Last month the McCloskeys filed twin motions to have St. Louis Circuit Attorney Kim Gardner disqualified from their case. Their argument was that Gardner had used their case for political fundraising both before and after charging them. After referencing the case, the fundraiser concluded, “Kim needs your help to fight back! Her election is only weeks away.” Last week, Kim Gardner responded to those motions and her response accuses the McCloskeys of turning their prosecution into “political theater” and claims there was nothing wrong with mentioning the case in fundraising appeals:

The campaign emails, Gardner said, were responding to criticism of Gardner from high-ranking Republican politicians.

“She did not tie her reelection to the prosecution on this or any case,” Gardner’s filing said. “… Not a word discussed, referenced or implied that the future prosecution of this case was related in any way to the circuit attorney obtaining financial support from those receiving the email.”

I have no idea how the court is going to rule on this but a lawyer for the McCloskeys didn’t seem impressed. He told the St. Louis Post Dispatch, “she spends multiple pages detailing the complaints of various politicians and anonymous commentators. They are not parties, they are not the prosecutor, and she should understand the difference.”

I want to get into the weeds a bit here because it appears to me that Gardner’s motion contains some obvious errors. Gardner’s argument is that her fundraising emails were really about the reaction of President trump, so her motion highlights those portions of the email. For instance, here’s the text of the first email as it appears in the motion:

And here’s how the motion describes that email:

The first email, sent before charges were filed, makes a single passing reference to the Defendants, pointing out that people might already be “familiar” with their actions…The rest of the email has nothing to do with the Defendants, but highlights statements about the Circuit Attorney by the governor and the president…The email concludes by asking supporters to ‘stand with [the Circuit Attorney],’ with the clear implication being that the email wants supporters to stand up for the Circuit Attorney legitimate exercise of prosecutorial discretion…It in no way links any decision or outcome the Circuit Attorney made in this specific case to fundraising efforts.

That claim, that there is only a single passing reference to the McCloskeys in the email, is false. If you look at the block of text above, there are at least two clear references to the McCloskeys, not one. The first is as Gardner’s motion describes it, i.e. a reference to “the couple who brandished guns.” But there’s a second reference which reads “President Trump and the Governor are fighting for the two who pointed guns at peaceful citizens…” So that’s two references to the McCloskeys, meaning this was neither a single reference nor a passing one.

In fact, you could argue their are three references to the McCloskeys because President Trump’s quote about “law-abiding citizens” also is about them. And given that they were the reason that President Trump and the Governor were criticizing Gardner, it’s at least arguable that the entire email is about the McCloskeys.

As for the email not linking to any decision or outcome, doesn’t the framing of the entire thing suggest that Gardner’s opponents, i.e. those who are defending the McCloskeys innocence, are wrong to do so? Doesn’t her criticism of Trump calling them ‘law-abiding citizens’ suggest that they are not? You can claim that “Kim needs your help to fight back” is merely a reference to her prosecutorial discretion, but the way this is framed it certainly reads as if fighting back means fighting against the idea that “the couple who brandished guns during a peaceful protest” are innocent. In other words, it reads like a promise to go after them tied to a request for money. But we’ll have to wait and see what a judge makes of all this.