A Counter Perspective: On the House January 6 Committee’s Impending Referrals

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[NB: it’s an absolute must to check this byline, thanks. /~Rayne]

We don’t all agree here at emptywheel all the time. Our reactions to the news about the House January 6 Committee’s intent to issue criminal referrals is one of those occasions.

You can read bmaz’s take at this link. If you’ve been reading the site’s comment threads since the first posts here about the January 6 Committee’s work, you already had a pretty good idea what bmaz’s sentiments have been as he’s been quite clear.

In essence bmaz found Tuesday’s news about the Committee’s expected criminal referrals

– attention seeking (“media whores,” “preening,” “infomercial”);
– the referrals an activity which “means absolutely nothing” because the Department of Justice will prosecute on their own.

One point of contention between us has been the nature of the Committee’s work. bmaz has called it political, referring to the committee negatively as a “political body” and the criminal referrals “useless and meaningless political gestures.”

Yes, it is political. That’s how governance happens, through politics.

From Merriam-Webster dictionary:

1 a: the art or science of government
b: the art or science concerned with guiding or influencing governmental policy
c: the art or science concerned with winning and holding control over a government

2: political actions, practices, or policies

3 a: political affairs or business
especially: competition between competing interest groups or individuals for power and leadership (as in a government)
b: political life especially as a principal activity or profession
c: political activities characterized by artful and often dishonest practices

From Cambridge Dictionary:

the activities of the government, members of law-making organizations, or people who try to influence the way a country is governed

From Macmillan Dictionary:

the activities and affairs involved in managing a state or a government

the profession devoted to governing and to political affairs

social relations involving intrigue to gain authority or power

the opinion you hold with respect to political questions

the study of government of states and other political units

In the simplest, bluntest terms, politics is how shit gets done by groups who are not all of the same mind at the same time. Governance in a democracy is politics, it is political activity.

Congress is inherently a political body, its activities are political, and the government it legislates to execute laws is a function of politics at work.

~ ~ ~

There is nothing wrong with politics except when it denies the rights of individuals to exist, stripping them of agency and autonomy for the purposes of an exercise in partisan ideology and/or autocratic power, and/or personal venality rather than to achieve the aims of our shared social contract, the Constitution.

It is particularly egregious when the persons aiding and abetting an attack on the Constitution are those who have not only participated in politics for the purposes of serving as an elected representative and then sworn an oath to defend the Constitution and its aims:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What happened on January 6, 2021 at the U.S. Capitol Building in Washington D.C. was the furthest thing from a more perfect Union. The acts of thousands sought to undermine the domestic tranquility of millions to the personal benefit of one man.

This was not politics but its antithesis, an attempted smash-and-grab intended to deny liberty and justice obtained through political activities, by obstructing government operations in the transition and transfer of a democracy’s leadership.

~ ~ ~

The Constitution to Article I, Section 1 confers upon Congress “All legislative Powers” – this is the legitimization of a political body to effect the nation’s governance.

Congress’s Powers under Article I, Section 8 include:

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

as well as

To make Rules for the Government…

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[bold mine]

Without exercising these powers Congress cannot assure its obligations under the Constitution are completed.

In the specific case of January 6, Congress was attacked in its own seat of power, its election-related proceedings obstructed by domestic terrorists engaged in seditious conspiracy. Americans died, both attackers and defenders. Public property was destroyed.

Response by law enforcement and other security forces like its militia — the National Guard — was not satisfactory leading up to and during the January 6 attack. The risk of domestic terror remained high even after that date.

The person who stood to benefit most from the terror and the obstruction wrought was the head of the executive branch, whose function as executive is subject to legislation and oversight by Congress. That same person may have abused his office to further his personal interests.

It is wholly natural to expect the House to investigate the terror attack on Congress’s offices and its proceedings; it’s part of Congress’s job.

The attack aimed to stop the activities essential to the republic. To that end the House established the January 6 Committee and the mission which the committee was to fulfill.

The mission included releasing a final report of findings to the public, with interim reports as necessary, with the ultimate goal specification of corrective measures to remedy failings and improve the security posture of the Capitol and the nation, without regard to the political party helming either house of Congress or the executive branch.

All of that is politics. All of that is political. That is the nature of government in a democracy.

~ ~ ~

With regard to the complaint the January 6 Committee acted like “media whores,” this site’s comments certainly didn’t reflect that.

The number of comments published every week about when the public would hear or see something from the Committee in the way of action whether subpoenas or hearings or reports or referrals could be annoying – as annoying and frustrating as the complaints about when the Department of Justice was going to do something, anything.

The number of tweets the Committee has published to date are 627, its press releases which may duplicate tweet content amount to less than 90 over 14 months time — hardly an attention seeking volume.

Marcy wrote a number of posts about the DOJ doing something right under everyone’s noses while pundits complained on television and in social media nothing was being done.

While the DOJ was crunching away on the largest investigation it has every conducted, the J6 Committee did likewise while trying to avoid further obstruction by members of Congress as well as persons who continued to support Trump and his Big Lie.

If anything the American public didn’t hear enough about what the Committee was doing. As of late October, the Committee had issued at least 100 subpoenas; the media reported in any detail only on the most intransigent subjects like former Trump advisor Steve Bannon.

If the Committee had been media whoring, we would have had every jot and tittle crammed in our faces daily and weekly about the subpoenas and consequent testimony – but we saw very little, save for nine hearings taking less than 40 hours time.

What we did see was distilled for a contemporary audience flooded with other media, an audience which wouldn’t have the patience to deal with thousands of hours of testimony and evidence.

It’s quite possible the opposite is true, that the Committee didn’t do enough to share its work in progress with media. Had it done more earlier to release testimony and evidence, perhaps the GOP would have had to counter these reports instead of sowing manufactured fear, uncertainty, and doubt about inflation and the economy’s direction during the mid-term elections.

Perhaps control of the House might not have gone to the GOP if the Committee had been more open about the partisan nature of the attack on the Capitol.

You can be certain had the shoe been on the other foot, with the GOP leading an investigation, it would have been another pointless circus like the Benghazi hearings which GOP congresspersons admitted were purely partisan stunts intended to suppress approval of Hillary Clinton ahead of the 2016 election.

The Benghazi hearings were politics without governance, not one passed bill as a result of all the hot air.

That 2015 committee’s work “means absolutely nothing” even seven years later, except as a cautionary tale about partisan hackery in lieu of governance.

~ ~ ~

Again, not all the team here at emptywheel will agree about the J6 Committee’s work, particularly the anticipated criminal referrals.

Marcy mentioned in comments,

… If it’s a referral on 1512 grounds for Trump, I’m not all that interested. If it’s a means to refer the witness tampering for specific witnesses that would not have been replicated before DOJ, by all means refer.

By “1512” she means Title 18 U.S. Code 1512 – Tampering with a witness, victim, or an informant – I’m not certain which subsection(s) she means.

The Committee will likely refer whatever it found, though, without regard to the DOJ’s progress so far. (The Committee should not know much about the DOJ’s investigative efforts.)

If there is to be corrective action recommended and corresponding legislation drafted, submitted, debated, and passed, there must be a documented need for the change.

We should expect to see some duplication between J6 Committee and DOJ for this reason: they have different objectives.

Because of the Constitution’s Article I, Section 6 Rights and Disabilities, the Committee has more power and latitude to question and demand accountability of its own members within its own chambers, should its investigation have uncovered evidence of criminal behavior by congresspersons who supported Trump’s Big Lie efforts.

Further, the J6 Committee has an obligation to history and not just its legislative duties. It needs to document what crimes it found had been committed against it, the political body which acts as the representative of the people in its creation of laws to create a more perfect Union.

It’s not enough to report a crime has been committed against the people’s representatives. The people must demand with criminal referrals that the highest law enforcement body investigate and prosecute who attacked our democratic republic, even if DOJ has already begun this effort.

As Ben Franklin said in 1787 in response when asked what form of government the Constitution Convention had established: “A republic, if you can keep it.”

The J6 Committee’s “political gestures” are some of the means to do so.

Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

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In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

  • November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
  • November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
  • December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
  • December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

Trump Is a Mob Boss Whose Omertà Has Started to Fail

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In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

Matty Taibbi’s Dick Pics

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Apparently, Elon Musk decided that the best person to disclose what he promised would show, “what really happened with the Hunter Biden story suppression by Twitter” was Matt Taibbi, someone who — by his own admission (an admission on which he has apparently flip-flopped) — apologized for Russia’s invasion of Ukraine because he was, “so fixated on Western misbehavior that I didn’t bother to take [the] possibility [of Russian invasion] seriously enough.”

Reverse chauvinism, Taibbi called it.

Taibbi’s own apologies for Russia didn’t just start with the Russian imperialism and war crimes, however.

He was long a critic of what he called “RussiaGate” based on the tried and true tactic of treating the Steele dossier and Alfa Bank allegations — and not the legal verdicts that confirmed Trump’s National Security Advisor, campaign manager, Coffee Boy, personal lawyer, and rat-fucker all lied to hide the true nature of their Russian ties — as the primary substance of the case. Taibbi scolded others about shoddy reporting even while he adhered to the Single Server fallacy that not only assumed all the hacked material came from just one server, but ignored the hack of Amazon Web Services content and abundant other evidence attributing the hacks to Russia from other cloud companies. Then there was the time Taibbi tried to smack down on claims that Maria Butina used sex to entice targets, in which he made error after error, all without allowing his false claims to be disrupted by consulting the actual primary sources.

That’s the guy Elmo decided would be a credible voice to tell us what happened with the “Hunter Biden” “laptop” story.

That matters because, as Andy Stepanian explained last night, Twitter had advance warning of a Russian information operation targeting Hunter Biden during the summer of 2020, months before the release of the “Hunter Biden” “laptop.”

Matt Taibbi is either woefully misinformed about this or cynically lying. How do I know? Because I attended two meetings with Twitter representatives in July and August 2020 wherein the Hunter Biden story was discussed within the larger framework of election integrity.

Matt Taibbi’s analysis has myriad problems but the biggest problem is his failure to underscore what initially prompted twitter staff to designate the content in the Post story as “stolen” or “hacked” material. This came from conversations with law enforcement in summer of 2020.

During the election integrity meetings I was present for little was known about how the material would eventually be published. I recall one spokesperson suggesting the Hunter Biden content may publish via “something like wordpress” or “wikileaks-styled” website.

This is the contact with FBI that Twitter and Facebook had about Hunter Biden in 2020, not any immediate response to the Post story. It’s almost certainly what Mark Zuckerberg was referring to in a Joe Rogan interview that has been misrepresented in the aftermath.

Taibbi, the self-described reverse chauvinist, describes any Hunter Biden-specific warnings as general — mentioning neither Hunter Biden nor Russia — and omits the timing.

Perhaps Elmo didn’t give Taibbi this important earlier context. Perhaps it’s Elmo’s fault that his hand-picked Russian apologist left out the specific details of the warning — that they included Hunter Biden and preceded the NYPost story by months — that are necessary context to the stupid decisions Twitter made. But the silence about those details is anything but “what really happened.”

And note Taibbi’s conclusion: There was no government involvement in the laptop story.

Assuming Taibbi were a credible reporter, that should end it. Game over.

Stupid moderation decisions, but not stupid moderation decisions done as a result of pressure from the government.

Taibbi has debunked the conspiracy theory the frothy right has been chasing for months.

Curiously, Taibbi concludes there was no government interference in the story even while he showed proof of a government surrogate pressuring Twitter about its (stupid) moderation decisions on the laptop story.

Taibbi was so deep in his conspiracy theories he didn’t realize that that — a surrogate of the sitting President demanding that Twitter give his campaign advance notice of their content moderation decisions — is closer to a First Amendment violation than suppressing the Post story, no matter how stupid Twitter’s decision was. To be clear: it’s not a First Amendment violation, but kudos to Taibbi for getting closer than all the frothy Republicans have to finding proof of inappropriate pressure.

It came from Trump.

In fact, Taibbi admits that Twitter was honoring requests from the White House, as well as the private entity of the Joe Biden campaign, for takedowns using the content moderation tools.

Taibbi claims that he’s concerned about First Amendment implications of the government pressuring Twitter about content. And then … he ignores the evidence he presents about (what is probably shorthand for) the Trump White House pressuring Twitter about content. Let’s see those specifics, Matty!

Or rather he excuses it, using the old charade of campaign donations which show what a small portion of Twitter employees spend.

And Taibbi’s other claims of bias are just as problematic. In one Tweet, Tweet 30, Taibbi claims that Ro Khanna was the only Democratic official he could find that expressed concern about the Post takedown.

Three Tweets later, Tweet 33, Taibbi describes an emailed report from a research firm polling the response of congressional offices, including Democrat Judy Chu’s, describing that both Democrats, plural, and Republicans “were angry,” which sure seems like Taibbi missed at least one Democrat besides Khanna expressing concern.

Ro Khanna, incidentally, was the leading recipient of donations from Twitter employees in 2022, almost 10% of the total, so to the extent Twitter employees disproportionately donate to Democrats, they’re funding Taibbi’s chosen voice of the First Amendment problems with Twitter’s decision.

The most telling part of Taibbi’s screed, however, is his complaint that when private entity “the Biden team” asked for some take-downs, Twitter obliged.

What Taibbi is complaining about is the way in which Twitter, the entity, always proved most responsive to high level requests.

He seems to think that damns pre-Elmo Twitter, when if anything, Elmo’s moderation decisions have far more dramatically reflected the whims of those with personal access, starting with Andy Ngo, who has personally gotten a bunch of anti-fascists banned from Twitter. If you have a problem with arbitrary, personalized moderation decisions, Elmo is the last guy you should be fronting for.

But there’s an even bigger problem with Taibbi’s smoking gun, the primary evidence he presents that the Biden crowd got special treatment of any kind.

As numerous people have laid out — most notably Free Beacon reporter Andrew Kerr — a number of these takedown requests were of dick pics and other personal porn, a celebrity kind of revenge porn. Others were of Hunter Biden smoking crack — at least a violation of law. But none so far identified pertain to allegations of influence peddling.

Tabbi’s smoking gun amounts to takedown requests of stolen dick pics, precisely the kind of thing that content moderation should be responsive to.

“Handled,” Elmo responded with glee about proof that his predecessors had seen fit to remove leaked porn and dick pics.

That Matty Taibbi, of all people!, would shift subjects, after debunking the conspiracy theory of government pressure that started all this, to dick pics is fairly stunning. That’s because Taibbi is famously thin-skinned when people on Twitter talk about his own — unlike the Hunter Biden pictures, voluntarily exposed — dick exploits from when he lived in Russia. Every time someone on Twitter discusses what a misogynist slime Taibbi was in his Moscow days, he, suspected sock-puppets, and a few persistent Taibbi defenders show up to complain that people on Twitter are talking about what Taibbi did with his dick while under the influence overseas (or to claim it was all, even the misogynistic language, make-believe).

Taibbi was always a poor choice for an exposé based on primary sources.

But Taibbi is a particularly bad surrogate for Elmo to pick to complain about the takedowns of stolen dick pics.

Yet that, in episode one of what Elmo and Taibbi promise will be a series, is the best they’ve got.

“Handled.”

Update: Matty Dick Pics wouldn’t tell his subscribers what conditions he had to agree to to peddle Elmo’s complaints about dick pics.

What I can say is that in exchange for the opportunity to cover a unique and explosive story, I had to agree to certain conditions.

Update: Tim Miller shreds the whole fiasco.

While normal humans who denied Republicans their red wave were enjoying an epic sports weekend, an insular community of MAGA activists and online contrarians led by the world’s richest man (for now) were getting riled up about a cache of leaked emails revealing that the former actor James Woods and Chinese troll accounts were not allowed to post ill-gotten photos of Hunter Biden’s hog on a private company’s microblogging platform 25 months ago.

Now if you are one of the normals—someone who would never think about posting another person’s penis on your social media account; has no desire to see politicians’ kids’ penises when scrolling social media; doesn’t understand why there are other people out there who care one way or another about the moderation policies surrounding stolen penis photos; or can’t even figure out what it is that I’m talking about—then this might seem like a gratuitous matter for an article. Sadly, it is not.

Because among Republican members of Congress, leading conservative media commentators, contrarian substackers, conservative tech bros, and friends of Donald Trump, the ability to post Hunter Biden’s cock shots on Twitter is the number-one issue in America this weekend. They believe that if they are not allowed to post porno, our constitutional republic may be in jeopardy.

I truly, truly wish I were joking.

[snip]

Right-wing commentator Buck Sexton (real name), said this was a “bright red line violation” and that Biden should be IMPEACHED for it. Rep. James Comer (R-TN) was on Fox promising that everyone at Twitter involved with this would be brought before the House Oversight committee. Rep. Billy Long retweeted several MAGA influencers praising Elon for, among other things, “exposing corruption at the highest levels of society” (Projection Alert). Meanwhile Kari Lake hype man Pizzagate Jack Posobiec declared this the “biggest story in modern presidential election history,” claimed that “we can never go back to the country we were before this moment,” and donned this “a digital insurrection.”

In reality, all they really had was a digital erection.

“We Have a Plan. I’m with Rufio” … But the Government Does Not

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There was a big hole in the middle of the Oath Keepers prosecution that likely was a big part of the reason jurors didn’t convict on more of the conspiracy charges. Just after 2:30PM the day of the attack, field leader Michael Greene called Stewart Rhodes. A minute later, Kelly Meggs called Rhodes, who conferenced Meggs into the ongoing call with Greene.

Altogether, the three men were on the phone together for 1 minute 37 seconds, and Rhodes and Greene were on the call for several minutes afterward. The call immediately precedes the First Stack busting into the Capitol, and happens at the same time that Joshua James and others are racing to the Capitol on their golf cart.

By context, it appears to be the moment where Rhodes decided to use the attack on the Capitol to advance his plan to decapitate the government. But for all the cooperating witnesses DOJ flipped in the Oath Keeper case, they never got any of these three to cooperate, and so never were able to prove what was said on the call. On the stand, Rhodes made up some bullshit about difficulties connecting.

While by context it seems to be the moment that these three leaders made a decision on operationalizing their plan, which they then directed others to implement. But absent a cooperating witness from that call, they didn’t have that proof.

And so they got limited conspiracy convictions.

There’s a similar big hole in the middle of the Proud Boys case, one — a status conference just made clear — may be even more fatal for the government’s case. In the time on the evening on January 5 when everyone was trying to figure out what to do given the arrest of Enrique Tarrio, Ethan Nordean and Joe Biggs were temporarily AWOL.

When Biggs reappeared, he described “meeting w[i]th a lot of guys” and that “We have a plan. I’m with rufio,” that is, Nordean.

To this day, even those of use who’ve followed the case closely don’t even know with whom Biggs and Nordean met, much less what the plan was.

And that’s a problem because every Proud Boy witness, even senior prosecution cooperating witnesses Jeremy Bertino and Charles Donohoe, will testify that they knew of no plan to attack the Capitol in advance of January 6.

Absent that, DOJ will point to the plan to meet at the Washington Monument, the ways the Proud Boy plan deviated from the norm (including ditching Proud Boy colors to blend in), the orderly marching, the choice not to show up at Trump’s speech at all and instead to go to the Capitol and rile up a mob of normies.

They’ll put cooperating witness Matthew Greene on the stand to explain that he understood they were crowding the Capitol to pressure Pence.

They’ll presumably put their latest cooperating witness, Isaiah Giddings, on the stand to admit that, “before January 6, Giddings did not know that Congress would be certifying the election results in the Capitol building on January 6,” but that in advance of the attack, “leaders, including Rehl, Biggs, and “Rufio,” would meet separately from the larger group.” Giddings will testify that after the attack, “Rehl, and the other Proud Boys were laughing and celebrating what they had done; namely, stopping the certification proceeding.”

They’ll point to comments afterwards, taking credit for it all.

Tarrio asserted to the Proud Boys “Elders” who had approved his formation of the MOSD, “Make no mistake. We did this.” Similarly, Bertino told Tarrio “You know we made this happen,” and “I’m so proud of my country today,” to which Tarrio replied, “I know.” The next day, Rehl similarly told an MOSD chat group that he was “proud as fuck what we accomplished,”

There is far, far more evidence in the actions the Proud Boys took that day that they did have a plan and succeeded in implementing it beyond their wildest dreams. But they don’t have that plan.

And two likely developments will likely make proving they had a plan more difficult.

First, Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

More damaging still for their case, an exchange at the end of a status hearing today suggested that Judge Tim Kelly is likely to prohibit the government from arguing that the Proud Boys were using other rioters are “tools” in their conspiracy (I wrote about this dispute here). That’s sound legally; the government argument doesn’t fit into existing conspiracy law. But it will make it difficult, if not impossible, for prosecutors to prove sedition, which requires the use of force. It is true that key Proud Boys expressed a goal to rile up the “normies” who would then carry out the violence on January 6. It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses. It is true that Ryan Samsel — the guy who kicked off the entire riot — had an exchange with Joe Biggs right before the attack. But DOJ never got Samsel to cooperate.

There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so. But it seems likely that prosecutors have the same kind of evidentiary holes, including a potentially fatal one where the plan they finalized on January 5 is, that the Oath Keeper prosecutors did.

Update: On a late re-read, I realized I left out a key caveat on the issue of a plan: People do acknowledge there was a plan. That plan included meeting at the Washington Monument instead of at Trump’s speech, for example. The question is whether it included the attack on the Capitol (the language I’ve added, in bold).

After the Neo-Nazi Demands More Support from Trump for January 6 Defendants, Trump Delivers

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As I noted after the Thanksgiving dinner between Trump and a bunch of bigots, a key part of the dinner dropped out of the coverage. Both Nick Fuentes, at the dinner, and Kanye West, in a video after the dinner, demanded that Trump do more to support accused January 6 defendants.

As Jonathan Swan tells it (with Zachary Basu), in addition to scolding Trump about his increased reliance on teleprompters, Fuentes also delivered the message that parts of the far right are disappointed with Trump, in part, because he has not supported January 6 attackers sufficiently.

Fuentes told Trump that he represented a side of Trump’s base that was disappointed with his newly cautious approach, especially with what some far-right activists view as a lack of support for those charged in the Jan. 6 Capitol attack.

  • Trump didn’t disagree with Fuentes, but said he has advisers who want him to read off teleprompters and be more “presidential.” Notably, Trump referred to himself as a politician, which he has been loathe to do in the past.
  • Fuentes also told Trump that he would crush potential 2024 Republican rivals in a primary, including Florida Gov. Ron DeSantis. Trump asked for Fuentes’ opinion on other candidates as well. [italics mine, bold Axios’]

Not only doesn’t this sound like an unplanned encounter — at least from Fuentes’ side — but it affirmatively sounds like the kind of constituent ask that politicians of all stripes make when they discuss whether to endorse a candidate or not. Fuentes hated Trump’s announcement speech — too canned! — but he also warned that Trump needs to do more to support those being prosecuted for their role in Trump’s coup attempt.

[snip]

The complaint that Trump has not done enough for already charged January 6 defendants (or, as Ye complained himself, not pardoned everyone) comes at a rather sensitive time. Of the January 6 defendants likely included in the seven Feuer cites, Christan Secor (holding the America First flag below) was sentenced in October by Trevor McFadden, who normally goes easy on January 6 defendants, to 42 months in prison.

More recently, the FBI arrested a group of 5 American Firsters in September, including former Fuentes deputy Joseph Brody (in the American flag mask and the suit in the picture above). One, Thomas Carey, is set to plead guilty on December 22, which will come with — at least — an interview on the others. And while DOJ portrayed groyper Riley Williams as having been radicalized by watching Nick Fuentes videos rather than in person, she was just jailed pending her February 22 sentencing, and any retrial on the hung charges (obstruction and abetting the theft of Nancy Pelosi’s laptop) might be easier if there was cooperation from others who were present in Pelosi’s office, as Carey may have been. Which is to say that the January 6 investigation into America First is getting closer to Fuentes himself.

But, particularly given Ye’s invocations of Stone and Jones in this context and Stone’s repeated complaints that Trump didn’t pardon him after January 6, those probably aren’t the only January 6 defendants Fuentes meant to invoke. Both Stone and Jones were named repeatedly during the Oath Keeper trial. Both are likely to be named in the upcoming Proud Boy Leaders trial. One Jones employee, Sam Montoya, pled guilty to parading on November 7. His plea agreement lacks the standard cooperation paragraph, which sometimes means that someone had to cooperate in advance to get the plea deal. And Jones’ sidekick, Owen Shroyer, is due to let Judge Tim Kelly know whether he plans on pleading at a status hearing tomorrow.

So the January 6 investigation is getting closer to Stone and Jones too.

Even some in Ye’s entourage have come under investigation, at least in Fani Willis’ investigation, for their role in Trump’s false voter fraud claims.

Trump’s meeting with Fuentes is a big deal. But it likely goes beyond, just, the fact that Trump was sharing Thanksgiving with noted anti-Semites. Both Ye and Fuentes used the meeting to raise Trump’s failures to protect those who helped his last attempt to seize power illegally.

Now, about ten days later, Trump seemingly responded to that request by taping a video that was shown at a holiday meeting of the Patriot Freedom Fund (just after 1:54), a grifty non-profit with ties to convicted Jan 6er and neo-Nazi Tim Hale-Cusanelli. The organization is one of several that preys on family members, funds lawyers to spew conspiracy theories (Joe McBride appears in this video), and generally celebrates the men and a few women who attacked the US as “patriots.”

And, as with the original ask, news outlets are not tying this apparent response with the ask.

Neo-Nazi Nick Feuntes made an ask, one tied to support for his reelection, and shortly thereafter Trump taped a video for a neo-Nazi tied organization celebrating those who attacked the Capitol.

11th Circuit to Trump: You’re Not Special

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The 11th Circuit has, as expected, vacated Aileen Cannon’s order enjoining the government from investigating Donald Trump, remanding it with an order to dismiss the suit. (Though they gave Trump seven days to appeal before the order goes into effect.)

The opinion’s key point is that, were they to rule for Trump, it would create an impossible precedent, either halting much pre-indictment access to seized material, or creating an exception only for former Presidents.

In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be  a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

Much of the opinion is an Richey analysis–the analysis Cannon worked so hard to manufacture. It’s not all that interesting. The key point is that, as Jay Bratt told Judge Cannon on August 30, the precedent in the circuit is clear.

But in conducting a Richey analysis, which it ultimately called a “sideshow,” the opinion took repeated swipes at the efforts Cannon went to make shit up to benefit Trump.

The district court was undeterred by this lack of information. It said that “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it,” though it cited only the government’s filings and not Plaintiff’s. But that is not enough. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying “specific” documents and explaining the harm from their “seizure and retention.” See, e.g., Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021) (Harbor did “far more than assert vague allegations” by pointing to “thousands” of privileged documents that the government retained for four years). Neither the district court nor Plaintiff has offered such specifics.

The opinion was even more scathing, though, in dismissing the notion that leaking classified information would harm Trump.

Plaintiff has adopted two of the district court’s arguments, dedicating a single page of his brief to discussing the first and third theories of harm. On the first argument, Plaintiff echoes the district court and asserts that he faces an “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally. If the former, permitting the United States to review classified documents does not suggest that they will be released. Any official who makes an improper disclosure of classified material risks her own criminal liability. See, e.g., 18 U.S.C. § 798. What’s more, any leak of classified material would be properly characterized as a harm to the United States and its citizens—not as a personal injury to Plaintiff.

The only thing specific to Trump’s status as an ex-President, besides the opinion’s repeated reminder that he is not special, is the way with which the opinion twice dismissed Trump’s claim that if he had designated these documents his personal property under the Presidential Records Act, it would allow him to keep it. That’s nonsense, of course, because warrants authorize the seizure of personal property as a general rule.

Indeed, Plaintiff does not press the district court’s theory on appeal. Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return.3 In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.

[snip]

Plaintiff’s alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course. The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act.

3 During discussion of this factor at oral argument, Plaintiff’s counsel noted that the seized items included “golf shirts” and “pictures of Celine Dion.” The government concedes that Plaintiff “may have a property interest in his personal effects.” While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant.

Here, Jim Trusty’s wails about Celine Dion really served to demonstrate how absurd the grievance was. Ultimately, Trump’s Celine Dion picture was not a sufficiently urgent piece of property to hold up a search warrant.

A very conservative panel, including two Trump appointees, just confirmed that he’s not special anymore.

Skull and Bones: The Proud Boys’ Non-Conspiratorial Secret Society?

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The morning of January 5, according to the government sentencing memo for him, Proud Boy Nicholas Ochs texted Ethan Nordean to say that, in light of the arrest of Enrique Tarrio the day before, he and Nordean were, “senior leadership in DC till Enrique is sprung.”

Following Tarrio’s arrest, Ochs messaged Nordean the morning of January 5. He said, “I guess we’re senior leadership in DC till Enrique is sprung. I’ll be in today or tonight. Lemmie know anything relevant.” Nordean replied, “Ok will do,” and they traded cell phone numbers.

Och’s own sentencing memo addresses that comment, but doesn’t explain it.

[T]he government relies extensively on a single message by Mr. Ochs, where he offhandedly referred to himself as a leader, Dkt. 94, pg. 9, and a tasteless message in which Mr. Ochs states he is “pro-violence,” id., at 4, the government is unable to point to a single actual instance wherein Mr. Ochs actually performed the duties of a leader or acted out in violence during the January 6th riots.

He doesn’t explain what became of the message, if anything (there’s no mention of any calls between Ochs and Nordean, and Nordean’s phone was not operational during the riot).

At least on the surface, it looks like Nordean blew Ochs off.

Instead, and before that comment, Ochs makes a very strained comment — limited to before attending the rally and discussion about their planned activities for the day –about what he said to other Proud Boys on the day of January 6, while he and Nicholas DeCarlo were attending the Trump speech and most of the other the other Proud Boys were marching around DC.

On the morning on January 6, Mr. Ochs and DeCarlo went to the rally where the President was addressing the crowd. Mr. Ochs was dressed in normal civilian clothing and did not wear any special military or other riot gear—unlike the many others who attended the rally, dressed in military/assault garb, signaling their violent intentions. Mr. Ochs was armed only with a smartphone.

Before attending the rally, Mr. Ochs did not communicate with any other Proud Boy members regarding their planned activities for the day. Indeed, at no point during the rally or the resulting assault on the Capitol, did Mr. Ochs coordinate with other Proud Boy members. As is stated in the Statement of Facts, though Mr. Ochs did come across other Proud Boy members in Washington, these were chance encounters and not the result of any prior planning. During the rally itself, Mr. Ochs was unable to live stream the event because the local cellular system was overwhelmed, and given his physical location, he was unable to hear the president’s speech.

At the conclusion of the rally, after the President finished speaking on the Ellipse, Mr. Ochs began seeking out the larger crowd which had begun moving towards the Capitol building—the first of many bad decisions that day. [my emphasis]

Given the evidence, that’s a credible claim.

What’s not covered by Och’s narrow (albeit for sentencing, critical) denials was Ochs’ participation in some small member chat groups, including one, called Skull and Bones, that included Nordean and Enrique Tarrio.

Leading up to January 6, 2021, Ochs participated in several Proud Boys chats on an encrypted messaging application, including one called “Official Presidents’ Chat” and one called “Skull and Bones.” Skull and Bones consisted of a small group (approximately twelve) of the Proud Boys’ Elders, including Enrique Tarrio and Ethan Nordean, both of whom have been charged with seditious conspiracy and other crimes for their roles leading the Proud Boys on January 6. See United States v. Nordean et al., 21-cr-175 (TJK). Some of these chats ended and then were reconstituted (because of concerns about being “compromised”) in the days leading up to January 6.

Of some interest: while the Proud Boy Leaders prosecution used Och’s November 2020 advocacy to wait before embracing violence as a way to show the Proud Boys ratcheted up their willingness to embrace violence.

[A]s the defendants, their co-conspirators, and their tools got further from the election and closer to Inauguration, the language they used to discuss the transfer of power became more desperate and more reflective of a willingness to take matters into their own hands. See Ex. 1 (proposed trial exhibit referenced at 11/18 hearing, with Proud Boys “elder” counseling: “I’m pro violence but don’t blow your load too soon.”).

Here, the focus is on Ochs’ attempts to persuade others to await the Supreme Court, which he was sure would deliver victory to Trump.

In Skull and Bones, on November 7, 2020, the group reacted to Biden being declared the winner of the election. Tarrio said, “Dark times if it isn’t reversed…and if it’s reversed…civil war.” Another user commented, “It’s civil war either way.”

Ochs disagreed: “It’s really not. The odds are with us because of the Supreme Court boys. I’m pro violence but don’t blow your load too soon.” He continued, “Not to be an anti-murder buzzkill but I really think this ISN’T fucked. Once it is, let’s go wild.” Ochs advised the group, “Bush/gore ruling took till December…Trump has a MUCH stronger case.” Ochs said, “Americans are weak and don’t want to fight. Them more so than us, but what’s really going to matter to the common man is what the Supreme Court says. And it will say.”

Another member noted, “Interesting that Trump got that woman through just before this huh. Could be the ace up his sleeve.” Ochs agreed and reiterated his belief that the Supreme Court was the best option to overturn the election: “Don’t fuck up the ruling. It’s a better chance than fighting.” He advised the group not to turn violent yet: “Not till the law enforcement institutions [are] weakened or more on our side. We lose right now.” But he told the group: “I’ll still chimp out if I’m wrong about the Supreme Court tho…we just have to TIME IT RIGHT and DO IT SMART.” Another member proposed that “veterans with combat experience” should “form militias.”

Ochs also expressed optimism in Parler posts that the Supreme Court would overturn the election results, including an image of Justice Thomas as a video game character:

Tarrio and others discussed a conference call on December 19 after Trump announced the rally.

Ochs’ prediction that the Supreme Court would overturn the election results did not come true. Instead, courts rejected dozens of lawsuits challenging the election results. On December 19, 2020, then-President Trump invited his followers to Washington, D.C. for a “wild” protest. The Proud Boys’ chats soon filled with talk of what they would do there. The same day as Trump’s December 19 tweet, in the small-group Skull and Bones chat, one member said, “Trump is calling for proud boys to show up on the 6th.” Ochs, Tarrio, and others then discussed arranging a conference call.

But Ochs is only described as a participant in the larger 50 and 35 person Ministry of Self Defense chats leading up to the riot. His top-level access seems to have remained that Skull and Bones chat.

After cooperating witness Charles Donohoe — though he is not named — is described as attempting to reconstitute the main MOSD list after Tarrio’s arrest, Ochs suggests doing so on the Skull and Bones list (and elsewhere it says it was reconstructed).

At 7:11 p.m., [Donohoe] posted a message in the MOSD Main chat, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” The member then wrote, “Stop everything immediately” and then “This comes from the top.”

[snip]

Ochs asked if the Skull and Bones chat, which included Tarrio, should be deleted. Another user responded, “I did tell him to delete telegram off his phone right before he was arrested, so I’m hoping he listened to me.” Ochs sent two responses: “Yep. Smacc it off your phone if there’s trouble. Can always redownload no problem” and “*Fed has joined the chat*”

The sentencing memo describes Ochs getting the message to show up at the Washington Monument twice, on the Main MOSD chat and another unnamed one.

On January 5, in in a reconstituted version of the Main MOSD chat created the evening of January 4, another user sent a message with instructions for the next day: “Everyone needs to meet at the Washington Monument at 10am tomorrow morning! Do not be late! Do not wear colors! Details will be laid out at the pre meeting! Come out []as patriot!”6 ”

6 Ochs received a similar message in another Proud Boys encrypted chat involving approximately 33 members.

But he didn’t follow those directions; he went to the Ellipse speech with Nicholas DeCarlo instead.

But by 4:18PM, when the riot was still very much ongoing, Ochs was back on Skull and Bones in chats in which Tarrio also participated — including someone instructing Tarrio to tell Don Jr to stop condemning the violence.

In the Skull and Bones chat, at 4:18 p.m., another member reposted a photograph of Ochs and DeCarlo smoking cigarettes in the Crypt, and asked, “@Nick_Ochs you inside? Lol.” Ochs replied, “Yeehaw.” Soon after, one member said, “So what now,” and another (whose username indicated he was from the United Kingdom) said, “from our end it looks like Trump ain’t going peacefully.” Tarrio responded, “They’ll fear us doing it again…” When asked, “So what do we do now?” Tarrio replied, “Do it again.” Another user told Tarrio to “text your boy Don jr and tell him to stfu. This is PB country now.”

One explanation for this is that Ochs might have liked to be a more central player in the Proud Boys. But was not, and so he didn’t take part in the Nordean (and Joe Biggs-run) operation on the day of the riot.

And Nicholas DeCarlo joined him in not taking part.

DeCarlo goes even further attempting to distance himself from the Proud Boys — and the “nihilistic” behavior of those who were insufficiently insouciant while rioting.

As the Court can readily determine from both the agreed upon Statement of Facts in this case, as well as the photographic and video evidence, the defendant did not travel to the Capitol as a member of the Proud Boys, a group that he resigned from in 2019. He did not wear their distinctive clothing; he did not coordinate with other Proud Boy members (other than his co-defendant) prior to coming to Washington D.C.; and more importantly, he did not participate in any of the organized violence attributed to the group. In addition, while the Government argues that Mr. DeCarlo acted with “glee” during the riot, that adverb misapprehends the defendant’s intent. While Mr. DeCarlo’s insouciant/sarcastic nature and comments before, during, and after the events are blameworthy, he did not evince the angry, nihilistic demeanor displayed by a significant number of the other January 6 defendants.

The claim he wore no distinctive clothing is irrelevant, as that was what Proud Boys were ordered to do that day. And his complaint that he still bears a Proud Boy tattoo raises questions why he hasn’t removed it to limit the “lifelong” consequences of once having belonged to the group.

The defendant acknowledges that he became a member of the Proud Boys Dallas Fort Worth Chapter in in 2017, but he is adamant that resigned from the organization in 2019 because it was becoming “too political.” Mr. DeCarlo is well aware that his prior membership in the Proud Boys will have lifelong consequences; if nothing else, he had the words Proud Boys” tattooed on his left arm. The defendant is emphatic, however, that he left the Proud Boys in 2019 and the Government’s effort to connect him to the group thereafter is based upon nothing more than conjecture, suspicion, and innuendo and ought to be rejected by this Court. 1

And when disavowing the import of December calls with Tarrio and Gavin McInnes, DeCarlo doesn’t name McInnes.

1 The Government notes that the defendant stated he was “in contact” with Enrique Tarrio, the head of the Proud Boys, in December 2019. The Government has no idea whether the two men actually spoke and if so, what was the topic of conversation. Similarly, the prosecution states that based upon data collected from his cellular phone, Mr. DeCarlo “called” another Proud Boy leader the day that the former President announced that he would be speaking on the Mall on January 6, 2021. Again, the Government does not state if the data reveals the two men actually spoke and the prosecution makes no representation as to the nature of any such conversation. [my emphasis]

Here’s how DOJ described those claimed and real contacts.

DeCarlo flew from Texas and met with Ochs in Virginia, where they shared a hotel room. That night, DeCarlo posted a 15 minute “selfie” video stream titled BlackVill’d: Twas the Night Before Revolution!!! to the Murder the Media/ThunderdomeTV Facebook page. DeCarlo said he spoke to “Enrique,” “who isn’t even allowed in D.C.,” referring to Proud Boys leader Enrique Tarrio, who had been arrested the day before and ordered to stay out of Washington, D.C. 3 DeCarlo stated that they would be getting a “nice early interview” with Enrique the next day. He also said that he had “a lot of shit planned for tomorrow.”

[snip]

Evidence recovered from DeCarlo’s phone indicates that, on December 19, 2020, the same day that then-President Trump announced plans for a “wild” rally in Washington, D.C., DeCarlo called Gavin McInness, the founder of the Proud Boys.

There’s a lot unsaid here, and it goes further than DOJ’s choice not to name Donohoe and DeCarlo’s choice not to name McInnes. It may suggest a factionalism in the Proud Boys that has since grown more acute.

Remember, too, that after doing the mandatory FBI interview with Ochs, the government chose not to do one with DeCarlo. So on October 4, DeCarlo went and did one with the January 6 Committee instead (and is trying to claim credit for that).

October 4, 2022, the defendant participated in a virtual interview with staff members of the House Select Committee for several hours. Mr. DeCarlo gave them a narrative of the events that led to his presence at the Capitol on January 6, 2021 and responded to the Committee’s questions. He also voluntarily provided them with access to the contents of his electronic devices.

Again, there’s a lot that has been said and left unsaid.

Elmer Stewart Rhodes Found Guilty of Seditious Conspiracy

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The verdicts are starting to come in on the Oath Keepers verdicts. The topline verdict: the jury found Elmer Stewart Rhodes and Kelly Meggs guilty on the seditious conspiracy count. The other three defendants — Ken Harrelson, Jessica Watkins, and Thomas Caldwell — were found not guilty on that charge.

All five defendants were found guilty of some kind of obstruction, though not always as part of a conspiracy.

Here’s a thread with the verdicts from the superb Brandi Buchman.

Here’s a table of the verdicts from Jordan Fischer.

How Richard Barnett Could Delay Resourcing of the Trump Investigation

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In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.