Clue: It Was Sidney Powell with the Grifting, in Advance of the Pardon, on Lin Wood’s Plantation

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In a post on the significance of the news that the DC US Attorney Office is investigating Sidney Powell’s grift, I noted that she started fundraising to perpetuate false claims about a stolen election — on November 23, 2020 — before she received a thing of value from Trump — a pardon for Mike Flynn — and before she had set up the legal vehicle to do that grifting.

I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

This CNBC report adds a new wrinkle to this timeline: during this same period, Powell and Flynn and Patrick Byrne were at Lin Wood’s two plantations in South Carolina. They appear to have worked in Wood’s residence, Tomotley Plantation, and stayed in Cotton Hall, which he had just purchased.

Lin Wood, a conservative trial lawyer who led a failed legal challenge against the election results in Georgia, said in a lengthy interview that shortly after the 2020 contest last November, he hosted at his massive South Carolina properties fellow right-wing attorney Sidney Powell, former Trump national security advisor Mike Flynn, former Overstock CEO Patrick Byrne, and Doug Logan, the CEO of cybersecurity firm Cyber Ninjas.

Jim Penrose, who says on his LinkedIn profile that he used to work for the National Security Agency, and Seth Keshel, who promotes himself on his Twitter page as a former Army captain and who has spread falsities about the election, according to the Associated Press, also made appearances at Wood’s properties, the attorney said.

[snip]

“They set up in my living room and one of the sunrooms. They looked like election central. They had computers, whiteboards. They were working,” Wood said about Powell and her team’s prior work at his residence. Southern Living magazine describes the living room at Tomotley: “Custom built-ins and a working fireplace bring warmth to the spacious living room.”

[snip]

But many of Powell’s fellow election conspiracy theorists took up residence for days at Wood’s nearby property called Cotton Hall, the veteran attorney explained. It too is considered a historic plantation in South Carolina, and it encompasses over 700 acres. The South Carolina plantations history website says its primary crop in the 19th century was rice.

[snip]

Flynn, for instance, arrived at Tomotley with Byrne days after Powell arrived, Wood said. Though Byrne stayed at Cotton Hall for only a day, Flynn took up residence through Thanksgiving.

“Flynn was here on Thanksgiving because he carved the turkey when we ate over at Cotton Hall,” Wood said during the interview.

It’s unclear why Wood shared all these details. While this report cites the Daily Beast reporting that includes the news on the grand jury investigation, it presents that story instead in the context of the “feud” between Wood, Flynn, Byrne, and Powell. If they haven’t been already, those people would all be subpoenaed in the investigation, and so this might instead be an attempt to coordinate stories or convey what questions are being asked.

But what’s interesting about the timeline is that it seems to suggest that Trump or someone close to him would have called into the plotting on the plantation.

When you pardon someone, you call them or their representative to let them know. And while it’s not certain that Flynn had arrived at the plantation yet when he got the pardon on November 25, the day before he cut the turkey at Wood’s plantation on November 26, Powell had already been there some days before Flynn showed up, meaning — at least per this reporting — she was definitely at Lin Wood’s plantation plotting propaganda to help Trump stay in office on the day of the pardon.

This also adds the delicious detail that a guy who advertised that he had been honey-potted by a woman accused of spying for Russia may have been with Flynn when he received notice he was being rewarded for refusing to admit to Mueller’s team that Trump was involved in efforts to undercut sanctions on Russia in December 2016.

This all would read like a cheap spy novel if there weren’t an accused spy and a guy who admitted he had been secretly working for another frenemy state as well.

But even aside from Byrne’s presence, it sure adds interesting details to the circumstances of Flynn’s pardon that may be of interest to criminal investigators.

Why That Peter Navarro Interview Isn’t Enough To Charge Him with Sedition

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A slew of people have asserted as fact that an interview that Peter Navarro did on his book offers adequate proof to charge him with sedition. The interview (and I assume the book) lays out a plan called the Green Bay Sweep that, Navarro hoped, would result in Trump remaining in power. It entailed:

  • Recruiting “over 100 congressmen, including some senators” to raise objections to the vote count, setting off 24-hours of news coverage on false claims about the election
  • Increasing public pressure — unrelated to threats of violence — to lead Mike Pence to send the electoral vote back in six swing states
  • Using that delay, getting those states to change their vote results

Navarro’s role was to invent the false claims members of Congress would use to fill up 24-hours of “debate.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

I’d like to talk about why this book and interview are not enough to charge Navarro with sedition, and in fact the current media frenzy into is is actually counterproductive to the legal investigation.

A book and an interview are not evidence

The most important reason why this book and Navarro’s interviews on it are not enough to charge him is that books are probably not admissible evidence.

This is retroactive telling about what, Navarro claims, he and Steve Bannon and others planned to do. While the book might be part of a conspiracy to cover up what Navarro and Bannon planned, in and of itself, it’s not clear it would be admissible at trial (though it could be useful at trial for other reasons, such as challenging any testimony Navarro gave).

Instead, you’d need to get all the texts and memos Navarro says documents this effort, the former of which may require seizing his phone with a probable cause warrant.

Although the bipartisan House committee investigating the violence on Jan. 6 has demanded testimony and records from dozens of Trump allies and rally organizers believed to be involved in the attack on the nation’s democracy, Navarro said he hasn’t heard from them yet. The committee did not respond to our questions about whether it intends to dig into Navarro’s activities.

And while he has text messages, phone calls, and memos that could show how closely an active White House official was involved in the effort to keep Trump in power, he says investigators won’t find anything that shows the Green Bay Sweep plan involved violence.

You’d likely need cooperating witnesses that were willing to tell this story, perhaps Navarro himself and Steven Bannon (the same guy refusing to testify to the Jan6 Committee right now).

As such, this interview is at most an investigative blueprint that, months down the road, might lead to evidence that could be used to prosecute Navarro.

Much of this is not illegal

Another reason why this interview and book are not a smoking gun is that, as Navarro describes it, much of it is not illegal.

It is not illegal to invent false claims about an election, as Navarro said he did. It might be sanctionable for a lawyer to make those same false claims to a court (as it finally became for Sidney Powell). I might be illegal to raise money off promises of electoral changes you knew to be false, which seems to be one of several premises for the investigation of Sidney Powell. But it’s not illegal to lie.

It’s also not illegal for members of Congress to raise objections on the floor, which was a central part of this plan. As Republicans never tire of reminding, Jamie Raskin did so himself in 2017.

Unlike Raskin’s challenge, the plan here was to base electoral challenges off bullshit. But even if you could prove that members of Congress knew it was all bullshit (and you would need to prove that), it’s also not illegal for members of Congress to push bullshit in Congress. Indeed, that is pretty aggressively protected under Speech and Debate. To criminalize this behavior you’d have to distinguish it from what lobbyists do all the time when they push members of Congress to adopt storylines that are factually false.

All this only becomes illegal in the context of a plan to violate the law. DOJ has been using 18 USC 1512(c)(2) to charge deliberate efforts to prevent the certification, but at least as stated, Navarro didn’t want to obstruct the proceeding in question, he wanted that process to occur, albeit stretched over 24 hours according to the very rules that judges have pointed to to affirm that it is an official proceeding. So if you were to charge it, you’d need to charge something else, perhaps trying to get Pence to violate his duty.

Much of this is probably a lie

Crazier still, people claiming that this book and interview are the smoking gun in a prosecution are treating it as a truthful description, which it would need to be to serve as admissible evidence for any crime itself (which is why it would have limited evidentiary value short of getting a whole lot of texts and testimony).

Peter Navarro is a noted liar and Steve Bannon is an even more accomplished one. And we know — because BuzzFeed fought to liberate Mueller materials — that Bannon is all too happy to tell serially false stories to protect himself from criminal exposure. At a very similar time in the Mueller investigation, Roger Stone got the press to chase his false claims like six year olds chasing a soccer ball, and to this day, the overwhelming majority of the press believe his claims about why he was prosecuted are actually why he was (though prosecutors used that to their advantage, too).

We should assume this story is of the same ilk, a cover story, which has successfully led the press to grasp onto it as a smoking gun rather than a distraction. If it is a cover story, it serves to:

  • Claim that “‘Stephen K. Bannon, myself, and President Donald John Trump’ were ‘the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,'” as it would disrupt their plans. This claim is crucially important with regards the pressure campaign focused on Pence, as I’ll return to. And it is undoubtedly bullshit.
  • Claim that Navarro “felt fortunate that someone cancelled his scheduled appearance to speak to Trump supporters that morning at the Ellipse, “because “It was better for me to spend that morning … Just checking to see that everything was in line, that congressmen were on board.” This adopts the same strategy that Stone has, blaming those who organized the Ellipse rally rather than those orchestrating events at the Hill. And in this telling, Navarro was just talking to members of Congress, not communicating to any of the people who would go on to attack the Capitol.
  • Distance himself from Sidney Powell’s equally outlandish claims. In his telling, this is a plan that arose from the failures of Sidney Powell’s false claims, not a continuation of them. This treats Navarro’s efforts as an alternative to Powell’s false claims, not a continuation of them.

[Navarro] said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits.

  • Focus on January 6 rather than January 5. Navarro emphasizes that he spoke to Bannon first thing in the morning on January 6. Given what we know about the way the riot was finalized on January 5, I’m more interested in whom he spoke with before he went to bed.

In my experience, you learn far more in mapping out what liars are trying to cover up than you do chasing their claims as if they are the truth. And the same is probably true here.

But at the very least, Navarro’s tale attempts to dissociate himself with several contributors to January 6 that might be more obviously tied to crimes than the lies he packaged up for members of Congress to tell.

The takeaway from this book and interview ought to be that Navarro has admitted his goal was to bring maximal pressure on Mike Pence. As such, it means he shares a stated goal of a number of January 6 defendants who have already pled guilty.

Trevor McFadden Uses Stormtroopers to Justify His Promise to Let Jan6ers Off Easy

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In the middle of a rather cursory opinion rejecting David Judd’s claim that he has been selectively prosecuted as compared to Portland rioters, Trevor McFadden cites this AP story to support a claim that “thousands” of protestors gathered every night in Portland.

For the first prong, Judd argues that he is similarly situated to multiple defendants who faced charges in the District of Oregon. Those defendants rioted outside the Mark Hatfield Federal Courthouse in Portland during the summer of 2020. See Def.’s Mot. at 2–4. The riots erupted after the death of George Floyd in May 2020 and raged for months. Thousands gathered nightly, vandalizing the courthouse and hurling objects at federal agents guarding it. Officers responded with tear gas and rubber bullets to disperse rioters, but the riots continued, causing havoc. See generally Mike Balsamo and Gillian Flaccus, On Portland’s Street: Anger, fear, and a fence that divides, AP News (July 27, 2020). [my emphasis]

In fact, the story says that the 4,000 gathered on that particular night was the largest crowd federal officers had seen, not that those kinds of numbers consistently came out.

Under orders to protect the courthouse — federal property that has been increasingly targeted as the city’s protests against racial injustice march on — the agents were accustomed to the drill. But tonight, the crowd was huge, estimated at 4,000 people at its peak and the largest they had seen.

The numbers the AP cites for those involved in violence or those that remained after officers responded is smaller.

As she spoke, small pods of three to four protesters dressed in black circulated in the crowd, stopping every few minutes to point green laser beams in the eyes of agents posted as lookouts on porticoes on the courthouse’s upper stories.

[snip]

Outside, hundreds of protesters surged back from the courthouse with each new round of tear gas, dumped saline solution and water into their stinging eyes, vomited or doubled over to catch their breath, then regrouped to march back to the fence.

“Stay together, stay tight! We do this every night!” they chanted.

The protesters’ numbers, however, were half what they had been just a few hours before.

[snip]

Tear gas canisters bounced and rolled in the street, their payload fizzing out into the air before protesters picked them up and hurled them back over the fence at the agents, who held their ground.

A woman weaved through the crowd of the few hundred people who remained and told someone on the phone, “We’ve reached some kind of stand-off, I think.”

When the federal agents finally came, they came with force. [my emphasis]

So it actually doesn’t support McFadden’s claim, which is probably why he cites it, “generally:” to hide that in fact he doesn’t have a source for his claim about sustained crowds of thousands of rioters (though at that time in July 2020, protests did remain large for a brief period).

The article is not one David Judd cited himself in either his original motion or his reply — perhaps because the AP story makes it crystal clear why firecrackers are so dangerous when thrown at cops, as he is accused of doing.

That McFadden’s clerk did research on their own on the Portland unrest and that McFadden’s clerk chose this particular article — by one of Billy Barr’s favorite reporters and covering unrest overnight on July 24 to 25, 2020 — is really telling. That’s true because the story portrays details directly pertinent to Judge McFadden’s opinion that should, but do not, appear in his opinion. And it’s also true because McFadden’s clerk relied on the AP story and not this NYT story from the same week covering the same unrest, which I’ll come back to.

At the core of Judd’s argument is that those charged with violence in Portland got (starting even under Billy Barr) and continue to get (under Merrick Garland) Deferred Prosecution Agreements, rather than the felony charges Judd is facing. To make his argument, Judd cherry-picked some cases and complained that he wasn’t being treated as nicely as a guy who (unlike Judd) was charged with a crime of terrorism, but whose charges were dismissed when the guy was murdered. DOJ pointed out more problems with Judd’s claims, including that he had claimed felony assault charges were misdemeanors, left out cases similar to his that were charged similarly, and ignored cases where DOJ deferred to state prosecution.

But DOJ professed to be unaware of the reason why three cases on which Judd (and McFadden) focused closely led to a DPA.

Further, contrary to his claims, each of the three cases Judd cites in his motion as examples where a defendant had only been charged with a misdemeanor actually involved a felony charge to 18 U.S.C. § 111(a). Although it is true that each case was eventually dismissed by the government for unknown reasons (typically after the defendants repeatedly agreed to waive their rights to a preliminary hearing or indictment over a period of months), all were initially facing felony charges. [my emphasis]

DOJ’s claim not to know why these cases entered into a DPA is just as suspect as McFadden’s choice of a source for the crowd sizes in Portland.

That’s because the three cases at the core of this debate all appear to involve assaults not at Portland Federal courthouse (marked with the green arrow), but assaults a block away, not on Federal property at all, probably close to the blue arrows marked below.

  • David Bouchard, arrested overnight on July 23-24 at Main and 4th by a Federal Protection Services officer stationed in Colorado
  • Joshua Webb, arrested overnight by a US Marshal on July 25-26 on Salman between 4th and 5th by a US Marshal
  • Thomas Johnson, arrested overnight by a US Marshal on July 25-26 “in the park” (but because it appears to be the same instance as Webb, probably towards Main & 4th) by a US Marshal

All three of these arrest affidavits include a drawing of the city block that is Federal property, and then describe arrests that don’t take place on that Federal property.

The arrest affidavits offer no explanation for what led the Federal agents to leave the courthouse they were purportedly defending.

Specifically, on July 26, 2020, federal law enforcement officers attempted to disperse a crowd on SW Salmon Street between 4th and 5th streets in Portland, OR. The crowd was part of a protest that was declared an unlawful assembly by the Federal Protective Service and a riot by the Portland Police Bureau.

In other words, the story McFadden cites for his claim that there were thousands involved in the unrest involved direct reporting from the site the day between these arrests. His clerk researched and found a story about Portland from the week of these arrests, which featured elevated hostility and significantly expanded numbers, because (as even that story noted) Portland was reacting against Billy Barr’s decision to send in Federal agents.

Which brings us back to the NYT story that McFadden could have but did not rely on. It describes that on Friday morning — overnight on July 23 to 24, so covering events from the day when Bouchard was arrested — Federal officers were prowling the streets blocks away from the Hatfield Court House that they were purportedly protecting. And that created legal problems,

After flooding the streets around the federal courthouse in Portland with tear gas during Friday’s early morning hours, dozens of federal officers in camouflage and tactical gear stood in formation around the front of the building.

Then, as one protester blared a soundtrack of “The Imperial March,” the officers started advancing. Through the acrid haze, they continued to fire flash grenades and welt-inducing marble-size balls filled with caustic chemicals. They moved down Main Street and continued up the hill, where one of the agents announced over a loudspeaker: “This is an unlawful assembly.”

By the time the security forces halted their advance, the federal courthouse they had been sent to protect was out of sight — two blocks behind them.

The aggressive incursion of federal officers into Portland has been stretching the legal limits of federal law enforcement, as agents with batons and riot gear range deep into the streets of a city whose leadership has made it clear they are not welcome.

[snip]

Robert Tsai, a professor at the Washington College of Law at American University, said the nation’s founders explicitly left local policing within the jurisdiction of local authorities.

He questioned whether the federal agents had the right to extend their operations blocks away from the buildings they are protecting.

“If the federal troops are starting to wander the streets, they appear to be crossing the line into general policing, which is outside their powers,” Professor Tsai said.

Homeland Security officials say they are operating under a federal statute that permits federal agents to venture outside the boundaries of the courthouse to “conduct investigations” into crimes against federal property or officers.

But patrolling the streets and detaining or tear-gassing protesters go beyond that legal authority, said David Lapan, the former spokesman for the agency when it was led by John Kelly, Mr. Trump’s first secretary of homeland security.

“That’s not an investigation,” Mr. Lapan said. “That’s just a show of force.”

Indeed, these particular arrests happened just after the Portland City Council voted to cease cooperating with Federal authorities, as described by a DHS OIG Report reviewing the deployment (which McFadden’s clerk might have used to source a claim that the largest protest reached 10,000 participants, but which would have made the authorization problem clear), meaning that invoking the Portland Police Bureau covering the city generally (including where these arrests seem to have taken place) was particularly problematic.

However, on July 22, 2020, the Portland City Council voted to cease cooperation between the Portland Police Bureau and Federal law enforcement. The Portland City Council viewed Federal operations in Portland as an “unprecedented and unconstitutional abuse of power” by the Federal Government.11 According to the Portland City Council resolution, “the Portland Police Bureau shall not provide, request, or willingly receive operational support … from any agent or employee representing or constituting part of deployment under executive order from the president, be they from Department of Homeland Security, the U.S. Marshals Service, the Federal Protective Service, U.S. Customs and Border Protection or any other service.”1

The OIG Report states that officers had authority to be in Portland, but doesn’t address whether they had legal authority to do what the did in this case: leave the building they were protecting and go blocks away, looking for trouble.

An earlier DHS OIG Report described that officers sent into Portland had not been bureaucratically designated in the way they should have been and raised still-unanswered questions about whether DHS Acting Secretaries acted under legal authority when sending troops to Portland.

In other words, there seems to be a ready explanation — one that both DOJ and McFadden have reasons to suppress — for why these cases were diverted: for a number of reasons, the arrests were made under dubious legal authority. (At least one of the other ones Judd cites may have involved less-than-lethal force violation.)

But Trevor McFadden, who made very clear he wanted to consider this kind of selective prosecution claim and has whined for months that Jan6ers are being treated differently, doesn’t mention this ready explanation which (given the research his clerk did to find the AP article and others not included in the record before that) at least his clerk must know. Instead, McFadden goes on a multi-paragraph rant suggesting that DOJ — starting under, “a Republican-appointed U.S. Attorney (under the direction of a Republican-appointed Attorney General),” he notes elsewhere — started diverting these prosecutions in significant numbers.

Judd’s claim is nontrivial. His chart suggests that Portland defendants generally received much lighter treatment than he has. For example, three Portland defendants allegedly struck officers in various ways. One placed an officer in a headlock. See United States v. Bouchard, No. 3:20-mj-00165 (D. Or.), ECF No. 1-1 at 4–5. Another punched and hit an officer in the face with a shield. See United States v. Webb, No. 3:20-mj-00169 (D. Or.), ECF No. 1 at 5. Yet another struck officers with a shield after he tried to pick up a smoke grenade. See United States v. Johnson, No. 3:20-mj-00170 (D. Or.), ECF No. 1 at 5. The Government charged these three defendants with felony assault on a federal officer, just as it charged Judd here. See Gov’t Opp’n at 17–18. That makes some sense—Judd was likewise allegedly present for a fracas with law enforcement at a federal building and used a firecracker (which if it had exploded, would have caused “bodily injury”) to “intimidate” law enforcement. 18 U.S.C. § 111(a). The Government could justifiably seek felony convictions for both Judd and the Portland defendants.

But, incredibly, the Government dismissed the charges against all three Portland defendants. See Bouchard, Motion to Dismiss Complaint, ECF No. 16; Webb, Motion to Dismiss Complaint, ECF No. 22; Johnson, Motion to Dismiss Complaint, ECF No. 9. Judd still faces nine charges, including multiple felonies, even though the Government never alleges that he, unlike the Portland defendants, struck or injured an officer. That he still faces greater charges than the Portland defendants despite that key difference is suspicious.5 That is the kind of “different treatment” that might warrant discovery. Armstrong, 517 U.S. at 470.

The Government responds that it treated Judd and the three Portland defendants equitably because it filed felony charges against all of them. See Gov’t Opp’n at 18. The Government seems to think that the initial charges are all that matter. Not so. By that logic, the Government could avoid discovery of a race-based selective prosecution claim if it indicted similarly situated black and white persons, dismissed the charges against the whites, and prosecuted the black defendants to conviction or plea. The “administration of a criminal law” is not limited to an initial charging decision. Armstrong, 517 U.S. at 464. Nor is it so easily circumvented.

More, the Government’s logic would allow it to charge similarly situated black defendants with felonies and white defendants with misdemeanors. But discriminatory effects include disparities in the “crimes charged.” Stone, 394 F. Supp. 3d at 31. The Government’s argument is thus absurd and untenable—that the Government originally indicted the Portland defendants does not erase the potential for discriminatory effect.6

Nor does the Court accept the Government’s attempt to distinguish these Portland cases on evidentiary grounds. According to the Government, video footage of Judd’s actions solidified the case against him, precluding a dismissal. See Gov’t Opp’n at 20. In contrast, Portland cases relied on officer recollections during nighttime attacks—none captured on video—by mostly masked assailants. See id. Fair enough. This could explain why fewer defendants overall were charged in Portland than here. But by indicting those cases, the Portland prosecutors presumably believed they had sufficient evidence to sustain convictions. See Justice Manual § 9-27.220 cmt. (“[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”). If anything, that fact supports Judd’s argument. Evidentiary differences notwithstanding, the Government felt it had enough basis to charge both Judd and Portland defendants. Yet the Government dismissed the charges against only Portland defendants. The suggestion that Portland cases suffered from widespread, post-indictment, evidentiary challenges is thus a tough argument to swallow.

[snip]

Therein lies a troubling theme that emerges from a wholesale analysis of the Government’s decisions in Portland. The Government dismissed 27 cases brought against Portland defendants, including five felony cases. See generally Appendix to Def.’s Mot. Dismissal of one felony case is unusual. Dismissal of five is downright rare and potentially suspicious.7 Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers. Considered in this light, when compared to Portland cases, the disposition of Judd’s case appears an outlier.

5 The D.C. U.S. Attorney’s Office also dismissed charges against the one D.C. defendant mentioned by Judd. She allegedly threw a firecracker at police during a Black Lives Matter protest in August 2020. See Affidavit in Support of Arrest Warrant, United States v. Rogers, No. 2020 CF3 006970 (D.C. Super. Ct. dismissed Sept. 30, 2020). The firecracker burned the pant leg of one officer. See id.

6 The Government wisely dropped this argument at the motion hearing. See Hr’g Tr. at 66.

7 By way of comparison, the Court knows of only one January 6 case that the Government has dismissed among the hundreds of defendants charged for their alleged actions on that day. See United States v. Kelly, No. 21-mj-00128 (D.D.C., dismissed on June 1, 2021). [my emphasis]

DC District’s Trumpiest judge here uses diversions most likely necessitated by the legal abuses and bureaucratic incompetence of the Trump Administration to claim that Jan6ers are being treated poorly. He focuses on arrests made, in very significant part, to fulfill Barr’s priority on such prosecutions in summer 2020, while ignoring the legally suspect circumstances created by Barr’s effort to gin up arrests. And he does so even as he refuses discovery that might confirm this most obvious of explanations.

The proper comparison to the cases McFadden focuses on would be to examine the arrests on January 5 and 6 in DC made by Federal officers away from the Capitol, such as Freedom Square. Yet in that case (particularly at the Washington Monument before the riot kicked off), the evidence suggests that Federal officers were far too lenient on Jan 6, even in the nation’s Capitol on Federal land. At least in the three cases as the center of this dispute, the disparate treatment in Portland appears to have come in the arrests outside of Federal property, not the prosecutorial diversions of those arrests later. Such a comparison would make it clear that Federal authorities treated Trump’s supporters far too lightly, not the opposite.

But McFadden has a goal here, one that — as he notes — he has been developing since at least July.

McFadden properly rules that Judd has not shown enough evidence of selective prosecution to get discovery into why these other prosecutions were diverted (in that, he may have been bound by an opinion issued days earlier by Trump appointee Carl Nichols in the Garret Miller case). Both Trump appointees note that Jan 6 is different from Portland for a number of reasons. In fact, McFadden cites Nichols in describing what he sees to be the difference.

Putting aside any claims that January 6 rioters sought to tear down our system of government (an allegation not made against Judd), their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters. See Lindsay Wise, Catherine Lucey, and Andrew Restuccia, “The Protestors Are in the Building.” Inside the Capitol Stormed by a Pro-Trump Mob, Wall St. J. (Jan. 6, 2021, 11:53 P.M.).8 The action in Portland, though destructive and ominous, caused no similar threat to civilians. Accord United States v. Miller, No. 21-cr-119 (CBN), slip order at 3 (D.D.C. Dec. 21, 2021) (“Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.”). Given the “narrow[ ]” interpretation of “similarly situated,” Stone, 394 F. Supp. 3d at 31, the Court cannot say that the Portland defendants “committed roughly the same crime under roughly the same circumstances” as Judd, Khanu, 664 F. Supp. 2d at 32.

But even after having laid out reasons (but ignoring the legal problems introduced by Federal big-footing in Portland) why you cannot compare Portland and Jan6, McFadden — who, again, invited this challenge — concludes that he will sentence Jan6ers leniently because he’s sure they’re being mistreated. McFadden cites himself saying he’ll account for such disparities at sentencing in the very same paragraph where he denies discovery to find out whether there’s an obvious explanation for such claimed disparities.

None of this suggests that the distinctions Judd highlights are irrelevant for all purposes. “Disparate charging decisions in similar circumstances may be relevant at sentencing.” United States v. Griffin, — F. Supp. 3d —, 2021 WL 2778557 at *7 (D.D.C. July 2, 2021); cf. 18 U.S.C. § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But on this record, those disparate outcomes fail to justify the discovery he seeks.

Then he cites Merrick Garland thinking he’s being clever.

Justice requires that “like cases be treated alike” and that “there not be one rule for Democrats and another for Republicans.” Merrick Garland, Remarks to DOJ Employees on His First Day, (Mar. 11, 2021).10 Otherwise, prosecutions risk becoming “so unequal and oppressive” as to deny the rights of all. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice. Judd raises troubling questions about the Department’s adherence to this imperative in Portland. But for the reasons stated above, he has not carried his burden to justify further discovery into the Government’s prosecutions.

Make no mistake what this is: It is an otherwise law-and-order touting Federal Judge announcing, in advance, that he’s going to sentence Jan6ers, people who share his political views, leniently because — he claims, even while refusing to order discovery to prove or disprove his hypothesis — Jan6ers are being badly treated.

And in fact he has already been doing that. When he sentenced Danielle Doyle to two months probation and a fine in October, rather than the three years of probation DOJ sought, he said as much.

Trevor McFadden used this challenge to lay out, for at least the third time, his plan to let Jan6ers off easy, presumably including Judd and his co-defendants, accused of attacking cops over the course of hours. And in the course of doing so, he has suppressed the evidence showing that the disparity, in fact, pertains to overpolicing, not lenient prosecutions, in Portland.

Update: In June DHS provided Ron Wyden with responses to some of his questions about the deployment. They claim they can operate 1-3 blocks from the Federal property which could include all of these arrests.

Practically speaking, DHS personnel deployed to support FPS in protecting federal property in Portland, like the Hatfield U.S. Courthouse, dispersed crowds approximately one to three blocks away from the federal property to secure the perimeter, contain/mitigate fires, treat officer injuries, and otherwise reconstitute facility security.

As set forth above, 40 U.S.C. § 1315 does grant cross-designated law enforcement personnel certain authorities at a distance from federal property. For instance, a cross-designated officer or agent may make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. Similarly, such an officer or agent may conduct.

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

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Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

  • Nordean (4 defendants)
  • Pezzola (2 remaining defendants after Greene’s change of plea)
  • Chrestman (6 defendants)
  • Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
  • Hughes (2 defendants)
  • Pruitt
  • Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.

The Trump to Willard War Room to Militia Connection

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The name Roger Stone does not appear in the Guardian story reporting that the January 6 Committee will soon seek more information on Trump’s calls to the Willard Hotel late on January 5 and on January 6, as he faced the prospect that Mike Pence would not violate his oath and fail to certify the legitimate winner of the election.

Congressman Bennie Thompson, the chairman of the House select committee investigating the Capitol attack, has said the panel will open an inquiry into Donald Trump’s phone call seeking to stop Joe Biden’s certification from taking place on 6 January hours before the insurrection.

The chairman said the select committee intended to scrutinize the phone call – revealed last month by the Guardian – should they prevail in their legal effort to obtain Trump White House records over the former president’s objections of executive privilege.

“That’s right,” Thompson said when asked by the Guardian whether the select committee would look into Trump’s phone call, and suggested House investigators had already started to consider ways to investigate Trump’s demand that Biden not be certified as president on 6 January.

Thompson said the select committee could not ask the National Archives for records about specific calls, but noted “if we say we want all White House calls made on January 5 and 6, if he made it on a White House phone, then obviously we would look at it there.”

Instead, the story lists a bunch of people who have been even less cooperative with the Jan 6 investigation than Stone.

The former president’s remarks came as part of wider discussions he had with the lieutenants at the Willard – a team led by Trump lawyers Rudy Giuliani, John Eastman, Boris Epshteyn and Trump strategist Steve Bannon – about delaying the certification, the sources said.

The story also mentions that the Jan 6 Committee is finally considering a subpoena to Rudy Giuliani — a subpoena that will hit just as debates over crime-fraud excepted conversations start to appear on the SDNY docket.

A spokesperson for the select committee declined to comment about what else such a line of inquiry might involve. But a subpoena to Giuliani, the lead Trump lawyer at the Willard, is understood to be in the offing, according to a source familiar with the matter.

The underlying Guardian story had noted that the calls to the Willard proved a direct tie between the White House and the war room.

Trump’s remarks reveal a direct line from the White House and the command center at the Willard.

The reason I raise Stone is that the repeated reports from Joshua James to Oath Keeper field commander Mike Simmons about a VIP disgruntled about his shoddy treatment — a VIP that is almost certainly Stone — show there was a direct tie from the Willard to one of several militias who were instrumental in breaching the Capitol from multiple points.

Particularly given the confirmation that the government believes he was lying, I’d like to point to some redacted references to a VIP that Joshua James was guarding who was bitching that he wasn’t getting VIP treatment.

This is likely Roger Stone. That’s true because — as Dan Friedman reported — James was “guarding” Stone that day (and Simmons guarded Stone the previous day), the name seems to fit, and Stone has publicly complained about his treatment that day.

While exchanging calls with Simmons, James traveled from the Willard Hotel, in downtown Washington—where he had been leading a security detail guarding Stone—to the Capitol.

What appears to be the first reference to this person also seems to fit the name, which would be the full name, Roger Stone, on first reference. Roberto Minuta, Jonathan Walden, and the now-cooperating Mark Grods were also guarding Stone.

Which brings us to the middle reference. Simmons claims that James called him every time his VIP moved.

Only, if that VIP was Roger Stone, he didn’t move. By his own account he stayed at the Willard before taking his bruised ego and leaving town.

If that’s right, it means Simmons was trying to explain multiple calls with James, and to do so, he offered the bullshit excuse that Stone, who by his own account never left the Willard, kept moving.

These reports in on said VIP’s non-movement would have taken place the morning before the assault on the Capitol, during the same period when, the Guardian reports, Trump alerted the Willard war room that Pence was likely going to put his duty to the Constitution over his fealty to Donald Trump.

The Guardian reports that Thompson may go this route to increase pressure on the people who were privy to the contents of those calls. That pressure could work in multiple directions. If it coughed up evidence from a less-damning non-privileged call, it might help SDNY in battles to access such materials from Rudy’s phones. It might increase pressure on John Eastman, a lawyer who has only inconsistently claimed privilege for his conversations with Trump. Or it might cause one or another of Trump’s bottom-feeders — Stone and Steve Bannon — to take the other out.

Even just identifying the times of such calls, though, would provide a way to understand how White House input into the Willard intersected with Willard communications with the Oath Keepers, Willard directions to Congress, and White House pressure on Congress intersected.

The Big Election Lie Built on the Last Big Election Lie

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Welcome to Byron York’s readers! Since you’re here, you may be interested that Byron didn’t tell you in his error-riddled piece that I was years ahead of the Right Wing in debunking the dossier, and have even noted how Byron ran interference for Oleg Deripaska, thereby hiding the way Deripaska was really fucking over Paul Manafort. And not only did I not attribute Hillary’s loss to Russia, I even challenged the easy claims it was all Comey’s fault. You might ask yourself why Byron didn’t reveal any of that to you (to say nothing of misrepresenting what this post says).

NPR did a good piece last week on Trump’s Big Lie about winning the election.

Call it an insurrection or a coup attempt, it was fueled by what’s known as the “Big Lie”: the verifiably false assertion that Trump won. Joe Biden won 306 votes in the Electoral College, while Trump received 232. In the popular vote, Biden won by more than 7 million votes.

Many are warning that over the past year, that “big lie” of a stolen election has grown more entrenched and more dangerous.

It quoted Tim Snyder, an expert on authoritarians, on how the tactic of telling lies to turn a powerful person into a victim comes right out of Mein Kampf.

A couple of weeks later, he repeated the fiction at a rally in Iowa. “We didn’t lose,” he insisted to a crowd that rewarded him with chants of “Trump won!”

By inverting the narrative, attempting to slough off the “big lie” and pin it instead on his opponents, Trump exploited an age-old tactic, says Yale University history professor Timothy Snyder.

“Part of the character of the ‘big lie’ is that it turns the powerful person into the victim,” he says. “And then that allows the powerful person to actually exact revenge, like it’s a promise for the future.”

Snyder, author of the books The Road to Unfreedom and On Tyranny, has spent years studying the ways tyrants skewer truth. Snyder points to Hitler’s original definition of the “big lie” in his manifesto, Mein Kampf and the ways he used it to blame Jews for all of Germany’s woes.

“The lie is so big that it reorders the world,” Snyder says. “And so part of telling the big lie is that you immediately say it’s the other side that tells the big lie. Sadly, but it’s just a matter of record, all of that is in Mein Kampf.“

That’s all true. As someone who has read virtually all of the statements of offense for those who have pled guilty for January 6, many credibly claim they really believed this Big Lie. Some still believe it. Their lives will be forever changed — some ruined — because they believed Trump was a victim and acted to avenge him.

But there’s something missing from all the worthwhile discussions of the Big Lie. It’s the lie those who helped tell this most recent Big Lie tell.

Consider this interview Chris Hayes did with Dustin Stockton and Jennifer Lynn Lawrence, who’ve been doing a media tour to claim they were betrayed when Trump launched his mobsters on the Capitol.

When Hayes asked them whether they now admit that the election wasn’t stolen, Stockton instead attempted to turn the question around:

Do you now admit that the “Russia memes” that you guys ran 24-hours a day in the early days of the Trump that got maybe several million impressions which our pages often do. [cross chatter] There were tons of ridiculous stuff.

[snip]

Democrats and Republicans, every four years, whoever loses, right, then goes on to say, “oh, it was broken this way, it was broken this way.” It’s not that there aren’t things that aren’t broken and should be done better with mail-in balloting, with the way we verify people, the way we, make sure everybody has access to voting. There is common ground here. The problem is partisanly the Left fights, when they lose, the Right fights, when they lose.

[snip]

Or widespread Russian interference.

Stockton did, ultimately, concede that Biden is President and that there were tons of ridiculous claims about the election. But he excused his own contributions to sowing The Big Lie by equating lies about Trump’s loss with reporting about Russia’s attempt to interfere in the 2016 election, and claimed that reporting arose out of Democratic excuses to explain Hillary’s loss.

That is, a key purveyor of the The Big Lie excuses his actions because MSNBC reported on a Russian investigation that was based off real facts, an investigation that led to the prosecution of Trump’s National Security Advisor, Trump’s Coffee Boy, Trump’s personal lawyer, Trump’s Campaign Manager, and Trump’s rat-fucker, all of whom covered up aspects of the Trump camp’s outreach to Russia in advance of becoming President (Paul Manafort wasn’t prosecuted for his lies, but Amy Berman Jackson agreed with the Mueller team that he lied to cover up, among other things, why he traded campaign strategy for $19 million in debt relief). Stockton equates reporting on all that — plus the dossier and Alfa Bank and the failson’s meeting to trade campaign dirt for sanctions relief, as well as details of the disinformation campaign that had as a primary goal sowing division — Stockton equates all that with a deliberate attempt, over the course of months, to completely dismantle the credibility of our electoral system.

The equation is all the crazier given that, while Hillary herself did put some of the blame for her loss on Russia’s interference, most Democrats blame Jim Comey, the guy whom Trump fired in an attempt to undermine the Russian investigation. Those of us who live(d) in states that Hillary neglected were perfectly happy to blame Hillary’s own mistakes. More importantly, Hillary ceded power with no contest of the results even in closely fought states like Michigan.

This is just one example where Trumpsters excuse their own participation in The Big Lie by turning a bunch of different prongs of reporting on Russia in 2017 — some undoubtedly overblown but much based on real facts about real actions that Trump and his aides really took — into the equivalent of wild hoaxes about efforts to steal the 2020 election.

And it’s not just those who fostered The Big Lie. As I’ve noted, a viral thread earlier this year went further still, blaming January 6 on the Steele dossier (which most Republicans agree was larded with Russian disinformation).

This use of the Russian investigation, the Democratic-paid dossier, and the legitimate reporting on both to rationalize Trump’s actions post-2020 is no accident. That’s one reason I persist in reporting on the dossier: because Paul Manafort came back from a meeting with an Oleg Deripaska associate and encouraged everyone to discredit the Russian investigation by focusing on the dossier. Because it was so full of garbage (some of it placed there at the behest of Russian intelligence, if you believe all the Republican members of Congress to focus on it), it was an easy way to make the real Russian investigation look corrupt to people like Dustin Stockton, to say nothing of the real cover-up disclosed by the investigation.

Before Trump claimed to be the victim of vote fraud, Trump claimed to be the victim of an investigation into the many documented ways in which Trump tried to optimize Russian help to get elected. That claim — that he was the real victim of the Russian investigation — is how Trump trained so many Republicans to put his fate over the fate of the country.

And so as the traditional press turns its attention to the lies that Trump tells to claim he’s a victim, that first lie cannot be forgotten.

Chekhov’s Riot Shield: How Proud Boy Matthew Greene’s Cooperation Helps Prove the Conspiracy

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In a chat among the Central New York chapter of the Proud Boys on January 17, according to a June detention motion, Matthew Greene stated that, “we must stand together now or end up in the gulag separately.” Yesterday, Greene entered into a cooperation plea deal that may accelerate his transfer into a Federal prison and even contemplates witness protection.

The press has made much of Greene’s cooperation deal — and I agree that the first public cooperation agreement from a Proud Boy is newsworthy. But I think the press is overstating the singular importance of Greene’s plea deal, for two reasons.

Greene is the first (public) cooperator but there are probably more senior Proud Boys close to flipping

First, there is very good reason to believe there are other non-public Proud Boy cooperators (or people, like Greene, who have been discussing a plea deal for months but who have not yet publicly pled guilty). Tim Kelly, the Judge presiding over the most Proud Boy cases, only just revealed that he will uphold DOJ’s application of the obstruction charge (though he has yet to issue his opinion), which is likely to accelerate the public entry of plea deals from other Proud Boys close to flipping. In other words, Greene is the only cooperator we can point to docketed proof of, but there are others, almost certainly others who are better situated to expose the full contours of the senior Proud Boys’ plans for the Capitol.

The other reason Greene’s welcome cooperation is being overstated is because — as Greene’s statement of offense makes clear — the Proud Boys used a cell organization on January 6 and Greene was, by his own telling, just a “first-degree member of the Central New York chapter of the Proud Boys,” making him one of the “least senior members.” But as I show below, that also means his cooperation is a good way of showing that a low level Proud Boy was aware of and following the instructions of the most senior Proud Boys.

To be clear: Greene’s statement of offense states that it “is not intended to constitute a complete statement of all facts known by Greene.” But the things that he does and appears not to know illustrates how DOJ is either going to need to flip one of the most senior Proud Boys and/or get cooperators from multiple different parts of the network to get a full understanding (and proof beyond a reasonable doubt) to describe all that the Proud Boys did on January 6.

That said, even given what is public, Greene’s cooperation will be useful in the following ways:

  • Confirming intent to obstruct the vote count by intimidating Mike Pence and others
  • Providing first-hand evidence on the “Front Door” conspiracy
  • Tying the Front Door cell to the Leader conspiracy
  • Describing the lead-up to January 6

Confirming intent to obstruct the vote count by intimidating Mike Pence and others

As this post explains, Greene’s intent statement confirms that:

  • The goal that day was to intimidate Mike Pence and members of Congress to get them to help Trump’s cause
  • Trespassing was one way to serve that goal of obstruction because it was more intimidating
  • The damage to the Capitol was a foreseeable consequence of the plan to obstruct the vote count

These three intent statements will be important in prosecuting other Proud Boys — and indeed, other rioters in January 6. They show that even low level Proud Boy participants understood this — and not some bullshit cover story about Antifa — to be the goal.

Providing first-hand evidence on the “Front Door” conspiracy

As a reminder, Greene was indicted, along with Dominic Pezzola and William Pepe, in what I’ve dubbed the “Front Door” conspiracy. The three were indicted together, it appears, because they’re all from NY (though Pepe is from a different chapter of the Proud Boys) and DOJ has a witness who spent time with them after the riot on January 6 who shared that they had said they would have gone after Pelosi or Pence had they found them.

The FBI also spoke to a witness, referred to as W-1 for purposes of this memorandum. W1 stated that Greene was one of a group of individuals who told W-1 about what they did on January 6. According to W-1, members of this group said that anyone they got their hands on they would have killed, including Nancy Pelosi.5 W-1 further stated that members of this group, which included Greene, said that they would have killed [Vice President] Mike Pence if given the chance.

The Front Door conspiracy is utterly critical because the terrorism enhancement hanging over all the other Proud Boys charged with conspiracy goes through the stolen shield with which Pezzola broke a window in the first breach of the Capitol.

While I expect some consolidation among the Proud Boy cases in the near future, DOJ needs this prosecution to succeed because it gives them leverage over the other Proud Boys they’re using to get other conspirators to cooperate.

And Greene’s statement of offense does provide evidence that he and Pezzola and Pepe entered into an agreement to obstruct the vote count and took overt steps, in concert, to make that happen. It describes that Greene:

  • Made hotel reservations with his chapter of the Proud Boys and drove from Syracuse with them — including Pezzola — to DC.
  • Allowed Pepe, who showed up overnight, to sleep on his floor.
  • Programmed the Baofeng radios used by the Central New York Proud Boys (which also means Greene shared a channel with Pezzola and therefore heard what Pezzola was hearing).
  • Eschewed Proud Boys colors.
  • Traveled with Pezzola throughout the day, including through the first toppled barricade to a line of fences, away from there (in what researchers believe was a regrouping effort to wait for more numbers), then up the stairs.
  • Stayed at the same hotel as Pezzola and Pepe after the riot (as demonstrated by security footage from the hotel).

Tying the Front Door cell to the Leader conspiracy

As noted above, in the Proud Boys hierarchy, Greene was just a schlub, a first level Proud Boy just weeks into joining the organization.

But that makes him useful for showing that orders issued by Enrique Tarrio, Joe Biggs, and Ethan Nordean trickled down to him. The order not to wear Proud Boy colors, for example, is one Tarrio and Biggs issued publicly. Greene followed that order.

Similarly, around 9:30PM on January 5, the Leader co-conspirators agreed to set the meetup point on the side of the Washington Monument facing the White House at 10AM. This agreement is part of the proof they had entered into a conspiracy with each other.

The next day, Greene, this schlub from Syracuse, followed these instructions.

On the morning of January 6, 2021, Greene, along with Pezzola, Pepe, and the others he had traveled with from Syracuse, met up at the Washington Monument with members of the Proud Boys from across the country, as instructed by Proud Boys leadership. As also instructed by leadership, neither Greene, Pezzola, Pepe, nor any of the other individuals in their group wore the Proud Boys’ traditional colors of black and yellow.

Greene, Pezzola, and the others they traveled with from Syracuse, then followed the Proud Boys leadership in departing from the Washington Monument and marching on the National Mall towards the U.S. Capitol.

In other words, precisely because someone so low level was obviously following instructions developed in private by the Proud Boys’ top leadership, it ties the Syracuse cell with the Leadership cell in the same conspiracy.

And one remarkable moment of Greene’s testimony demonstrates this particularly well. His statement of offense describes that,

After Pezzola had stolen a riot shield belonging to the U.S. Capitol Police, Greene followed him away from the scene of the robbery, through the crowd, away from the Capitol, and to the back of the West Plaza. During this journey, Pezzola met up and traveled with at least two other individuals, one of whom jointly carried the riot shield with Pezzola.

It appears that Greene did not know — perhaps still does not know — who the person carrying the shield with Pezzola was. It was Charles Donohoe, one of the four people currently charged in the Leader Conspiracy.

This moment is like the Chekhov’s Riot Shield of the entire January 6, the moment where the crucial weapon (in this case, that would inflict the damage to the Capitol window that puts all the co-conspirators on the hook for terrorism enhancements) shows up early in the story as if foretelling where the story will (and in this case, did) go. Greene is a witness to this moment. But by witnessing it this way, with no idea of Donohoe’s seniority, Greene again demonstrates how the actions of low level Proud Boys tie directly up with its top leadership.

And Greene’s experience in DC tied to the most senior Proud Boy, Tarrio. His statement of offense notes that as Greene was setting the Baofeng’s, Pezzola told Greene that Tarrio would stop by to have his own radio programmed as well.

Pezzola told Greene that the National Chairman of the Proud Boys would stop by to have his radio programmed, but the National Chairman did not in fact stop by, nor did Greene program his radio.

This seems to prove that Pezzola was in touch, personally, with Tarrio on that confusing day as the Proud Boys attempted to regroup after Tarrio’s arrest, but not in such close touch that Pezzola knew immediately that Tarrio had moved to Baltimore after his release and stay-away order. It might suggest that Tarrio was on the Baofeng’s that day, in addition to participating in the Telegram chat. If DOJ can prove that, then it makes it a lot easier to charge Tarrio personally.

Describing the lead-up to January 6

As Greene’s statement of offense describes it, he only joined the Proud Boys after the December 12, 2020 MAGA March.

As of January 6, 2021, Greene was a first-degree member of the Central New York chapter of the Proud Boys. He had officially joined the group following a rally that took place in Washington D.C. in December 2020.

A detention filing for Pezzola suggests this was his first Proud Boy event as well.

[D]efendant’s only other “action” as a Proud Boy was that on December 12, 2020, he attended a “Make America Great Again” (MAGA) rally in support of then President Trump. There is no alleged criminal activity by defendant in relation to that event. This occurred shortly after defendant’s introduction to the Proud Boys. Upon information and belief, his only other activity as a Proud Boy was discussing politics over drinks at bars on occasion.

As Greene’s detention memo made clear, Greene met Pezzola in the early days of joining the group, possibly in DC.

The FBI also recovered a photograph of a group of Proud Boys, apparently taken inside a bar, which metadata indicates was taken in December 2020, that includes both Greene and Pezzola.

Greene’s statement of offense describes that he decided to attend January 6 in response to Trump’s call on December 19.

On December 19, 2021, when Greene saw then-President Donald Trump’s tweet referencing a “wild” protest to take place on January 6, 2021, he decided that he would attend the event, and he booked a hotel in Washington, D.C. for January 5-7, 2021.

On December 20, Greene ordered some AR-15 magazines that may cause legal trouble in NY (and was one of the key reasons why Greene was held in pre-trial detention). 

The FBI also located a camouflage tactical vest filled with eight detachable magazines for an AR-15 (Hr’g Ex. 2-4). Each of the eight magazines with loaded with 30 rounds of AR-15 ammunition. Although undersigned counsel does not practice law in the state of New York, I have been informed by a New York State Police officer, who is cross-designated to the FBI’s Joint Terrorism Task Force and participated in the search, that Greene’s possession of the AR-15 and the detachable magazines was illegal under New York state law

FBI’s review of the defendant’s Gmail account as contained on his personal phone that was seized in connection with the January 18 search warrant, revealed that the defendant placed the following orders, among others: (1) six AR-15 magazines, ordered on December 20

Over the following weeks, Greene planned with the other NY State Proud Boys (presumably including Pezzola and, given that this appears to have been state-wide, Pepe).

In advance of January 6, 2021, Greene coordinated with Pezzola and other members of the Proud Boys to make plans to come to Washington, D.C. for the events surrounding January 6. Greene used an encrypted messaging application and was part of planning channel among Proud Boy chapters from New York State whose members planned to come to Washington, D.C.

As this was happening, Pezzola appears to have deepened ties to the national organization. A government response to a Pezzola detention motion shows that Tarrio used an image of Pezzola — labeled “Lords of War” — to advertise for J6 and J20.

I have repeatedly noted that DOJ has remained coy about the role that the December MAGA March and the January 5 events had as crucial networking and planning events to prepare for January 6. But Greene was obviously part of that. Greene, in part because he shows how someone could join up and then play a role that intersected with top leaders of the group, encapsulates that process personally.

And, importantly, he shows how Trump and Tarrio were key motivators in that process.

As a cooperator, Matthew Greene won’t be able to tell prosecutors what top Proud Boys were planning. Nor will he be able to reveal how top Proud Boys networked with Trump’s associates and coordinated a plan for January 6. But he does offer proof that low level Proud Boys were in a conspiracy with the group’s top leadership. And his testimony will make it more likely that others will also cooperate.

On January 17, Greene called for the Proud Boys to stand together. His cooperation with prosecutors will make it more likely that others will “end up in the gulag,” together.

Three Crimes Included in Proud Boy Matthew Greene’s Intent Statement

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I’m writing a post on the limits of Matthew Greene’s knowledge of the larger Proud Boy plot on January 6, and therefore the bounds of his value as a cooperator (though his cooperation is really important, not least because it’ll lead others to follow his lead). Before I do so, I wanted to talk about the long motive paragraph included in his statement of offense.

He attested under oath yesterday that his intent on January 6 was to cause legislators and Mike Pence to act differently — implicitly, to either not certify any winner of the electoral college or name Trump the winner.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew the lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President, than if Green and others had stayed outside the restricted area. Green knew that the Capitol grounds he intended to enter were lawfully guarded by U.S. Capitol Police at the time he entered. Greene agrees that a reasonable foreseeable outcome, based on all the circumstances, taking into account the actions of other individuals, including Pezzola and Pepe, of his joining with members of the Proud Boys, to charge up the pedestrian walkway, into the West Plaza, and up the stairs under the Inauguration stage was that destruction of and/or damage to the U.S. Capitol or Capitol Grounds property would occur. [my emphasis]

This intent statement ties together several crimes used against a good many of the rioters on January 6, and not just Proud Boys:

Obstruction: The intent to cause Pence and others to act differently fulfills the mens rea requirement for obstruction. It does so in a transitive way, meaning the intent was to intimidate other people to act in a way counter to what their duty and justice demanded. That’s interesting because Judge Amit Mehta’s opinion on obstruction saw the mens rea requirement as intransitive. While this intent statement has evidence of intransitive mens rea as well, I think intimidation is the strongest application of obstruction on January 6. This, then, is a low level Proud Boy stating that the point of the riot was to intimidate Pence and others to get them to act a certain way.

Damage to the Capitol: As I have discussed repeatedly, the government is using the damage done to the Capitol, specifically the window that Dominic Pezzola broke in the first breach of the Capitol, to get to a terrorist enhancement that may expose defendants to far longer sentences. DOJ needs to prove that the damage Pezzola and others did was a reasonably foreseeable outcome of their efforts to obstruct the vote count to hold all the Proud Boys charged as co-conspirators accountable for the damage that Pezzola did. Here, Greene admits that that damage was foreseeable, and therefore exposes Pezzola, along with all the Proud Boys charged as co-conspirators, to that terrorist enhancement.

Trespassing: While there are ways that Greene’s cooperation is limited, it is significant that the first Proud Boy entering into a cooperation agreement did not enter the Capitol, as Greene did not. That’s because his intent statement adopts a broader understanding of the geographic area that might be deemed to contribute to the obstruction, to include the restricted area outside the building. This means it might incorporate others, like 3%er Guy Reffitt, Oath Keeper associates Thomas Caldwell and Bennie Parker, anti-masker Alan Hostetter, and Pied Piper of insurrection Alex Jones, in the scope of obstructive behavior, even if they didn’t enter the building. To be sure, DOJ will need to similarly prove the intent of each of these people; but by adopting this intent statement, Greene adopts it as the scope envisioned by the Proud Boys, the organizers of the entire assault.

Broken Windows Policing and January 6 Plea Deals

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Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

Mike Flynn Forgets He Was Shit-Canned by Presidents of Both Parties

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In a lawsuit attempting to kill an existing subpoena from the January 6 Committee and an as-yet unidentified subpoena to Verizon, Mike Flynn accuses Bennie Thompson of opposing Barack Obama. That’s the only logical conclusion one can draw from Flynn’s claim that the people behind the subpoena of him, “belong to the political party that opposed the President under whom General Flynn served.”

The body that issued the Subpoena is composed of 9 members, 7 of whom belong to the political party that opposed the President under whom General Flynn served. The remaining two members were Republicans hand-picked by Speaker Pelosi because they were vocal opponents of former President Trump from within the Republican Party.

As Flynn himself points out in his lawsuit, he served Barack Obama as Defense Intelligence Agency head for over two years, a total of 744 days. He served Donald Trump as National Security Advisor for around 24 days, a laughably short tenure even by the standards of the Trump Administration.

Plaintiff Lieutenant General Michael Flynn is a retired Lieutenant General in the United States Army, served as the Director of the Defense Intelligence Agency from July 2012 to August 2014, and was the National Security Advisor at the start of the Trump Administration.

Mike Flynn was shit-canned by both Presidents.

Nevertheless, a man fired by Presidents of both parties wants to claim a mere subpoena is a witch hunt against him.

Flynn, predictably, gets a lot else wrong in this lawsuit. His depiction of how Billy Barr attempted, but — even after appointing a team that altered DOJ documents as part of their attempt — failed to blow up the prosecution of him gets details big and small wrong.

He was famously led into a perjury trap by the Federal Bureau of Investigation, pled guilty to making a false statement after the government threatened his son and then agreed not to prosecute his son if he pled guilty. He later sought to withdraw that plea under the guidance of new counsel after the discovery of exculpatory evidence that was withheld from him prior to his guilty plea. When the Department of Justice decided to drop the charges against him, a court stayed his sentencing while the Court considered whether to force the Department of Justice to prosecute him. Ultimately, General Flynn received a Presidential pardon.

There was no perjury trap, his very good Covington lawyers were especially worried about Flynn’s exposure as a secret agent of Turkey, none of the evidence was deemed to be exculpatory, and he had already been prosecuted.

It is true that after Sidney Powell did more harm then good, Trump pardoned the man he shit-canned. It’s also true that Flynn remained equivocal about whether Donald Trump knew about his efforts to undermine sanctions during the Transition — though transcripts of his calls with Sergey Kislyak show that he told Russia’s Ambassador, at least, that Trump did know.

But there are several details in this lawsuit — like all of these lawsuits challenging the January 6 Committee, which appear to be at least partly an attempt to coordinate cover stories — of interest.

As Josh Gerstein observed, the lawsuit is full of dated information.

On January 6, 2021, a large group of people in Washington, D.C., entered the U.S. Capitol, breached security, and disrupted the counting of Electoral College votes until order was restored. The U.S. Department of Justice has arrested more than 500 individuals in connection with those activities on January 6th. General Flynn was not part of, nor was he present, at the Capitol grounds during any of those activities at the Capitol that day. Like most Americans, he saw those troubling events unfold on television.

[snip]

Former President Trump appealed the district court’s order, and the D.C. Circuit Court of Appeals enjoined NARA from releasing the disputed Presidential records pending its ruling. See Mem. Op. 17, Trump v. Thompson, No. 1:21-cv-2769 (D.D.C. Nov. 9, 2021).

On November 30, 2021, the D.C. Circuit held oral argument on the merits of former President Trump’s appeal. This case is still pending.

While I’m not surprised the Dhillon Law Group cited details about the January 6 investigation that are four months out of date, you’d think they — or Flynn, via Jesse Binall, who was part of the Sidney Powell team that represented him — would have heard of the legal thumping that the DC Circuit gave Jesse Binall on December 9.

As Katelyn Polantz observed, by filing this in his home district in Florida (albeit in the wrong district at first), Flynn sets up the possibility of a circuit split with the DC Circuit decision that Dhillon Law Group hasn’t heard about yet.

So this may be part of a concerted plan, but one that being implemented with the legal incompetence characteristic of Trump (and Flynn) lawyers.

Particularly given how dated this lawsuit is, I’m particularly interested in Flynn’s reliance on the investigation into Sidney Powell’s grift to explain his hesitations about cooperating with the Committee.

Flynn bases his knowledge about the investigation into Sidney Powell on a November 30 WaPo story (though he credits NYT with the scoop), not personal knowledge of the investigation.

In 2021, General Flynn was briefly a board member of a nonprofit founded and led by his defense counsel, Ms. Powell, called Defending the Republic. In September 2021, a federal prosecutor handling the January 6 Capitol attack as well as the criminal contempt of Congress proceedings against individuals referred by the Select Committee also subpoenaed the records of Defending the Republic in connection with a criminal investigation into its activities.

[snip]

In September 2021, the Department of Justice obtained a grand jury subpoena for records of a nonprofit General Flynn briefly served as a director, which was founded and led by his criminal defense counsel, Sidney Powell. The subpoena was signed by an Assistant U.S. Attorney prosecuting matters related to the January 6 Capitol attack as well as contempt of Congress charges against Stephen K. Bannon for not complying with the Committee’s subpoena. Isaac Stanley-Becker, Emma Brown, and Rosalind Helderman, Prosecutors Demanded Records of Sidney Powell’s Fundraising Groups As Part of Criminal Probe, NEW YORK TIMES, Nov. 30, 2021.

Here’s a December 1 Daily Beast story with other details of the investigation (which may come from Lin Wood or Patrick Byrne). Here’s my post noting that the virgin birth of the grift times awkwardly with Flynn’s own pardon.

In language immediately preceding one of those descriptions, Flynn misleadingly claims that the Committee subpoena against him starts “just before” DOJ “sought to dismiss the charges against him in May of 2020.”

(The Subpoena curiously seeks documents from General Flynn starting just before the Department of Justice sought to dismiss the charges against him in May of 2020, and long before the 2020 election or the January 2021 attack on the Capitol.) In late 2020, General Flynn publicly stated his concerns about the integrity of the 2020 elections, as did many other citizens. General Flynn did not organize or speak at any events on January 6 in Washington D.C.

The start date for the subpoena actually starts on April 1.

Still, I find it interesting that Flynn is so worried about what happened during Billy Barr’s failed attempt to blow up his prosecution. And I find it interesting that Flynn claims to have no firsthand knowledge of the investigation Molly Gaston is leading into Sidney Powell’s grift.

Incidentally, Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

Anyway, back to Mike Flynn.

Unlike the other people suing, Flynn appears to be uncertain about whether Verizon received a January 6 Committee subpoena targeting him. John Eastman returned the subpoena targeting him with his lawsuit. Alexander included the notice of the subpoena — dated December 2 — he received from Verizon. Meadows also included the notice of the subpoena.

But Flynn doesn’t include documentation like that to substantiate his basis for believing that Verizon got a subpoena targeting him. Rather, he says that he thinks Verizon got a subpoena targeting him — from the January 6 Committee — because they got one for Mark Meadows.

Upon information and belief, the Select Committee is not only targeting a wide variety of individuals with sweeping subpoenas, but also is obtaining extensive private records about various individuals—including cooperating witnesses—by issuing subpoenas to their telecommunications providers.

For example, the Select Committee issued a subpoena to Verizon Wireless seeking subscriber information and cell phone data associated with former White House Chief of Staff, Mark Meadows (the “Verizon Subpoena”). The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon Subpoena requested all of Mr. Meadows’ personal cell phone data for four months: from October 1, 2020, and January 31, 2021.

That is, unless Verizon has lost track of whom to bill for his cell service (or unless the General is confused about who is service provider is), it appears that Flynn — who was, for a period, on the board of the Powell nonprofit already being investigated by a grand jury in September — didn’t get a letter on December 2 alerting him that January 6 had subpoenaed his phone records.

Don’t get me wrong: particularly given his propensity to lie, Mike Flynn is not wrong to invoke the Fifth Amendment to avoid answering questions from the January 6 Committee (though he still is on the hook for the document request). That would be true even if Molly Gaston weren’t investigating Sidney Powell, but with the investigation, he’s quite right to invoke the Fifth (again — he did so with the SSCI Russian investigation too).

But if there’s a reason why the House Committee didn’t feel the need to ask for his phone records, that may be the least of his worries.

The most interesting aspect of the January 6 investigation that no one is covering — not even in a NYT story on criminal referrals — is the means by and extent to which the Committee is deconflicting with DOJ. There must be a legislative affairs person doing this near full time, unless Thompson and Liz Cheney — the daughter of someone who played a key role in screwing up Iran-Contra by refusing to do this — are doing this at a higher level. But the story about whom the Committee hasn’t subpoenaed — which includes both Sidney Powell and Rudy Giuliani, both known to be under investigation by DOJ — is as interesting as who they have.