The “Diligent” Proud Boys Jury: “Can we also get a stapler, please?”

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Yesterday, there were several interesting notes in the Proud Boys jury, including one — identifying a seeming discrepancy in their instructions — which led Judge Tim Kelly to note how diligent they were.

My favorite note, as I wrote at the time, asked for a stapler (I used to take off a point when students turned in papers using paperclips or dogeared pages rather than a staple).

I’d like to explain a different note, which may suggest where this jury is heading (and heading, it seems, in the reasonably near future). It asks:

  1. For counts 1 + 4, the conspiracy charges that have more than one goal listed, can one agreed upon objective of the conspiracy simultaneously satisfy both goals?
  2. We did not receive instructions on what to do if the jury does not reach unanimity on a charge. How should we proceed in this scenario?

The two counts in question were the seditious conspiracy charge, which the jury instructions describe this way:

Count One of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to do at least one of two things: (1) to oppose by force the authority of the Government of the United States, or (2) to prevent, hinder, or delay the execution of any law of the United States by force.

And the instructions describe the fourth, interfering with a government agent, this way:

Count Four of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to prevent Members of Congress and law enforcement officers from discharging their duties, which is a violation of the law.

[snip]

First, that the defendant agreed with at least one other person to, by force, intimidation, or threat, (a) prevent a Member of Congress or a federal law enforcement officer from discharging a duty, or (b) induce a Member of Congress or federal law enforcement officer to leave the place where that person’s duties are required to be performed.

One scenario where the jury might pose this question is if they believed some or all of the Proud Boys had agreed to and succeeded in obstructing the certification of the vote (the 1512 conspiracy), which is pretty close to Count One(2) and Count Four(b), but didn’t believe some or all had taken up force against the government (which was a stretch in this case since the violence exercised here was via “tools” who attacked the cops).

The inclusion of the question about not reaching unanimity suggests the possibility of a hung count on these or another charge. That happened, for example, in the lesser Oath Keepers case, but the hung count could just pertain to one of the defendants (perhaps Zach Rehl, who said the least inflammatory things in advance of the attack, or Dominic Pezzola, who only joined the conspiracy at a late moment, or Henry Tarrio, who wasn’t present).

One way or another they were down to the nitty gritty questions when they sent this note at 10:47AM yesterday. The response could make or break the sedition charge, too. So the lawyers discussed it for hours.

While they were waiting for their answer to that, they asked the “diligent” question, what to do about a charge invoking Charles Donohoe’s role in throwing a water bottle, given that a different instruction told them not to make any inferences about why people weren’t charged (Donohoe pled guilty last summer). At 3:19PM on Monday, they had asked for the exhibit numbers pertaining to that charge, so they seem to be a bit perplexed by Count Eight, which charges aid and abet liability in an assault for throwing a water bottle.

Per Roger Parloff, it took the lawyers and Judge Kelly more than three hours before they sent back a response to the 10:47 AM note. So they likely got significantly further in their deliberations before they got those two answers.

Here are the jury notes and responses:

  1. Please provide exhibit numbers for Rehl’s phone crossing the barricade and Biggs suggesting they pull their masks up. Response
  2. Please provide the following exhibits: police shield, megaphone, org chart. Response
  3. Please provide a stapler (and exhibit 490A). Response
  4. Upcoming appointments (in response to a question from the Courtroom Deputy)
  5. Please provide exhibit numbers for the Donohoe water bottle throwing examples. Response
  6. Clarification on multi-purpose conspiracies and non-unanimity on a charge. Response
  7. Clarification on persons not present. Response

Update: Now the “diligent” jury is asking the Court to fix the typo in their verdict form.

Where the Trump Investigations Stand: The January 6 Conspiracies

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As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially. I wrote about the Georgia investigation here and the stolen documents investigation here.

On Thursday, Mike Pence testified to the January 6 grand jury for over five hours. Many commentators have suggested — and I agree — that was one of the last major testimonial steps Jack Smith would need to take before deciding whether and if so how to charge Trump for inciting a mob to threaten to assassinate his Vice President.

But — in addition to Smith’s efforts to obtain recordings from Rudy Giuliani and others that former Fox producer Abby Grossberg has in her possession (which are going to make great evidence at trial) — there are still a few pieces that Smith’s prosecutors seem to be working on.

The most important of those may be continued appellate uncertainty regarding the law that Smith is likely to use to charge Trump and others in conjunction with January 6, obstruction of the vote certification, 18 USC 1512(c)(2), a charge successfully used against dozens of other January 6 defendants already. The DC Circuit will have a hearing on that, in an appeal former Virginia cop Thomas Robertson made of his obstruction conviction, on May 11.

To understand its import, let me explain how I think the various things Smith is investigating fit together. I think it likely that, in addition to some charges relating to the obstruction of this or the January 6 Committee’s investigation, Smith’s team is pursuing:

  • Conspiracy to defraud the United States for submitting fake elector certificates to the Archives (18 USC 371)
  • Obstruction of the vote certification and conspiracy to obstruct (18 USC 1512(c)(2) and (k))
  • Conspiracy to commit wire fraud (18 USC 1343; 1349)
  • Aiding and abetting assault (18 USC 111(b) and 2)

This differs from the January 6 Committee’s referrals in that I’ve included wire fraud, for which they provided abundant evidence, in an appendix, but did not include in their referrals. Also, I believe Smith would charge conspiracy tied to January 6 under 1512(k) rather than 371, as DOJ has been doing for over a year, not least because it provides stiffer sentences and more flexibility at sentencing. And I’ve suggested DOJ might use aiding and abetting of Michael Fanone’s assault based off Amit Mehta’s ruling addressing it and the evidence DOJ used in the Ed Badalian trial. I think that’s more likely than a charge for incitement of insurrection (18 USC 2383) unless DOJ built upwards off of still-hypothetical guilty verdicts in the Proud Boys case, but it might take time. I frankly think adding seditious conspiracy charges would be more likely than incitement of insurrection, if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons.

The way these three main charges — conspiracy to defraud tied to the fake elector certificates, conspiracy to obstruct the vote certification, and wire fraud — intersect likely provide some prosecutorial tools for the same reason that some Georgia Republicans are now turning on other ones.

While the fake electors case may seem like a slam dunk, the criminal exposure it presents is quite uneven.

Part of that stems from the fact that the extent to which a fake certificate was fraudulent is tied to state law about the requirements for elector ascertainment. On December 9, 2020, campaign lawyer Kenneth Cheesebro wrote down (!!) where such efforts would be less and more problematic.

Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

That memo marks the moment when Trump’s official campaign lawyers like Justin Clark and Matt Morgan started to distance themselves from the campaign efforts, to be replaced by Rudy Giuliani and his band of merry warriors.

Something similar happened at the states, as smarter people insulated themselves from this stupid legal move. The fake electors in New Mexico and Pennsylvania included caveats that likely protects them from legal exposure; in other states (notably, Wisconsin) the fake electors credibly believed that the certificates would only be used if a court ruled that there was some remaining legal dispute. Fourteen fake electors refused to participate, several of whom had very useful things to say about its dubious legality even to the January 6 Committee.

While there’s lots of documentary record reflecting that Trump approved the plan, proving his knowledge of the legal problems with the fake certificates themselves would likely require witnesses who saw him do so after having been advised of the legal sketchiness of it all (that may have been among the things the two Pats, Philbin and Cipollone, were asked about in their grand jury testimony in December). To include Trump in these charges, you need witnesses. His call to Brad Raffensberger and his assent to a lawsuit using numbers known to be dodgy are related; his pressure on electors to participate is part of the same conspiracy; but to charge him with the conspiracy itself you need those direct witnesses (in addition to the two Pats, Jason Miller, Rudy, Mark Meadows, Epshteyn, and John Eastman are likely those witnesses).

By last June, the subpoenas DOJ sent out asking for communications with those deeply implicated reflected this differential exposure. So do the phone seizures of Mike Roman and Epshteyn in September, both of whom were key gatekeepers of this process. This post shows how the investigation proceeded from there. In other words, the parts of the fake elector investigation we can see reflect awareness from before the first J6C hearing that the scam implicated differential legal exposure.

That kind of differential exposure is the same thing that Fani Willis is using to secure cooperating witnesses in Georgia.

While I’ll come back to it, the same kind of differential exposure exists with the wire fraud case. Just as one example, while Justin Clark claims to have distanced himself from the obviously illegal fake elector scam, he remained in Trump’s employ as he spent the money earned from making false claims about voter fraud between November and January. He already would have had an incentive to provide evidence to prosecutors that he had no part of the fake electors scheme. His incentive to do so increases to the extent that he benefitted from fraudulent fundraising and spending.

But first I want to explain one thing Smith may be waiting on: A clear sense of how the DC Circuit will define “corrupt purpose” under 18 USC 1512(c)(2).

If he charges it, Smith will likely prove that Trump obstructed the vote certification by:

  • Asking Mike Pence to take action to delay the certification that Trump had been told was illegal (Greg Jacob, Mark Short, the two Pats, and Pence are witnesses to this, all of whom have now made Executive Privilege-waived grand jury appearances)
  • Falsely leading the mob to believe that Pence could take that action (changes Trump made to his speech, about which Stephen Miller was likely asked by the grand jury this month, and his tweets are evidence of this)
  • After Pence refused to take that action, using the mob to try to pressure him to take it anyway or to otherwise disrupt the certification (DOJ has spent two years obtaining evidence that this was, in fact, why many people rioted, with specific evidence tied to Danny Rodriguez)

Contrary to what a million TV lawyers have told you, to prove obstruction, Smith won’t have to prove Trump knew he lost. DOJ has repeatedly won convictions of other January 6 defendants who tried to use that as a defense.

DOJ will need to prove he had corrupt purpose in attempting to obstruct the vote certification. And what that means in the DC Circuit won’t be decided until after May 11.

This post provides both a summary of the debate as it existed in January. This post describes how a DC Circuit panel of Florence Pan, Justin Walker, and Greg Katsas ruled that 1512(c)(2) does apply to the vote certification and that obstruction can extend beyond documentary obstruction. It also explains how none of the three of them could agree on what “corrupt purpose” means, from which some January 6 defendants have tried to argue (unsuccessfully in at least two cases) that Walker’s preferred meaning should apply.

Wildly simplified, the three main definitions of what corrupt purpose might mean are:

  • Corrupt benefit
  • Using otherwise illegal means, which in the case of other January 6 defendants has meant trespass or assault
  • Aiming to obtain an unlawful benefit

On May 11, a DC Circuit panel including Pan, Poppy Bush appointee Karen Henderson, and Obama appointee Cornelia Pillard will consider whether former Virginia cop Thomas Robertson had the corrupt purpose required to be convicted of obstruction. As part of that, they’ll decide whether the earlier ruling decided the issue of what corrupt purpose is, and if not, what it is.

As I wrote, to the extent that Smith has proof Trump knew the fake elector certificates were fraudulent, 1512 should apply to Trump in every imaginable case, far more easily than it does with rioters. The attempted delivery of the fake elector certificates to Pence constitutes a documentary attempt to obstruct the vote certification. Trump’s illegal request to Pence, as well as the knowingly fraudulent lawsuit in Georgia and the effort to pressure Raffensperger, to say nothing of any incitement or aid-and-abet liability in the assaults, are illegal means he used to stop the vote certification. And Trump, more than anyone else involved in efforts to obstruct the vote certification on January 6 was seeking an unlawful personal benefit, the ability to remain in power for another term. Mitch McConnell protégé Walker clearly laid out that basis for that case in his concurring opinion in Fischer.

But former Trump White House counsel Katsas didn’t necessarily view the continued election of Donald Trump to be such an advantage, at least not for those accused of assault before him. He sought a stricter definition of “financial, exculpatory, or professional” gain.

Which brings me (back) to the wire fraud investigation, something that DOJ has been investigating since at least September and in which CNN reported DOJ got cooperators after January 6.

[T]he financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

Wire fraud charges would closely resemble the successful Build the Wall prosecution for which Steve Bannon’s co-conspirators just got four year sentences (he was pardoned in for it in one of Trump’s last pardons but faces trial for the same scam in New York State in November). It would follow a similar wire fraud investigation of Sidney Powell that dates back to before September 2021.

If you think of these three prongs of the investigation, the wire fraud prong serves two purposes. First, many of the people who were witnesses but not subjects of the events leading up to January 6 might be subjects of the wire fraud investigation. As I noted, it may provide a tool to get cooperators.

Just as importantly, even under the most constrained definition of corrupt purpose for obstruction, grifting off false claims of election fraud would qualify.

That is, for Trump, a prosecutor should be able to prove corrupt purpose regardless of any conceivable standard that the DC Circuit or even a conservative SCOTUS would adopt, because he attempted to obstruct the vote certification so that he could remain President after losing the election.

But even if you don’t believe getting Trump elected provides an unlawful benefit to his supporters (or, to put it another way, disqualifying the votes of 81 million other Americans so yours counts more), disseminating false claims about voter fraud to get rich and then cashing in on that Big Lie for years afterwards is a different kind of corrupt purpose, the kind of financial corrupt purpose that Katsas is looking for.

If you riled up tens of thousands of Trump supporters who went on to attack the Capitol just so you could benefit financially, you’ve realized the kind of corrupt financial benefit from the riot that would seem to meet Katsas’ most constrained definition of corrupt purpose.

So it’s not just that the wire fraud part of the investigation is a crime that should, like all the other ways Trump and his flunkies have exploited his credulous followers, be prosecuted. It’s a important complement to the two other conspiracies, both because it’s likely to motivate more cooperators, but also because it helps to prove corrupt purpose for all the people who profited off the fraud.

And that may have an impact on the timing.

As I’ve noted, Trump should qualify under the definition of corrupt purpose no matter what the DC Circuit decides, though some of his flunkies might not. And so on top of whatever continued investigation Smith has to do on the wire fraud prong, he may want to wait until at least after that hearing before he makes final charging decisions.

Lots of people are impatient that neither Trump nor his flunkies have been charged thirty months after their crimes. But the likely charge hasn’t even been defined yet.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

Where the Trump Investigations Stand: Stolen Documents

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As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially.

In my post on the Georgia investigation, I noted that, as charging decisions have drawn near, Republicans in Georgia have started turning on each other. That’s worthwhile background for Jack Smith’s twin investigations.

That’s particularly true given the report that Boris Epshteyn met for two days with January 6 prosecutors on April 20 and 21, a report that has not yet been followed by any readout of what transpired, as well as the April 4 DC Circuit decision not to stay January 6 testimony from Mark Meadows and others, which similarly has not been matched by any report that Trump’s Chief of Staff has testified.

I’m not saying either man — both of whom are key players in both Jack Smith investigations — flipped. Both are dumbly loyal.

I’m saying that Smith is likely at the same point Willis is: trying to secure key witnesses for an eventual prosecution. Witnesses in a federal investigation might bank on Trump’s ability to beat Biden in 2024 and start pardoning people before they do serious prison time. If not, they might start seeking a deal. The single most useful thing about putting both Trump investigations under Smith is that he can leverage someone’s legal exposure in one part of the investigation to coerce their cooperation in another part where they’re crucial witnesses.

Epshteyn, for example, was the gatekeeper for the obstruction under investigation in the stolen documents case, as well as lawyers like Alina Habba who inexplicably testified in the documents case. But he’s also significantly exposed in the January 6 conspiracy. Plus, DOJ is currently investigating the cryptocurrency scam he and Steve Bannon used to dupe Trump supporters. He’s dumbly loyal. He’s also got a whole lot of criminal exposure.

From what we know of the stolen documents investigation, Smith has focused on three of the main questions he needs to answer for a charging decision:

  • Obstruction (18 USC 1519): What happened in advance and after June 3, 2022 that resulted in Trump’s non-compliance with the May 11 subpoena. Who ordered and who knew about it?
  • Espionage Act (18 USC 793): Are there classified documents that Trump deliberately hoarded about which prosecutors could tell compelling stories that would not, also, result in more damage to national security if declassified for trial?
  • Deliberate removal (18 USC 2071): To what degree did Trump deliberately curate classified documents he wanted to take? Were there documents that his advisors persuaded him should not be declassified that he took when he left anyway? I think this is the least likely charge, unless there’s evidence that Trump stole stuff he had not managed to convince others to release publicly while President.

But there’s another question that may be just as important as the evidence to support the charges, and may elicit quite a debate within DOJ: venue. The easiest way to overcome all the difficulties with charging a former President with 793 would be to charge his retention of documents after the time when:

  1. The Archives had explained that retaining them was unlawful under the Presidential Records Act
  2. Both the Archives and DOJ had asked for them back
  3. Jay Bratt had informed him (through Evan Corcoran) that they were being stored improperly

That is, if he were to charge 793, Smith would likely charge for actions trump took between May and August of last year, at Mar-a-Lago. So (while some smart lawyers disagree) there would be at least a fair argument that it would have to be charged in SDFL.

Ideally any charges against a former President would be strong enough to convince a South Florida jury, but the possibility of Aileen Cannon presiding over such a trial would be daunting. Plus, judges in DC have far more experience dealing with cases involving classified information than most other districts other than EDVA.

Whereas, if Smith were to charge only obstruction, venue in DC is not a stretch at all.

The letter Trump’s lawyers sent to Mike Turner makes clear they believe (or hope) Trump will be charged only with obstruction. Their defense right now is that the Archives never should have referred the 15 boxes of classified records to the FBI (never mind that NARA did the same with Joe Biden), and therefore DOJ should never have issued the subpoena he blew off.

This defense has the advantage of playing to Republican voters who can easily be persuaded that Biden is being treated differently than Trump. That Trump’s lawyers have adopted it may suggest they believe that a President’s unfettered ability to declassify secrets would make 793 charges more difficult.

It would, normally! But DOJ has, at least, laid the groundwork to do just that. Much of what has been perceived as delay really consists of the Archives and DOJ working through each of the reasonable approaches past Presidents, as well as Biden and Mike Pence have adopted to classified documents. But ultimately the subpoena created the conditions in which prosecutors could easily prove the elements of the offense of a 793 charge: that he (1a) refused to give back (2) national defense information (3) in unsecure conditions (1b) after someone asked him to give it back.

Not only are Trump’s attorneys wildly ill-suited to an Espionage case, but as they admit in the letter, they haven’t reviewed the classified documents Trump retained. If, as some of the questions reportedly asked of witnesses seems to have suggested, Trump tried to curate classified documents for his own personal revenge, then it may make 793 charges more compelling.

And some of the last witnesses Smith brought in on this case, even after Evan Corcoran seemingly finalized evidentiary testimony on April 4, were the men who had declassified — but also, in some cases, declined to declassify — documents of unprecedented sensitivity for Trump, often in pursuit of revenge.

There’s one other matter that likely poses a challenge as Smith decides whether to charge this case: the challenge of getting any remaining documents back. Beryl Howell never gave DOJ the contempt ruling they wanted to use to compel Trump’s lawyers to retrieve remaining documents. Another way of doing so would be to conduct a coordinated search at the moment of a defendant’s arrest. But that would require a dramatically different kind of arrest than we expect to see.

Note that Trump has plans to visit his Irish golf resort this week.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

Where the Trump Investigations Stand: Georgia

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For something else entirely, I started writing what I thought was going to be a short summary of where the three major investigations into Trump stand. But those summaries ended up getting long, so I’m going to publish them serially, starting with Fani Willis’ Georgia investigation.

This post relies on the work of others following the investigation far more closely, especially Lawfare’s Anna Bower and GPB’s Stephen Fowler. But the following two posts, on the stolen documents investigation and Jack Smith’s January 6 investigation, will build off this.

In a bid to keep the Special Grand Jury’s recommendations secret in January, Fani Willis said the charging decisions were “imminent.” Since then, however, the regular Fulton County grand juries that would have to charge Trump and others have been churning out indictments for more ordinary crimes. According to Andrew Fleischman, there are 18,000 pending felony cases in Fulton County, many of them being held pre-indictment. Like some of the delays in the January 6 investigation, this backlog stems in part from COVID restrictions.

But it wasn’t just that backlog that has delayed charges against Trump. In March, Willis asked Christina Bobb for an interview (who refused). It may be that, after reading Bobb’s January 6 Committee testimony (transcripts of which were only released after the Fulton Special Grand Jury expired), Willis discovered that, while Bobb claimed to have been uninvolved in the crimes in Georgia, she testified that she and, “at least two dozen others,”  over at least two rooms, sat in on Trump’s call to Brad Raffensperger, and “we all thought … it was totally fine.” On top of discovering that there were up to 24 witnesses who might be willing to misrepresent the call at trial, this may have caught Rudy Giuliani in a lie. After it became public, Rudy amended his interrogatories in Ruby Freeman’s lawsuit to reflect some involvement in the call as well. Someone recently claimed to me that Willis’ case is “open and shut.” But it’s not “open and shut” if there were 24 unknown witnesses involved.

More famously, according to a letter seeking to disqualify an attorney representing most of the fake electors, Willis has been spending recent weeks interviewing fake electors and telling them, allegedly for the first time, that they could get immunity deals if they testified against other Republicans. Friday, one of the fake electors who also accessed voting machine data on January 7, joined Trump’s effort to undercut Willis’ authority, represented by a new attorney. All of which suggests that Willis is spending time not just making charging decisions, but making sure she can win the case.

On Monday, Willis informed the Fulton County Sheriff that she will be announcing charges in the investigation during the summer grand jury session that goes from July 11 to September 1, and requested he prepare for increased security accordingly. She wouldn’t ask for such measures if she hadn’t decided to charge the kind of people who incite riots. So there’s a very good chance she will charge Trump and his flunkies, and we have a pretty good idea when it will happen.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

Where Is The Proud Boys Verdict?

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Friday has come and gone without a jury verdict in the Proud Boys case in front of Tim Kelly in DC District Court.

Couple of days ago, somebody asked me when I expected a verdict. That is fools’ play, but I said probably Friday because juries want to get on with their lives, and not come back, yet again, the next week.

Apparently I got that all wrong. Go figure.

So why did the PB jury blow past an obvious chance to be done? I do not know that either, but there is a fair chance it is not about ultimate guilt or innocence, but about multiple defendants and the complexity of the seditious conspiracy charge so many people (even here) have long clamored for.

Sometimes you get what you asked for, and that may be the case here. Counts, charges and jury instructions matter. I hope that is not the holdup here, but very much fear it could be. And that is what happens when you do not keep things narrow and strong.

We shall see.

How Did Intended Victim Mike Pence Testify?

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As a million outlets have reported, 21 months after Merrick Garland set up a framework that could obtain a for waiver executive privilege for January 6 without violating DOJ contact guidelines, 15 months after all January 6 investigations had converged on Mike Pence, over a year after investigators won precedents that made it possible, yesterday Mike Pence testified to a January 6 grand jury for around five hours.

This is definitely important news, but it is not new news. Given the recent precedent of then still sitting Vice President Dick Cheney giving a transcribed interview for presentation to the CIA Leak case grand jury in August 2004, it’s also not anywhere near as unprecedented as some outlets are hyping.

In fact, it’s so predictable, I’ve republished below, in its entirety, the post I wrote in November (before Jack Smith’s appointment) arguing that the publication of Pence’s book made this testimony far easier, and necessary, to get.

A witness with crucial testimony to a grand jury investigation testified before the grand jury. Far more importantly, the chief intended victim of a violent attack testified to the grand jury.

Little from this interview will be entirely new to prosecutors. I bet they even had a copy of Pence’s book with sticky tabs marking key pages. What will be important — and could even impact Smith’s charging decision — is whether Pence continued to shade the truth to protect Trump in some key episodes, or provided more honest testimony under oath.

It may actually matter whether Pence testified that he believed all Trump’s efforts to undermine the election outcome were justified. How Pence testified about his response to Trump’s focus on the rally on December 19 may matter (his role in a meeting with members of Congress on December 21 may be protected under the decision affording him Speech and Debate protection, which is a damned shame).

How Pence told this part of his January 6 story — the meeting he had on January 11 with Trump in its aftermath — may be one of the most important details of Pence’s testimony.

I met with the president on Jan. 11. He looked tired, and his voice seemed fainter than usual. “How are you?” he began. “How are Karen and Charlotte?” I replied tersely that we were fine and told him that they had been at the Capitol on Jan. 6. He responded with a hint of regret, “I just learned that.” He then asked, “Were you scared?”

“No,” I replied, “I was angry. You and I had our differences that day, Mr. President, and seeing those people tearing up the Capitol infuriated me.”

He started to bring up the election, saying that people were angry, but his voice trailed off.

I told him he had to set that aside, and he responded quietly, “Yeah.”

I said, “Those people who broke into the Capitol might’ve been supporters, but they are not our movement.” For five years, we had both spoken to crowds of the most patriotic, law-abiding, God-fearing people in the country.

For the public version, Pence described being angry at the rioters. He described being angry that they had targeted the Capitol building.

But just beneath the surface of this description is the disagreement Pence had with Trump. Just beneath the surface of this description is the obvious tie between Trump’s incitement and those rioters. Just beneath the surface of this description is the fact that Trump targeted those rioters at Pence. At Karen Pence. At Charlotte Pence.

Just beneath the surface of this description is Pence’s anger at Trump, not just the rioters.

How Pence described being the victim of Trump’s incitement matters. It’ll matter for the confidence with which Smith may have in a case relying on this testimony. It’ll matter for how convincing this case would be for a jury.

After a Year of Executive Privilege Fights, Mike Pence Just Tweeted It Out

The WSJ has published an excerpt — the parts relating to January 6 — from the Mike Pence book coming out next week. It includes descriptions of the following conversations with the then-President, at least some of which Pence was the only witness:

  1. Lunch on November 16, 2020, at which Trump said, “2024 is so far off.”
  2. A call on December 5, on which Trump raised the possibility of challenging the vote.
  3. A December cabinet meeting.
  4. A December 19 conversation in which Trump mentioned plans for the January 6 rally (which Pence claims to have thought was a “useful” idea).
  5. A January 1, 2021 phone call in which Pence told Trump he opposed Louie Gohmert’s lawsuit arguing that Pence had discretion to decide which votes to count. Trump accused his Vice President of being “too honest” and informed him that, “People are gonna think you’re stupid,” for choosing not to claim the power to throw out votes.
  6. A call on January 2 on which Trump said that if Pence, “wimp[ed] out,” he would be “just another somebody.”
  7. A meeting involving John Eastman and others on January 4.
  8. A meeting involving John Eastman in the Oval Office on January 5.
  9. The call Trump made to Pence on January 6 where he again called Pence a wimp.
  10. A meeting on January 11, where in response to Trump’s question whether he was scared on January 6, Pence said he was angry, purportedly just about the people “tearing up the Capitol.”
  11. An exchange inside the Oval Office during which Trump told Pence “Don’t bother” to pray for him.

Every one of these conversations are ones that would traditionally have been covered by Executive Privilege. Trump claimed such exchanges were covered by Executive Privilege starting over a year ago. Both Pence’s top aides — Greg Jacob and Marc Short — and three White House Counsels claimed such exchanges were covered by Executive Privilege this summer, and only in recent weeks did Beryl Howell override the claims of Pence’s people.

And yet, all the while, this book was in the works, including just on this topic, eleven conversations directly with the former President, many of them conversations to which Pence was the only witness.

Much of this description is self-serving (as most autobiographies are), an attempt to craft his support for challenging the election but not rioting. The excerpt, at least, does not disclose the advice that led him to reject Trump’s demand that he throw out votes.

This passage, in particular, seems to project any testimony that Eastman knew the request of Pence was illegal onto Greg Jacob, not himself.

On Jan. 4, the president’s chief of staff, Mark Meadows, summoned me to the Oval Office for a meeting with a long list of attendees, including the legal scholar John Eastman. I listened respectfully as Mr. Eastman argued that I should modify the proceedings, which require that electoral votes be opened and counted in alphabetical order, by saving the five disputed states until the end. Mr. Eastman claimed I had the authority to return the votes to the states until each legislature certified which of the competing slate of electors for the state was correct. I had already confirmed that there were no competing electors.

Mr. Eastman repeatedly qualified his argument, saying it was only a legal theory. I asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.

On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.

By context, Pence asked Eastman whether Eastman thought Pence had “the authority to reject or return votes.” Eastman’s response, without qualification that he was addressing just one of those two items, was that, “it’s never been tested in the courts.” Then, by Pence’s telling, he directly told the then-President that Eastman had only said that returning votes to the states would be illegal. But that’s not what Eastman responded to! He responded to both, and did so in front of Trump.

By stating that Eastman later told his general counsel, Greg Jacob, that the Supreme Court would overturn any effort to reject the votes, rather than just return them, Pence is making Jacob the key witness, and he’s telling the story in such a way that Trump was not directly a witness to the conversation.

Maybe it really happened like Pence tells it. Maybe not. There were other attendees (including, probably, Jacob), and some of them have likely already described what they saw to the grand jury.

But this protective telling of the story is particularly interesting given this description of how, on January 1, Pence told Trump he didn’t have the authority to decide which votes to count.

Early on New Year’s Day, the phone rang. Texas Rep. Louie Gohmert and other Republicans had filed a lawsuit asking a federal judge to declare that I had “exclusive authority and sole discretion” to decide which electoral votes should count. “I don’t want to see ‘Pence Opposes Gohmert Suit’ as a headline this morning,” the president said. I told him I did oppose it. “If it gives you the power,” he asked, “why would you oppose it?” I told him, as I had many times, that I didn’t believe I possessed that power under the Constitution.

This is the first, in the excerpt, that he describes telling this to Trump. But he also says he had already told him the same, “many times.” The circumstances of those conversations would be really critical for pinpointing the timeline of Trump’s machinations and the extent that Pence warned him they were illegal.

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

“Lock Him Up!” Trump Calls on Congress to Halt the Criminal Investigation into Joe Biden

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Yesterday, four Trump lawyers sent House Intelligence Chair Mike Turner a really risky letter. CNN first reported on the letter.

Boris Epshteyn, who had allegedly been leading Trump’s defense in that investigation, did not sign the letter.

The letter responds to the news that Turner and other Gang of 8 members have recently been given access to the documents found at Donald Trump, Joe Biden, and Mike Pence’s properties.

We understand that DOJ is making the documents marked classified available for your review, and this letter provides the Committee with information that we suspect DOJ has not disclosed to it.

It doesn’t cite its source of information about those reviews, which is one way to obscure that the Gang of 8 actually began to get such access by April 11, two weeks ago.

Since Mike Turner and other Gang of 8 members started reviewing the documents, two things have happened.

First, Joe Biden announced his reelection campaign, without waiting on Special Counsel Robert Hur to report the results of his investigation into Biden for mishandling classified information.

And, about a month after Evan Corcoran testified in a crime-fraud excepted appearance before the grand jury, Boris Epshteyn spent two days last week chatting with Jack Smith’s prosecutors. (Like Epshteyn, Corcoran did not sign this letter, but that’s because his partners forced him to recuse from the investigation after he testified.) Even though Epshteyn has been a likely source for a lot of the press reports on the various investigations into which he has or had visibility, I’m not aware of any report describing his testimony, much less why he testified without any report of a subpoena.

Contemplate the significance of the first item — Biden’s reelection announcement — as you consider the purported point of the letter. Donald Trump — the guy who won the presidency with non-stop chants of “Lock her up!” in 2016 — claims to think that an investigation analogous to the one that targeted Hillary Clinton in 2015 to 2016 is improper.

A legislative solution by Congress is required to prevent the DOJ from continuing to conduct ham-handed criminal investigations of matters that are inherently not criminal.

[snip]

What is consistent in all three of these cases is that the document handling procedures in the White House are flawed and DOJ is not the appropriate agency to conduct investigations pertaining to the mishandling or spillage of classified material.

Conclusion

The solution to these issues is not a misguided, politically infected, and severely botched criminal investigation, but rather a legislative solution. DOJ should be ordered to stand down, and the intelligence community should instead conduct an appropriate investigation and provide a full report to this Committee, as well as your counterparts in the Senate. Armed with the appropriate knowledge, we respectfully suggest that your Committee hold hearings and make legislative changes to:

1. Correct classified document handling procedures in the White House;

2. Standardize document handling and storage procedures for Presidents and Vice Presidents when they leave office; and

3. Formalize procedures for investigations into the mishandling or spillage of classified material, to prevent future situations where DOJ is inappropriately assigned to conduct an investigation.

President Trump’s legal team would be happy to meet with you or your staff to assist in any way necessary to address these issues. Please know that despite the differences in the cases, we do not believe that any of these three matters should be handled by DOJ as a criminal case. Rather, the stakeholders to these matters should set aside political differences and work together to remediate this issue and help to enhance our national security in the process. [my emphasis]

Donald Trump is asking Congress to intervene to halt not just into the investigation into him — and make no mistake, that is what he’s doing. But he’s also asking Congress to halt the investigation into his opponent!

Having won the presidency in 2016 by demanding the investigation into Hillary be more punitive, he’s now asking Congress to halt the investigation into Joe Biden.

Having won the presidency in 2016 by succeeding in highlighting Hillary’s negligence for mishandling classified information, Trump now wants to forego the opportunity to pursue the same approach in 2024.

At the very least, that’s a pretty good sign that he and his lawyers don’t believe their own claims that the known facts about Biden’s mishandling of classified information are worse than the known facts about Trump’s.

4 Of course, we also recently learned from media reports that President Biden possessed
marked documents in a “personal” folder at the Penn-Biden Center – strong evidence
that he intentionally possessed then after he or someone else secretly removed them,
from the Senate SCIF at least 14 years earlier when he was the Senator from Delaware.
We also now know that after DOJ learned about President Biden’s possession of
classified documents at the Penn-Biden Center, it allowed his personal attorneys to
search for and collect documents from his residence in Delaware making the specific
locations of the documents in the residence difficult, and perhaps impossible, to
determine. And, it has since been publicly reported that there could be even more
classified documents in the 1,850 boxes that Mr. Biden shipped to the University of
Delaware in 2012. https://www.cnn.com/2-23/02/15/politics/biden-delawaresearch/index.html. DOJ’s reaction to all of this is stunningly different from how it
responded to President Trump’s offer of cooperation regarding the boxes stored at Mara-Largo. [sic: Trump’s lawyers misspell Mar-a-Lago in several different ways in the letter]

[snip]

When documents were found in President Joseph Biden’s Penn-Biden Center office, despite clear indicators that his violations were more likely the result of willful misconduct, DOJ treated him very differently by forgoing any attempts at manufacturing conflict, while implicitly approving the spoliation of evidence.

The applicable criminal statute prohibits “willful retention” of national defense information, not mere possession. See 18 U.S. § 793 (e). To prove willful retention, a prosecutor must first establish that the possession was knowing. Despite media spin to the contrary, this is the key element that distinguishes President Trump’s retention of documents from that by President Biden. Evidence of knowing possession can be readily inferred from the length of time that President Biden possessed the marked documents since leaving office and the fact that they were moved and stored at multiple locations. In comparison, the materials found at Mar-a-Lago were still stored in the same GSA boxes in which they left the White House, untouched in the relatively short time since the end of President Trump’s term. Perhaps the most damning fact for President Biden is that he possessed marked documents from his time in the Senate—a body that maintains all marked documents in a SCIF, unlike the White House. Further, as you are no doubt aware and as mentioned earlier in this letter, media reports have indicated that classified documents were contained in a folder labeled “personal,”8 which is much more powerful evidence of knowing retention than documents being randomly dispersed into boxes by moving teams.

8 See, e.g., Jamie Gangel et al., “Exclusive: U.S. intelligence materials related to Ukraine, Iran and UK found in Biden’s private office, source tells CNN,” CNN (Jan. 10, 2023), https://www.cnn.com/2023/01/10/politics/biden-classified-documents-iran-ukraineunited-kingdom-beau-funeral/index.html.

There is not a chance in hell that Trump would forgo an opportunity to make this race about Biden’s mishandling of classified information if he really believed that Biden’s “violations were more likely the result of willful misconduct.”

Not a chance in hell!

But then, there’s abundant reason to believe that the four lawyers know they’re blowing smoke (to Congress). Heck, I’m so sure of it I think Mark Warner should invite all four of them to give sworn testimony to the Senate Intelligence Committee.

There are the claims this letter makes that conflict with known testimony, such as that Trump didn’t review any of the documents in the boxes ultimately returned to the Archives.

However, due to other demands on his time, President Trump subsequently directed his staff to ship the boxes to NARA without any review by him or his staff.

There are the claims this letter makes that conflict with known details about the case, such as that, because Trump was too busy starting an insurrection, he didn’t have the ability to send his documents to a GSA-leased facility.

When President Trump left office, there was little time to prepare for the outgoing transition from the presidency. Unlike his three predecessors, each of whom had over four years to prepare for their departure upon completion of their second term, President Trump had a much shorter time to wind up his administration. White House staffers and General Service Administration (“GSA”) employees quickly packed everything into boxes and shipped them to Florida. This was a stark change from the standard preparations made by GSA and National Archives and Records Administration (“NARA”) for prior administrations. As NARA acknowledged in a Press Statement it issued on October 11, 2022:

The National Archives and Records Administration (NARA), in accordance with the Presidential Records Act, assumed physical and legal custody of the Presidential records from the administrations of Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, and Ronald Reagan, when those Presidents left office. NARA securely moved these records to temporary facilities that NARA leased from the General Services Administration (GSA), near the locations of the future Presidential Libraries that former Presidents built for NARA. All such temporary facilities met strict archival and security standards, and have been managed and staffed exclusively by NARA employees.2

Investigators paid by the lead writer of this letter, Tim Parlatore, found two additional documents with classification marks in what is reportedly a GSA-leased facility in Florida.

Lawyers for Donald Trump found at least two items marked classified after an outside team hired by Trump searched a storage unit in West Palm Beach, Fla., used by the former president, according to people familiar with the matter.

[snip]

Emails released by the General Services Administration, which assists former presidents during their transition to private life, show that the government agency helped rent the storage unit at a private facility in West Palm Beach on July 21, 2021. The unit was needed to store items that had been held at an office in Northern Virginia used by Trump staffers in the months just after he left office.

There’s the claim that DOJ dictated the timing of the June 3 document pick-up, when the record shows Evan Corcoran called FBI and told them to come down the next day.

Ultimately, President Trump’s legal team complied with DOJ’s demands, performing as diligent a search as they could by Mr. Bratt’s arbitrary deadline, and submitted a certification that affirmed the same.

And this letter repeats a bullshit claim that Trump’s lawyers have chanted from the start of his attempts to sucker the press: that the only thing Jay Bratt requested after he had seen the storage room at Mar-a-Lago was to put a lock on the facility.

Although Mr. Corcoran told the DOJ representatives that they were not going to go through boxes together that day, he fully expected DOJ to ask to return to Mar-a-Largo and examine all the boxes. Mr. Bratt reinforced this belief when, five days later, he wrote to Mr. Corcoran requesting that an additional lock be placed on the door. The lock was soon installed, and the boxes kept under lock and key in a facility guarded by armed Secret Service agents.

It’s like Tim Parlatore thinks Mike Turner’s staffers are too stupid to review the unsealed affidavit, which reveals that Bratt’s letter says something else entirely: that the storage facility is not a secure facility authorized to store classified documents.

As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents (the ones recently provided and any and all others) were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 202 1, they have not been handled in an appropriate manner or stored in an approptiate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.

Because the staffers that deal with this document have security clearance they surely want to keep, they’ll undoubtedly know that this is a reference to CFR standards for storage, not a request to add an almost certainly non-compliant lock.

And that’s why I think this letter was ill-advised.

These are just the obvious, affirmatively false things in the letter. There’s a whole bunch more that Trump’s lawyers simply ignore, such as the surveillance video showing Trump’s staffers moving boxes out of the storage facility in advance of the search they’re claiming here was a diligent search or the fact that FBI found 70-some classified documents in the storage facility of which Corcoran had claimed to have done a diligent search.

The only way this document could have the desired effect is if Mike Turner likes being lied to, or is so in the tank that — like Richard Burr before him — he’s willing to risk his own legal exposure to obstruct a criminal investigation.

And that’s assuming Warner didn’t subpoena any or all of these lawyers to repeat these farcical claims to Congress under oath.

All that’s before you consider the asymmetry. Trump’s lawyers — just one of whom (they admit) actually has clearance — acknowledge they have no fucking clue what FBI caught Trump hoarding.

Despite our requests to DOJ, it has refused to tell us whether in its judgment any of the documents remain classified. Similarly, DOJ has refused to allow for inspection of the documents at any time during the last eight months despite the fact that one of our attorneys has sufficient clearance to view the majority of the documents marked as classified.

Mike Turner does know.

Trump’s lawyers claim — or rather confess — that among the files he originally had in his beach resort were call briefings with foreign officials, just like the ones hidden from Congress in the first impeachment.

The vast majority of the placeholder inserts refer to briefings for phone calls with foreign leaders that were located near the schedule for those calls.

Again, I can only imagine how stupid Parlatore thinks Turner’s staffers are to confess this.

But even I know that many of the things Trump kept after DOJ subpoenaed them are not similar. Even I know that Trump compiled two classified documents with messages from a pollster, a book author, and a faith leader. And Mike Turner has reviewed these documents and he knows it too. And I know that he knows it.

So unless Mike Turner is totally in the tank for Trump — worse even than Burr was! — this letter risks pissing Turner off.

Last month, before Evan Corcoran was forced to give crime-fraud excepted testimony against Trump and before Boris Epshteyn spent two days chatting with Jack Smith’s prosecutors, Tim Parlatore — lead author of this insulting letter — said the following about Epshteyn’s role in the stolen documents case.

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

Neither Corcoran nor Epshteyn signed this letter. It’s not yet clear why Epshteyn didn’t.

And that’s as telling as the embarrassing false claims that it makes.

Tucker Carlson Nipped from Fox

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Fox just announced that Tucker Carlson is out, effectively immediately.

I doubt this is Dominion related. It was too sudden. He signed off Friday pitching his show today and Fox was until minutes ago previewing the show.

Plus, Tucker is both less culpable for the specific claims in Dominion than Maria Bartiromo, and far more important for Fox viewership.

Update: As Rayne linked in comments, it is Dominion related, but it seems to be because of the things Fox discovered Tucker had said about management, not about his defamation of Dominion.

But it was Carlson’s comments about Fox management, as revealed in the Dominion case, that played a role in his departure from Fox, a person familiar with the company’s thinking told The Post.

“Do the executives understand how much credibility and trust we’ve lost with our audience?” Carlson wrote to a colleague in a message a day after Fox, like other media outlets, called the election for Joe Biden. In another message, he referred to management with an expletive: “Those f—–s are destroying our credibility.” He later wrote: “A combination of incompetent liberals and top leadership with too much pride to back down is what’s happening.”

Tucker’s Executive Producer is also out, though, so it’s likely more than just that.

The Hot Seat: Two Proud Boys testifying at seditious conspiracy trial unravel on the witness stand

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From emptywheel: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

It was a risky move by Proud Boy defendants Zachary Rehl and Dominic Pezzola to take the witness stand. So it is for any criminal defendant. A skilled prosecutor can unwind even the most robust witness without alerting their subject to it until it is too late. 

It took four months of hearing evidence in the Proud Boys seditious conspiracy trial—which enters closing arguments on Monday—but this past week, jurors got it straight from the source when two of five Proud Boys on trial testified for once and all: Zachary Rehl and Dominic Pezzola. 

Their respective testimonies were often combative, the tension frequently high. Each man started out confident and cocksure, but the more Justice Department prosecutors pushed Rehl and Pezzola around the edges of their testimony, the more the men relinquished whatever tight grip they had over themselves when testifying under the far more amenable gaze of their own attorneys. 

Both sides have now rested and on Friday, jury instructions were issued. All that is left are closing arguments. It will be those final words that the jurors will have ringing in their ears when the book finally closes on this trial. But no matter how sweeping or evocative those final arguments may be, some of the trial’s most potent moments,  for better or worse, will belong to the testimony of two Proud Boys who favored speaking instead of silence. 

ZACHARY REHL: “Not that I recall.”

Zachary Rehl was one of two Proud Boy defendants to take the witness stand, and when under cross-examination by Assistant U.S. Attorney Erik Kenerson, his tone was often sharp, his face taut and eyes hard as he grew impatient with a barrage of questions from the federal prosecutor. 

The 37-year-old man’s face, which looks much younger than his years, was more softly animated when he spoke to his own attorney Carmen Hernandez. With her, his testimony would spill out rapidly as he told a jury that has now heard evidence for four months: there was no conspiracy to storm the Capitol on Jan. 6, 2021. There was no plan to stop proceedings nor impede law enforcement from doing their duty, he said again and again under oath. 

Police, he claimed, let protesters pass through barriers. He said he never saw any significant violence directed at law enforcement and didn’t realize there had been such conduct until later, though on the stand he conceded to witnessing “scuffles” between rioters and police. (He would distinguish “rioters” from “protesters” often.) But, again, he offered, there was no attempt by him to assault any officers while he was on Capitol grounds.

On this point, the son and grandson of a Philadelphia police officer was adamant and he would turn to face the jury as he said this, his eyes searching theirs to validate him.

But he didn’t turn to face the jury when Kenerson started walking Rehl through a sequence of video clips from the 6th, including those that his attorney tried and failed to keep out of evidence after they emerged following a weekend break in proceedings.

The prosecutor had Rehl identify himself in footage shot close-up and Rehl positively identified himself as wearing a black jacket, black goggles, a camouflage hat with orange writing, and a gaiter that appeared to have a chevron or some sort of triangular pattern on it.

When Kenerson asked Rehl if he recalled being by the giant media tower erected outside of the Capitol on Jan. 6 before entering the building, Rehl readily offered, he was  “around there.” 

But when asked if he could recognize a man in attire appearing identical to his at a slightly greater distance near this location, Rehl started to lock up. The man appeared to be wearing the same clothes Rehl had just identified as his own at closer range. And at this angle, appearing at a distance, the man appeared to be holding something dark in his hand. Rehl, with his brow furrowed, leaned into the monitor at the witness box and told the jury he couldn’t say what it was that the man was holding. 

Zooming in and out, the footage rolling back and forth, Kenerson pressed: Was this, in fact, his attire? Was this man Rehl? Was this his arm extended toward officers as he held something in his hand? 

“A lot of people wore the same clothes that day”, Rehl said. “I can’t confirm or deny that’s me.”

For several tense minutes, Rehl could not or would not confirm hardly anything presented to him including whether the color of clearly black sunglasses or goggles covering the man in question’s face in the sequence were in fact black. 

“Are they pink?” Kenerson asked incredulously, triggering a storm of objections from defense counsel.

Rehl’s demeanor became more irritated from that point forward and the gloves came off. He insisted the footage was “very blurry,”  although he would eventually concede as cross continued that the gaiter in question was “close” to the pattern of his own. The coat was similar too, but he wouldn’t say whether the more distinctive camouflage hat was his. Going around and around like this with Rehl, Kenerson eventually asked the Proud Boy outright if he assaulted any police before entering the Capitol with pepper spray.

“No,” Rehl said. 

Playing footage frame by frame that prosecutors said came from a bodyworn police camera, a man who prosecutors suggest is Rehl has a device in his hand. 

“I can’t tell but I would imagine it’s an OSMO,” Rehl said, referencing a small camera or recording device.

“Does a small recording device usually have streams coming out of them?” Kenerson asked.

Rehl said he couldn’t see a canister and could only see a hand. He conceded he could see “streaks” in the footage but not “spray” in the direction of police. He questioned the integrity of the evidence. The hand was holding something, he admitted, but if it was his hand, he said, it would be a camera. 

“Mr. Rehl, you’ve had overnight to think about it. You were spraying in the direction of police officers near the media tower on Jan. 6, 2021?” Kenerson asked. 

Rehl, who had been so emphatic of so much else in his testimony about Jan. 6, or about himself, or the Proud Boys as a whole, replied coolly: “Not that I recall.”

The prosecutor elicited from Rehl that after he left the area near the media tower, he was ultimately able to advance further onto the upper west plaza of the Capitol before going inside. Positioned high above, and as police were being overrun on both the west and east sides of the complex, he snapped a photo and narrated to Proud Boys in a text sent at 2:29 p.m: “civil war started.”

On redirect, he didn’t deny sending the message and instead claimed he was “basically mocking all the news we were hearing prior to the event,” he said.

He added that he was being “ironic.” 

“It’s all just a very peaceful scene, we were just standing around,” Rehl told his attorney.

Hernandez tried to steady the ship: “Is that your opinion today that everything that happened that day was irony?”

“Oh no no no,” Rehl said. 

When he went through his phone, after the fact, he said he realized what had happened. 

“It was a terrible day, a lot of bad stuff happened,” he said.

Nonetheless, he told the jury he was “proud of the turnout.” But on Jan. 7, as he started to “go through things and see what happened that day” he didn’t want to “associate” with it. 

And then with a remark that could cut both ways for a jury who had only just watched Rehl’s temper rise and flare, Rehl said: “Previously, I tried to have a good persona and that’s what I try to portray.” 

The scenes that unfolded around him as he got past police and pushed inside the complex didn’t strike him as unusual. 

“Nothing out of the ordinary for a protest?” Kenerson would ask him before ending Rehl’s cross-examination.

The prosecutor’s question was a direct quote from Rehl’s time on direct when described what he witnessed in Washington some 800 days ago now. 

“Nothing out of the ordinary for a protest,” Rehl repeated. 

“No further questions,” Kenerson said. 

Isaiah Giddings, (who Rehl testified came to D.C. with him and at least two other individuals, Brian Healion and Freedom Vy) said in his statement of offense to law enforcement that Rehl had asked other rioters on the 6th whether they had any “bear spray.” According to Giddings’s statement, Rehl never got it. 

In court, Rehl denied realizing he was in Senator Jeff Merkley’s office when he stopped in to have a smoke. But he admitted to lighting up and told the jury he regretted it. So many others were milling around smoking inside, he explained, he figured he would do the same. 

When asked on his last day on the stand, Rehl was able to identify his fellow Philly Proud Boy Giddings as one of the individuals in the lawmaker’s office with him. When Kenerson had asked him if he could remember what Giddings wore on the 6th, he couldn’t recall. When Hernandez played a video from inside Merkley’s office for the jury, he said he “thought Freedom and Brian might be there but I don’t see them.” 

“The door was already open when I got there,” he said. 

Rehl, perhaps still smarting from Kenerson’s cross, quipped that he didn’t think he “would be charged nine felonies” for smoking in the Capitol. 

When former West Virginia Proud Boy leader Jeff Finley testified, Assistant U.S. Attorney Nadia Moore asked Finley if it was Rehl’s idea to go inside the Capitol on Jan. 6.

“We discussed it. I was part of that discussion,” Finley testified in March.

“My question is: did he ask you, ‘you wanna go in?’” Moore said. 

Finley shrugged his shoulders as he sat in the witness box, his face mostly emotionless, and said: “I guess.”

He said he understood at the time they entered the Capitol, police did not want them there. Rehl would deny having a clear understanding of this when he would finally testify weeks later. 

Finley also admitted that he stopped by Merkley’s office and took a selfie. He said he took it in the doorway of the lawmaker’s office. After the 6th, Finley began deleting photos and advised other Proud Boys to do the same. He told the jury it was because he feared doxxing by the left if their devices were captured. Like Rehl, Finley was often curt with prosecutors but unlike Rehl, far more forthcoming. And unlike Rehl, Finley had already pleaded guilty, copping to a misdemeanor charge for entering restricted grounds. He’s serving a 75-day prison sentence.

Jurors saw text messages too that Rehl, a former U.S. Marine, sent to his mother on the night of Jan. 6 when he told her how “fucking proud” he was of the “raid” on the U.S. Capitol.

 It had “set off a chain reaction of events throughout the country” he gushed. 

He sent his mother a message in December 2020 as well after things had turned bloody in D.C. following a pro-Trump “Stop the Steal” rally. 

Four Proud Boys had been stabbed and a woman, who Rehl told the jury he suspected was “antifa,” had been brandishing a knife on the street that night. 

Footage that circulated among the far right network on their private channels as well as on public ones on Parler and Telegram showed the woman being cracked over the head with a helmet before crumpling to the ground. Impressed and celebratory “oohs” and “ahs” emanated from Proud Boys surrounding the grim scene. 

Prosecutors argue this graphic footage was something that Rehl and Proud Boys used as a recruitment tool ahead of the 6th and that it was a point of pride for them to display their violent tendencies.

Records extracted from Rehl’s device after his arrest show he sent the video to his mother. 

He blanched at the suggestion from prosecutors that he shared the clip with his mother because he was proud of the violence and any Proud Boys’ handiwork in it.  

To the contrary, he testified, he didn’t want his mother to think Proud Boys were the aggressors. 

“I didn’t want my mom of all people thinking we’re just going around being freaking bullies to people in the street,” Rehl said in court last week. 

When squaring off with the Justice Department, however, Kenerson brought out a series of text messages from 2020 that he argued showed Rehl had long wanted to “fast track” members into the Proud Boys who were the bullying type. He wanted members who were “ready to crack skulls” and wanted recruits “physically ready” for rallies. 

Rehl disagreed with the interpretation. He was joking, he said, when he told a fellow Proud Boy in one message he wanted all of their guys “to be jacked. LOL” 

“I was looking for guys who could hold their own. Doesn’t mean looking for violence,” he told Kenerson sharply.  

Rehl called much of this talk “street language.” 

There was always some such euphemism Rehl had on hand to describe his communications. He defended the Proud Boys as no more than a fraternity that liked to drink hard, “talk shit” or “bluster” and dabble in political activism to have their “voices heard” when they felt the need or weren’t partying.   

That dabbling, he admitted, included trips where he and his chapter members traveled from their Pennsylvania homes to attend events where they wanted to make a presence, like in Kalamazoo, Michigan, or St. Louis, Missouri, or Fayetteville, North Carolina. Or Washington, D.C.

Texts in evidence between Rehl’s co-defendant Joe Biggs and Henry Tarrio dated Dec.19 offered jurors a look into where the Proud Boys seemed to stand at that time. It was Biggs who wrote that when it came to recruitment efforts, they needed to forgo finding “losers who wanna drink.”

“Let’s get radical and get real men,” Biggs told Tarrio on Dec. 19. 

In this same exchange, Tarrio replied: “The drinking stuff helps mask and recruit. Although some chapters don’t leave their bars and homes.”

“No one looks at us from our side and sees a drinking club,” Biggs responded later in the chain to Tarrio. “They see men who stand up and fight. We need to portray a more masculine vibe.” 

Biggs would buy his airline tickets to D.C. the next day, telling Tarrio he was booked from Jan. 5 to Jan. 7. 

Within 24 hours of that conversation between Biggs and Tarrio, the Ministry of Self-Defense was stood up. 

According to prosecutors, it was then that Zachary Rehl, Ethan Nordean, Charles Donohoe, and a slew of other Proud Boys like Aaron Wolkind and John Stewart—alleged “tools” of the conspiracy—were added to MOSD. Donohoe has pleaded guilty to conspiracy to obstruct an official proceeding and assaulting an officer.

Jeremy Bertino, who has already pleaded guilty to seditious conspiracy and testified against the defendants at trial, would come aboard a few days later on Dec. 23. As for Dominic Pezzola, prosecutors say the Rochester, New York Proud Boy, and former U.S. Marine wouldn’t join the conspiracy until Jan. 2, 2021, when he was officially added into the MOSD chat group. 

Sitting inside the E. Barrett Prettyman courthouse just a few blocks from where he once stood shoulder to shoulder with rioters wildly overwhelming police, Rehl resisted the Justice Department’s allegations about MOSD’s real purpose and he tried to slap away suggestions that Proud Boys relied on violence as a key mechanism bonding their “western chauvinist” group.  

When prosecutors showed the jury evidence tied to an August 2020 rally organized against human sex trafficking and sexual assault in Fayetteville, North Carolina, Rehl grew particularly pointed. The rally was uneventful despite concerns that it would turn ugly when busloads of “antifa” would show up. (A rumor that circulated widely and never came to pass). Kenerson then showed texts suggesting Rehl’s history of being primed to take matters into his own hands when he saw fit. 

Pulling up messages extracted from Rehl’s devices, Kenerson asked him if he said he wanted to “fuck up antifa” at the North Carolina rally if they showed. Without missing a beat, Rehl said in court: “Actually, you know what, yes I did.” 

And, he added, he would have used “any can of mace I had” to stop anyone who would have stood in opposition to the people attending that rally that day. 

“You said you were going to beat them with a 12-inch dildo you picked up?” Kenerson asked. 

“Yes. Again, preparing for the worst,” Rehl said. 

Rehl said Proud Boys only ever “prepared for the worst.” 

Rehl said he wanted “the legal process to play out” on Jan.6 and his intentions were well-meaning. 

“I didn’t go in until I thought there wasn’t anyone in there,” he has said. “The Capitol was a public building. I thought it was fair game to go in.” 

On Jan. 7 in a Proud Boy chat entered into evidence dubbed “Philly PB E-Board,” Rehl lamented in the cold morning light: “Looking back, it sucked. We shoulda held the capital. After Trump conceding today, it all seemed like a waste.” 

Another Proud Boy, using the handle “Rod (Venezuela)” offered, “they should have let them finish the counting and when they didn’t accepted [sic] the challenges, rush in and set fire to that shit.” 

“Yup,” Rehl replied 24 minutes later. 

Rehl told Kenerson, “I see what you’re trying to do here,” and said his reply was to something else in the chat thread. 

In another message from Jan. 7, Rehl wrote on the “E-Board”: “The reason it feels like a waste is because all of these politicians getting scared and realizing they need to answer for this fraud, their [sic] all turning their back on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back right away. And fuck you FBI yeah I’m mad.” 

Rehl testified on direct that he believed Trump’s “last stand” to change the election results had been in December. He said people had held out hope that Trump could “pull a rabbit out of his hat” on the 6th but he also testified that he knew better. 

Personally, he said, he didn’t think Trump could pull a rabbit from his hat. He vowed over and over in court that he wanted a legal, constitutional process to unfold. There was never a conspiracy among him or any other Proud Boy to stop those processes or obstruct Congress from taking the necessary steps in the nation’s transfer of presidential powers. 

“I said some fucked up shit the day afterward,” Rehl told Kenerson on April 17. 

“But you just testified, you were only [concerned] about voting and yet you concluded, ‘everyone shoulda showed up armed?’” Kenerson asked. 

“Shoulda, woulda coulda. As opposed to the legal way,” Rehl said. “We didn’t do it that way.”

 

DOMINIC PEZZOLA: “Corrupt trial… fake charges”

Things had started out strong for Dominic Pezzola when he first took the witness stand this past week. He didn’t look anything like the man in the video footage jurors had seen of him for several weeks, particularly as the trial first began and prosecutors shared evidence of things like Pezzola’s victory smoke inside of the U.S. Capitol after he bashed open a window and hoisted himself and other rioters inside. 

The former Marine—a battalion known for its “first in, last out” mentality—was one of the first rioters to get inside the Capitol. 

He faces a slew of charges alongside his co-defendants though he is unique in that he faces a robbery charge for his alleged taking of a police riot shield from U.S. Capitol Police officer Mark Ode. Ode testified at trial in February that his experience on Jan. 6 was “terrifying” as he scrambled to replenish officers who were being overwhelmed by rioters invading the building and grounds. 

Rioters were using “some type of chemical spray;” he testified and at one point “it looked like a [person was holding a] small fire extinguisher walking around spraying officers.” It took Ode more than 10 minutes to recover his vision after he was doused.

Under questions from prosecutor Nadia Moore on Feb. 7, Ode said when he was knocked to the ground it was because he was being pulled down as he clung to his shield with one hand before it was wrestled away from him. 

On the witness stand, in a suit and tie, and sometimes with dark-rimmed glasses framing his face, salt and pepper hair, and beard neatly cut, Pezzola started his testimony by communicating what sounded a lot like genuine remorse about what had happened.

“I’m ready to do this,” Pezzola told attorney Steven Metcalf on first day before the jury. “I’m taking the stand today to take responsibility for my actions on Jan. 6 and I’m also taking the stand to explain how these men that I’m indicted with should not be roped into my actions.” 

Willing to cast himself apart from his co-defendants, Pezzola first couched his testimony with a folksy, warm delivery. 

“There was no conspiracy, it never existed,” Pezzola said. 

It was “the craziest damn thing,” he testified. 

“So, I got caught up in the craziness. I trespassed at the first breach, second, I think there may have been a third, I basically trespassed all the breaches and during the scuffle and whole shield incident, I did grab onto the shield and pulled onto it for fear of my own life because deadly force was being used on us by police,” he said.

Pezzola would tell the jury that he acted out a flash of adrenaline that coursed through his body and made him feel as if he were on “autopilot.” 

When he grabbed the shield it happened in a “split second,” he said. Someone else had grabbed it from police, he claimed, and then he grabbed it. And then, he turned to the jury while he confidently declared: “And we’ll have the proof to show this.” 

The Rochester, New York Proud Boy said he was upset as he “watched mothers grabbing their children to get them out of the way to avoid flashbangs.” (The next day on the witness stand he would clarify, “children” meant teenagers.) Elderly protesters, he said, had their “eyes split open” and people had “faces full of pepper spray.” 

“I was upset,” Pezzola said. 

What fueled his outrage to the point that he began screaming at police, he testified, was an injury sustained by another man, rioter Joshua Matthew Black. Black, who is not a Proud Boy, was found guilty this January for entering and remaining on restricted grounds with a deadly weapon. Black was carrying a knife and made it all the way to the Senate floor despite taking a munition to the face shot at him by police who were repelling him, Pezzola, and thousands of others in the crowd. 

Notably, Black posted social media videos after the 6th saying that he joined the mob and crossed barriers to get inside the Capitol because he wanted to “plead the blood of Jesus over it.”   

Black also claimed that he was shot in the face while he was attempting to help a police officer who “was on the ground with boots coming down on him.” 

Pezzola said after Black was shot, he got in closer for a “bird’s eye view of the damage it had done to him.”

“I knew if it had been a few inches higher that shot would have been fatal,” he said.

On direct, Pezzola spent considerable time telling jurors he was in “disbelief” of how police treated “unarmed crowds just pushing against riot shields.”

Things were “dire,” for them he testified. Things were “deadly.” 

Pezzola never saw combat during his time in the military but he compared the use of less-than-lethal munitions by police on the 6th akin to being “underfire by a machine gun or something.”

The military had taught him to ignore his flight response, he said. He claimed “flash bangs” soared into the crowd at a rapid clip but he wasn’t going to turn around or walk away. He was going to “neutralize the danger,” he said. 

Whether or not tales of his perceived heroics in the face of bodily harm were convincing to jurors, there was a palpable missing link in his narrative. 

Pezzola expounded on direct about “rubber bullets” whizzing past his eyes, head, and face. Yet at no point over the months of evidence presented from either side, has any video or photographic evidence emerged showing Pezzola hoisting the police riot shield in a defensive posture over his head or face. On the stand he said he covered his head and remembered bullets hitting right by where his head would have been, but those flew by, he claimed, when he was on the ground in the scuffle. 

When Kenerson pressed him, Pezzola couldn’t recall the moment he might have used the shield to cover his head. It was a “fog of war type thing,” he said. It was a “vague recollection.”

Footage did, however, show Pezzola carrying the shield, ascending Capitol steps with the shield, and then using the shield to smash apart a window. He also found time to take a selfie with it. In other video footage presented in court, Pezzola can be heard replying “yeah” when a man asks him if he had stolen a police shield. 

Pezzola said he only said that to get the person asking questions “out of my hair.” 

Once he was atop the scaffolding, video evidence shows Pezzola screaming at police: “You better be fucking scared! Yeah, you better be fucking scared! We ain’t fucking stopping. Fuck you. You better decide what side you’re on motherfuckers. You think antifa is bad, just you wait.”

In court, Metcalf asked Pezzola: “Did you use that shield to damage any property?”

“I did. When I made it up to the terrace… I did break one pane of glass. One. Someone used a two-by-four… it’s been proven over and over it was less than $1,000,” Pezzola said. 

This is a point that he emphasized more than once as he testified, saying that each pane only cost $774. Further, according to Pezzola, a pane to the left of the one that he broke with the riot shield was already shattered by the two-by-four and therefore: “I struck a completely destroyed pane of glass with a shield,” Pezzola told AUSA Kenerson.

 “I wouldn’t consider it a pane anymore,” he said. 

When Kenerson asked him if he was saying he thought he did no damage, Pezzola smiled wryly at the attorney and told him he was just “twisting his words.”

Where he had been cool, calm, and seemingly collected on direct, Pezzola’s demeanor changed abruptly on cross. He grew more defensive and his tone more abrasive and angry. He smirked regularly or laughed under his breath at Kenerson’s questions.  

“Your goal of busting the window was to have someone to listen to you?” Kenerson asked. 

“Correct,” Pezzola said. 

They were there to express their First Amendment rights, he said. They were “trespassing,” he admitted, but this was the way to “have their voices heard.”

“And this was the way to get the government to listen to you?” Kenerson asked again, footage of him entering the Capitol still on the screen for jurors. 

“At this moment? Correct,” Pezzola said. 

Besides a claim of self defense from police he deemed overzealous, the Proud Boy and his attorney also played down the alleged robbery of the shield by playing up the fact that Pezzola gave the shield back to another police officer before leaving the building. Nonetheless, on cross, the 43-year-old Proud Boy said that was a “last-minute decision.” 

Pezzola met with Charles Donohoe after he got the shield and together, they and Proud Boy Matthew Greene of New York, who testified at trial and has pleaded guilty to conspiracy and obstruction already, moved toward a concrete wall. Donohoe would help him carry the shield for a time, Pezzola affirmed. Jurors also saw a text message Donohoe sent to Rehl and other Proud Boys on Telegram moments after Pezzola got the shield.

When describing his military service to the jury, Pezzola took pains to highlight his experience with antiarmor rockets and crowd control, but in fact, he was never a military police officer, and his very limited experience using flash bangs was restricted to his short stint in the Marines more than 20 years ago. When prosecutors asked him if he was aware that police used sting balls on Jan. 6, a device that delivers less damage than a flash bang, Pezzola refuted it. 

Whatever was used, they were used improperly, he said. 

When Kenerson asked Pezzola how he knew this to be true, he elicited that the only training the Proud Boy had received on crowd control was from a few handouts he received while serving in the military. 

He had no training on “sting balls” he conceded, but that didn’t stop him from offering his non-expert testimony on their deadliness. 

“You’ve never worked with police and you have never taken their protocols?” Kenerson asked. 

“No,” Pezzola replied. “But I know police brutality when I see it.” 

“So the standard you’re applying here is the Dominic Pezzola standard?” Kenerson said. 

“You don’t need to be trained to know that an explosive can kill you,” he said. 

Pezzola emphasized again how he was “afraid for his life” and then footage played in court of him hoisting the riot shield in the air—though not defensively over his head—while he chanted “USA! USA! USA!”

Underpinning the prosecution’s charges is its “tools theory,” which argues that Proud Boys activated their conspiracy to stop proceedings by relying on fellow Proud Boys and “normies” or average protesters alike, in large numbers to aid them, wittingly or not, on Jan. 6.

To that end, prosecutors showed Pezzola video from outside of the Capitol near the Peace Monument. Pezzola testified that he heard a “ruckus” near that area while he was near a line of food trucks. He went off to investigate. It just so happened that when he arrived, barriers were knocked over already, he said.

Kenerson pointed out in footage from the first breach near the Peace Monument that quite “fortuitously” Pezzola appeared at the breach with a Proud Boy from New York right behind him identified as “Hooks.” Hooks was grabbing onto Pezzola as they flowed past police. But Hooks wasn’t with him at the food trucks. 

It was a “contained area,” Pezzola said, adding that he was bound to run into somebody he knew.

When New York Proud Boy William Pepe was seen pulling down barricades in video footage and Kenerson started to ask about it, Pezzola deflected immediately to invoking a highly-favored conspiracy theory that it was rioter and former Oath Keeper Ray Epps who told him and others to breach the barriers and go inside the Capitol. 

Pezzola then suggested to jurors that Epps was a government informant. 

“Mr. Pezzola, you have absolutely no evidence that Ray Epps is a government informant, do you?” Kenerson said. 

“I’ve seen no evidence he isn’t,” Pezzola shot back. 

There was plenty of evidence of his fellow Proud Boys “bumping into” Pezzola on the 6th at critical times, however. 

Like when Pezzola was first approaching the scaffolding, he identified himself in a series of frames from this area and then identified fellow Proud Boys William Pepe, Art Lashone (who he came to D.C. with) and again, “Hooks” and other Proud Boys. After he left the Capitol, he would see Greene again at his hotel, he said, and another Proud Boy identified in court as “Ronie.” When someone asked whether “Ronie” had bear-sprayed a police officer, Pezzola couldn’t say whether he recalled the conversation. He also couldn’t remember what he thought or said when Jeremy Bertino messaged Proud Boys around this time either to tell them they “should have gone further.” 

Pezzola’s temper grew most hot when Kenerson grilled him about his reasons for joining the Proud Boys. Where a day before Pezzola had smiled sheepishly and even laughed as he remarked that at 43 years old, he may have been “too old” to be a Proud Boy when he joined, he was downright surly when Kenerson asked him about his convictions that a “civil war was imminent” in the weeks before Jan. 6. 

It was a fact that the “other side” was trying to destroy the nation, Pezzola said. 

He and his way of life were under daily attack, he said. 

In a letter found in his property after his arrest, Pezzola once wrote at length about his hopes and fears, and his anxieties of a takeover of America by “radical socialists” or communists. Prosecutors say the letter was one Pezzola intended to submit to the Proud Boys when applying to join the organization. This was sometimes a requirement for prospects to the organization in late 2020.  

“You wanted to stand first on line to protect those you love and what you stand for?” the prosecutor asked. 

Angry and defensive, Pezzola testified: “That’s correct and that’s in line with standing against this corrupt trial with your fake charges.” 

He called the trial “fake” at another point too when Kenerson brought up social media posts Pezzola had upvoted or liked, including those from Tarrio and others, like one from Proud Boy Jeremy Bertino who said if the government wanted to declare war on the American people, they could have it. 

Pezzola boiled over. 

“At this point, if I didn’t have a case, I would probably bring up things like this too,” he sniped. 

Kenerson nodded passively and brought up a photo of Pezzola on the ground appearing to wrestle a riot shield away from an officer. 

“So is this fake evidence to you?” he said. 

“I say you interpret it fakely… this is a phony trial because of the way you’re trying to push it off,” Pezzola said. 

Like Rehl, Pezzola denied there was any “plan” on Jan. 6. Maybe they planned to storm the liquor store, he said, but that was it. Otherwise, when he got to D.C. on the 5th, he had no idea what to expect. He wanted to hear Trump speak. On the morning of the 6th, Pezzola said at first he didn’t know who was in charge. It was a “mishmash” of people, he testified initially. Then he said he assumed his now co-defendant Ethan Nordean was in charge because he held a megaphone. Then he said when they started marching to the Capitol, he knew that whoever was in front was leading the group. Extensive video footage played for the jury has shown Nordean and Biggs and Rehl were always at the front of the marching group with Nordean and Biggs specifically commanding the marching group consisting of dozens of Proud Boys to stop or go.

With yet more of his machismo to display, Pezzola finally said Nordean was in charge of the group. 

But “not of me,” he said. 

He was in control of himself. 

At trial, prosecutors also worked to pick apart whatever credibility Pezzola may have lent to his testimony by bringing out details about his lies to the FBI in the early days following his arrest.

In March 2021, while he was incarcerated, Pezzola claimed that he witnessed—firsthand—his co-defendant Joe Biggs and another man, Ryan Samsel, speak to each other moments before the very first breach of the Capitol. Pezzola told the FBI he saw Biggs flash a gun—a 9MM Beretta—and then he said Biggs told Samsel he better “defend his manhood” by plowing past police to prove he wasn’t antifa.

In court, Pezzola testified that he lied about this episode to the FBI at least twice because he thought it would improve his conditions at the jail where he was being held before this trial began. Video footage from the 6th shows Samsel and Biggs speaking but it has not yet been made clear what Samsel said to Biggs in that moment or vice versa. Samsel goes on trial later this summer. 

Pezzola said Samsel was detained in the jail cell next to him initially, and told him this story. Right away Pezzola said he knew it was fake but he nonetheless saw the story as a one-way ticket out of solitary confinement or to receiving his medication he was cut off from or for better “soy free” food that he wasn’t allergic to. He was eventually moved. 

Pezzola also told the FBI that when he was at the Peace Circle, he saw a group of Proud Boys harassing a young boy wearing a Black Lives Matter shirt and that he saw Samsel defend the boy and that later, Pezzola even escorted the boy away from the scene. All of that was untrue, all of it a lie. But admitting that it was a lie specifically more than once or twice in court was a visible struggle for Pezzola.  He time and again met Kenerson’s questions about the veracity of his statements to the FBI with the retort: “I wasn’t there” instead of “that’s not true” or “I lied.”

Though Pezzola testified that he believed the lie about Biggs is what ultimately got him moved into better conditions, Kenerson pointed out how self-serving Pezzola had been. He only got a hand up by falsely incriminating Joe Biggs. 

Pezzola seemed offended by the suggestion. Where loyalty to the Proud Boys was often just under or at the surface of his testimony, and he proudly proclaimed that he had refused to cooperate with the DOJ or take a plea deal, two years ago Pezzola seemed to sing a different tune. 

His attorney at the time, Jonathan Zucker, appeared to express interest in a plea agreement for Pezzola, saying that the father of two teenage girls was “consumed with guilt” and wanted to “disavow and seek to sever any relationship and involvement in future activities of the Proud Boys or similar groups.” 

 

Glenn Greenwald Keeps Bitching about a Law Requiring Notice If You’re Funded by Russian Spies

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The other day, DOJ announced charges in two cases related to FSB efforts to recruit in the US and overseas. Neither set of allegations was entirely new. But what got added to the allegations is of some interest.

Certainly, the fact that American citizens got charged in a Florida case for not disclosing that their political activism was funded, in part, by the FSB, seems to be of interest to Glenn Greenwald. The charges, along with a few overt acts, and the names of two FSB colleagues are what got added to an earlier indictment against the FSB handler, Aleksandr Ionov, filed last July.

Glenn won’t shut up about those charges, making appearances on Glenn Beck and Tucker Carlson’s show so all of them could lie about why members of the African People’s Socialist Party were charged.

The members of the APSP weren’t charged because they disagree with Joe Biden. They weren’t charged because they oppose the war in Ukraine.

They were charged because after one, Omali Yeshiteli, went on an all-expenses paid trip to Russia in 2015, the group started getting funding and completing requests for their FSB handler, Aleksandr Ionov, who ran a front called the Anti-Globalization Movement of Russia. For example, shortly after the trip, Ionov wrote the group and asked them to start a petition against the genocide of the African people in the US so that AGMR could start using it as propaganda. And when Russia needed someone to legitimize the “Donetsk People’s Republic,” in 2020, Ionov contacted the Floridians to publicly do so. And when Russia wanted to protest Twitter’s restrictions on Russian disinformation after the Ukraine invasion, Ionov flew one of the Americans to San Francisco to make it happen.

Russia wanted to be able to point to a certain kind of dissidence in the US, so they paid money to help sustain it. And the Americans didn’t disclose that they knew they were working with agents of Russia.

Glenn thinks only rich people like Tony Podesta should be held to foreign agent laws (Podesta wasn’t charged under a different law, FARA, for hiding his ties to a Ukrainian front group that Paul Manafort set up because he was paid by Manafort, and in any case, Glenn didn’t think much of Manafort’s charges for hiding the ties in real time). Glenn doesn’t think other people should have to disclose if they’re taking money — after they go on trips to Russia and start spouting Russian talking points non-stop from that point forward — from Russian spies.

It’s an interesting cause for Glenn and Tucker — who has his own curious tale about Russian ties — to champion.

Which brings us to the other case.

It charges Natalia Burlinova with attempting to do what Ionov succeeded in doing: getting Americans and others to unwittingly act as agents of Russia by recruiting them through her Russian government backed NGO, Creative Diplomacy, or PICREADI.

Burlinova was sanctioned — along with Ionov — last year, which suggests they may have a tie, perhaps the FSB officer they both report to.

Since she was already sanctioned, which would likely prevent her from traveling in any case, this complaint serves largely as a speaking document, which allows everyone she has had prior association with to understand her ties to the FSB.

For example, the complaint provides a detailed description of a trip she made to the US in 2018 and the emails the American participants sent to Burlinova after meeting with her. It doesn’t provide the content of the emails — but it makes those who sent them aware that the FBI knows what got sent.

Of even more interest is an article a former participant of Burlinova’s event wrote in 2020. Without explaining how he received it, Burlinova’s FSB handler sent it to her and said it’d be a really huge deal if it were published.

On October 30, 2020, the FSB Officer forwarded to Burlinova an article written by a participant in the 2019 Meeting Russia program, which argued that Russian malign influence efforts were actually legitimate uses of state soft power. The FSB Officer commented to Burlinova that the article was a huge result for them and would be revolutionary if printed by a named English-language newspaper in the United States and a named English-language newspaper in Europe.

The complaint doesn’t tell us whether it was published (update: it was this one, which was also posted on Burlinova’s site; h/t Alex Finley). But the description would be plenty for its author to understand that it had been the focus of internal discussion at the FSB.

Both these indictments necessarily focus on the US, but both conspiracies are international. Laying out the charges in the US and arresting anyone that would one day be arrested might something the FBI would want to do before sharing the underlying intelligence with allies.

And some of the details describe the greater international success of this effort. One of Burlinova’s biggest successes, for example, came in seeing two former participants in her yearly event elected to parliament.

On October 5, 2018, Burlinova informed the FSB Officer about two prior participants in another Russian public diplomacy program in which Burlinova had been involved. Burlinova reported that the two prior participants, both of whom resided in a European country, were running for public office. Burlinova stated that these were the results that take years to come into fruition. The FSB Officer responded that this was truly the result for which they were striving and requested that Burlinova provide more information about these prior participants and the election for public office so that the FSB Officer could prepare a report. The two candidates ran for parliamentary positions; one won in that election, and the other was elected subsequently to parliament.

Again, we don’t know which members of parliament these are and in which country, but others in their country likely recognize it.

A report in the WaPo — the timing of which may be coincidental or may explain why DOJ rolled out the charges earlier this week — describes the stakes. It describes the Kremlin’s involvement in the red-brown coalition opposing the Ukraine war in Germany.

The coming together of political opposites in Berlin under the banner of peace had been percolating for months, though the union remains ad hoc and unofficial. But marrying Germany’s extremes is an explicit Kremlin goal and was first proposed by senior officials in Moscow in early September, according to a trove of sensitive Russian documents largely dated from July to November that were obtained by a European intelligence service and reviewed by The Washington Post.

The documents record meetings between Kremlin officials and Russian political strategists, and the Kremlin’s orders for the strategists to focus on Germany to build antiwar sentiment in Europe and dampen support for Ukraine. The files also chronicle the strategists’ efforts to implement these plans and their reports back to the Kremlin. The documents do not contain any material that records communications between the Russian strategists and any allies in Germany. But interviews show at least one person close to Wagenknecht and several AfD members were in contact with Russian officials at the time the plans were being drawn up.

Like the Florida effort, the German one features manifestos written by the Kremlin.

The aim of a new political formation, according to a document dated Sept. 9, would be to win “a majority in elections at any level” in Germany and reset the AfD to boost its standing beyond the 13 percent the party was polling at then. The reset, laid out among the documents in a proposed manifesto for the AfD that was written by Kremlin political strategists, includes forging the AfD into the party of “German unity” and declaring sanctions on Russia as counter to German interests.

[snip]

It is not clear from the documents how the political strategists working with the Kremlin attempted to communicate with members of the AfD or other potential German allies about Moscow’s plans. But soon after the Kremlin gave the order for a union to be forged between Wagenknecht and the far right, AfD deputies began speaking in support of her in parliament and party members chanted her name at rallies. Björn Höcke, chairman of the AfD in Thüringen in eastern Germany, publicly invited her to join the party.

This is the same kind of effort — but much more impactful — as the Ionov one was fostering in the US (though the right wing secessionist described in it as an unindicted co-conspirator, understood to be Louis Marinelli, was not arrested).

And it’s the kind of horseshoe leftist that Greenwald once posed as before he joined up with Tucker full time … most recently to claim these socialists were arrested for their dissidence and not because they were hiding ties with Russian spies.

Update: RFERL did a bunch of interviews with people who attended Burlinova’s program, some who were shocked about the FSB tie, some who were quite blasé about it.