SMALL: 17 Q. What did we just see in this video and where is this 18 taking place and why is it significant? 19 A. So now he's at a commission meeting at the Otero 20 County Commission where he sits as a commissioner. In the role 21 of his governmental duties as an elected official of the State 22 of New Mexico or the county in New Mexico, he's explaining that 23 he's about to go to Washington, D.C. now, if he leaves tonight 24 or tomorrow to get there by car. It seems like he's trying to 25 get there in time for the inauguration. And he's talking about TR-129 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the guns he's going to bring with him. Of course, they're 2 illegal in Washington. 3 The inauguration day had been chosen at this point 4 as the day at which violence groups were going to rally in 5 Washington, D.C.. The threat was so significant that the 6 government called 25,000 National Guardsmen to Washington, D.C.. 7 That's about two and a half times the number that would normally 8 go to an inauguration. They did a double vetting of the 9 National Guardsmen for insider threats because they were so 10 worried about violence that day. So this was a very real 11 possibility. And even though that law enforcement presence 12 ultimately fizzled out the plan, the plan at this point had been 13 for violence to occur at the inauguration against the President 14 Elect. 15 Q. Let's go to the next, and I believe last in the 16 series of post January 6 videos. This is RK 45. Please play 17 the embedded video. 18 (Note: The video is played to the witness.) 19 BY MR. SMALL: 20 Q. We've seen this video with other witnesses here, but 21 I want to understand why is it significant to your opinions. 22 A. So he's recounting the events of the day with 23 joviality and talking about how he saw people pushing to get 24 into the Capitol. He saw the effort to kind of stop the 25 certification or physically pressure the members of Congress who TR-130 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 were there and the Vice President. And he's cheering on with 2 the crowd, "heave-ho, heave-ho," helping the crowd kind of get a 3 rhythm to that push, and certainly supportive of the mob 4 activity. 5 Q. Based on the evidence before, during and after 6 January 6, including the evidence we've gone through with the 7 Court today, was a demonstrative exhibit prepared at your 8 direction that summarizes the types of conduct that Mr. Griffin 9 engaged in that caused you to conclude that he was an 10 insurrectionist? 11 A. Yes. 12 Q. Let's take a look at that demonstrative. It's RK 13 46. I'm going to ask you what are the different types of 14 conduct that Mr. Griffin engaged in that caused you to conclude 15 that he was an insurrectionist? 16 A. So in our country, we had a period in which the 17 transfer of Presidential power was in flux. During that period 18 where the transfer of power could still go either way, 19 Mr. Griffin helped mobilize the credible use of force to 20 intimidate at the state level an attempt to influence State 21 officials on the national day of the certification of the 22 election, which was the most important day, really, to prevent 23 the transfer of Presidential power. He took part in the mob. 24 He tried to lead the mob. He also brought people to the 25 possible through his work on a bus tour. And then on TR-131 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 inauguration day, he seems to have planned to be present to 2 potentially to also prevent the transfer of Presidential power 3 given his earlier statements. 4 On January 6, well after violence was occurring and 5 he knew violence was occurring, he continued to normalize that 6 use of violence and even to amplify the crowd and incite them. 7 And throughout the period, he tries to normalize and validate 8 militias. These could be called agitators. These are the 9 vanguard of violence, the Proud Boys, and then here in New 10 Mexico the New Mexico Civil Guard, after he had already been 11 sued by the State as an illegal paramilitary organization. 12 Q. Now, you've used the term, Dr. Kleinfeld, repeatedly 13 throughout your testimony "normalize violence." Can you explain 14 to us what you mean by that term? 15 A. Sure. In a democracy, we try to solve disputes 16 through peaceful and legal means. That's the point of 17 elections. He's instead at multiple points talking about how 18 violence could be another way of getting the result you want in 19 our democracy, guns, "blood running out of a building," show up 20 as men to a battle. These are ways of subverting the democratic 21 process. 22 Q. What about in terms of how people might view 23 potential victims of violence and the willingness of people to 24 commit violence against other human beings? 25 A. As I said earlier, it's hard to get people to commit TR-132 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 violence against other human beings. We're all socialized from 2 a young age not to do that. Throughout the period, he tended to 3 do the three things that we know lower inhibitions of normal 4 people to violence. He posits that violence in the framework of 5 a battle of war, a place in which patriots called by their 6 President could feel themselves legitimate in using violence. 7 He posits that violence as defensive, protect themselves from a 8 fraudulent election. Protecting the democracy from a fraudulent 9 election. And then he dehumanizes Democrats at multiple points 10 and also RINOs Republicans in name only, and says they're 11 wicked, they're vile, they're corrupt, we can go after them. 12 These are ways of enabling violence to play a role in the 13 political process. 14 Q. Now, you have referred also multiple times in your 15 testimony to violence groups. I know you mentioned the Oath 16 Keepers and the Proud Boys and the Three Percenter militia. Can 17 you give the Court more examples to get a better understanding 18 of what violence groups are? 19 A. Sure. In lots of countries where violence is a part 20 of the political process, leaders use groups that specialize in 21 violence, that are kind of experts in violence to affect the 22 political process. These can be a lot of groups. They can be 23 militias, paramilitary organizations, but they can also be 24 wrestling groups. In Bulgaria, they use wrestling groups. In 25 Russia, he uses mixed martial arts groups that are kind of TR-133 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 political thugs. In Serbia, during the war in the former 2 Yugoslavia, they use football hooligans. So these are all 3 different sorts of groups that kind of specialize and are 4 willing, they are more aggressive individuals that are willing 5 to use violence. 6 Q. I want to get you to explain a little more about 7 another term you use repeatedly today, which is validating 8 violence groups. What do you mean by "validating"? 9 A. In our democracy, these violence groups have not 10 been a part of our political process, at least not for a very 11 long time. And by bringing them into rallies he'd holding, by 12 standing next to them on the dais, giving speeches rather than 13 refusing, as other groups did actually in some of those events 14 to stand next to the New Mexico Civil Guards, he's basically 15 taking these groups that use violence as a means and saying 16 these are a legitimate part of protest activity of normal 17 political activity, and that allows them to play a bigger role 18 in our policy. 19 Q. Thank you. We have two final topics that I want to 20 cover with you. One relates to the issue on violence relating 21 to Mr. Griffin himself. 22 Do you have any information that Mr. Griffin engaged 23 in violence himself on January 6? 24 A. No. 25 Q. Does that change your opinion that Mr. Griffin was TR-134 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 an insurrectionist? 2 A. It does not. 3 Q. Do you have any information that Mr. Griffin 4 directly instructed anyone else on January 6 to engage in 5 violence? 6 A. No. 7 Q. Does that change your opinion that Mr. Griffin was 8 an insurrectionist? 9 A. No. 10 Q. Why don't these two facts that Mr. Griffin didn't 11 himself engage in violence and that he didn't direct anyone else 12 to engage in violence not change your opinion? 13 A. So there are a lot of roles in an insurrection. You 14 could be the violence specialist kind of a group. But 15 Mr. Griffin wasn't that. He played other roles. So if you're a 16 politician inciting insurrection, you might not touch violence 17 at all. Mr. Griffin in this case of this insurrection played a 18 role in mobilizing the mob, bringing people to that arena on 19 January 6, of inciting the mob once they had been mobilized, 20 walking along the line, asking people where their guns were at, 21 normalizing violence in multiple ways to the people on that day, 22 rallying them and inciting them after violence had already 23 occurred. So for all these reasons, he's playing really a role 24 of a mobilizer of a mob and an inciter of further violence. 25 He's not a violence specialist and he doesn't need to commit TR-135 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 violence himself as an insurrectionist. 2 Q. At the beginning of your testimony, and this is the 3 last topic, you offered the opinion that Mr. Griffin is an 4 insurrectionist and not a protestor. Do you recall that 5 testimony? 6 A. Yes. 7 Q. Have you studied political protests? 8 A. Yes. My think tank has a global protest tracker. 9 We monitor protests all around the world. 10 Q. Can protests be violent? 11 A. Yes. 12 Q. Does the nature, though, of violence in a protest 13 differ from the nature of violence in an insurrection? 14 A. Yes. 15 Q. What is the difference? 16 A. In an insurrection, violence is the means to the 17 end. You need to use violence to achieve an insurrection. On 18 January 6, people showed up in tactical gear and so on. In a 19 protest, violence actually undermines the goals of the protest. 20 There is reams of research that suggests that violence loses 21 your group, your smaller group, which hurts the protest. So 22 protestors work very hard to minimize violence from their side. 23 They might try to be nonviolent themselves and get the state to 24 use violence against them, but they really try hard to not have 25 violence break out because it hurts the goal of a protest It's TR-136 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 the point of insurrection. 2 Q. Can you provide an example of a violent protest. 3 A. Sure. 4 Q. What's an example? 5 A. So the Black Lives Matter protest the summer of 6 2020. Most of them were peaceful, well over 90 percent. But 7 some were not. Seattle had a particularly violent protest. It 8 started off somewhat peaceful, but a rumor went through the 9 crowd that police had misused tear gas or a flashbang grenade, 10 hurting a child. Now, the point of the protest supposedly in 11 Seattle was that the police department there had been under the 12 Department of Justice oversight for the misuse of force. And 13 supposedly, the goal was to get the police department to use 14 less force. Instead, the crowd got unruly. There was a 15 significant amount of property damage. They later formed an 16 autonomous zone where they kept the police out of a multiblock 17 area in Seattle. Within that autonomous zone, people were 18 killed. The police came back. They cleared the autonomous 19 zone. None of the goals of the protest were really met. And so 20 that's when a protest uses violence, it backfires. 21 Q. What about the civil disobedience, Dr. Kleinfeld, 22 isn't that a form of protest where it's intended to use to 23 promote violence to achieve certain goals? 24 A. In a civil disobedience action, the goal is to be as 25 nonviolent as possible in order to get aggressors to use TR-137 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 violence against your group, in order to get public opinion on 2 your side. So if you think about the civil rights movement in 3 the '60s, people were trained. And where the parks -- went to a 4 Highland Park training for two weeks to learn how to remain 5 nonviolent in the face of violence. They were told to show 6 up -- women were told to show up in heels and pearls and men in 7 suits and ties so they looked nonviolent. And then they were 8 supposed to do things, sometimes illegal things, like going into 9 a space they weren't allowed to go into, or refusing to disperse 10 from a road, but not violent things in order to promote violence 11 from the State so that the picture the general public got was of 12 nonviolent protestors having violence used against them. 13 Q. Dr. Kleinfeld, were the events of January 6 a 14 protest? 15 A. No. 16 Q. Why not? 17 A. They had spent weeks leading up to it calling for 18 violence, sharing images of the Capitol online, talking about 19 how this might be a declaration of martial law sort of event. 20 Many people showed up at the insurrection in tactical gear, 21 military gear. These were not people attempting to look like 22 nonviolent protestors to spark violence against them. And 23 intimidation at the very least, was the goal. The goal was to 24 use a mob presence of many, many people who clearly wanted an 25 outcome. You could see all the Trump/Pence flags in the crowd TR-138 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 to pressure the Vice President to seize power in some way and 2 not certify the transfer of Presidential power. 3 Q. Now, did Mr. Griffin participate in the events on 4 and leading up to January 6 as a protestor or an 5 insurrectionist? 6 A. He was an insurrectionist. 7 MR. SMALL: No further questions at this time. 8 THE COURT: Let's take a 15-minute break at this 9 time. We'll be back on the record in 15 minutes. 10 Doctor, please step down. 11 (Court in recess at 2:45 p.m.) 12 THE COURT: We're back on the record. Mr. Griffin. 13 CROSS-EXAMINATION 14 BY MR. GRIFFIN: 15 Q. Ms. Kleinfeld, I have heard your opinion. And as we 16 know, everybody has opinions. But in that realm and in the 17 realm as far as your opinions go and when you watch the videos, 18 how would you describe your opinion as far as the basis of it or 19 where your opinion is motivated from? 20 A. I studied political violence and democracies for 21 nearly 20 years, and I'm basing it on that history. 22 Q. Would you consider yourself to be liberal in your 23 political position or would you consider yourself to be 24 conservative in your political position? 25 A. I come from a conservative family. I've got pretty TR-139 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 mixed views. I work a lot with national security professionals. 2 Q. But that's not -- the family that you come from, I 3 didn't ask the political opinion of your family. I asked your 4 political views. Are your political views, would you say more 5 liberal leaning or more conservative leaning? 6 A. They're just pretty complicated. I try to take 7 things as they come. 8 Q. What about say on a political issue such as 9 abortion, are you pro choice or are you pro life? 10 You know, my first daughter was born at seven months 11 and I spent two months in neonatal intensive care units with her 12 and with babies that were just 25 weeks old. My brother, he and 13 his wife had a baby that was diagnosed with a neural tube defect 14 at 20 weeks. His wife is Catholic and a baby is born with 15 seizures. They never end for a year or two and then dies and is 16 in a lot of pain. I flew to be with my brother and his wife as 17 they made a tough decision. I have complicated views on 18 abortion 19 Q. I'm very sorry for your personal trauma that you had 20 in your life and I'm sorry for that. So maybe I can rephrase my 21 question. Do you believe in a woman's right to be able to 22 terminate a pregnancy at her will and on her demand? 23 A. We've been here a long time, sir, and my views on 24 abortion are real complex. 25 Q. What I'm getting to the bottom of, though, is as we TR-140 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 express our opinions, our opinions always come from a 2 foundation. Would you agree? 3 A. In the case that we're discussing, my opinions don't 4 have a lot to do with abortion. They come from my decades of 5 study. 6 Q. I understand that and I'll sorry to bring you 7 abortion into the conversation. The only reason why I do is 8 because you fail to answer my very simple and direct question, 9 is that would you consider yourself to be more liberal leaning 10 or more conservative leaning? 11 A. Our country is really polarized now and that means a 12 lot of people are separating into those two camps, but I do a 13 lot of work with Republicans, a lot of work with Democrats and a 14 lot of work with national security leaders, and I really try not 15 to put myself into one of those camps, but to care about our 16 country first. 17 Q. I understand that, but, again, I go back to the fact 18 of opinions. As you have shared those today, your opinion -- 19 every opinion that we have is based on the foundation that we 20 stand on. So to further understand your opinion that was a paid 21 opinion, I have to -- I would believe the Court -- it would be 22 fair to the Courts and Your Honor to be able to say at least say 23 yes, I'm more conservative leaning or no, I'm more liberal 24 leaning. I think that most of those that are in politics today, 25 that's a very easy question to answer, but, unfortunately, for TR-141 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 you, you can't answer a question as simple as that. 2 A. Well, I'm not -- 3 MR. SMALL: Objection, Your Honor. The question has 4 been asked and answered three times now. 5 THE COURT: It has. Objection is sustained. 6 MR. GRIFFIN: I'll accept the objection. It's 7 unfortunate that I can't get an answer to what should be an 8 extremely question to answer. 9 BY MR. GRIFFIN: 10 Q. I'd like to go on and ask you, how much time did you 11 put in to your opinion? 12 A. In terms of this particular case? 13 Q. Yes, ma'am. 14 A. Many hours. Of course, it's based on even more 15 hours of work I do in general. And then I've worked in this 16 field, as I said, nearly 20 years working around the world and 17 countries facing problems with their democracies. 18 Q. But just in this case, the opinion that you've given 19 today, all the extensive work that you've done developing the 20 opinion on myself and what my words meant and how you translated 21 the words that I spoke in the videos, did you just come up with 22 this overnight or did you actually put -- in this case, how long 23 did you work on this case? 24 A. I probably spent maybe 20 hours specific to this 25 case, based on a lot more that I had done prior, of course. TR-142 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. As far as your billing the Plaintiffs, was that 2 hourly or did you bill in a package? 3 A. No, I billed hourly. 4 Q. So the opinion, and which everybody has and which 5 everybody's opinion is driven by the foundation that they stand 6 in, roughly how much were you paid for your opinion by the 7 Plaintiffs? 8 A. Twenty hours is roughly $10,000. 9 Q. Do you believe that the Plaintiffs would have 10 reached out to you for your opinion if you would have maybe have 11 been a Trump supporter? 12 A. I don't know if they knew my political voting 13 record. I write very extensively on political violence in the 14 United States. I think they knew about my writing and the 15 opinions I have stated, not particular to this case, so they 16 knew what I thought I'd written in an article that I wrote after 17 the insurrection on what I understand happened that day. 18 Q. So you could probably come to the conclusion that 19 the Plaintiffs knew the opinion they were going to get from you 20 before they contracted you? 21 A. I think they had a sense that I knew the issue set 22 pretty deeply and that my sense of what happened on January 6 23 was that it was a lot of harm to our democracy. 24 Q. Yes. But in regards to January 6 and the events on 25 that day, the opinions are from one spectrum to the other, TR-143 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 correct? 2 A. People have a very polarized set of beliefs about 3 that day, yes. 4 Q. Where some people -- would you agree that some 5 people would say that January 6 was totally peaceful and would 6 you agree that other people would have an opinion to call 7 January 6 an insurrection? 8 A. I think you're right, that out of the 300 odd 9 million Americans, people probably have an opinion to be placed 10 on that spectrum. I'm not sure I think that every opinion has 11 equal worth. 12 Q. Say if you were to put yourself in the place of the 13 Plaintiffs and the Plaintiffs were wanting to paint January 6 14 out to be an insurrection, then you would probably be a good 15 contract to pay $10,000 to and get to fly out to Santa Fe and 16 testify today, correct? 17 A. I'm a New Mexican. I didn't fly to be here. 18 Q. I'm sorry. I apologize for that. I'm a New Mexican 19 too, born and raised. 20 But opinions as we have listened to yours today, 21 they vary across the board, would you agree? 22 A. Sure. 23 Q. Can opinions sometimes not be founded on statutory 24 law and facts? 25 A. I'm not a lawyer myself. TR-144 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Sure. So your opinion is not based on the law, 2 then? Your opinion is not based on statutory fact? Is that 3 what you say? 4 A. My opinion is based on the events from election day 5 to inauguration day and on my understanding of political 6 violence in our country and in other democracies. 7 Q. And so whenever you develop an opinion of 8 insurrection, is that opinion developed by you personally? Is 9 it developed by maybe media, what you see in the newspapers or 10 what you hear over and over? 11 A. I try to do my research in person wherever I can. I 12 have been to a lot of countries, interviewed a lot of war lords, 13 violent individuals, war crimes and people who have committed 14 war crimes, things like that. 15 Q. Would you say the term or the reference to an 16 insurrection is a very heavy word that can be thrown around very 17 lightly? 18 A. I think it's important to use words like 19 insurrection in a proper context. That's why I think it's 20 important to distinguish insurrection, coup, Civil War, protest. 21 These are different things. 22 Q. Would the proper context be bound by the letter of 23 the law? 24 A. I'm not a lawyer. I do not speak as a lawyer. 25 Q. But if I'm going to -- if you're going to say TR-145 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 somebody is a thief, then there needs to be evidence that's 2 backed up by law that proves that accusation, correct? 3 A. I study insurrections and other forms of political 4 violence, and that's what I based my opinion on. 5 Q. But the insurrections have to be based on the letter 6 of the law, would you agree? 7 A. For the judge, he needs to make a legal opinion 8 about what happened. But for me, I've been asked to provide my 9 opinion based on my knowledge base. 10 Q. I understand. The reason for my questioning is just 11 because insurrection -- has there been anybody in the United 12 States today who is charged with insurrection? 13 A. I don't know. 14 Q. Do you think that if there was somebody that was 15 criminally charged and convicted of insurrection, do you believe 16 that you stay up with the news enough where you would know? 17 A. I try, but it's a big country. 18 Q. You agree it would probably be the biggest headline 19 in America today if somebody was charged with insurrection on 20 January 6, would you not? 21 A. Well, there is hundreds of people charged for their 22 activities on January 6. I think the biggest criminal set of 23 trials in our history. I don't follow all the charges in all 24 those cases. 25 Q. In regards to my case, do you have knowledge of how TR-146 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 I was charged on January 6th? 2 A. Well, this is a civil trial, so this is what I was 3 asked to speak to. 4 Q. That's correct. And I'm asking you -- 5 A. For your criminal trial? 6 Q. -- do you know how I was charged from January 6? 7 A. I know I read about your criminal trial, but I'm 8 sorry, I can't remember exactly what the charges were. 9 Q. I'll enlighten you. I was charged with disorderly 10 conduct and disruptive behavior, and which I was acquitted on. 11 I was charged and convicted on misdemeanor trespass. 12 Insurrection is a very, very heavy criminal charge. And for you 13 to give testimony through your expert witness and opinion that I 14 am an insurrectionist is not based on the law. It's not based 15 on fact. It's your opinion that is not bound by the context of 16 the law. And it's heavy. 17 MR. GRIFFIN: I'd like to go -- if you wouldn't 18 mind, sir, and I'd like to go -- I'm not going to go through all 19 of them. I feel like we've been gaslighted enough by a lot of 20 the videos, but if you could reference RK 2. I just want to go 21 through a few of the videos and question you on your opinion 22 that may have been different than mine. 23 BY MR. GRIFFIN: 24 Q. Is Mr. Griffin appropriately characterized as an 25 insurrectionist rather than a protestor? In regards to TR-147 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 insurrection, in my actions on that day, do you feel like I was 2 attempting to overthrow the government? 3 A. So I believe you were attempting to stop the 4 peaceful transfer of Presidential power. That's the only time 5 that has ever happened in our 250-year history in this country. 6 Q. What gives you that opinion that I was trying to 7 stop the transition of power? 8 A. In the lead-up to the day you said multiple times 9 that you were praying for Mike Pence, the pressure was on Mike 10 Pence. You said in a number of the videos that "There will 11 never been a Biden presidency." "Biden will never be 12 President." And your speeches to groups on the way to that day 13 spoke about martial law. So putting those facts together makes 14 me think that you wanted Mike Pence to act in some way that 15 martial law might result and that certainly Mr. Biden was not 16 supposed to become President at the end of it. 17 Q. So you agree that on that day that I was -- on the 18 lead-up to January 6, that my heart I was praying for Mike Pence 19 and we were supporting Mike Pence, correct? 20 A. I can't speak to what's in your heart. I don't know 21 you. 22 Q. My testimony. 23 A. You said you were praying for Mike Pence. 24 Q. That's correct. I said that, "We support you, Mike 25 Pence," correct? TR-148 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Yes. 2 Q. And Mike Pence's job on January 6 was to certify the 3 election, correct? 4 A. It was. 5 Q. Through the testimony that you have heard from me 6 and many others is that we had grievances about the possible 7 fraud that took place in the election, correct? 8 A. Yes. 9 Q. Are we allowed to do that in America today? 10 A. It's perfectly legal to protest, and in New Mexico 11 it's perfectly legal to protest with armaments, but to disrupt 12 an act of the certification of the Presidential transfer of 13 power, I do not believe that's legal. 14 Q. We'll get to that. So by your opinion and your 15 testimony, you're saying that I was well within my 16 constitutional rights to speak out about what I thought was a 17 fraudulent election, and still do and it's been proven already 18 to be. So I was well within my rights. And I was supporting 19 Mike Pence on January 6, correct? 20 A. So the Vice President's role on the certification of 21 the Presidential transfer of power is very ceremonial. There is 22 no real reason to support Mike Pence. He's really just a rubber 23 stamp. The focus on Mike Pence that day was extraordinary and 24 highly unusual in our government. 25 Q. Did Mike Pence on the day of January 6 on the TR-149 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 certification of the election have an opportunity to vote yes or 2 no on the certification of the election? 3 A. I don't know exactly what he votes for. My 4 understanding is that he certificates that the States have been 5 appropriately counted. 6 Q. What I'm asking is on January 6 in the certification 7 process, whenever the vote comes before Mike Pence, Mike Pence 8 is the final stamp on the vote? 9 A. I don't know. I'm not real familiar with -- 10 Q. Well, he is. 11 MR. SMALL: Your Honor, she was still answering the 12 question. 13 MR. GRIFFIN: I'm sorry. 14 BY MR. GRIFFIN: 15 Q. It's a yes, no vote. 16 A. I don't know. 17 Q. Mike Pence -- I'm trying to get you to understand 18 why we were there. I'm trying to get Your Honor to understand 19 why we were there. We were there -- we were going because he 20 truly believed that the 2020 election had fraud in it. I don't 21 know if anybody in particular stole it. We didn't know if China 22 -- we were hearing China stole the election. We're hearing 23 this, we're hearing that. But what we were seeing was ballots 24 being stuffed in ballot dropboxes with videos. We were seeing 25 pole watchers being locked out of counting stations. We were TR-150 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 seeing -- our suspicions were not unfounded. They were founded 2 through documentation, through sworn affidavits, through 3 testimony. 4 So that's why we went to Washington, D.C. on January 5 6, because we were concerned of the fraud of the election. We 6 went to stand in unity so our voices would be heard by Mike 7 Pence so Mike Pence would vote no on the certification of the 8 election only to remove that vote back to the States so they 9 could be looked at more closely. 10 THE COURT: Your question, Mr. Griffin? 11 BY MR. GRIFFIN: 12 Q. Okay. I would like to ask you, though, by telling 13 you that, would you view that as an insurrection? 14 A. On the day of January 6, a great deal of violence 15 was used in a way that did stop the certification of the 16 election for multiple hours. And it harmed a number of police 17 officers, over a hundred. A few died later. And we've never in 18 our country's history had a transfer of Presidential power that 19 was violently interrupted, not even during the Civil War. 20 Q. Were you there on January 6? 21 A. I was here in New Mexico. 22 Q. So the only events of January 6 is what you've seen 23 in the media, correct? 24 A. I was actually speaking with military leaders that 25 day a lot. TR-151 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. I didn't ask you if you were speaking to military 2 leaders. I was asking you, the images and what you witnessed 3 with your eyes is only what you saw in the media, correct? 4 A. I only saw images from the media, but I was hearing 5 and talking in real time to people who were in Washington, D.C. 6 in positions of decision-making where I don't know if any of 7 them were present at the moment. 8 Q. Do you feel like through the images you saw on the 9 TV or secondhand accounts, do you feel like that could give you 10 a well-rounded total opinion of January 6th? 11 A. I think it gave me enough information to understand 12 the goals of January 6th as the disruption of the certification 13 process and the ways in which violence was used that day. 14 Q. But again, the opinion that you have shared here 15 today and the opinion that you rest your case on is not a 16 firsthand opinion of an actual eyewitness account of physically 17 being present in Washington, D.C. The opinion -- would you say 18 that the opinion that you have is based off of video clips that 19 you've seen and secondhand testimony that you've heard from 20 others? 21 A. Probably like a lot of Americans, I was watching the 22 events unfold live on TV and talking to people live who were in 23 charge of various parts of our security apparatus. It's true I 24 wasn't there, but, you know, the Capitol complex is large. Even 25 if you were there -- first of all, if one was there, one would TR-152 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 likely be contributing to the mob, but even if you were there, 2 you wouldn't have seen everything. So I feel like I got a 3 pretty good understanding of what happened. 4 Q. In your opinion as far as insurrection goes, where 5 do you draw the line? Would you go as far as to say that 6 everybody that was present in what you consider to be a mob, 7 were they all part of the insurrection? 8 A. If you are a tourist wandering through the Capitol 9 and happened to get caught up in that, then you would not be an 10 insurrectionist. But in your case, you spoke on a whole bus 11 tour organized by the people who got the park rally permit, 12 trying to bring to people that day speaking about your belief 13 that there be martial law declared, calling on men to battle and 14 so on throughout the days. 15 On the day of, you took a microphone and spoke to 16 the crowd in ways that it really rallied them a lot. You spoke 17 along the line of the crowd asking who had guns, which are 18 illegal in D.C. So I don't think in your case you were a 19 tourist who rolled into the wrong place. 20 Q. Asking people for guns -- if they had guns. 21 MR. GRIFFIN: Can you roll RK 26. 22 BY MR. GRIFFIN: 23 Q. At Christmastime, do you remember the little 24 ornaments on the Christmas tree that look like toy soldiers? 25 A. Sure. TR-153 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Yeah. What do little toy soldiers, what do they 2 usually have that they are carrying around? 3 A. It could have a gun. If that was your idea here, 4 but you spoke many times not in the clips that we played but in 5 other video that I saw, many, many times you said we could be 6 armed, we could be here to protect our Second Amendment. You 7 spoke about armaments a lot as you walked around the -- 8 Q. If you want to reference videos that weren't played, 9 believe me if they could be used against me, they would have 10 been played. If somebody makes a statement that says "we could 11 all be armed," how would you translate that statement? 12 A. In this context, I'd translate it as normalizing the 13 idea of using violence. 14 Q. Well, maybe -- maybe what -- maybe some would 15 translate it that way. To me and others like me, if I say "we 16 could all be armed," that means we're not armed. That means 17 we're peaceful. That means we stood in peace on that day. If 18 there was to be an insurrection, as you so lightly throw this 19 word of insurrection every other sentence, don't you think that 20 people would be armed? 21 A. A number of people were armed that day. 22 Q. Was there? 23 A. Yes. 24 Q. Says who? 25 A. The January 6 Select Committee reported that I TR-154 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 believe it was the Secret Service told the President that day 2 that there were people with arms in the crowd and the President 3 wanted them in his arena, so he said let them in. 4 Q. So the January 6 committee. That would be a voice 5 that would be -- a legitimate voice that's nonbiased, that's not 6 political, would you say? 7 A. It's a bipartisan committee. Liz Chaney voted with 8 President Trump, I believe, 90 percent of the time. 9 Q. So you would say that they're nonbiased and they're 10 legitimate? Yes, no? 11 A. Yes. 12 Q. Do you know a man by the name of Ray Epps? 13 A. No. 14 Q. You've never heard the name Ray Epps? 15 A. No. 16 Q. Have you seen any of the videos from January 6 that 17 shows a big man and a backpack wearing a red Make America Great 18 Again cap and he's telling people "Tomorrow we storm the 19 Capitol"? You haven't sewn that video? 20 A. I'm sorry, I haven't. 21 Q. And the next morning, Ray Epps was directing people 22 to the Capitol. He was telling them, "Come on, the Capitol is 23 this way. Let's storm the Capitol." Ray Epps' words. 24 Also right before the original breach, Ray Epps was 25 present and Ray Epps was one of the first to cross over the TR-155 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 line. Did you know the January 6 committee interviewed Ray Epps 2 and he was never charged with any kind of crime. 3 A. I'm sorry, I don't know who Ray Epps is. 4 Q. You should. If you don't know who Ray Epps is, then 5 how can you really have an opinion on January 6th? I say that 6 because Ray Epps is a huge part of January 6. Do you believe 7 that our opinions can be very much shaped by the media that we 8 watch? 9 A. Of course. 10 Q. May I ask you what media do you watch? 11 A. I don't have a television, actually. I watch -- I 12 read a lot. I read the Wall Street Journal, the Washington 13 Post, The Economist. I speak to a lot of people on both sides 14 of the aisle to try to gain firsthand accounts because I found 15 in my research that firsthand accounts tend to be more accurate. 16 And I don't watch much, honestly. 17 Q. Do you believe that the Washington Post and the New 18 York Times and those such publications, do you believe they are 19 nonbiased? 20 A. No. In fact, I'm not a fan of the New York Times. 21 Q. Yeah. Because the media can shape our opinions, 22 wouldn't you agree? 23 A. Yeah. 24 Q. Do you know the name Officer Brian Sicknick? 25 A. Of course. TR-156 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. Do you know what happened to Officer Brian Sicknick? 2 A. I know that he was very badly injured. I can't 3 remember exactly the extent of his injuries. 4 Q. Do you know what the cause of death of Brian 5 Sicknick was? What the coroner's office says. Not what the 6 media says, not what a secondhand opinion says, but what the 7 coroner's report says of the cause of death of Officer Brian 8 Sicknick? 9 A. I don't. I didn't read the coroner's report. 10 Q. No. So would you -- I'll tell you. It says that he 11 died of natural causes. Did you read the headlines whenever it 12 said that Officer Brian Sicknick was bludgeoned to death by a 13 fire extinguisher on January 6? 14 A. I'm aware that the media reported him having very 15 traumatic injuries. 16 Q. On the evening of January 6, do you remember the 17 media buzzing about a D.C. Capitol Police officer that had been 18 beaten to death with a fire extinguisher? 19 A. On January 6, I was trying to rally a response to 20 January 6. I wasn't paying a lot of attention to media. I 21 didn't need to be watching, so I don't remember that. 22 Q. It's interesting, because that was one of the 23 biggest headlines on the evening of January 6, was that a D.C. 24 Capitol Police officer was beaten to death with a fire 25 extinguisher. It didn't just -- you know -- you didn't hear TR-157 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Vice President Kamala Harris or Joe Biden referencing Office 2 Brian Sicknick being bludgeoned to death with a fire 3 extinguisher? 4 A. Like I said, I don't watch a lot of TV. 5 Q. Okay. What about the name Rosanne Boyland? 6 A. I'm sorry, I know I've heard the name, but I can't 7 recall it. 8 Q. You don't remember media telling the American people 9 that Rosanne Boyland had died of a drug overdose? 10 A. I do remember that someone there was talked about in 11 that way, and it could have been her. I remember her name, but 12 I'm not real familiar with the case. 13 Q. But you don't hear about -- have you heard a 14 headline or seen a news story about Rosanne Boyland being 15 viciously and savagely beaten by a D.C. Capitol Police officer 16 named Lila Morris? 17 A. No. 18 Q. The reason why I ask these questions, Ms. Kleinfeld, 19 is because of opinions. Opinions can be shaped, would you 20 agree? 21 A. I do think that's very true. That's why I try to 22 get firsthand accounts. 23 Q. But your opinion of me on January 6 with a bullhorn, 24 you would say that I was instigating people? 25 A. I would say that you were increasing the emotional TR-158 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 arousal of the crowd 15 minutes after Ashli Babbitt had been 2 killed when a lot of violence had already occurred. 3 Q. So in your opinion, by telling people to take a 4 knee, that's arousing the crowd? 5 A. It doesn't really matter the content of the words. 6 It's really about the emotional effect on the crowd. 7 Q. Would you say that through your testimony today that 8 you could definitely influence people's opinion of myself? 9 A. Me personally? I doubt it. 10 Q. No. You don't think that people's opinion will 11 change? 12 A. I think that your actions will shape people's 13 opinions and people will have different opinions. 14 Q. But your testimony today could very well influence 15 Your Honor's position, correct, or opinion? 16 A. I suppose the Judge needs to make an opinion about 17 the case and I'm here to provide testimony that's supposed to 18 help him shape that opinion. 19 Q. In your opinion, you said that I stood next to the 20 New Mexico Civil Guard, correct? 21 A. I said you appeared at events where you spoke and 22 they spoke or they were present and you were present. 23 Q. But you put them in the same -- but by saying that, 24 you would influence people's opinion to the point where they 25 would classify me in the same category as a New Mexico Civil TR-159 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Guard, correct? 2 A. I was trying to be pretty careful in saying that 3 Cowboys for Trump was a different category, that they're groups 4 that specialize in the use of violence like the New Mexico Civil 5 Guard, and then there are groups that can mobilize armed 6 supporters, like Cowboys for Trump, and that they're very 7 different. 8 Q. Did you ever see any videos or did you ever read any 9 statements or see anything that would actually be factually 10 based outside of just your opinion that I was aligned in any way 11 with the New Mexico Civil Guard? 12 A. I certainly don't state anywhere that you were 13 aligned with them. I was trying to say that by appearing on 14 speaking events where they were also there, it plays a role in 15 normalizing their role and the politics of our country and our 16 state. 17 Q. But don't you believe that if I was aligned with the 18 Proud Boys, if I was aligned with the Oath Keepers, if I was 19 aligned with the New Mexico Civil Guard, after all of the 20 discovery of 2,400 videos, and unfortunately we've only seen a 21 small handful over and over and over and over, out of all of the 22 discovery that the Plaintiffs have pulled up, would you believe 23 that there would be a text somewhere or a video somewhere or 24 something that shows me standing next to these other groups or 25 collaborating with these other groups? TR-160 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. There are pictures of you standing near other 2 violent specialists, but I've never claimed that you are aligned 3 with them emotionally or I don't know your beliefs about that. 4 What I have said is that by standing next to them at events and 5 speaking, you're bringing them into a normal part of our 6 political discourse. 7 Q. I heard you mention earlier in your opinion about 8 Black Lives Matters [sic]. It sounded like that in your 9 opinion, and correct me if I'm wrong in your response, that 10 there was only one instant in Seattle where there was violence 11 that was attached to a Black Lives Matters protest. 12 A. So Black Lives Matter had lots and lots of protests. 13 And the vast majority were peaceful, but the ones that weren't, 14 and there were multiple that weren't, caused more than 2 15 building in insurance payouts. That's the biggest insurance 16 payout in modern history, maybe ever. So I'm not claiming they 17 were all peaceful, just that upwards of 90 percent were. But 18 the ones that weren't, really weren't. 19 Q. In your expertise in political violence, did you 20 ever have any focus on Black Lives Matters and trying to shed 21 light on some of the destructive behavior inside of that 22 organization? 23 A. I have studied Black Lives Matter. Not as much as 24 I've studied the violence of -- if you look at the global 25 terrorism database or other indices of violence in our country, TR-161 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 while justification for violence on the left and right are 2 actually pretty similar. Incidents of violence are vastly 3 higher on the right. And so I tend to focus more on that side, 4 but I'm aware of the violence on the left. 5 Q. So you feel like the violence on the right is 6 escalated at a much higher level than on the left? 7 A. If you discount the number of incidents, yes. Also, 8 if you count the number of incidents against people as opposed 9 to property, yes. But the violence on the left has gone up, 10 too, just not nearly as much. 11 Q. Have you traveled much, Ms. Kleinfeld? 12 A. Yes, I have. 13 Q. Have you traveled to a lot of our big cities across 14 America? 15 A. Sure. 16 Q. Have you gone into the downtown areas of many of our 17 big cities? 18 A. Yes. 19 Q. Have you noticed all of the glass that's broken out 20 of all of the small businesses in the fronts of our small 21 businesses in our downtown areas? 22 A. Since COVID, I haven't actually traveled a whole 23 lot, but if you look at the murder rate, the murder rate in 2020 24 rose by 30 percent. It's the biggest one-year rise in our 25 country's history that's been recorded at least. And the rise TR-162 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 is equal in rural areas and in urban areas. It's all over the 2 country. We're having a real problem with violence in this 3 country right now. 4 Q. That wasn't my question, though, on the murder rate 5 in the country and the rural areas and the cities. My question 6 was: Have you gone into the downtown areas of the big cities 7 and seen all of the glass that's busted out of the front windows 8 of people's small businesses? 9 A. Since 2020, I've only been to Albuquerque, New York, 10 and Washington, D.C., and I must say I haven't seen any glass 11 broken out anywhere. 12 Q. You haven't seen all the glass broken out in 13 downtown Albuquerque? You didn't see the destruction in 14 downtown Albuquerque? 15 A. Not so much. 16 Q. You haven't seen the plywood up in front of all of 17 the small businesses in downtown Albuquerque? 18 A. We may have different opinions about how much of 19 Albuquerque was affected. There has been plywood at businesses 20 in Albuquerque for many reasons for a long time, so... 21 Q. You would say that those that were gathered in 22 Washington, D.C. on January 6 were more destructive and more 23 violent and did more damage than all of the Black Lives Matters 24 protests that we saw across the nation the last four years? 25 A. It's a very different kind of damage. The Black TR-163 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Lives Matter protests caused a lot of property damage, 2 billion 2 dollars plus of insurance payouts. But I'm a democracy 3 specialist. And what happened on January 6 had to do with the 4 transfer of Presidential power. In a way, it doesn't matter how 5 much property damage was done, the question is really was there 6 violence and intimidation brought to bear to affect the orderly 7 transition of power in our country. And yes, there was. 8 Q. And the transition of power on January 6, you 9 continue to say that it was there to stop the transition of 10 power. But do you know the legal recourses that can be taken in 11 an election that there is question over? 12 A. Again, I'm not a lawyer, but it's my understanding 13 that President Trump availed himself of scores of cases, and 14 just lost most of them. 15 Q. Would you agree that Mike Pence had the legal power 16 and the ability to vote yes or to vote no on the certification 17 of the election? 18 A. The Electoral Count Act is actually something that 19 the National Council on Election Crises has cleaned up for quite 20 some time. There's a bipartisan group of senators. We're 21 trying to do that now because it's so poorly written. It really 22 hard to tell. But it doesn't really mention the Vice 23 President's role. I don't know what he's exactly allowed to do, 24 but it's always been a ceremonial role. 25 Q. So apparently you're familiar with the process? TR-164 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. I'm not familiar with the process. I'm familiar 2 with the Electoral Count Act role. 3 Q. But you definitely have a strong opinion of the 4 people that the people in Washington, D.C. were there to stop 5 the transition of power. You will say that. 6 A. Yes. Yes. 7 Q. You will voice that opinion, but yet, you don't even 8 know the legalities and the laws that confirm our electorate? 9 A. I've been an election observer in a number of 10 countries overseas, and I don't know those countries laws 11 either. When you observe elections, you talk about, in this 12 case the government of the United States or a nonprofit 13 organization, you talk about what you saw and how it affected 14 the election. That's what I'm trying to do here. 15 Q. But this is where your opinion is skewed because you 16 have an opinion that the peaceful transition of power was 17 stopped by insurrectionists and you will call that an 18 insurrection, but you don't even know if it was a yes or no vote 19 by Mike Pence at that time. The reason why in these videos I 20 was saying that "We support you, Mike Pence, and we pray for 21 you" is because we have a right as free Americans to encourage 22 our political leaders to vote no on something that we're 23 concerned in. You don't know that Mike Pence could have voted 24 no on the certification and then that would have gone back to 25 the States? TR-165 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. Our Constitution says that elections are a State 2 affair. States decide how their states voted. The Vice 3 President really is just supposed to rubber stamp the State 4 decisions. And so after the safe harbor deadline, which had 5 passed, the States had made their decisions and then Mike 6 Pence's job is just to say the States have made their decisions, 7 but I don't know exactly the process by which he says that is. 8 Q. So in your words, our Vice President is nothing but 9 a mere rubber stamp? 10 A. In this particular moment of the Presidential 11 transfer of power, yes, because the States determine our 12 elections. 13 Q. But if the State -- if -- Vice President Mike Pence 14 did have a place because he could have voted no on the 15 certification and then that goes back to the States to further 16 examine our electorate. That's the law. You're a doctor, 17 aren't you? Do you have a doctorate degree? 18 A. I have a DPhil, yes, that's -- 19 Q. You're a very educated woman. You know the law. 20 But the reason why you can't tell me the law is because it 21 doesn't fit the narrative? 22 A. I know the Electoral Count Act law. I'm not as 23 aware, but my understanding of our Constitution is that States 24 determine our government's elections. And that the role of the 25 certification process is to hear the States' decision, to raise TR-166 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 objections and for the Vice President to sort of rubber stamp 2 that process. And the fact that you're still talking about the 3 Vice President having the power to change that does make me 4 think that on the day of January 6 you thought the Vice 5 President had the power to change who was President of our 6 country. 7 Q. The President -- the Vice President of the United 8 States, the only reason why we were there on January 6 is 9 because we wanted Vice President Mike Pence not to vote yes on 10 the certification, not to disrupt the transition of power but to 11 only give the American people the graces of having our 12 electorate looked at closer. 13 A. Is that a question? 14 Q. No. You made a statement to me and I made a 15 statement back to you. That's why we were there. 16 THE COURT: Again, Mr. Griffin, you have to ask 17 questions. 18 MR. GRIFFIN: Yes, sir. All right. All right. 19 BY MR. GRIFFIN: 20 Q. But I could go through -- I can -- let's go to RK 6, 21 please. This is a statement of yours here where it says, "The 22 crowd cheered. There's a handful of Cowboys for Trump rode in 23 on horses. That's a group whose leader has made racist remarks 24 about black athletes." 25 Is that you? Is that yours? Did you comprise this? TR-167 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. No. This is a story that came out of a KUNH radio 2 station. 3 Q. Okay. But your opinion on this right here again, 4 one more time, as you stated earlier on record. 5 A. So my opinion about the events in Rio Rancho that 6 day on the protest and the counterprotest was that Cowboys for 7 Trump was there alongside the New Mexico Civil Guard and some 8 Three Percenters. The New Mexico Civil Guard had already been 9 -- had brought a civil action against them for being an illegal 10 paramilitary group in our state. 11 Q. Could there be a possibility that those that rode 12 with Cowboys for Trump were going down to this Black Lives 13 Matters protest to actually try to dialogue and communicate with 14 those of opposing views? 15 A. It could be, although they did show up after the 16 police had already been brought there because there had been 17 some scuffles and some -- it had not been a sort of dialogue-y 18 sort of protest and counterprotest. 19 Q. And respectfully, that's where you're wrong. I 20 don't know where you heard that opinion from, where you got that 21 opinion from. But the police -- and there was no -- there was 22 no skirmishes before we got there. I'll tell you something 23 because I was there. I rode in first. I was leading the pack. 24 And we rode into a crowd of people that had much different 25 political opinions than we do, and we started talking to these TR-168 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 men and these women. They came over to pat our horses. We 2 talked about differences. We reached out to them in love, and 3 they were calm. The crowd was calm until the police showed up. 4 When the police showed up and they marched in in single file 5 line, that's when everything's got escalated. 6 MR. SMALL: Objection, Your Honor. Mr. Griffin is 7 testifying, not asking a question. 8 MR. GRIFFIN: Your Honor, I was just correcting an 9 opinion that the witness had that I read -- or that she shared 10 earlier and that she just shared again that was an incorrect 11 opinion. 12 THE COURT: You can tell her that, Mr. Griffin. 13 MR. GRIFFIN: Yes, sir. 14 THE COURT: You can't make that closing argument 15 that you continue to do. 16 MR. GRIFFIN: Okay. 17 BY MR. GRIFFIN: 18 Q. Could you say that possibly your opinion was wrong? 19 A. Everyone's opinion could be wrong, mine included. 20 But what I was talking about was this story was not about the 21 character of the protest, but that Cowboys for Trump showed up 22 along with these violent specialist groups like the New Mexico 23 Civil Guard and Three Percenters on that side of the protest and 24 counterprotest. 25 Q. Could there be any possibility or chance that maybe TR-169 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 those like myself and others have gotten to the point where we 2 hate the fighting so much and you actually have the courage to 3 go into the place and actually try to talk to the people and 4 reason with people instead of fighting? Could that be a 5 possibility? 6 A. A former colleague of mine left Carnegie to be the 7 head of the Catholic group that does exactly that, and I believe 8 that can happen. But your comments after this about "blood 9 running out of Capitol, martial law," and so on, make me think 10 that that might not have been your state of mind. 11 Q. Again, your opinion could be wrong and it could be 12 absolutely politically biased as well. 13 MR. GRIFFIN: If you can roll RK 8. 14 (Note: The video is played to the witness.) 15 BY MR. GRIFFIN: 16 Q. What was your opinion on this right here that you 17 shared earlier on the record? 18 A. Again, that you appeared at a venue with the New 19 Mexico Civil Guard after they had been -- had the civil action 20 brought against them by the State of New Mexico as an illegal 21 paramilitary organization. 22 Q. And so this rally, protest, gathering, whatever you 23 want to call it, it was in a church parking lot? 24 A. Yes. 25 Q. Would that be a typical place that you would go to TR-170 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 if you wanted to promote violence? 2 A. Sadly, every religion has some people that want to 3 promote violence and some who don't. Religion can be used in a 4 lot of ways. 5 Q. And so in your opinion earlier when you shared about 6 the protestor that had his tire slashed, did you feel -- did you 7 think that man was attacked, in your opinion? 8 A. I don't think he was attacked. It sounds like his 9 tires were attacked. 10 Q. Would you have any idea or reason why to think 11 somebody would have their tires slashed in a church parking lot? 12 A. My understanding is that he had a sign and that he 13 said a curse word about Trump. 14 Q. And that's what you had heard this from where? 15 A. The newspaper story. 16 Q. Would it be possible maybe that a man like this 17 could have showed up high on drugs and been trying to use his 18 vehicle as a weapon to run people over? 19 A. I -- it would be hard to slash the tires of a moving 20 vehicle, but my testimony here was really just about your joint 21 presence between Cowboys for Trump and the New Mexico Civil 22 Guard and normalizing their behavior in the political sphere. 23 Q. His tires weren't slashed while he was moving. His 24 tires were slashed when he was stopped by people that didn't 25 want him to run people over. I witnessed it with my own eyes. TR-171 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 That's what happened. That's why your opinion cannot be taken 2 as gospel. 3 And let me ask you this: Because I was in a crowd 4 -- if I was in a crowd and a couple of New Mexico Civil Guards 5 showed up and were standing in the same crowd that I was in, do 6 you relate that to me being with them? 7 A. Again, I'm not arguing that you share their 8 opinions. I'm saying that when Cowboys for Trump speaks at an 9 event and an illegal paramilitary organization speak at an 10 event, it normalizes the behavior of that other organization. 11 Q. Was this a Cowboys for Trump organized event? 12 A. I don't know who organized this event. 13 Q. But the organizer would be the one that would be 14 organizing whoever got an opportunity to speak, correct? 15 A. Well, any speaker has to make decisions about the 16 company one keeps, whether you want to speak at an event or not. 17 Q. Would you say just by association a person is 18 guilty? 19 A. I think that when your political organization speaks 20 at an event at which a potentially illegal organization also 21 speaks or plays a role in normalizing what they're doing. 22 Q. In your opinion? 23 A. Uh-huh. 24 MR. GRIFFIN: Can you go to RK 10, please, sir. 25 Go ahead and roll it and then I'll speak on it, please. TR-172 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 (Note: The video was played to the witness.) 2 BY MR. GRIFFIN: 3 Q. Have you seen Antifa use violence against people? 4 A. I have not seen violence against anyone. 5 Q. You've never seen Antifa promote any acts of 6 violence against anybody? 7 A. I try to stay away from violent events personally. 8 I do know that there are left-wing protestors that also use 9 violence. 10 Q. You would say that Antifa is not violent in nature? 11 A. I would not say that. In Portland, there has been a 12 lot of violence from Proud Boys and other organizations and 13 Antifa are getting in street fights. 14 Q. But you've never seen Antifa walk down the street 15 with baseball baths or use umbrellas as intimidation or weapons? 16 A. I have not personally witnessed an Antifa rally, but 17 I am aware that they exist. I have studied them from -- in my 18 studies of political violence and I am aware that they have used 19 violence. 20 Q. And with whom would they use violence against? 21 A. Antifa's modus operandi -- first of all, they're 22 pretty disorganized. They're anarchists mostly. And they tend 23 to show up when Proud Boys and other violent groups show up. 24 They're aggressive individuals on the left to enjoy street 25 fighting themselves. TR-173 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Q. So they show up when Proud Boys show up, that's what 2 you would say? 3 A. Not only Proud Boys, but it's a real disorganized 4 group. It's real different in its structure of organization 5 from militias and some that are very structured. And so you'll 6 get a couple of Antifas showing up trying to spark rumbles. 7 Q. Would you say Cowboys for Trump is a very organized 8 group? 9 A. I don't know how organized it is. I know you are 10 able to call events and get people to show up with arms. 11 Q. With arms. Okay. And so would that be a Second 12 Amendment rally? 13 A. My understanding is that you have had rallies for 14 many purposes, but arms are legal at protests here in. 15 Q. Would you consider a Second Amendment rally an armed 16 protest? 17 A. If people showed up with arms it would be an armed 18 protest, but it wouldn't be an illegal protest. 19 Q. Have you seen -- or followed along whenever we've 20 had the Second Amendment rallies at the Capitol? 21 A. I don't know about whenever, but I am aware of the 22 Second Amendment rallies at the Capitol. 23 Q. Have you ever seen members that attend those rallies 24 that walk freely inside of the Capitol embracing their Second 25 Amendment? TR-174 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 A. I've testified in our Capitol with people with long 2 guns behind me. 3 Q. Does that intimidate you? 4 A. Yes. 5 Q. Does it make you scared? 6 A. It makes me wonder what they're up to behind me. 7 Q. Because they have a -- because they're openly 8 carrying well within their legal right? 9 A. It's certainly legal. It still doesn't make me feel 10 real great about testifying when people are behind me wearing 11 guns. 12 Q. You don't like -- you don't like guns? 13 A. Actually, I grew up shooting and I don't have a 14 problem with guns, but I think that there is a place at this 15 point in our nation in which guns are being used to intimidate 16 people out of their our First Amendment rights. 17 Q. So that's your opinion? 18 A. Well, armed protests are 6.5 times more likely to 19 turn violent based on the data that we have over the couple of 20 years. And armed protests at legislative buildings in the last 21 year have been 13 times more likely to turn violent. So that's 22 what I'm basing that on. 23 Q. So you would like to see them go away, then? 24 A. I don't want to see guns go away. I grew up hunting 25 and so on, but it would be better to have fewer guns at public TR-175 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 protests, I think. 2 Q. So, again, that would be your political opinion? 3 A. I suppose it's a political opinion. I don't believe 4 that we need to change the Second Amendment or the laws, but I 5 was glad when our Legislature said that guns couldn't come into 6 the Roundhouse anymore. 7 Q. Why is that? 8 A. Because it feels a little intimidating to testify at 9 the Roundhouse when people with long guns are behind you. 10 Q. So because somebody is well within their 11 constitutional right and they're well with inside the law and 12 they're openly carrying, but just because it doesn't make you 13 feel good, per se, then you feel like that person should give up 14 his constitutional right because you feel uncomfortable? 15 A. Well, I think at the time that I was testifying and 16 that happened, it was perfectly legal. But I think that the way 17 in which violence has been metastasizing in our country over the 18 last couple of years has meant that it's -- it feels more likely 19 that guns could be used and the data bears out that it's much 20 more likely that guns could be used. And so in this context, it 21 feels more comfortable to exercise my First Amendment right when 22 people aren't armed. 23 MR. GRIFFIN: Do you have RK 7? Do you have the 24 full video clip of that? This is one that -- at the church that 25 "The only good Democrat is a dead Democrat," the video. I TR-176 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 thought it was 7. Do you have the full context of what I said 2 at that speech? 3 MR. SMALL: RK 4. 4 MR. GRIFFIN: Sorry, sir. Thank you. If you can go 5 ahead and play it. 6 (Note: The video was played to the witness.) 7 BY MR. GRIFFIN: 8 Q. I say that in the political sense. You know, that 9 video right there, and I played the hardest one that they got. 10 I'm willing to confront every single one of them. Should I have 11 said that? No. I'll say that today. Sometimes when you speak, 12 sometimes you wish you could pull stuff back. Unfortunately, in 13 that moment, I can't. But I -- but to put that in the context, 14 that was coming up into an election. We were fixing to have a 15 competition, if you will. And we were fixing to try to win as 16 many seats as we can. And in regards to Democrat policies, I 17 stand on the side of conservatism. I stand on the side of 18 protecting life. I stand on the side of protecting our borders. 19 I stand on the side of protecting our Second Amendment. 20 And so as I said that, I said it in the same context 21 as you would if you were up against a sports team. Would you 22 say, in your opinion, Ms. Kleinfeld, if, say, the Lobos were 23 going to play New Mexico State next weekend and if you heard 24 somebody say "I hope we kill the Aggies this weekend," or "I 25 hope we annihilate the Aggies. The only good Aggie is a dead TR-177 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Aggie," would you translate that over to somebody that's violent 2 that actually wants to go physically take the life of an Aggie? 3 A. So I've been careful to say what I believe, which is 4 that you are not necessarily violent, that you've never directed 5 anyone to commit violence. I think in this case I was using 6 that clip to say you are normalizing the idea of violence for 7 people who are violent, and that we took that clip because that 8 was the clip President Trump took. He didn't take your 9 backtracking part, he just took the clip and your long pause and 10 used it on social media. And it sent a whole lot of supporters 11 to the Cowboys for Trump website -- not website, but social 12 media pages. 13 Q. Believe me, you are wrong there, too. You don't 14 even imagine how much hate mail I received, how many death 15 threats I have received because of that video right there. It 16 didn't generate supporters. It generated the kind of hate that 17 I wouldn't wish on my worst enemy. And it was shocking that 18 President Trump retweeted the one video that really did hurt. 19 We had a lot of good content, a lot of really upbeat positive 20 content. But the reason why I believe that President Trump 21 retweeted that video is because President Trump knows that I'm 22 not a violent person. He knows that I'm not -- he knows that I 23 didn't mean that in a violent context. Because I know the 24 President and he knows me. 25 In the area where that video was played was in a TR-178 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 church setting. It was at a Sunday morning church service in 2 Truth or Consequences, New Mexico. If I wanted to promote 3 violence, if I wanted to instigate acts of violence, do you 4 think that a church service would be a place to do it at? 5 A. Unfortunately, religious institutions are often 6 places internationally where violence is instigated. But I 7 don't think you were trying to instigate violence. I just think 8 that your word served that purpose for people who are 9 aggressive, and there are, unfortunately, a lot of those people 10 in this country. 11 Q. I agree with that. And a lot of times words can be 12 miss -- words can be taken out of context, statements can be 13 taken out of context. As you looked over -- and looked over my 14 backstory, I know that you've referenced all of these 15 controversial videos repeatedly. This is your first day here, 16 but we've been watching the same ones over and over and over 17 again. But I'd like to ask you: Did you dig into any more? 18 Did you look at any more of the videos that I had just about -- 19 about freedom and about liberty and about our children and about 20 our future? 21 And -- you know, because that's again, as you share 22 your opinion, you can't derive an opinion only off of the videos 23 that 15, 16, 25 attorneys send you. And whoever is behind all 24 of this, all the money that this is -- this is -- they want you 25 to derive your opinion that I am an insurrectionist only off of TR-179 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 a few videos and a little bit of content. But I'd like to ask 2 you: Did you dig in any deeper? 3 A. So I was doing a 24/7 media watch in the period 4 between the election and the inauguration, not just me, but a 5 whole group of researchers were taking that on, and your 6 websites were some of the ones that we were paying attention to 7 throughout that whole time. So in real time, I was looking at a 8 lot of your videos and I have a sense of the breadth of the 9 content there. 10 Q. At the end of the day, you would still call me and 11 label me an insurrectionist? 12 A. In my career, I've had to interview warlords and a 13 lot of people who have done various things that are only one 14 part of who they are, but they have nonetheless done those 15 things. And you've participated by mobilizing a mob, speaking 16 aggressively on the day of that mob's actions, normalizing 17 violence, rallying a crowd after violence had been occurring for 18 hours. Yeah, that's my opinion, that you are an 19 insurrectionist. 20 Q. Well, I appreciate you saying that that's your 21 opinion because your opinion is also that Antifa isn't a violent 22 organization. And any American knows that's not true. And also 23 your opinion of Black Lives Matters is that there is just little 24 random acts of violence here and there whenever Americans all 25 across the country watched our cities burn to the ground, small TR-180 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 businesses decimated, bans of thugs running through the streets, 2 breaking windows out of every business that they could. Those 3 were the frustrations -- many of the frustrations that have been 4 expressed from our side. But yet, when -- in your -- in your 5 opinion, and by your position, only because we speak up, now 6 we're considered the enemy. And I feel it unfair. 7 MR. GRIFFIN: Thank you, Your Honor. 8 A. I'm sorry, there wasn't a question, but I'd just 9 like to say I don't consider any American the enemy. 10 BY MR. GRIFFIN: 11 Q. Yes, ma'am. Well, I don't -- I don't mean to put 12 words in your mouth, and I -- 13 THE COURT: You can have this conversation outside. 14 MR. GRIFFIN: Yes, sir. Thank you. 15 THE COURT: Any redirect? 16 MR. SMALL: No, Your Honor. 17 THE COURT: Doctor, you are excused from any further 18 obligation here. 19 Mr. Goldberg? 20 MR. GOLDBERG: Yes, Your Honor. We are prepared to 21 close our case. We have the highlighted transcripts of Officer 22 Erickson and Officer Hawa's testimony. If I may present one of 23 these to Your Honor. And we have one for the defendant. 24 THE COURT: Yes. Thank you. 25 MR. GOLDBERG: I'll give one to Mr. Griffin and I'll TR-181 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 give one to your bailiff. 2 THE COURT: Okay. 3 MR. GOLDBERG: How do you want to handle this in 4 term of getting this into the record? Do you want us to give a 5 third highlighted copy to the court reporter? 6 THE COURT: I'm not seeing any highlights. Oh, wait 7 a minute. 8 MR. GOLDBERG: The testimony is long. We tried to 9 be quite conservative in our highlighting. My question is: In 10 terms of the mechanics of the record, does Your Honor want us to 11 make a third copy and give it to the court reporter? 12 THE COURT: I'll give the court reporter this copy. 13 What's the exhibit number? 14 MR. GOLDBERG: I don't think we made those 15 transcripts exhibits. Do you want us to make them exhibits? 16 THE COURT: Let's make them exhibits. 17 MR. GOLDBERG: Right. What's the last exhibit 18 number? Can we make just the volume itself 253? And we'll 19 amend the exhibit list, with Your Honor's permission, we'll 20 amend the exhibit list and we'll call that volume 253. 21 THE COURT: And the only part of the exhibit that 22 the Court will review are those highlighted parts. 23 MR. GOLDBERG: That's our understanding and our 24 intent, Your Honor. 25 The Plaintiffs close their case. TR-182 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 THE COURT: Thank you. 2 Mr. Griffin? 3 MR. GRIFFIN: Your Honor, I'd like to first start 4 out by thanking you for your patience during this time. This is 5 -- you know, it seems like in my world of politics, it seems 6 like -- 7 THE COURT: Just so we're all on the same page, are 8 you giving me a closing? 9 MR. GRIFFIN: Closing. 10 THE COURT: The closing by the Pre-Trial Order will 11 be with your Proposed Findings of Fact and Conclusions of Law 12 filed on August 29. 13 MR. GRIFFIN: So I don't get to give you my closing? 14 THE COURT: You do. It's a written closing 15 argument. You do. Your attorney helped draft that Pre-Trial 16 Order, by the way, so it's -- 17 MR. GRIFFIN: I don't have counsel now. 18 THE COURT: I realize that, but -- I said Pre-Trial 19 Order, but it's the Scheduling Order that was entered on June 20 14. 21 MR. GRIFFIN: By Diego Esquibel? 22 THE COURT: Yes. And Paragraph 10 says that the 23 parties shall file Proposed Findings of Fact and Conclusions of 24 Law and closing trial briefs by August 29, 2022. 25 Mr. Esquibel was instrumental in developing this. TR-183 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 MR. GRIFFIN: Okay. Well, I don't guess it matters 2 then. I would rather give my closing oral and I thought we were 3 going to be done. But, yeah -- but I -- it's my ignorance of 4 the process, yeah. 5 As you know, Mr. -- Diego's withdrew as counsel and 6 that's why I sit alone over here, but -- 7 THE COURT: Okay. I'll tell you what I'll do. 8 Neither party needs to take me up on this. We'll give each side 9 15 minutes to make a statement, but the closing arguments are 10 going to be on the 29th. 11 MR. GRIFFIN: Thank you. I would appreciate that, 12 Your Honor, and I would be in agreement with -- 13 THE COURT: The Plaintiffs need to go first and they 14 don't have to take me up on it, as I said. 15 Mr. Goldberg, did you wish to make any type of 16 closing -- oral closing now, understanding that the Order does 17 provide for the 29th? 18 MR. GOLDBERG: We are content with the 29th. 19 THE COURT: All right. 20 Mr. Griffin, 15 minutes. 21 MR. GRIFFIN: Okay. Well, I appreciate the 22 opportunity to speak before Your Honor. And as I started a 23 second ago, I do apologize for any times that I have spoken out 24 or haven't followed the processes. But this has been an -- this 25 has been an unbelievable experience, though very difficult and TR-184 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 painful at the same time. 2 But I stand on -- I stand on -- the reason why I 3 stand here today and I stand alone is because I stand on good 4 ground. I know the actions that I've taken today. I know my 5 heart and why I have said the things I've said and the motive in 6 which I've said the things I've said. And though -- as I 7 mentioned earlier, some of things that I've had to watch during 8 this trial and some of the statements that I have had to reread, 9 I'm not necessarily proud of. A lot of the things that I have 10 said were driven off of emotion. 11 And at the time, and sometimes, especially in the 12 world of politics, you get caught up in emotion and driven by 13 emotion and -- and -- but I can honestly say before Your Honor 14 today and before the Courts and before the people of New Mexico 15 is I only want good for our country. And I would never 16 encourage nor promote anyone breaking the law and acting in a 17 way to upheave the government or disrupt the government. 18 And I've sat here today, and I don't know how many 19 times I've been called an insurrectionist. And that's a very 20 heavy word that's thrown around very lightly. Because I'm not 21 an insurrectionist. God as my witness. On that day, I only 22 went to stand for my country, for my President and to support 23 Mike Pence. And -- and just hearing our voice. All we wanted 24 was just our voices heard. 25 We had concerns about the election, and I believe TR-185 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 warranted and validated concerns as we have proven right in 2 Otero County, that there is discrepancies in our electorate. We 3 just want our electorate looked at. We want to make sure that 4 every legal vote is counted and every legal vote is only counted 5 once. And that should not be a partisan issue. It should be an 6 American issue. If there is one issue in America that should 7 unite us today, it should be election integrity. What we all 8 want. And that's the only way that we can move forward safely 9 in a country. 10 But I had no intent and no desire to overthrow our 11 government and to cause chaos and violence on that day. I think 12 it was proven through the Courts and through the trial that just 13 took place, if I -- if I really had a heart and intent to cause 14 violence, believe me, I would have blurted it out and there 15 would be factual evidence to pin me to the wall. But I've sat 16 here today -- the last couple of days as pro se without even 17 bringing forth any videos to try to defend myself. Maybe it's 18 foolish. Or witnesses to come forward to testify. And maybe it 19 was foolish not to. But I still believe in our system. I still 20 believe in our court system. I still believe in the decisions 21 that come from the bench. And I believe that God will give you 22 the wisdom to make the right one here. 23 Because the -- the people of Otero County have 24 spoken. There has been an effort not that long ago to recall me 25 from office after January 6, after all the videos that you've TR-186 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 seen that have been played over and over in a gaslighting 2 fashion, to gaslight Your Honor and to gaslight the Courts into 3 making me look like I'm an insurrectionist. The people of Otero 4 County have seen all of this. They've heard everything that 5 I've had to say. And I guarantee there is a lot of them that 6 don't agree, but there is a majority that do agree. And that 7 was proven through the failed recall petition that was put out 8 against me not that long ago. 9 And whenever I went before Judge Manuel Arrieta 10 if the 12th District back home and Manuel Arrieta told me in 11 that hearing when I tried to make my case and say, you know, the 12 Complaint is frivolous. I didn't do these things, Your Honor, 13 in which the -- in the hearing which would have allowed the 14 recall to move forward, Judge Manuel Arrieta responded to me and 15 said "I'm not going to be your judge. The people of your county 16 are going to judge you." And the people of Otero County judged 17 me through that recall, and they retained me. The recall failed 18 by 28 percent of the vote. The people of Otero County spoke. 19 I have four months left in my term. Four months 20 left to continue to stand on a conservative line and fight for 21 conservative values because Otero County is a conservative 22 county. That's the fabric of the people that live there. And 23 for Your Honor to rule in the Plaintiffs' favor would be 24 directly subverting the will of the people of Otero County, as I 25 have been put under such fire for -- for not certifying the TR-187 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 vote. And I've been told that you are subverting the will of 2 the people. You're taking away the votes of the people. 3 But if this -- if this lawsuit were to be 4 successful, the whole will of the people rests in Your Honor's 5 hands, and the people of Otero County have already spoke. 6 And this lawsuit today -- this trial the last two 7 days, as you can see how many attorneys, how much money -- my 8 office is just stacks of papers all with the name Chris Dodd on 9 it. Everywhere I look I see the name Chris Dodd. I've got 10 stacks and stacks and stacks and stacks of papers and responses, 11 and it's just -- and I'm still trying to be a dad. I'm still 12 trying to pay my light bill. I'm still trying to serve as a 13 County Commissioner. I'm still -- I'm still standing. 14 And that's what the adversary hates. The adversary 15 wants voices like mine gone. Why? Because I -- I question 16 things. In the election, all we want is transparency. All we 17 want to do is be able to inspect the Dominion machines and make 18 sure there is no corruption going on. That's all the request is 19 from the county. That's why I get attacked like I do. 20 Why else? Because I call on investigations for Jeffrey 21 Epstein's oil ranch up here and why that isn't investigated 22 where sex crimes took place against small children, where Prince 23 Andrew flies over from England and molests little girls out here 24 in New Mexico and pays them off and then flies back. And I'm 25 one of the only voices calling for justice in New Mexico for an TR-188 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 investigation in New Mexico. And when you stand up against 2 those kind of people, this is what you get. 3 Whenever you stand up and you want an investigation 4 into Alec Baldwin shooting and killing a lady on set and 5 injuring another, and still hasn't even faced the very basic 6 minimal charge of involuntary manslaughter. We need justice in 7 New Mexico. We need people that will fight for justice in New 8 Mexico. We need political voices that have courage. And it's 9 not going to be intimidated. It's not going to back down. It's 10 going to fight and it's going to go to war. And the war that I 11 speak of, Your Honor, is not physical war. It's a political 12 war. It's a war for our future. It's a war for our prosperity. 13 It's a war for justice. 14 I love New Mexico. I'm born and raised. Born in 15 Albuquerque. My dad's sitting here with me. He's born in 16 Roswell. We're New Mexico true. We're New Mexican to the bone. 17 I love my state. I love the people of this state. I want to 18 see our state prosper. I want our state to have liberty, have 19 freedom. That's why I ran for office. And believe me, it would 20 be a lot easier just to say, you know what, I'm done. Take my 21 seat. Take my commission seat. I make $22,000 a year, and I'm 22 the center of every attack -- political attack in New Mexico. 23 It's been the hardest row I've ever hoed and it's more and more 24 harder every day. But I got into it because I want the best for 25 our people. I want the best for our state. TR-189 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 And God has put it in me to answer the call. And 2 I'm willing to. And I mean, I served as a pastor before the 3 world of politics. I served in the ministry. I rode a horse 4 from San Francisco, California to Jerusalem, Israel sharing the 5 gospel, all sacrificially, because I care about people and I 6 care about our future. 7 And I hope that you can see that, Your Honor, and I 8 hope it weighs over into your decision because, believe me, if I 9 am removed from office and Governor Michelle Grisham gets to 10 hand-select who she wants to sit in my place and represent the 11 people of Otero County, it would be a great sign of disrespect 12 for the people of Otero County and it would subvert the will of 13 the people of Otero County, and it wouldn't be good. It 14 wouldn't be productive. It would be hurtful. It would be very 15 hurtful to the people there. 16 I've got four months left or five months or however 17 long. And believe me, they can't come quick enough. I'm not 18 running for reelection. I don't know if I've physically got the 19 stamina to go four more years. I don't know if I can handle 20 another four. This last four has been hard, but the political 21 battles have been hard. It's been an honor. 22 And it's an honor to speak before you today, and I 23 thank you for giving me the time to be able to speak. 24 Thank you, Your Honor. 25 THE COURT: Thank you, Mr. Griffin. TR-190 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 Mr. Goldberg? 2 MR. GOLDBERG: Your Honor, I'd just like the record 3 to be clear that the Defendant's case is over also. 4 THE COURT: Yes. He confirmed it was a closing 5 argument that he was making. 6 Ladies and Gentlemen, thank you for your appearances 7 today. August 29th will be the date by which I must receive 8 closing arguments -- written closing arguments, should you 9 choose to present them, along with proposed Findings of Fact and 10 Conclusions of Law. 11 And because of pressures I've got after the 29th, I 12 will try to get a decision within ten days, especially given the 13 gravity of this particular issue that's before me. 14 All right. With that, we are in recess. Thank you 15 all again for your appearances. 16 (Court in recess at 4:34 p.m.) 17 18 19 20 21 22 23 24 25 TR-191 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court 1 STATE OF NEW MEXICO ) ) ss. 2 COUNTY OF SANTA FE ) 3 4 I, BRENDA CASIAS, Official Court Reporter for the 5 First Judicial District of New Mexico, hereby certify that I 6 reported, to the best of my ability, the proceedings in 7 D-101-CV-2022-00473; that the pages numbered TR-1 through 8 TR-192, inclusive, are a true and correct transcript of my 9 stenographic notes, and were reduced to typewritten transcript 10 through Computer-Aided Transcription; that on the date I 11 reported these proceedings, I was a New Mexico Certified Court 12 Reporter. 13 DATED at Santa Fe, New Mexico, this 16th day of 14 August, 2022. 15 16 17 ss // Brenda Casias 18 BRENDA CASIAS New Mexico CCR No. 119 19 Expires: December 31, 2022 20 21 22 23 24 25 TR-192 BRENDA CASIAS, CCR No. 119 Official Court Reporter First Judicial District Court