Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

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Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.

Trump Finally Describes How FBI Injured Him: By Taking his Celine Dion Picture

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The most important part of the hearing in the stolen document case before the 11th Circuit Tuesday came when Chief Judge William Pryor asked what the 11th Circuit should do if they find for DOJ.

It seemed to me that because this is an appeal from an injunction for purposes of appellate jurisdiction, what we would do if you’re right we would vacate the injunction, vacate this order on the ground that there is a lack of equitable jurisdiction. But that would be it. What we would have jurisdiction over is not the entire case. We would have jurisdiction, if we have jurisdiction, it’s over that order, granting an injunction. Isn’t that right, technically, instead of reverse and remand, with instructions, it’s really just vacate.

If Pryor’s original view was right, it would allow DOJ to use the documents in a prosecution of Trump, but would leave Judge Aileen Cannon with the authority to still meddle in the case.

Sopan Joshi, arguing for DOJ, disagreed and walked Judge Pryor through a SCOTUS precedent that says that the Court would necessarily have the authority to reverse the decision entirely.

Joshi must have persuaded, to some degree, because Pryor decided,

If you’re right, what we’re really talking about is a middle position, that is, I was right about vacate but you’re right about the authority to remand with instructions to dismiss. Ordinarily if a District Court lacks jurisdiction, that’s what we do. We vacate and remand with instructions to dismiss.

Joshi replied, “Fair enough, and I’m not going to fight you too hard on it.

Judge Britt Grant then piped in to ask Joshi whether,

We, in your view, if we decide there was not equitable jurisdiction in the first place we wouldn’t need to go through the bases of jurisdiction for the injunction and Special Master or anything like that. The lack of jurisdiction as it was brought would resolve all the questions in your mind. Is that right?

Joshi was pretty happy with that too. “I think that’s right.”

This technical debate, which took up about a quarter of the hearing, not only betrays that at least two of the 11th Circuit Court judges are thinking of how to give DOJ what it wants, but how to do so procedurally. And they seemed persuaded, ultimately, that they should just vacate the entire Special Master appointment altogether, ending the entire Special Master process.

Things didn’t go so well for Jim Trusty, Trump’s lawyer. Just as he started to get going on claims about Biden ordering a search on a political candidate’s home (a lie), Grant interrupted and corrected his use of raid: “Do you think ‘raid’ is the right word for execution of a warrant?”

When Trusty tried to claim that this warrant had been a general warrant, Pryor scolded, “but you didn’t establish that it was a general warrant,” the first of multiple times when the judges reminded Trusty he had not made the arguments he presented today before, not before any court. Grant pointed out that Trusty was misstating what their purported goal was, which was originally to review for privilege.

Then, as Trusty reeled off the things FBI seized that, he said, were incredibly personal, Grant asked, “Do you think it’s rare for the target of a warrant to think it’s overreaching?”

Mic drop!

She was back again, a few minutes later, as Trusty tried to argue what he thought the binding precedent should be, rather than what it was. Grant got to the core issue, which was that Trusty was asking for special treatment.

If you set aside, which I understand that you won’t want to do, but if you do for the purposes of this question, set aside the fact that the target of the search warrant was a former president, are there any arguments that would be different than any defendant, any target of a warrant who wished to challenge a warrant before an indictment.

Trusty tried to reframe her question. “We’re not looking for special treatment for President Trump. We are recognizing there is a context here where no President–”

Pryor interrupted.

I don’t know that that’s particularly responsive. The question was, set aside the fact that the subject of the warrant is the President. What’s to distinguish this from any other subject of a criminal investigation?

When Trusty tried to raise the concerns that he claimed Trump had had all along, Pryor responded, “I don’t see where that case has been made.” Again, Trump didn’t make the arguments he needed to, in September, to get the relief he is demanding now.

That’s when Pryor laid out the real practical problem with Trusty’s claims.

We have to determine when it’s proper for a District Court to do this in the first place, which is what we’re looking at now. And the last question was one posed that makes clear that basically, other than the fact that this involves a former President, everything else about this is indistinguishable from any pre-indictment search warrant. And we’ve got to be concerned about the precedent that we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction, and interfere with the Executive Branch’s ongoing investigation.

After Trusty started wailing more about personal documents, Pryor described,

You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.

That’s when Trusty revealed that FBI took a picture of Celine Dion.

Dion, remember, refused Trump’s request to play his inauguration.

Now Trump’s grave injury all begins to make sense! FBI hurt him by taking his Celine Dion picture. All the wailing and screaming since August now begin to make sense.

Trusty went on blathering, claiming — for example — that the injunction hadn’t harmed the government because they had months before and after the seizure to conduct their investigation. When Trusty claimed the injunction was overblown, Pryor invited,

Think of the extraordinary nature from our perspective of an injunction against the Executive Branch in a pre-indictment situation. Under the separation of powers, the judiciary doesn’t interfere with those kinds of prosecutorial and investigatory decisions. Right? That’s the whole nature of this kind of jurisdiction.

After Pryor asked about a new argument Trusty was making, Joshi reeled off the five different arguments that Trump has advanced.

Joshi closed with the practical fear Pryor had raised: If Trump has his way, every “defendant” will demand pre-indictment intervention.

This emphasizes how anomalous and extraordinary what the district court did her was. And I heard Mr. Trusty agree that there was no difference between this and other defendants. And I think that just emphasizes how the anomalous could become commonplace. And we think the court should reverse.

Andrew Brasher seemed more sympathetic to Trusty’s arguments, at one point asking how much more of a delay this would cause, as if he might let this all play out (and that’s what would happen if the 11th didn’t entirely vacate Cannon’s order.

But ultimately, Trump was treated as if not a defendant, then at least someone who could create untenable rights for other defendants, which sounded like something neither Pryor nor Grant were willing to do.

Ransacked! 120 Minutes before 11th Circuit Hearing, Trump Attempts to Create a Fourth Amendment Injury

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Less than two hours before the 11th Circuit hearing that may result in Judge Aileen Cannon being reversed for intervening in the Trump investigation, Trump’s attorneys (notably excluding Chris Kise) filed a motion for access to the affidavit for his search.

That this is a transparent attempt to give Judge Cannon some basis to intervene in both the Special Master review and the 11th Circuit appeal has not stopped reporters from treating it as a reasonable request.

It’s not.

Even if all the claims made in it were true, it still wouldn’t provide basis to give Trump the affidavit that (among other things) identifies who he could retaliate against for cooperating with investigators.

One of the most important paragraphs (and footnote) is this one.

Moreover, Plaintiff’s counsel has reviewed most of the seized materials over the last several weeks. The fact the Government took a huge volume of personal and family photographs, newspapers, thank-you notes, campaign materials, books, and golf shirts demonstrates that this search and seizure was nothing more than a general ransacking. 7 This raises serious questions about how the affiant characterized his or her assertion of probable cause and the justification for seizing thousands of personal and private items. Plaintiff must have an opportunity to review the affidavit and determine whether the Fourth Amendment was respected, intentionally subverted, or recklessly violated by a DOJ bent on getting its nose under the Mar-a-Lago tent.

7 A general rummaging through the belongings of President Trump is a particularly ominous moment in law enforcement history. With DOJ and some state officials engaging in various efforts to investigate President Trump, the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits. Authorization to seize “any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes” is an invitation to “rummage,” which every court has recognized as barred under the Fourth Amendment. See Andresen v. Maryland, 427 U.S. 463, 480 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). [my emphasis]

Start with the books and sweaty golf shirts. According to a part of the affidavit that Trump has not contested (the highlighted items below are the ones that changed with an updated inventory), the FBI seized a total of 33 books in the search on August 8, across 33 items seized; the bulk, 23, were all in one box together. That box was likely close to another that had multiple Top Secret documents, as well as a book. Those books got seized because they were next to stolen Top Secret documents. There was likewise a piece of clothing or a gift the box with stolen Top Secret documents. And altogether, there were just 19 gifts or pieces of clothing seized.

That’s what Trump wants you to think amounts to a ransacking.

Many of the other items are actually things about which there is an active dispute before Raymond Dearie (as noted in this filing).

For purposes of the yellow-highlighted Disputes, the Special Master will see that three issues account for the overwhelming majority of disputes. From the government’s perspective, the three conceptual issues are:

1. Annotations. – Books, magazine articles, and newspaper clippings with markings are original Presidential records.

2. Thank you notes for presidential acts or events. – Thank you notes reflecting gratitude for acts taken in the course of official duties are Presidential records.

3. Briefing book compilations with indexes. – Briefing material and other work product prepared by presidential staff for the President are Presidential records.

Trump wants to claim press clippings on which he made annotations are personal; the Presidential Records Act says otherwise. Trump wants to claim that thank you notes sent to him in his role as President are personal; the Presidential Records Act says otherwise.

Among the campaign materials taken were several letters written by Kurt Hilbert about stealing the election in Georgia, as well as something written by Cleta Mitchell. Sure, those are campaign materials. They are also evidence of a crime. They were also returned already, and could have been returned earlier had Judge Cannon not intervened.

Trump’s claim that it is unusual for the FBI to seize personal materials as part of a search warrant (bolded above) is particularly ridiculous, not least because Plain View doctrine clearly says that DOJ can refer items seized with a warrant for prosecution.

But it’s particularly notable given this language in the order appointing Jack Smith.

The Special Counsel is authorized to prosecute federal crimes arising from the investigation ofthese matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.

It permits Smith to refer things for further prosecution, including (presumably) any evidence of a crime he sees in the materials seized from Mar-a-Lago.

At this late hour, after being reversed once already, Judge Cannon is unlikely to get further over her skis.

But it likely will come up in the hearing starting in (now) 45 minutes, so Jim Trusty can claim, for the first time, that there has been a Fourth Amendment violation that merits Judge Cannon’s intervention under Richey.

Update: Even though improper to do so procedurally, Trusty did raise this argument, over and over at the hearing (he even complained that the FBI had taken Trump’s Celine Dion photo). That led both William Pryor and Britt Grant to observe that Trump’s argument kept changing over the course of the litigation before the 11th Circuit. Sopan Joshi, arguing for DOJ, laid out five such changes.

More importantly, the Chief Judge of the 11th Circuit noted that the reason so many personal items were seized is because Trump chose to store stolen classified records with his personal belongings.

You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.

I don’t think Judge Cannon will be in a position to act on this motion for very long, but I think this comment from Pryor would give her pause before she did so anyway.

11th Circuit Showdown: The Fight to Get the Documents to Charge against Trump

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A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:

Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.

For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).

Two documents that are likely to be charged also include unclassified information:

  • The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
  • The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.

Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.

That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).

The Curiosity of Norm Pattis’ Third January 6 Client’s Delayed Arrest

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On Wednesday (the time on the screen cap is Irish time), Norm Pattis — the Connecticut lawyer who fucked up and sent texts from his client Alex Jones, along with highly personal discovery from the CT Sandy Hook plaintiffs, to the TX Sandy Hook plaintiffs — tweeted that a head lawyer in CT wants him to serve a six month suspension for that ethical violation.

On Thursday, for a second straight time, the pre-trial hearing in the Proud Boy Leader case, in which Pattis represents Joe Biggs, was sealed to the public. One thing that has been a pressing discussion in that case that might merit sealing is the potential conflict of Biggs’ other lawyer, Daniel Hull, because he briefly represented co-defendant Enrique Tarrio in one of the civil suits against the Proud Boys.

If both Biggs’ lawyers had conflict problems, it might seriously roil the schedule of the trial, which is currently due to start next month. When Jonathan Moseley’s license was suspended, for example, the prosecution of his then-client, Oath Keeper Kelly Meggs, was halted until Meggs found a new attorney.

Meanwhile, Pattis’ other January 6 client, Jones sidekick Owen Shroyer, is supposed to decide by the end of the month whether he’ll take a plea or take his chances with getting superseded with others.

All of which makes it weird that Pattis took on a third January 6 defendant last week. Or perhaps we only learned that Pattis has long been representing one: The defendant is a guy named Douglas Wyatt, who was arrested for assault, civil disorder, and trespassing on the same day as his stepson, Jacob Therres.

It turns out Wyatt has been lawyered up and waiting for arrest since shortly after the attack. As his arrest affidavit describes, there were tips streaming in to the FBI about him starting the day after the attack, with a tip received on January 7, two tips on January 8, and two more tips on January 12, based in part on his social media postings.

The FBI interviewed him at his home in a suburb of Baltimore on January 29, 2021; while he admitted he was at the attack, he managed to get rid of the FBI before he said much more.

By April 2021, Wyatt was represented by some lawyer — Attorney-1 — who basically did DOJ the favor of calling a prosecutor to confirm that his client was the guy identified in one of the FBI’s wanted posters, BOLO 277.

On January 29, 2021, the FBI interviewed WYATT at his residence in Fallston, MD. WYATT admitted he had been present on January 6, 2021 at the U.S. Capitol, which he referred to as “the People’s House,” and felt he had the right to protest. However, WYATT claimed he did not have time to talk but took a business card and agreed to call the FBI in the future. WYATT later retained counsel (“Attorney-1”) and was not interviewed further. On or about April 6, 2021, Attorney-1 sent an email to an Assistant United States Attorney for the District of Columbia. The email stated in relevant part (with emphasis added):

“Mr. Wyatt did not go into the Capital building on January 6, did not assault a law enforcement officer, nor anyone else that day, and was not engaged in the destruction of any property. . . He had no intention nor desire to, nor caused any trouble and is not a member of any group which was involved in causing trouble on January 6. I am sending you this email because I noticed yesterday that my client’s picture is one of the several hundred pictures on the FBI website. That came as a surprise because the FBI has known who he is since early February.” [emphasis original]

The posting of pictures of Wyatt on FBI’s BOLO site, on March 26, 2021, could not have been a surprise, to Attorney-1 or to Wyatt. By February 2021, shortly after the interview, Wyatt had started searching the FBI’s site full of January 6 BOLO posters.

WYATT conducted several searches on Facebook in February 2021 regarding “fbi most wanted capitol riots.”

Wyatt may have been searching FBI’s most wanted Capitol Riot site in February because, on February 2, 2021, FBI had posted pictures of Wyatt’s stepson, Therres, BOLO 180. Therres is alleged to have thrown a plank that hit a cop in the head and did real injury.

So Wyatt was monitoring whether the FBI was onto him in February 2021. Yet it wasn’t until November 14, 2022 when these two men were arrested.

You’ve got to wonder why the government took 21 months to arrest these guys, living an hour away in Maryland, after almost immediately confirming Wyatt’s ID. Especially given Therres’ recent arrest record (Therres’ own detention response says this may not be entirely accurate).

In this case, at least as described by the timeline laid out in the arrest affidavit (which I’ve laid out below), FBI got immediate notice of Wyatt’s participation. But they may not have looked too closely — they may have believed Attorney-1’s denials — until they first started confirming Therres’ identity, with his familial tie to Wyatt, starting in August 2021.

That still doesn’t explain the delay since April, when the FBI had solid IDs on both father and stepson.

Which brings me to a few of the reasons I started looking at this arrest more closely.

His arrest affidavit describes how Wyatt successfully wrestled the Gadsden flag of another rioter away from a cop.

WYATT also helped pull away a protestor’s flag, shouting “get the fuck off that” as an officer attempted to grab the flag away from the protestor:

It also describes how, after the cops on the West Terrace are first overwhelmed he filmed that. That’s interesting because for an hour of the insurrection, he parked himself on an enormous Trump flag (see the significance here) and at times appears to make hand signals.

It’s almost like he was providing others feedback, though Therres’ detention memo says, “there is currently a lack of evidence concerning coordination with others before January 6,” at least regarding Therres. If FBI delayed the arrest to try to see if Wyatt had coordinated with others — besides handing Therres the plank he threw — they may yet to have found evidence before searches done with their arrest.

Which brings me back to Norm Pattis.

When the Sedition Hunters first started focusing on Wyatt’s activities months and months ago, they gave him a hashtag like they do everyone else.

They named him #InfoSprayer, based on his use of spray against cops, and his hat: An InfoWars hat. (Therres was dubbed #NelsonPostThrower.)

I’ve emailed Pattis to see if he would say whether he was the Lawyer-1 described in the affidavit; I have yet to get a response. If he was, though, it would mean around the time Wyatt was given an InfoWars moniker, Wyatt was lawyering up with Alex Jones’ lawyer, a Maryland guy counterintuitively hiring a Connecticut lawyer for legal troubles in DC.

It’s weird enough that Norm Pattis filed as Wyatt’s lawyer last week.

It would be more interesting still if Wyatt hired Pattis back when the FBI first started investigating him.

Update: Hmmm. DOJ charged Therres by himself. Wyatt has, separately waived the preliminary hearing.

Timeline

January 7, 2021: First tip on Wyatt submitted: “Check out his Facebook, too. He has posted videos as well.”

January 7: Wyatt comments on Facebook that “I was there.”

January 8: Wyatt comments on Facebook that Ashli Babbit “was in the wrong for breaking the window” … “I did not enter the capital or engage the police.”

January 8: Second tip on Wyatt: “Pictures of Douglas Wyatt at/in the Capitol on the day in question.”

January 8: Third tip on Wyatt: “I’m simply reporting a former FB friend for his part in the terrorist acts in Washington D.C. on January 6th.”

January 12: Fourth tip on Wyatt: “Saw Suspicious FB comment and checked his page. These were associated with a ‘profile’ attached. Douglas Wyatt lives in Fallston, MD…”

January 12: Fifth tip on Wyatt: “Made suspicious comments on FB post which led me to snoop his profile. Found this and wanted to share. FB pick is from previous ‘protest’ but comments he will be there on Wednesday.”

January 29: FBI interview of Wyatt.

February 2: Therres’ picture posted as BOLO 180.

February: Wyatt searches for “fbi most wanted capitol riots.”

March 26: Wyatt’s photo posted as BOLO 277.

April 6: Attorney contacts DOJ about Wyatt.

August 5: First tip on Therres.

September 20: FBI matches Therres BOLO to Maryland ID.

Late October: FBI searches for now-deleted Facebook content of Wyatt.

October 29: FBI accesses Facebook account for Wyatt’s spouse, matches gloves used at attack.

November 5: Therres’ probation officers confirm BOLO ID.

November 23: FBI reviews video of Therres throwing plank.

November 29: FBI reviews video of Therres’ alleged assaults (this may have been the first that FBI realized Wyatt’s interactions with Therres at the attack, including that he handed Therres the plank with which Therres allegedly injured an officer; thus far Wyatt is not charged with abetting the assault causing injury charged against his stepson.

December 14: Second tip on Therres, reporting he tasered 4 police officers.

April 5, 2022: Close contact of Therres IDs his BOLO, relays that Therres was “very vocal” in social circle about “inflicting violence on police officers, with potentially a taser.”

April 6: FBI access previously obtained Wyatt’s Meta content showing contemporaneous posts about his participation.

April 19: FBI agent who interviewed Wyatt confirms ID.

What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

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When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

Merrick Garland Names War Crimes Prosecutor Jack Smith to Oversee Trump Investigations

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To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible date for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.

The jurisdictional boundary is of interest: Anyone who crimed at the Capitol will be prosecuted by DC US Attorney Matthew Graves. Anyone who was not physically present at the Capitol would fall under Smith’s investigation.

It’s unclear where Alex Jones would fit in that schema. Roger Stone, though, would be moved under Smith.

My favorite part of the order appointing Smith is this part:

The language authorizing a Special Counsel to investigate anything that “might arise directly from this investigation” is standard Special Counsel language. It generally covers efforts to obstruct the investigation.

Only, usually, it only appears in the subjunctive, covering matters that might arise, in the future.

This authorizes Smith to investigate things that already have. Which would only be necessary if such matters had already arisen.

The order also authorizes Smith to spin off prosecutions.

Again, that’s not boilerplate. It may suggest Garland has already seen evidence of criminality that could and should be spun off.

Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain advantages, two of those named Ginni and Jim.

But otherwise, the investigation continues with — as Garland said — urgency.

Update: Overnight I thought of this: Garland said there were recent developments, plural, that led to this decision. One could be the GOP taking over control of Congress. After all, Scott Perry, head of the Freedom Caucus, must be a subject of this investigation. But it’s not outside the realm of possibility that the incoming House Judiciary Committee Chair is too. And depending on the final split in Congress, it’s also not outside the realm of possibility that enough members are under investigation — with Perry, Jim Jordan, Marjorie Taylor Greene, Andy Biggs, Paul Gosar, and Matt Gaetz — that it could, briefly anyway, alter the majority in Congress.

Aileen Cannon’s Special Master Review Helped DOJ Prepare for a Key Witness Interview

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My impression of DOJ’s reply brief in their 11th Circuit appeal of Judge Aileen Cannon’s decision to appoint a Special Master to review the files seized from Mar-a-Lago is that they’ve gotten whatever benefit they could get from the Special Master review and now that the election pause has passed, they’re really impatient for the injunction on their investigation to be lifted so they can interview the last few witnesses. That probably includes Trump assistant Molly Michael.

The reply repeats the arguments DOJ made in their opening brief: Judge Cannon abused her authority by getting involved in a case where there was no evidence of callous disregard for Trump’s rights.

But even before that, it calls out Trump for totally changing his tack, no longer arguing that some privilege merits withholding documents from the government, but instead the Tom Fitton theory that Trump could simply convert Presidential Records into his own property by packing it in a box and shipping it to Mar-a-Lago. Since this is a new argument, it’s not proper.

None of those three filings cited Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012), upon which Plaintiff now relies (incorrectly) in claiming authority to convert Presidential records into “personal” records by removing them from the White House. And nowhere in those filings did Plaintiff suggest that he had exercised that purported authority with regard to the seized records—much less why that would warrant an injunction and special-master review. Rather, Plaintiff asserted that the case “center[s] around [Plaintiff’s] possession . . . of his own Presidential records,” DE.58:2 (emphasis added); see also DE.127:8 (transcript) (“What we are talking about here, in the main, are Presidential records in the hands of the 45th President of the United States.”); DE.127:9 (similar). Unsurprisingly, the district court did not rely on this novel PRA theory in issuing its injunction and appointing a special master.1 Because this argument has been “raised for the first time on appeal,” In re Dukes, 909 F.3d at 1322, it need not be considered here.

Importantly, even if the Fitton theory were true, it’d be irrelevant. DOJ had a warrant to obtain these records. Warrants authorize the seizure of personal records all the time. If Trump is lucky, DOJ suggests, he might be able to get some of these records back after DOJ closes the investigation.

Even if Plaintiff could have designated the seized records as “personal” records, that would provide no basis for an injunction or special-master review. A document’s categorization as a “personal” record does not preclude the government from obtaining it through a search warrant or using it in a criminal investigation. Law enforcement officials routinely conduct judicially authorized searches to seize evidence of crimes, see Fed. R. Crim. P. 41(c)(1), and that evidence routinely consists of personal effects, including personal papers. Nothing in the law prohibits the government from using documents recovered in a search if they are “personal,” and the search warrant here authorized the government to seize materials stored collectively with records bearing classification markings regardless of their status as “personal” or Presidential records.

[snip]

Simply put, the government can review and use materials obtained in its judicially authorized search regardless of whether they are Presidential or “personal” records. At most, a record’s categorization under the PRA speaks to whether that record would be provided to NARA or returned to Plaintiff after the government’s investigation concludes.

DOJ also talks about all the ways that the Special Master process has already mooted any legitimate demand Trump might have had. DOJ returned to Trump any legitimately privileged documents, as they tried to do before Judge Cannon prevented them from doing so as to create a harm she needed to fix.

The government’s filter team has also now returned to Plaintiff a limited set of documents segregated by the filter team—as it sought to do at the very outset, see U.S. Br. 25—thus mooting any hypothetical disputes about attorney-client privilege as to those documents. See DE.138:2.

He has copies of all the non-classified documents, which would be the outcome of any successful Rule 41(g) fight.

Moreover, Plaintiff has now had an opportunity to review all of the seized records except those bearing classification markings, and the government has no objection to Plaintiff retaining copies.

Trump has conceded three potentially privileged documents found during the initial scoping were not privileged. (See this post where I explained how DOJ got Raymond Dearie to put this detail into the public record.)

The government’s opening brief noted three instances in which the investigative team, following the filter protocol and applying broad criteria, subsequently ceased review of a document and provided it to the filter team for further review. U.S. Br. 39-40. The filter team concluded that none of the three documents is privileged; and—as the public record now reflects—Plaintiff agrees. See DE.138:2 (Plaintiff not asserting privilege as to document referred to as B076); DE.158-1:1 and DE 162 (same, as to “Document 21” and “Document 22”); see also DE.148 (sealed filter team filing describing these documents).

That leaves just one fragment of a document over which Trump has claimed attorney-client privilege.

The sole remaining dispute pertains to one portion of a one-page document, see DE.182-1:1, 7 and the filter protocols originally directed by the magistrate judge provide a mechanism to resolve such disputes, see MJDE.125:31-32

[snip]

Finally, Plaintiff states that after the special-master review, he “will be entitled to return of some of the seized items,” including “not only [the] privileged materials but also [] the seized materials (i.e., personal records) unrelated to the investigation.” Br. 61. That assertion is wholly unsupported. At most, Plaintiff is entitled to a single page of a single document if he prevails on a disputed claim of attorney-client privilege.

7 That document was identified by the investigative team during the special-master review and, consistent with the filter protocol, it was referred to the filter team. The filter team has filed a sealed letter to the Special Master regarding its position. DE.186.

Effectively, the Special Master process has mooted any legal claim of injury Trump might have so even if Cannon had properly intervened, there’d be no point in continuing.

Which brings us to DOJ’s response to Trump’s claim that DOJ has presented no proof that the injunction on using the unclassified documents is causing harm. In its original brief, DOJ talked about the significance of the unclassified documents that are “intermingled” or “comingled” with classified documents to establish possession or timeline. This reply repeats the emphasis on “comingled” documents, but also discusses the import of when materials were “compiled.”

Second, although this Court’s stay mitigated the injunction’s most severe harms to the government and the public, the rest of the injunction has impeded the government’s investigation in other ways. The sole purpose for which the government has been permitted to review the seized unclassified records is to participate in a prolonged dispute with Plaintiff about their categorization. The government has been enjoined from using unclassified records comingled with records bearing classification markings to (for example) piece together timelines related to when these materials might have been compiled or accessed, or to question witnesses who may be familiar with these documents’ contents. Beyond that, the government cannot be expected to disclose to Plaintiff specific investigative steps that it would take absent the injunction. [my emphasis]

Which brings me to my suspicion that DOJ is anxious to interview Molly Michael with these unclassified documents.

Molly Michael was, at the end of Trump’s Administration, his Executive Assistant; she moved with him to Mar-a-Lago. Here she is, being interviewed by the January 6 Committee.

As Maggie Haberman noted days after the search, the FBI had reached out to Michael for an interview.

It’s highly likely that Michael either used or had access to the drawer in Trump’s office from which 144 items, for a total of 989 pages, were seized. All of those documents went through the privilege review and it’s likely that many of the 60-some potentially privileged documents were from that desk. Indeed, these two documents, treated as potentially privileged, are most likely from a desk that was in active use.

These two documents are ones over which Trump is making some of the most remarkable claims. According to an October 20 filing, DOJ had agreed with Trump that these were personal documents (even in spite of their reference to “POTUS), yet Trump was claiming Executive Privilege over them.

Given the Presidential Record Act rules that if a document has been shown to the President, it becomes a Presidential Record, by far the best explanation for the agreement these are personal documents over which Trump is trying to claim privilege — as I noted here — is that they reflect the Mar-a-Lago office running like his White House office used to, with his assistant, Molly, providing meeting requests and questions for Trump to review. The reference to “POTUS” cannot be a reflection of his position if and when he did review them, because if he were still POTUS, they would be Presidential Records. Rather, the moniker likely reflects that all the sycophants at Mar-a-Lago still call him POTUS.

Over the course of the privilege dispute, then, Trump provided compelling evidence that these two documents were created after he left office. He probably also confirmed that Molly Michael was the one accessing these documents.

Thanks Don!

That’s important for the document I’ve called a mini smoking gun: the document that includes a Secret document, a Confidential document, messages from a pollster, a religious leader, and a book author, as well as one page (SM_MAL_00001190) over which Trump is claiming attorney-client privilege.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

This document as a whole is the one other one that Trump is trying to withhold entirely under an Executive Privilege claim over what he says is a personal document.

This is obviously a document Trump would badly like to claw back from the government — and for good reason: it is evidence that he was accessing classified records in conjunction with his business after leaving the White House.

Note the government calls it a “compilation,” the same word included in the Reply brief. The government wants to show unclassified documents to witnesses to find out when they might have been compiled.

If I’m right that this document comes from the same drawer as the Molly’s Questions for POTUS Approval documents, then she is likely the witness who can say when it was compiled. She would be the witness who could explain why Trump integrated a Secret document into his ongoing personal business. She might even testify that she saw the entire compilation, including the page over which Trump is claiming privilege, which would vitiate that privilege claim.

If I’m right, then the government is probably pretty anxious to put Molly Michael in front of a grand jury with these unclassified documents. They just need the 11th Circuit to proclaim all these Trump claims bullshit, as they’re likely to do after next week’s Tuesday hearing.

This would be a priority for another reason.

If the government is going to charge Trump, they need to find documents that are sufficiently damning to persuade the jury (and the public) that what Trump did was corrupt, but not so sensitive that agencies would refuse to declassify the documents for trial. This document, along with the Roger Stone clemency, is the sweet spot: They both include a Secret document. They both were stored in a readily accessible desk drawer. And they both reflect more personal business.

Indeed, the other most heated fight over designations, after this compilation document, pertains to a series of other clemency grants. Trump is trying to claim that documents that — by definition — could only exist in the context of his role as the President, are personal.

Filter Log Document 8 (portion) (A-023 to A-024) and

Filter Log Document 10 (A-031 to A-032)

Filter Log Document 12 (portion) (A-034 to A-035)

Filter Log Document 13 (portion) (A-041 to A-042)

The four bullet-pointed commutation analyses are Presidential records because they relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. The four analyses were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity. Plaintiff relies on Judicial Watch to “deem” the Presidential records to be personal records, but the dicta in that non-binding district court decision provide no authority to automagically recharacterize documents that are “Presidential records” within the meaning of the Presidential Records Act, 44 U.S.C. § 2201(2). See ECF 173, at 4-6 (global issues brief).

The four commutation analyses cannot be withheld from the Executive Branch on a claim of executive privilege because, among other reasons, Plaintiff may not assert the Executive Branch’s privilege to withhold documents from itself. See ECF 173, at 12-13 (global issues brief).

These are parts of the clemency packages for Ted Suhl, Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner. While it’s certainly possible Trump may have had corrupt purpose to hide the internal deliberations over these pardons from prosecutors, meaning they’d be evidence of a crime — albeit a different crime — themselves, this fight may also be a proxy for a fight over the Stone clemency which, unlike these four documents, includes a document classified Secret.

Trump’s lawyers may have next to no experience on Espionage Act cases. But they’re not dummies. They can figure out which documents are most likely to get Trump charged. And the ones they’re fighting hardest to claw back are the clemency packages and the “compilation.”

In fact, they’ve just spent the last two months emphasizing to the government that they believe these are the most damning documents (at least thus far), going so far as confirming that several of them post-date the time when Trump (and maybe Molly Michael) would have legal access to classified documents.

When this Special Master process started, there was the possibility that Trump might confirm things that helped DOJ prosecute him, most notably by confirming the inventory (though DOJ has made another bid to get Dearie to force this issue or deem accuracy claims to be waived).

But they did get something: They got Trump to confirm certain details, including dates, about records that were likely in his desk drawer. Which means they’ve helped prepare DOJ to interview whoever had control of that desk drawer.

Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

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In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

Spy Versus Spy Amid the Proud Boys, Again

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In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.