DOJ’s Curious Militia Math

/19 Comments/in /by

The government has responded to Ethan Nordean’s claim that texts that confirmed he was a recognized leader in the Proud Boys were exculpatory. In a filing that lays out more of how the Proud Boys responded — first with glee, then with cover stories, then with plans to regroup — to the events of January 6, DOJ includes a curious paragraph describing Enrique Tarrio establishing a very hierarchical upper leadership of the militia.

On December 29, 2020, the Proud Boys Chairman announced the leadership and structure of the Ministry of Self-Defense. The leadership and structure included an “upper tier leadership” of six people, which included Proud Boys Chairman, Nordean, Biggs, and Rehl. Later that evening, Donohoe explained the structure with reference to the upcoming trip to Washington, D.C. Among other things, Donohoe explained that the MOSD was a “special chapter” within the organization. The “special chapter” was not to have any interaction with other Proud Boys attending the event.

Other Proud Boys attending the event were to coordinate with their own chapters and “do whatever you guys want.”1

The filing goes on to describe the statements of, “one member (“Person-1”) of the upper tier leadership” and “another member of MOSD leadership (Person-2).” In addition, it describes the comments of our old friend UCC-1, an unindicted co-conspirator, clearly distinguishing that person’s legal risk from the others.

When UCC-1 was first introduced in the indictment against the Proud Boys Leadership, it was implied that both he and Charles Donohoe were also in the leadership MOSD, and described the total membership as the four indicted defendants plus “a handful of additional members.”

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Perhaps it’s because I’m what one of Nordean’s buddies calls a “purple haired faggot,” and so can’t understand Tarrio hierarchical logic. But by my math, these two filings suggest the MOSD leadership looks like this:

  1. Enrique Tarrio (who correctly anticipated he’d be arrested in advance of the insurrection)
  2. UCC-1
  3. Joe Biggs
  4. Ethan Nordean
  5. Zach Rehl
  6. Person 1
  7. Person 2

One-two-three-four-five-six-seven. Not six, seven. And that’s assuming Donohoe is not part of the group, though the indictment had suggested he was.

Whether UCC-1 is in or out of that leadership group is a key distinction. The government has a presumed informant who said some of the most inflammatory things in advance of the insurrection:

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

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

If this person was an active informant for the FBI going in — as an Aram Rostom story suggests — it means someone at the FBI lost control of their informant and rather than punishing the informant for participating in an insurrection and not informing the FBI about it, it is giving the person a pass. It would mean that because this person had made accusations to feed Billy Barr’s demand for dirt on Antifa, he is getting a pass on insurrection.

But if this informant provided the FBI some kind of warning, then it means the Bureau failed, badly, because the FBI has claimed that it had no warning of events of the day, not even with multiple Proud Boys in its informant ranks, including, possibly, one with top level access.

Not to mention the fact, if this guy had the access some of these filings suggest, it raises real questions about why the FBI still doesn’t know precisely how the operation rolled out.

David Headley and Tamerlan Tsarnaev demonstrate that one way to plan a terrorist attack without the FBI seeing it is to serve as an informant. And if the Proud Boys managed to carry out fairly complex planning for an insurrection because so many of them were trading information on Antifa, it would mean FBI’s handing of informants, plus DOJ’s commitment, from the very top, to prioritize Antifa at the expense of right wing militia, were key ingredients to the success of January 6.

“Oversight:” Mike Flynn Lied to Protect Barbara Ledeen, Who Then Fed Disinformation to Sara Carter

/60 Comments/in , , /by

In a footnote to an October 2019 filing, prosecutors in the Mike Flynn case suggested that Sidney Powell was misrepresenting Flynn’s “cooperation and candor” in his first interviews with Robert Mueller’s team, a claim that is consistent with Flynn’s own description of his lawyers’ unhappy review of it. The 302s liberated by BuzzFeed earlier this year show just how ridiculous some of the lies Flynn told in his November 16, 2017 meeting with Mueller’s prosecutors.

For example, in addition to repeating his lies about his conversations with Sergey Kislyak and claiming that he “did not specifically recall conversations regarding Wikileaks” during the campaign, Flynn also claimed that he never had conversations about how to get Hillary’s missing emails.

FLYNN did not recall discussions about a concerted effort to locate [Hillary’s] missing emails.

[snip]

FLYNN never had any conversations about how to get CLINTON’s missing emails. FLYNN did not remember hearing anyone else on the campaign discuss this either. The consensus was that they hoped the emails would be found all of a sudden.

Flynn would go on to unforget all three topics in the weeks and months ahead.

On the topic of searching for Hillary’s emails, however, Flynn was still shading the truth in his final interview before pleading guilty on November 29, 2017. Flynn described that he had met Peter Smith regarding business development in 2015, and described that Smith had emailed during the campaign. But, “FLYNN lost interest in what SMITH sent him because he ‘did not see any there, there’,” per the interview report. As to others who might be involved in the effort, Flynn described that “possibly Barbara LEDEEN” had been a recipient of some of the emails from Smith, though suggested Sam Clovis was a more important player.

It would be six months later, in an interview on May 4, 2018, before prosecutors returned to Flynn’s role in hunting down Hillary’s emails in depth. It appears that, at first, they asked Flynn generally about the Peter Smith effort, and this time, he remembered that “LEDEEN’s role” in the effort “was as a conduit.” Flynn explained that he gave “time and attention” to the effort “out of respect for his friendship with LEDEEN.” It was in that context that Flynn remembered that someone “sent files to FLYNN on one or two occasions,” though even then, he couldn’t remember whether the files were about Benghazi or the missing emails.

The prosecutors started asking Flynn about the actual emails — many of which were liberated in the documents liberated by BuzzFeed.

Prosecutors first asked about an email that the FBI Agent who wrote up the 302 described as a May 24, 2016 email from Ledeen to Flynn. But it’s actually an email Ledeen sent one of the chief purveyors of disinformation about the Flynn case, Catherine Herridge, promising “evidence” (though there are notations on it that may reflect Flynn got a hard copy).

Prosecutors then showed an email Flynn sent to Ledeen on June 16, 2016, in response to Ledeen’s question, “You got the Signal email.”

Flynn’s response reflects him having downloaded and read the report on the effort to obtain the emails. “amazing!” Flynn responded. “I’ll speak more off line with you about it this evening or tomorrow.”

On September 10, 2016, Ledeen wrote Flynn a “TIME SENSITIVE” email, explaining that “we are at the point of rubber hitting the road re the project you know I have been working on.”

In response to Ledeen’s request, the interview suggests, Flynn spoke with someone who had been an early campaign advisor, but he told Mueller’s team that “he did not really remember the details of the conversation.”

He claimed to remember nothing of the October 29, 2016 Hushmail promising a Phase II of the report, however.

“You’ve got me on this one,” Mike Flynn claimed, then described asking Barbara Ledeen, “Can’t you just tell me?” and imagining that, “he became frustrated trying to open the message.”

There was another HushMail on November 3, which Flynn suggested might pertain to Sidney Blumenthal.

But he suggested that “The servers may have been a second set of email messages to FLYNN,” and explained it was all “secret squirrel stuff.”

Flynn’s interview then proceeded to talk about an in-person meeting that Ledeen had set up, apparently with this same person, to discuss microtargeting; the pitch appeared to combine Sidney Blumenthal, servers in Eastern Europe, and microtargeting. It was in this context that, six months after claiming that he never spoke to anyone about getting Hillary’s missing emails, he admitted he actually talked about pursuing the Hillary emails “to anyone he was with on the Trump plane,” including Trump.

FLYNN conveyed to people that people were looking for the missing emails and were confident they would eventually find them. FLYNN would have said this to anyone he was with on the TRUMP plane. FLYNN does not know if specifically said he knew people but he could have. People on the plane include TRUMP. FLYNN did not believe he conveyed to the team information about the servers in the Ukraine or Eastern Europe. FLYNN was not ruling it out but does not recall exactly what he said.

Barbara Ledeen, still a key Senate Judiciary Committee staffer to Senators who have led the effort to undermine the Russian investigation, was right in the thick of all this during the 2016 election: Secret servers in Ukraine, missing emails, and microtargeting. That’s the woman overseeing the investigation into the investigation.

Which makes the other emails liberated in the BuzzFeed release implicating Ledeen all the more important.

It turns out that, before prosecutors asked about all this, they may have been alerted to a text Ledeen sent on May 1, 2018, inquiring about the status of Flynn’s case. Mueller’s team raised the text two weeks after the Peter Smith and microtargeting discussion, on May 17, 2018, when prosecutors focused on Ledeen’s extensive effort to monitor the Russian investigation (starting well before Mueller was appointed).

The backup liberated by Buzzfeed shows that Michael Ledeen inquired about whether he “and Sara” could say that Flynn was getting an immunity for testimony deal on March 31, 2017 (the same way Ledeen’s co-conspirators in Iran-Contra escaped accountability), establishing that the Ledeens funneled stories to Sara Carter.  A year later, Flynn conceded, he may have still been a source for Sara Carter stories via the Ledeens, in this case for a story about Flynn getting discovery.

BARBARA reached out FLYNN but he did not respond to her with anything specific. FLYNN may have told her they received discovery and were reviewing the documents.

FLYNN had many conversations around the time of this article but was never asked if the information could be shared with CARTER, nor did he direct anyone to share it with her.

Prosecutors asked about several other Carter stories, and Flynn’s long-suffering attorney, Rob Kelner, admitted that Carter had reached out several times before the plea deal and that he (Kelner) may have been the source for the detail that Andrew McCabe reached out to Flynn about an interview on short notice.

More interesting, however, are the emails between those Carter stories, which show Michael Ledeen (who, remember, was one of the first people Flynn called before secretly undermining sanctions with Sergey Kislyak in December 2016) reached out on April 17, 2017, telling Flynn, “it’s time…”

Then Michael Ledeen reached out the next day (apparently to a different Flynn email address) to arrange a pastrami dinner with extra pickles, Dr. Brown’s diet soda, and “a message for you.”

The meeting would have been on Monday April 24, 2017. Some of Carter’s scoops have been solid, albeit hyped. Others have been garbage. Her regurgitation of Sidney Powell’s false claims was pure propaganda. But she was also responsible, with John Solomon, for one of the most important unsubstantiated stories of the entire investigation, one that claimed Andrew McCabe had said they were going to “fuck Flynn” in a meeting after Flynn’s interview, an allegation that came up in Flynn’s last interview with Mueller (at a time when Mueller would replicate the two investigations that had been done on this allegation in the past).

The same interview reveals that Barbara Ledeen was responsible for another false claim that never died, that there was some original 302 that said something different from the one that recorded Flynn’s lies.

“Barbara tends to have a ‘big mouth,'” Flynn complained on May 17, 2018, as part of these discussions. But he still did what, according to the same interview report, she kept nagging him to do: withdraw his guilty plea. For a long time, it looked like she was simply protecting her husband Michael’s close friend. But with the backup materials, it seems just as likely that Ledeen’s efforts to undermine the Russian investigation are as much about her own complicity as Flynn’s himself.

A person who had a key role Senate Judiciary Committee oversight of the Russian investigation was sending Hushmail and Signal communications looking for secret servers in Ukraine during the events in question.

Update: Here’s my summary of what each of the 302s included from when they were released in January).

Update: In January, Flynn thought that the April message that Ledeen was passing on may have been from Trump.

The Two Communities And The Future Of Democracy

/17 Comments/in , /by

Posts in this series

Chapter 5 of John Dewey’s The Public And Its Problems is a rich statement of much of Dewey’s thinking on knowledge, science, and psychology, all brought to bear on the question of what is needed to bring us closer to an ideal community and an ideal democracy. I’ve discussed some of these points in the last two posts. Here I look at two more points, and conclude the discussion of this chapter on a sour note.

1. In the previous post, I quoted this:

To learn to be human is to develop through the give-and-take of communication an effective sense of being an individually distinctive member of a community; one who understands and appreciates its beliefs, desires and methods, and who contributes to a further conversion of organic powers into human resources and values. P. 180.

This idea is central to Dewey’s concept of the nature of a community. We think of ourselves as separate individuals. Certainly in private settings we are. But we are much more than that. In public settings, such as work, team sports, Church, and in government service, we become more. Our understanding of ourselves is completely different when we act as part of a group or a family. In the work setting and in government service we have responsibilities and powers we don’t have as individuals. In our Churches, we are affected by worship and service, in self-examination and openness to forces beyond ourselves.  When we play basketball with others, we have different roles, and our success or failure comes from the actions of all of us.

One of the main things that links us in our different roles is a common understanding of the situation in front of us. That includes both the context of the norms of our society, “its beliefs, desires and methods”, and the nature of the contending forces. Norms set limits on our behavior, especially our interactions with others. They channel our actions in ways deemed socially useful. Deviations can cause us problems. Negotiating changes is a long-term project.

2. Dewey thinks that habits of thought frequently blind us to the need for change. He says that for most of us habits of thought are so deeply engrained that we cannot truly question them. When these habits are activated, we respond to abstract concepts instead of to the merits of the proposition. Here’s Dewey’s example:

One of its commonest [bad habits of thought] is a truly religious idealization of, and reverence for, established institutions; for example in our own politics, the Constitution, the Supreme Court, private property, free contract and so on. The words “sacred” and “sanctity” come readily to our lips when such things come under discussion. P. 192-3.

This must have been shocking to Dewey’s audience (recall that this book is a series of lectures). I picture gun fetishists braying about their sacred Second Amendment rights which have existed from all eternity, or at least 1791. Hilarious bewilderment follows when they’re confronted with Dewey’s statement that their sacred rights are subject to change.

Change might come from a new group of Justices who see fit to reject the mummery drooled by the intellectually dishonest hacks who signed on to the Heller opinion. Change can come because we as a nation are entitled to move on from the dictates of the long-dead Founders which merely resolved the political problems they faced. We can make our own rules fit for our purposes. For example, we are even free to adjust the absurd idea that a democracy can function under the dead weight of unaccountable life-tenured ancients acting as a bevy of Platonic Guardians. [H/T Learned Hand]

That last is a good example of throwing off bad habits of thought. I was a lawyer for many years and defended the role of SCOTUS. Now I just see it as one of many obstacles to democracy, an institution in desperate need of rethinking. In a similar way, the prison abolition people and the defund the police people are demanding close inquiry into the roles of major institutions. Dewey would be pleased, I think.

Conclusion on Chapter 5

It’s helpful to think of democracy as the natural form of government for a healthy community. As a nation we need knowledge of the situation, reasonable means for discourse on those problems, conceptual tools that enable us to do a good analysis, and the willingness to proceed even when we are uncertain of the best path, with the idea that we will change direction if our first solutions don’t work, and with a commitment to facing the problems our solutions create.  Only then can we forge a community and a democracy.

In other works, Dewey emphasizes the importance of a good education for all citizens as a key to a functioning democracy. Dewey doesn’t say it, but we also need to conduct ourselves in good faith.

Dewey doesn’t try to apply these ideas to his time, and disclaims the ability to suggest practical steps towards a healthy community. I think our problem is that there are forces at work that are aggressively trying to create a massive divide in our nation, as if we are two competing communities. The Republicans are hell-bent on creating an alternate reality, one that has few points of contact with the world as I see it. Theirs is the world of the Big Lie, Qanon, Trump as an anointed savior sent by the Almighty, a vaccine that causes people to shed something something that upsets menstrual cycles and causes sterility, science denial, patriarchy, and unthinking acceptance of gibberish readings of ancient texts. It’s also a world in which only unfettered capitalism can save us.

One of their tactics is attacking the conceeptual tools we use to understand our selves and our society. A recent example is the redefinition of Critical Race Theory. This tool begins with the idea that what and who we are is largely shaped by our institutions and power structures, just as Dewey suggests. Critical Race Theory looks at the way our legal system and the power structures it supports interact with race. The Right Wing media translates this into “being white is bad”, or “all white people are racists” or some similar stupid lie. This is a deliberate attack on a conceptual tool that may be of great value.

This has been running side-by-side with the effort of Christian Fundamentalism to create a separate world for its adherents, perhaps with a long-term goal of turning the government into a Christian Theocracy. That includes Seg Schools, havens for White Christian Children safe from the unChristians and other rabble, Christian Rock music, creationism and other forms of fake science, home schooling, and colleges in which the devils of secular humanism can be expelled along with anything that threatens their world view.

These trends now include adherence to a limited range of self-sorted media and social media platforms where the two groups intermingle to some extent, or perhaps where the dominant class teaches the subordinate class what to believe and how to think.

To see these trends, see this by Ross Douthat in the New York Times, and this by Eric Levits in New York Magazine.

I do not see anything in Chapter 5 that helps me even begin to think about this problem. I’ll just say again following Pierre Bourdieu that the the right wing part of the dominant class is using this division to maintain its own position and serve its own desires. The sane part of the dominant class can’t seem to do anything about this division, assuming it opposes the division.

DOJ’s Failures to Follow Media Guidelines on the WaPo Seizure

/30 Comments/in , , /by

I wanted to add a few data points regarding the report that DOJ subpoenaed records from three WaPo journalists.

This post is premised on three pieces of well-justified speculation: that John Durham, after having been appointed Special Counsel, obtained these records, that Microsoft challenged a gag, and that Microsoft’s challenge was upheld in some way. I’m doing this post to lay out some questions that others should be asking about what happened.

An enterprise host (probably Microsoft) likely challenged a gag order

The report notes that DOJ did obtain the reporters’ phone records, and tried, but did not succeed, in obtaining their email records.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

[snip]

The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails. [my emphasis]

What likely happened is that DOJ tried to obtain a subpoena on Microsoft or Google (almost certainly the former, because the latter doesn’t care about privacy) as the enterprise host for the newspaper’s email service, and someone challenged or refused a request for a gag, which led DOJ to withdraw the request.

There’s important background to this.

Up until October 2017, when the government served a subpoena on a cloud company that hosts records for another, the cloud company was often gagged indefinitely from telling the companies whose email (or files) it hosted. By going to a cloud company, the government was effectively taking away businesses’ ability to challenge subpoenas themselves, which posed a problem for Microsoft’s ability to convince businesses to move everything to their cloud.

That’s actually how Robert Mueller obtained Michael Cohen’s Trump Organization emails — by first preserving, then obtaining them from Microsoft rather than asking Trump Organization (which was, at the same time, withholding the most damning materials when asked for the same materials by Congress). Given what we know about Trump Organization’s incomplete response to Congress, we can be certain that had Mueller gone to Trump Organization, he might never have learned about the Trump Tower Moscow deal.

In October 2017, in conjunction with a lawsuit settlement, Microsoft forced DOJ to adopt a new policy that gave it the right to inform customers when DOJ came to them for emails unless DOJ had a really good reason to prevent Microsoft from telling their enterprise customer.

Today marks another important step in ensuring that people’s privacy rights are protected when they store their personal information in the cloud. In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data.

[snip]

Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand. That will no longer be true. The binding policy issued today by the Deputy U.S. Attorney General should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.

Rod Rosenstein, then overseeing the Mueller investigation, approved the new policy on October 19, 2017.

The effect was clear. When various entities at DOJ wanted records from Trump Organization after that, DOJ did not approve the equivalent request approved just months earlier.

If DOJ withdrew a subpoena rather than have it disclosed, it was probably inconsistent with media guidelines

If I’m right that DOJ asked Microsoft for the reporters’ email records, but then withdrew the request rather than have Microsoft disclose the subpoena to WaPo, then the request itself likely violated DOJ’s media guidelines — at least as they were rewritten in 2015 after a series of similar incidents, including DOJ’s request for the phone records of 20 AP journalists in 2013.

DOJ’s media guidelines require the following:

  • Attorney General approval of any subpoena for call or email records
  • That the information be essential to the investigation
  • DOJ has taken reasonable attempts to obtain the information from alternate sources

Most importantly, DOJ’s media guidelines require notice and negotiation with the affected journalist, unless the Attorney General determines that doing so would “pose a clear and substantial threat to the integrity of the investigation.”

after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

But a judge can review the justifications for gags before issuing them (for all subpoenas, not just media ones).

Just as an example, the government obtained a gag on Twitter, Facebook, Instagram and Google when obtaining Reality Winner’s cloud-based communications a week after they had arrested her (at a time when she was in no position to delete her own content). After a few weeks, Twitter challenged the gag. A judge gave DOJ 180 days to sustain the gag, but in August 2017, DOJ lifted it.

That was a case where DOJ obtained the communications of an accused leaker, with possible unknown co-conspirators, so the gag at least made some sense.

Here, by contrast, the government would have been asking for records from journalists who were not alleged to have committed any crime. The ultimate subject of the investigation would have no ability to destroy WaPo’s records. The records — and the investigation — were over three years old. Whatever justification DOJ gave was likely obviously bullshit.

Hypothetical scenario: DOJ obtains cell phone records only to have a judge rule a gag inappropriate

Let me lay out how this might have worked to show why this might mean DOJ violated the media guidelines. Here’s one possible scenario for what could have happened:

  • In the wake of the election, John Durham subpoenaed the WaPo cell providers and Microsoft, asking for a gag
  • The cell provider turned over the records with no questions — neither AT&T nor Verizon care about their clients’ privacy
  • Microsoft challenged the gag and in response, a judge ruled against DOJ’s gag, meaning Microsoft would have been able to inform WaPo

That would mean that after DOJ, internally — Billy Barr and John Durham, in this speculative scenario — decided that warning journalists would create the same media stink we’re seeing today and make the records request untenable, a judge ruled that that a media stink over an investigation into a 3-year old leak wasn’t a good enough reason for a gag. If this happened, it would mean some judge ruled that Barr and Durham (if Durham is the one who made the request) invented a grave risk to the integrity of their investigation that a judge subsequently found implausible.

It would mean the request itself was dubious, to say nothing of the gag.

Once again, DOJ failed to meet its own notice requirements

And with respect to the gag, this request broke another one of the rules on obtaining records from reporters: that they get notice no later than 90 days after the subpoena. The Justice Manual says this about journalists whose records are seized:

  • Except as provided in 28 C.F.R. 50.10(e)(1), when the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(2). The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. Id.
  • When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice, pursuant to 28 C.F.R. 50.10(e)(2), of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the subpoena, court order, or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(3). In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Id. No further delays may be sought beyond the 90‐day period. Id. [emphasis original]

Journalists are supposed to get notice if their records are seized. They’re supposed to get notice no later than 90 days after the records were obtained. AT&T and Verizon would have provided records almost immediately and this happened in 2020, meaning the notice should have come by the end of March. But WaPo didn’t get notice until after Lisa Monaco was confirmed as Deputy Attorney General and, even then, it took several weeks.

DOJ’s silence about an Office of Public Affairs review

While it’s not required by guidelines, in general DOJ has involved the Office of Public Affairs in such matters, so someone who has to deal with the press can tell the Attorney General and the prosecutor that their balance of journalist equities is out of whack. At the time, this would have been Kerri Kupec, who was always instrumental in Billy Barr’s obstruction and politicization.

But it’s not clear whether that happened. I asked Acting Director of OPA Marc Raimondi (the guy who has defended what happened in the press; he was in National Security Division at the time of the request), twice, whether someone from OPA was involved. Both times he ignored my question.

The history of Special Counsels accessing sensitive records and testimony

There’s a history of DOJ obtaining things under Special Counsels they might not have obtained without the Special Counsel:

  • Pat Fitzgerald coerced multiple reporters’ testimony, going so far as to jail Judy Miller, in 2004
  • Robert Mueller obtained Michael Cohen’s records from Microsoft rather than Trump Organization
  • This case probably represents John Durham, having been made Special Counsel, obtaining records that DOJ did not obtain in 2017

There’s an irony here: Durham has long sought ways to incriminate Jim Comey, who is represented by Pat Fitzgerald and others. In 2004, as Acting Attorney General, Comey approved the subpoenas for Miller and others. That said, given the time frame on the records request, it is highly unlikely that he’s the target of this request.

Whoever sought these records, it is virtually certain that the prosecutor only obtained them after making decisions that DOJ chose not to make when these leaks were first investigated in 2017, after Jeff Sessions announced a war on media leaks in the wake of having his hidden meeting with Sergey Kislyak exposed.

That suggests that DOJ decided these records, and the investigation itself, were more important in 2020 than Jeff Sessions had considered them in 2017, when his behavior was probably one of the things disclosed in the leak.

The dubious claim that these records could have been necessary or uniquely valuable

Finally, consider one more detail of DOJ’s decision to obtain these records: their claims, necessary under the media policy, that 3-year old phone and email records were necessary to a leak investigation.

When these leaks were first investigated in 2017, DOJ undoubtedly identified everyone who had access to the Kislyak intercepts and used available means — including reviewing the government call records of the potential sources — to try to find the leakers. If they had a solid lead on someone who might be the leaker, the government would have obtained the person’s private communication records as well, as DOJ did do during the contemporaneous investigation into the leak of the Carter Page FISA warrant that ultimately led to SSCI security official James Wolfe’s prosecution.

Jeff Sessions had literally declared war within days of one of the likely leaks under investigation here, and would approve a long-term records request from Ali Watkins in the Wolfe investigation and a WhatsApp Pen Register implicating Jason Leopold in the Natalie Edwards case. After Bill Barr came in, he approved the use of a Title III wiretap to record calls involving journalists in the Henry Frese case.

For the two and a half years between the time Sessions first declared war on leaks and the time DOJ decided these records were critical to an investigation, DOJ had not previously considered them necessary, even at a time when Sessions was approving pretty aggressive tactics against leaks.

Worse still, DOJ would have had to claim they might be useful. These records, unlike the coerced testimony of Judy Miller, would not have revealed an actual source for the stories. These records, unlike the Michael Cohen records obtained via Microsoft would not be direct evidence of a crime.

All they would be would be leads — a list of all the phone numbers and email addresses these journalists communicated with via WaPo email or telephony calls or texts — for the period in question. It might return records of people (such as Andy McCabe) who could be sources but also had legal authority to communicate with journalists. It would probably return a bunch of records of inquiries the journalists made that were never returned. It would undoubtedly return records of people who were sources for other stories.

But it would return nothing for other means of communication, such as Signal texts or calls.

In other words, the most likely outcome from this request is that it would have a grave impact on the reporting equities of the journalists involved, with no certainty it would help in the investigation (and an equally high likelihood of returning a false positive, someone who was contacted but didn’t return the call).

And if it was Durham who made the request, he would have done so after having chased a series of claims — many of them outright conspiracy theories — around the globe, only to have all of those theories to come up empty. Given that after years of investigation Durham has literally found nothing new, there’s no reason to believe he had any new basis to think he could solve this leak investigation after DOJ had tried but failed in 2017. Likely, what made the difference is that his previous efforts to substantiate something had failed, and Barr needed to empower him to keep looking to placate Trump, and so Durham got to seize WaPo’s records.

Billy Barr has been hiding other legal process against journalists

Given the disclosure that Barr approved a request targeting the WaPo about five months ago and that under Barr DOJ used a Title III wiretap in a leak investigation (albeit targeting the known leaker), it’s worth noting one other piece of oversight that has lapsed under Barr.

In the wake of Jeff Sessions declaring war on leaks in 2017 (and, probably, the leak in question here), Ron Wyden asked Jeff Sessions whether the war on leaks reflected a change in the new media guidelines adopted in 2015.

Wyden asked Sessions to answer the following questions by November 10:

  1. For each of the past five years, how many times has DOJ used subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court to target members of the news media in the United States and American journalists abroad to seek their (a) communications records, (b) geo-location information, or (c) the content of their communications? Please provide statistics for each form of legal process.
  2. Has DOJ revised the 2015 regulations, or made any other changes to internal procedures governing investigations of journalists since January 20, 2017? If yes, please provide me with a copy.

In response, DOJ started doing a summary of the use of legal process against journalists for each calendar year. For example, the 2016 report described the legal process used against Malheur propagandist Pete Santilli. The 2017 report shows that, in the year of my substantive interview with FBI, DOJ obtained approval for a voluntary interview with a journalist before the interview because they, “suspected the journalist may have committed an offense in the course of newsgathering activities” (while I have no idea if this is my interview, during the interview, the lead FBI agent also claimed to know the subject of a surveillance-related story I was working on that was unrelated to the subject of the interview, though neither he nor I disclosed what the story was about). The 2017 report also describes obtaining Ali Watkins’ phone records and DOJ’s belated notice to her. The 2018 report describes getting retroactive approval for the arrest of someone for harassing Ryan Zinke but who claimed to be media (I assume that precedent will be important for the many January 6 defendants who claimed to be media).

While I am virtually certain the reports — at least the 2018 one — are not comprehensive, the reports nevertheless are useful guidelines for the kinds of decision DOJ deems reasonable in a given year.

But as far as anyone knows, DOJ stopped issuing them under Barr. Indeed, when I asked Raimondi about them, he didn’t know they existed (he is checking if they were issued for 2019 and 2020).

So we don’t know what other investigative tactics Barr approved as Attorney General, even though we should.

The Crossroads of Insurrection: The Senate Chamber Insurrection Defendants

/36 Comments/in , /by

In a recent motion opposing relaxing Larry Brock’s release conditions, the government revealed that it, “is continuing to investigate the Defendant for the offense of obstruction under Title 18 United States Code Section 1512(c).” Brock is the retired Lieutenant Colonel who, like Eric Munchel, brought Zip Ties onto the Senate floor. In spite of Brock’s online writings shortly after the election predicting that, ““Fire and blood will be needed soon,” Brock was charged only with misdemeanor trespassing for his role in the insurrection.

Since then, the Senate has been a locus of increased attention, as the government arrests more people with video of what happened there and rounds up the co-conspirators of those they arrested months ago.

That increased attention provides a way to look at the events of January 6 via a different lens. Rather than focusing on the most spectacular defendants — no one is more spectacular than Jacob Chansley, but Eric Munchel’s actions attracted attention away from others — by focusing on who breached the Senate, we can understand some of the logistics that allowed it to be breached. And by whom.

The picture we get, as a result, is a crossroads of the really aggressive participants of the January 6 insurrection, with cultists, militia members, GOP operatives, and curious tourists all represented.

I am assuredly not saying there was or is a conspiracy that joins all these people. While there are some pregnant unanswered questions about individuals like Leo Bozell, Bradley Barnett, Jacob Clark, and Patrick Montgomery — as well as conduct like assaults charged against Montgomery and DJ Shalvey that remain undescribed — there’s absolutely no reason to believe this was all coordinated. … Beyond, of course, the President calling out the mob on Mike Pence.

A focus on the Senate is useful, though, to show how the multiple breaches interacted. The first people who came in the West door (including the Hughes brothers), the Northwest door (including Patrick Montgomery and his buddies), and the East door (which is how Joe Biggs got to the Senate), all made it to the Senate before it was secured. Indeed, a number of people who made it to the Senate (like Ronnie Sandlin) were instrumental in opening the East doors from inside, before they reached the Senate. So looking at who got to the Senate how helps to clarify how all the three main breaches worked in tandem, and in fairly quick succession.

It’s also a reality check about the relative importance of various groups who breached the Capitol. While this is still an impartial picture, the narrative to date suggests that QAnon managed to get far more of their adherents to the Senate floor than either the Proud Boys (Joe Biggs and Arthur Jackman showed up after getting in with the help of people inside) or the Oath Keepers (Kelly Meggs and Joshua James showed up too late). QAnon held a prayer on the dais while the militias were still breaching doors.

There are a number of people who remain — publicly at least — unidentified, such as two of Patrick Montgomery’s associates or someone who shadowed Bozell.

This post, a description of those who breached the Senate organized alphabetically by the most important participant, is just a baseline from which to understand more about who go to the Senate and how.

Update: In comments a few people have explained what significance I attribute to continuances a few of these defendants, like Leo Kelly, have. It means several things. First, it means the person in question is immediately moving to discuss a plea deal. One of the defense attorneys here seems to have chosen to really aggressively seek such continuances (Kira West is a noticed attorney on three of these defendants: Leo Kelly and Christine Priola, both of whom got continuances before being formally charged, and Tony Mariotto, who was charged by information; in the latter two cases, though, West sponsored outside attorneys Pro Hac Vice). But from a narrative perspective, it means our understanding of what the government knows about the defendant is frozen at the moment the FBI agent writes an arrest affidavit, whereas with defendants who get detained and then challenge that detention, which include a high percentage of the defendants who made it to the Senate, we often learn what the government found on the person’s cell phone. One of the points I attempted to make here is that for a variety of reasons, the story told in the court filings leaves out significant and, in some cases, intentional gaps in the revelation of what the government knows.

Note: This is based of my own imperfect list of who was described as being where. Plus, I suck at visual identifications. Please let me know what I’ve missed in comments. 

Thomas Adams

Per his arrest affidavit, Thomas Adams traveled from Springfield, IL, and claims to have just followed the mob with an unnamed friend (probably Roy Franklin, who was interviewed along with him the day of the insurrection) up the scaffolding to what I believe is the Northwest door. The cops he saw after he entered the building “weren’t really doing much … just waiting to see if we’d try to push past them.” Soon thereafter, he entered the Senate, where he saw Jacob Chansley, who he thought was “hilarious.” This is a photo of Adams in the Senate.

Adams took a lot of video while he was in the Capitol, including footage from the Senate floor the government may be particularly interested in, including this image.

Adams was arrested on April 13, over three months after he appeared in an article describing his exploits that day, during a period when the government seemed to be arresting a lot of people who took a lot of video of key scenes. He was charged with trespassing and obstructing the vote count.

Tommy Allen

Tommy Allen flew to DC from Rocklin, CA. He was picked up on video recordings in the Senate from 3:03 to 3:10PM on January 6. In addition to this picture, he was filmed taking papers from the clerks’ desks at the front of the Senate and putting them in his back left pocket, as well as absconding with the American flag.

He would later tell a journalist he took a letter from Trump to Mitch McConnell from the then-Majority Leader’s desk.

Allen was arrested on January 22 after first a stranger and then someone who’d “interacted with him on a number of occasions” alerted the FBI to his Facebook posts, which he tried to delete after he returned home. The latter witness also told the FBI that he or she had heard that Allen had destroyed the documents he took in his backyard.

Allen was charged with trespassing and (probably misdemeanor) theft; after he was formally charged with the same charges on February 2, he wasn’t arraigned until April 8.

Bradley Bennett and Rosie Williams

At some point on January 6, QAnoner Bradley Bennett and his partner Rosie Williams seemed to pray with DJ Shalvey and two others.

And they appear to have gotten in the Capitol the same way that Andrew Griswold did (so probably the East entrance, after those doors were opened from inside). They also made it to the Senate.

Those images would seemingly expose the couple mostly to trespass charges — and indeed, that’s all Rosie got charged with, both on their arrest complaint and their indictment.

But from the start, Bennett responded to his pursuit with obstruction. First, per a tipster who had tracked Bennett for his QAnon postings, Bennett deleted most of his January 6 postings within a day of the event.

Publicly, on the day of the event, Bennett blamed Antifa instigators.

But Bennett texted an associate the same day and clarified that Jacob Chansley was not Antifa.

Bennett and Chansley now share an attorney, Albert Watkins.

Then, after the FBI arrived in Kerrville, TX on March 23 to arrest the couple based off a March 19 warrant, only Rosie was there to be arrested. Per a motion for detention, Bennett had left on March 13 (though one of his sisters claims they split up in February), rented a car, drove to North Carolina, then went to stay with a friend in Fort Mill, South Carolina for two weeks, then hid for another 10 days until finally agreeing to turn himself in on April 9. He stopped using his cell service in that time period and stopped posting to Facebook, shifting to Telegram instead. At some point, he got rid of his new iPhone 11, claiming it did not work (there’s still some uncertainty about when and why he ditched the phone).

Bennett’s efforts to evade arrest may well arise out of nothing more than QAnon paranoia. Though several other aspects about him suggest he may have a more sophisticated Q-related grift going on. But he had attracted attention, even among Q adherents, even before January 6, and he was among the most elusive defendants of all January 6 arrestees.

Joe Biggs and Arthur Jackman

That Joe Biggs made his way to the Senate chamber did not show up in his arrest affidavit, or the first several filings in his case. It was mentioned in the “Leadership indictment” charging Biggs and three others with a conspiracy to obstruct the election certification.

64. Thirty minutes after first entering the Capitol on the west side, BIGGS and two other members of the Proud boys, among others, forcibly re-entered the Capitol through the Columbus Doors on the east side of the Capitol, pushing past at least one law enforcement officer and entering the Capitol directly in front of a group of individuals affiliated with the Oath Keepers.

65. After re-entering the Capitol by force, BIGGS and another member of the Proud Boys traveled to the Senate chamber.

But that indictment, released on March 10, may have increased the urgency of the focus on the Senate, as it showed that Biggs entered the Capitol twice — first in the initial wave, through the West door, and then through the East door — in a kind of pincer movement and after doing so went to where Mike Pence had only recently been evacuated.

I’m not sure I’ve seen pictures of Biggs in the Senate. But the arrest affidavit for Arthur Jackman — with Paul Rae, one of two Floridians who tailed Biggs around that day — shows him, after twice being caught walking with his hand on Biggs’ shoulder…

… And posing with Biggs and Rae for a selfie on the East steps …

Jackman’s affidavit shows him in the Senate (where we know Biggs also went).

And taking this selfie with his Proud Boys emblazoned cell phone.

In fact, the investigation into Jackman (at least as described in the affidavit) started when a friend of Jackman’s shared that selfie — which Jackman had first sent to a childhood friend — with the FBI.

When interviewed by the FBI on January 19, a good two months before he was arrested, Jackman explained that he had joined the Proud Boys in 2016 as a way to support Trump, refused to say whether he had entered the Capitol, but claimed the Proud Boys weren’t there to infiltrate it as [this makes no sense] it was not a sanctioned Proud Boys event.

It’s going to be hard to argue he didn’t breach the Capitol as part of a Proud Boys’ event (twice!) when he did so each time tailing along behind Joe Biggs.

Joshua Black

Joshua Black claimed that God instructed him to drive to DC and take part in events on January 6, and he came with his knife. He was at the front of the mob pushing past barricades before the initial breach of the Capitol (though it’s not clear whether he was pushing himself or being pushed from behind), and after being hit in his face with a plastic bullet, he then walked around the Capitol and entered the East side, at the forefront of another mob. Then he found the Senate Chamber.

While there, he joined others in rifling through and photographing papers on the desks and then in prayer. He ordered someone else (maybe Christian Secor?) to get out of the presiding officer’s chair and not to be disrespectful, and ordered others not to loot the place.

He self reported after he showed up in media coverage, and then later admitted to the FBI he brought the knife that would significantly expand his legal exposure.

He was formally charged with obstruction, and the trespassing charges against him were enhanced because of that knife. He spent over three months in jail, in part because an Alabama Magistrate believed he might be dangerous if he came to believe God ordered him to commit violence. After a hearing on April 23, Amy Berman Jackson released him to home confinement.

Leo “Zeeker” Bozell

Someone whose kids went to school with Zeeker Bozell’s kids tipped of the FBI on January 14 that he had been part of the riot.

Then later, when CNN published footage from the New Yorker on the Senate rioters, that same tipster alerted the FBI to that, too, circling the scion of the movement conservative, Leo Bozell, in the picture.

After being interviewed by the FBI on January 19, the same very persistent witness followed up again on January 24 with this YouTube video that included a fleeting glimpse of Bozell, this time on the balcony in the Senate.

The clip itself is innocuous. But the crowd it captures on the balcony, possibly a convergence of the first people to arrive, may be far more important.

What may have finally piqued the FBI’s interest in the son of a prominent Republican operative were the videos showing that while Bozell was up on the balcony — before anyone was on the floor of the Senate — he and a much younger man (Mike P persuasively argues that this is Bruno Cua in comments) took steps to ensure that two cameras would not capture what was about to happen on the Senate floor.

Bozell was originally charged with trespassing and obstruction on February 11; he was arrested 6 days later. It wasn’t until his indictment on March 12 — two days after Joe Biggs was indicted in the “Leadership” indictment — that Bozell was charged with doing or abetting $1,000 of damage while forcibly entering the Capitol, the same charge used to detain some Proud Boys and Oath Keepers prior to trial. But in spite of being implicated in a crime of violence, Bozell was released on personal recognizance.

Larry Brock

Larry Brock is the less famous of the two Zip Tie Guys in the Senate that day, though Brock was even more kitted out than Eric Munchel. According to his arrest affidavit, within two days of the riot, Brock’s ex-wife called the FBI and told them he had been on the Senate floor. That same day, someone who knew of Brock’s Air Force background and ties to defense contractor L3 also tipped off the FBI.

Brock is one of the people (Oath Keepers Kelly Meggs and Joshua James were recently disclosed to be others) who also made it to Nancy Pelosi’s office, suggesting he was hunting top legislators. Yet, even though videos show Brock lecturing the other insurrectionists that, to win the I/O (information operation) war, they needed to avoid damaging anything, and even though Brock’s social media shows he had started talking war days after the election and mused that, “I really believe we are going to take back what they did on November 3,” while traveling to DC, the government only charged him with misdemeanor trespass (though as noted above, they’re still weighing obstruction charges for him).

Jacob Chansley

Jacob Chansley’s strutting poses have made him the poster child of the insurrection, but the self-billed “Q Shaman” was well know to those who tracked extremist organizing and QAnon before January 6.

As with Joshua Black, the FBI didn’t need to come looking for Chansley. He called them on January 7 and admitted he was the guy with animal pelts and no shirt.

Even though Chansley was originally charged on January 8 only with trespassing, an indictment obtained 3 days later charged him with obstruction and civil disorder. When Royce Lamberth denied Chansley’s bid for pre-trial release, he treated the spear Chansley had brought as a dangerous weapon, which will make his trespassing charges a felony as well.

Amid all the discussions about Chansley since he was arrested, one thing has gotten little public attention: his admission that he traveled to DC with some other people from Arizona, people who no doubt would implicate him in an extremist network that predated January 6. Unless I’ve missed it, that network hasn’t been implicated together.

Jacob Clark

The government got an arrest warrant for Jacob Clark by March 5. It appears to be based largely off using facial recognition to match his Colorado driver’s license to nine different pictures obtained from surveillance videos from the Capitol, corroborated by one person who knows him. They also used returns from the Google GeoFence warrant to show he was inside the Capitol from 2:15 until 3:25PM the day of the riot and returns from a Verizon warrant showing him driving from Colorado to DC from January 4 to 5 and then returning starting on January 7.

Because the government didn’t arrest Clark until April 21, over six weeks after obtaining the warrant, the warrant affidavit surely only shows a fraction of what the government knows about him. Even still, the affidavit shows Clark to have been like Where’s Waldo during the time he was in the Capitol, with surveillance footage showing him in four different confrontations with police in four different locations, each time seemingly pushing the cops to let rioters run through the building. The most easily identifiable (though he was also in the Rotunda as it was breached) shows that Clark took part in the exchange with plain clothes police outside the Senate gallery that Nate DeGrave was also charged for.

What’s interesting is the video shows that Clark got to that hallway over a minute before almost everyone else.

Clark was charged with civil disorder, obstruction, and trespassing, but perhaps because he was only recently arrested, he has not yet been indicted.

Josiah Colt, Ronnie Sandlin, and Nick DeGrave

I described here how these three men planned and outfitted for the insurrection together. The key takeaway from that post for the purpose of this one is that Sandlin and DeGrave are accused of tussling with cops so as to permit the East door of the Capitol to be opened (through which some key conspirators rushed), but also of fighting with cops just outside the Senate Chamber (along with Jacob Clark, above, and with Christian Secor watching) so as to permit the Chamber itself to be breached.

Only Josiah Colt is recognizable among these three, but his two buddies played pretty key roles in the success of the larger insurrection.

Elias Costianes

The FBI received a tip on January 8 that Elias Costianes had posted videos of his participation in the riot on his Snapchat account. On January 19, the tipster provided the videos he uploaded. Those showed Costianes filming himself in the Senate, outside Pelosi’s office, and possibly watching the East doors being breached. He was charged on February 3 with trespassing and obstruction and arrested on February 12. He was indicted on the same charges on March 3, and his case has been continued since, meaning there’s no explanation for why he knew precisely where to go in the Capitol.

Bruno Cua

Cua, a spoiled 18-year old whose own parents enabled his participation in the insurrection, was part of the mob that fought to get into the Senate Chamber (along with Sandlin, DeGrave, and Clark). According to his arrest affidavit, he was turned in by local police officers, who knew him because he has a history of pissing off his neighbors and ignoring orders. He was charged on January 29, arrested on February 5, and indicted on February 10. He was charged with obstruction, civil disorder, and assault/resisting, and his trespass charges were enhanced because he carried a baton with him. Even after the insurrection, Cua still endorsed violence.

Violent protests against the capital (NOT SMALL BUSINESS’S) are well within our constitutional rights

Dear Swamp Rats, The events at the capital were a reminder that WE THE PEOPLE are in charge of this country and that you work for us. There will be no ‘warning shot’ next time.

Everyone who works in congress is a traitor to the people and deserves a public execution.

But beyond details from his social media posts, there was nothing from an extended detention fight that illuminated more about Cua’s ties.

Andrew Griswold

For all we can tell from the court filings, Andrew Griswold is just some guy who went to the Senate floor along with a bunch of other people who wanted to prevent the vote count.

But there are a few interesting features of his case. Someone else who went to the Senate helped get Griswold, from Niceville, Florida, arrested. His Febuary 26 arrest affidavit, describing how he was one of the first people to come through what must be the East door after it was opened with the help of Sandlin and DeGrave, relies, in part on,

camera footage obtained from an individual (W-2) who also entered the Capitol on January 6. At multiple points during the video, an individual who appears to be GRISWOLD is visible, wearing a camouflage jacket.

[snip]

At one point in the video, W-2 walks through a hallway, and GRISWOLD is visible ahead. W-2 then enters the Senate gallery, and GRISWOLD is again visible, as seen in the screenshot below:

The discovery shared with Griswold may describe this as, “One clip from a video obtained in another investigation” which the government deems as Sensitive.

Magistrate Michael Harvey approved Griswold’s arrest warrant on February 26. But the first arrest warrant against him was quashed by Harvey, apparently on March 1; the arrest warrant that Harvey approved is also dated March 1. Griswold was arrested on March 5 and that same day he and his attorney stipulated to the fidelity of the FBI image of his phone so he could get it returned, which is a reasonable thing to do if you want to avoid buying a new phone but very rare among January 6 defendants (indeed, Vitaly Gossjankowski won’t so stipulate with his laptop, even though that has expensive software on it to assist his hearing disability). Griswold was charged with trespassing and obstruction, but almost two months after his arrest, he has not been formally indicted.

Apparently as part of Griswold’s efforts to get the DC pretrial release conditions imposed rather than the local FL ones (the conditions differ in terms of the travel restrictions, the reporting requirements, restrictions on alcohol and other drugs, and — most notably — restrictions on the right to retain a legal firearm), the original Florida judge in his case recused and another granted Griswold’s request. All subsequent January 6 defendants seem to be having restrictions imposed on gun ownership, so that may have been the issue.

Paul Hodgkins

In an interview on January 26, four days after an acquaintance provided the FBI with a selfie he posted to Parler, Paul Hodgkins told the FBI that he traveled to DC alone, on a bus, and didn’t know any of the people engaged in violence or destruction around him. But before he started rifling through things on the desks in the Senate, he put on some white latex gloves, which is a curious bit of preparation for a guy who just hopped on a bus alone.

Hodgkins’ release conditions — initially, with a $25,000 bond and high intensity supervision, though with the bond later dropped by Magistrate Merriweather and then his curfew loosened by Judge Randolph Moss — were much stricter than other defendants charged, like he was on March 5, with trespassing and obstruction. (That could either stem from a strict local magistrate or from a prior arrest record.) In both of Hodgkins’ appearances, his lawyers have talked about making a plea deal.

Jerod  and Joshua Hughes

Jerod and Joshua Hughes are brothers from Montana. They watched as Dominick Pezzola busted through a window to break into the Capitol, were among the first 10 people in (amid a group that included Proud Boys who — like them — are from Montana), then Jerod kicked the door open to allow other rioters in behind them.

They went from there immediately towards the Senate floor, following Officer Goodman closely behind Doug Jensen.

Once inside the Senate, Jerod set about ransacking desks as Christian Secor, holding his America First sign, looked on.

That’s about all their arrest warrant, charging them with civil disorder, damaging government property, obstruction, and trespassing describes. They turned themselves in on January 11 after the FBI released their pictures on a BOLO. They were indicted on February 10. Since that time first Jerod, then Joshua, have moved for bond, which Judge Tim Kelly granted to both on April 7.

Those detention disputes, revealed that the brothers had driven over days to attend Trump’s rally. They claimed, at first, that they had gone to the Capitol in response to Trump’s exhortations. But after the prosecutor reviewed the Cellebrite report from Jerod’s phone on April 5, the government discovered texts showing buddies had funded the trip, and that Jerod claimed that he was behaving as a model citizen by participating in an insurrection.

Defendant: Ah we didn’t do anything crazy like destroy shit or fight the cops. Trespass and vandalism. Meh. I’ve done time. It’s josh I worry about.

Person Five: It’s the trespassing I worry about, but there may have been so many of you that figuring it out is more trouble than it’s worth. Were you in the photos? I could only see josh

Defendant: They got my ugly mug up and down. Trespassing ain’t shit. I feel like I was behaving like a model citizen ready to reclaim my country. Not enuff people followed.

Jerod said to someone else that they had wanted to hold the place but didn’t have numbers to accomplish that.

Person Six: How was it

Defendant: Insane on a few different levels.

Defendant: I saw picture [sic] of me and josh already on the news. Not enough people followed us in to hold the place. We had to get the fuck out.

The government also noted — attributing it to a picture on Jerod’s phone though they surely would have had it before — that the two had been present in the Senate Gallery, as well as the Senate floor.

Leo Christopher Kelly

Leo Kelly did an interview the day of the riot — after being among the first people in the Capitol and praying with others on the dais of the Senate — expressing some reservations about invading other people’s space. He asked a Deputy US Marshal to tell the FBI he would turn himself in if an arrest warrant were issued. He was arrested, just on trespassing charges, days later. Since that time, the government has twice deferred formally charging him, with the next deadline for a preliminary hearing set for May 10.

Anthony Mariotto

Like fellow Floridian, Arthur Jackman, Tony Mariotto was first IDed after he shared a selfie from the Senate Gallery and a friend shared it (after Mariotto had deleted his Facebook account) with the FBI.

Mariotto was in Georgia when the FBI first caught up with him. But when they asked, he immediately returned to Florida, and, on January 19, handed over his phone to be imaged. Three days later he was arrested. On February 8, he was formally charged with trespassing.

His arrest affidavit, which describes, “other videos that were recorded inside the Capitol Building during the events of January 6, 2021,” doesn’t describe what was on those videos. They may be among those that implicate others who entered the Senate.

Patrick Montgomery and Brady Knowlton

The investigation of Patrick Montgomery is a useful snapshot for understanding the Senate as a crossroads. As I wrote here, his acquaintances started turning him into the FBI the day after the insurrection, leading to his arrest and formal charge on misdemeanor trespassing charges by information. Even while that was happening, the FBI was investigating a guy who showed up in one of his pictures from the day, Brady Knowlton.

Knowlton’s arrest affidavit implicated two other guys, one that a witness who has been in a lawsuit with Knowlton for years described as Knowlton’s “right-hand man,” but who remains unnamed and uncharged. And surveillance images of Knowlton and Montgomery IDed someone — the guy in the hoodie who entered the Capitol with Knowlton and Montgomery — whom FBI either declined to name or had not yet IDed when they got the Knowlton arrest warrant.

The three of them went to the Rotunda — where people were opening a third breach to the Capitol — and from there to the Senate, with Knowlton filming from his camera the entire time.

When the government indicted Montgomery and Knowlton on April 16, they not only charged both with obstruction, but they added assault and civil disorder charges against Montgomery for an unidentified exchange with cops.

So in addition to the assault that Montgomery allegedly was involved in, this thread still leaves two men unidentified.

Christopher Moynihan

Per his arrest affidavit, Christopher Moynihan is another of the people who rifled through official papers when he got to the floor of the Senate on January 6. g “There’s got to be something we can use against these fucking scumbags,” he was quoted as saying. In the wake of the New Yorker video, two of Moynihan’s former co-workers alerted the FBI to his identity. He joined the prayer on the dais, but with a sour face that made it look like he was just going along. He was arrested on February 25 and indicted with the same obstruction and trespassing charges on March 17.

Eric Munchel and Lisa Eisenhart

Eric Munchel and his mom, Lisa Eisenhart, quickly became the focus of both legal and press attention given his spectacular appearance on the floor of the Senate with Zip Ties.

They were arrested early — on January 15. Munchel’s admission to having a taser when he breached the Capitol increased both’s legal exposure under a deadly weapon enhancement. But Munchel’s general compliance with law enforcement also helped to convince the DC Circuit they would not be a threat going forward.

After the events of January 6, Munchel apparently considered joining Proud Boys. But instead, he’s now the poster child both for the threat of kidnapping, but also for a DC Circuit standard of bail that treats involvement in a terrorist event as a historical threat, and requires detention decisions to consider whether the same people pose a forward-looking terrorist threat.

The more important point for the purposes of this post is that the government has not yet shown proof that Munchel or his mother did more than recognize the two militias as they were engaged in armed MAGA tourism while holding zip ties.

Christine Priola

According to her arrest affidavit, the government identified Christine Priola’s presence in the Senate chamber within days, based in part on the sign she carried reading, “The Children Cry Out for Justice,” perhaps suggesting a QAnon affiliation. Curiously, the affidavit explains that she and others — the first people in the Senate — “entered the restricted floor area of the Senate chambers and took photographs of the evacuation of the Senate chambers that were required based on the unauthorized entrance,” suggesting the rioters arrived even earlier than the impeachment case had made out.

After a tip on January 8 from someone in Cleveland that Priola, who worked for the Cleveland School District, was the one holding the sign, the FBI searched her home and seized her devices — on which she had filmed events in the Senate — that same day. But when the FBI imaged her phone, there were no photos, videos, chats, or messages from January 4 through 7, and the location of the phone was also unavailable until 4:23PM on January 6, when her phone showed up northeast of the Capitol.

Priola was arrested for trespassing on January 14, but since then her case has been on hold, without even an Information to show whether the FBI obtained more information on why her phone had been cleared within two days.

Michael Roche

Michael Roche is one of the people who joined Jacob Chansley in prayer on the Senate dais. The story of how he came to be arrested — and why he was not arrested until April 13 — remains a muddle. He was IDed on February 8 when law enforcement found a video he made posted to someone else’s account. In the video, he admitted that,

We did get a chance to storm the Capitol. And we made it into the chamber. . . . We managed to convince the cops to let us through. They listened to reason. And when we got into the chamber … we all started praying and shouting in the name of Jesus Christ, and inviting Christ back into out state [sic] capitol.

That seems to have led the FBI to this photo was posted by Seth Roche, explaining that he took the picture before people started claiming that Jacob Chansley was Antifa and explaining (I think) that his brother had stood shoulder to shoulder in prayer with Chansley, “in the main capital [sic] chamber [sic] holding up the Bible.”

Roche’s arrest affidavit suggests the FBI found both those posts before the New Yorker posted its story on January 17 with the video of Chansley, Roche, and others praying.

According to the arrest affidavit, nothing else happened until US Marshals, in an effort to find a missing child, knocked on Roche’s door, thinking the child’s family lived there. Roche told the Marshals he thought they were coming to arrest him. When the Marshals informed the FBI that same day, the FBI got the Marshal to ID Roche as the person in the NYer.

Again, all that happened by February 2. It wasn’t until April 7 when the FBI submitted his arrest affidavit. The affidavit not only has no more recent evidence in it, but it doesn’t really explain why Roche (unlike — say — Larry Brock) got charged with obstruction along with trespassing.

Those questions further raise the question about whose Facebook his interview appeared on, because that person may be the real person of interest associated with Roche.

Christian Secor

It seems like Christian Secor’s classmates at UCLA jumped on the opportunity to report Secor’s involvement in the January 6 insurrection. Eleven people, many of them students, IDed Secor as one of the people who had sat in the presiding officer’s seat or otherwise shown up in the New Yorker video of the Senate occupation.

But Secor did more than tour the Senate. The surveillance videos the FBI included with his arrest affidavit show Secor was among those who shoved the East doors open from inside.

He was close to  the brawl outside the Senate gallery doors involving Nate DeGrave, Ronnie Sandlin, and Jacob Clark.

There’s even a clip of him just behind the woman that the FBI suspects of having Nancy Pelosi’s laptop (per a Homer, AK woman who claims she was mistakenly IDed as such).

There’s no reason to believe Secor and this woman are together, but the proximity is interesting given that Riley June Williams, also a Groyper, allegedly first took the laptop.

Secor was arrested on suspicion of assault, civil disorder, obstruction, and trespassing on February 16 and indicted on those same charges on February 26. In March his lawyer moved to get him released in time to finish his UCLA finals. The government tried to oppose his release, pointing in part to his pro-fascist views, in part to the weapons he had been acquiring and in part to his alleged attempts to cover up his involvement. But Judge Trevor McFadden released him on a $200,000 bail with a rather curious kind of home incarceration that lets him out to work.

DJ Shalvey

DJ Shalvey is the guy wearing an undersized hard hat depicted in videos of people rifling through papers in the Senate. He’s quoted thinking Ted Cruz sold them out before others tell him, no, Ted Cruz was right there with the insurrectionists.

The FBI obtained an arrest warrant for him after two long-time associates alerted the FBI, one of whom shared selfies that Shalvey sent him the day of the riot, by February 12. But he wasn’t arrested until March 9, reportedly after turning himself in. Somewhere along the way he must have interviewed with the FBI, though, because his (still undocketed) indictment released Friday not only added assault and civil disorder charges against him, as well as theft charges for taking a letter from Mitt Romney to Mike Pence, but they also made Shalvey the rare if not only January 6 defendant charged with lying to the FBI about that assault.

 

The Rickety 702 System: Why It Continues to Fail

/4 Comments/in , /by

Back in 2009, I showed how a heavily redacted opinion rejecting what we now know to be a Yahoo challenge to the Protect America Act found that the predecessor to FISA 702 was constitutional because of the minimization procedures implementing certificates implementing the surveillance program. We learned seven years later that Yahoo hadn’t been provided those minimization procedures as part of their challenge, and indeed, DOJ withheld a key document from Reggie Walton, who presided over the challenge, until after he made key decisions in the case. That was also the first year the government finally presented details about the intended use of what had become 702 to FISC, most importantly that FBI was getting raw data they would encourage Agents to query, even at the assessment level. But even two years later, FISC was still just pushing FBI to follow rules imposed requiring them to track their queries of the raw 702 data. Two years later, after being presented with evidence that FBI still hasn’t complied with the law as currently written, outgoing presiding judge James Boasberg nevertheless reauthorized the program.

In general, Boasberg’s opinion reauthorizing 702 from last November describes violations pertaining to FBI access of 702 data for queries that have both a national security and criminal investigative function, FBI’s improper use of batch queries, and real problems with protections for attorney-client communications at NSA that could really blow up in the IC’s face one of these days, all problems FISC has been reviewing for years. The opinion also describes how training and COVID has delayed what will be an inevitable accounting for the fact that one key purpose of 702 when it was started — to select a fraction of all the intelligence NSA examines and put it into FBI coffers to make it available for querying — is a poor fit with the current law.

To understand one reason why this never gets better, I wanted to look at the structure of this and all other reauthorization opinions, because it never fixes some of the problems built in from the start.

The 702 opinions, like traditional FISA approvals, are all driven by the statute, ticking one after another required element off. If everything gets ticked, in order, then hundreds of thousands of people remain targeted for surveillance, along with all the people they communicate with.

Memorandum opinion and order

The opinion starts with introductory mapping. Even at that point, Boasberg describes this reauthorization as a “status-quo” reauthorization, meaning the request certificates from the government have remained largely the same and so don’t present any new issues to reconsider.

I. Government’s Submission

A. 2020 Certifications and Amendments: The opinion starts by laying out what gets included in the package, which basically includes the certificates, along with the targeting (NSA and FBI), querying (NSA, FBI, CIA, and NCTC), and minimization (NSA, FBI, CIA, and NCTC) procedures that implement the certificates.

B. Subject Matter of the Certification: This section describes, in heavily redacted fashion, what the certificates do and the rules and intent for all of them. Last we knew, there were three certifications: one targeting terrorists, one targeting proliferation, and one targeting “foreign governments,” focusing not just on other country’s spying, but also (to the extent it is a separate entity) their hacking. This section also notes, importantly, that these certificates renew prior authorizations; every year, FISC approves the new rules to apply to any new collections but also all the stuff already in the government’s possession. This is important, because analysts will continue to query (governed by one set of procedures) and report out (governed by minimization procedures) communications obtained in year’s past. Thus, every new approval covers all the stuff that came before (which also means the judges largely rely on their earlier decisions).

II. Review of the 2020 Certifications and Prior Certifications

One of the first things FISC does in these opinions is review the changes from past certifications, usually coming to the conclusion that, “we’ve approved these certifications going back 12 years, so we’ll just approve them again.” And some of this, as Boasberg admits in this opinion, is a matter of “check[ing]” procedural boxes — do the applications have the things required of them.

III. Targeting Procedures

Then each set of procedures is approved in isolation. First, the judge reviews whether targeting procedures fulfill the requirement that targeting procedures are “reasonably designed” to ensure that targets are outside the US and the procedures do not intentionally target communications entirely made up of US persons. For years, this has focused on making sure that if NSA or FBI get it wrong and target someone who’s in the US or is a US person, they detask the target quickly.

IV. Minimization and Querying Procedures

Then, the judge reviews whether the minimization procedures limit the dissemination of non-public US person data, allowing for its use for a foreign intelligence purpose and the sharing of evidence of a crime. Most opinions come with some language like this (from last year’s opinion) rationalizing — even though NSA and FBI have always refused to provide the data to test this assumption — that this content will be less impactful than traditional FISA collection.

In applying these statutory requirements, the Court is mindful that Section 702 acquisitions target persons reasonably believed to be non-U.S. persons outside the United States. Although such targets may communicate with or about U.S. persons, Section 702 acquisitions, as a general matter, are less likely to acquire information about U.S. persons that is unrelated to the foreign-intelligence purpose of the acquisition than, for example, electronic surveillance or physical search of a home or workplace within the United States that a target shares with U.S. persons.

Remember, unlike traditional FISA, there’s no individualized review of the foreign intelligence claims of these targets. So yeah, someone in Iran may have less contact with Americans, but the claims about that person require a far lower burden of foreign intelligence interest.

In last year’s opinion, Boasberg noted that the minimization (limits on dissemination) and querying (limits on searching the files) work together and analyzed them together. Nevertheless, with some more box-checking (for example, on whether each agency requires a record of queries made), Boasberg then concludes that since not much has changed, he can approve both the minimization and querying procedures.

Nothing detracts from the Court’s earlier findings [in past years] that these procedures as written are statutorily and constitutionally sufficient.

Remember: the FBI queries are the area where 702 has been particularly controversial of late, but the analysis of their application does not come here, in the section that approves them.

There is a discussion of attorney-client communications in here, particularly with regards to NSA’s use of attorney-client communications. But even after observing that,

The government does little by way of justifying the differing treatment of privileged communications by NSA,

Boasberg nevertheless relies on past approval for this same application to approve last year’s certificates.

[T]he Court has previously approved the dissemination provisions in the NSA procedures highlighted above, which unambiguously contemplate the dissemination of attorney-client privileged communications of the types being discussed here [redacted] subject to certain limitations and requirements.

[snip]

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

Boasberg does “admonish[]” NSA to make sure none of this dissemination ends up in an FBI report. But having expressed concerns about how NSA exploits attorney-client communications, he nevertheless approves its use for foreign intelligence purposes.

V. Fourth Amendment Requirements

Then, in totally separate analysis, Boasberg (like judges before him) assesses whether all those procedures he just reviewed “are consistent with the Fourth Amendment.” This review, like all the ones since 2008, has relied on procedures to find that the program as a whole complies with the Fourth Amendment.

It does so by finding that the Targeting Procedures limit the collection to people not protected by the Fourth Amendment, and the interests of those swept up in that collection can be protected with Minimization and Querying Procedures.

For reasons explained above, the Court has found that the proposed targeting procedures, as written, are reasonably designed to limit acquisitions to those targets reasonably believed to be non-Untied States persons located outside the United States. The Fourth Amendment does not protect the privacy interests of such individuals. [citation omitted]

To the extent U.S.-person information is acquired under Section 702 — e.g., when a communication between a U.S. person and a Section 702 target is intercepted — the government can reduce the intrusiveness of the acquisition for Fourth Amendment purposes by restricting use or disclosure of such information.

After language about the import of national security interests, Boasberg then concludes that, “those procedures, as written, are consistent with the requirements of the Fourth Amendment.”

VI. Implementation and Compliance Issues

It’s only after ruling everything meets the legal requirements — all the boxes are checked — that Boasberg (and this opinion is in no way unique on the structure — turns to a list of compliance issues. Yes, this analysis feigns to be part of reviewing “how [the procedures] are implemented.” But Boasberg has already found the procedures, in the abstract, sufficient to comply with the Fourth Amendment.

As part of his analysis, Boasberg offers the following excuses for the FBI:

  • It took time for them to make the changes in their systems
  • It took time to train everyone
  • Once everyone got trained they all got sent home for COVID
  • Given mandatory training, personnel “should be aware” of the requirements, even if actual practice demonstrates they’re not
  • FBI doesn’t do that many field reviews
  • Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy
  • The opt-out system for FISA material — which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job — failed to do its job
  • The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didn’t originally claim one
  • Bulk queries have operated like that since November 2019
  • He’s concerned but will require more reporting

At the end of this section, Boasberg issued a 5-bullet conclusion that the certifications check all the boxes, the 2020 certifications comply with FISA and the Fourth Amendment, the minimization procedures (incorporating therein the querying procedures) mean access to prior collections complies with FISA and the Fourth Amendment, and one querying procedure is approved for the 2020 collection.

By conducting first an abstract analysis and only then an analysis of what that has meant in past practice, and where real concerns remain to require ongoing reporting, Boasberg “gets to yes” (as Brennan’s Liza Goitein aptly wrote). Boasberg repeatedly said he didn’t have evidence to assess whether this really works to meet the requirements, but nevertheless signed the reauthorization.

Reporting requirements

Boasberg doesn’t provide a heading for his reporting requirements. But as part of his order approving the certifications, he lays out all the reports that he and past judges have required to make up for the fact that there’s no evidence these protections work. There are 11 old ones and two new ones.

Two years ago, as part of the most rigorous amicus intervention known to date, the amici recommended that Boasberg consider the querying at the heart of the FBI’s use of 702 as its own Fourth Amendment consideration. Even though Boasberg refused, FBI still threw a fit and appealed his demand that they comply with the law as written. And this opinion, as noted, still lumps the abstract analysis of compliance of minimization procedures and querying in together.

Yet the document itself, by separating the box-checking from the concepts the box-checking is supposed to fulfill, and separating both of those from the program as implemented, and even still authorizing a program while deferring the obvious proof of compliance by simply asking for 13 different reports, often of non-compliance, doesn’t actually do what it is supposed to do.

Unless what it is supposed to do is give the patina of legal review while instead turning judges into a bureaucratic functionary who can, once a year, offer some compliance suggestions that may not be implemented.

FISC Suspects John Ratcliffe of Relaxing Rules for Unmasking of FISA Material

/5 Comments/in , /by

I Con the Record released last year’s FISA 702 reauthorization the other day. A number of people have written pieces about it. I think my piece, predicting what would happen with this one, written in September 2020, sums it up nicely. I say that because, as presiding Judge James Boasberg notes in his opinion, the certification process was largely a “status-quo replacement of certifications and procedures approved by the court [on] December 6, 2019.”

With regards to the pressing issue reported on by others (which I will return to) — whether FISC will ever fully account for the problems with the way FBI does back door searches, on FISA 702 material, traditional FISA material, and otherwise — because of the way certifications happen, the court is still working through stuff that happened over a year ago.

But a more interesting aspect of the filing deals with one of the more substantive changes in the “status-quo” reauthorization. Because of changes at the National Counterterrorism Center made under Ric Grenell and John Ratcliffe, ODNI had to change the title in the minimization procedures governing NCTC’s access to raw 702 data. When NCTC wants to override requirements that data get purged after five years, one of two fairly senior people needs to sign off on it. Before, those people were the Deputy Director for Intelligence and the Deputy Director for Terrorist Identities; now they are the Assistant Director for Intelligence and the Assistant Director for Identity Intelligence. Boasberg found that change was no big deal.

Boasberg was more troubled by a change arising from the same reorganization that assigns authority to disseminate unmasked information on US persons. Before, that approval had to come from the NCTC Director “or a designee who shall hold a position no lower than Group Chief within the NCTC Directorate of Intelligence.” Now, a “Group Chief” within the Directorate of Identity Intelligence can be delegated that authority. As Boasberg interprets it, this might allow NCTC to expand the universe of people who can authorize the dissemination of unmasked US person data.

This proposed change gives the Court pause. That the change is purportedly necessitated by the transfer of one analytic group to another directorate does not mean that the practical effect of the proposed change would be limited to that group. Presumably there are other groups within the Directorate of Identity Intelligence, and, on its face, this change would allow the NCTC Director to delegate dissemination determinations to chiefs of those other groups, as well as to other, more senior officials within the Directorate of Identity Intelligence, none of whom currently can be delegated such authority.

Mind you, Boasberg approved the change anyway.

To be sure, the Court does not second-guess internal organizational decisions made by the Executive. The Court, moreover, has no objection in principle to the maintenance of the status quo vis-à-vis the group, previously within the Directorate of Intelligence, and now within the Directorate of Identity Intelligence, that is “responsible for identifying and locating members of terrorist networks.” Id. But the Court has not been provided enough information about other groups within the Directorate of Identity Intelligence to know whether the extension of delegated authority to chiefs of those other groups to authorize [redacted] disseminations is equally appropriate. The Court will approve the proposed change, but require the government to report in the future on the exercise of the delegation authority to any group chief or official within the Directorate of Identity Intelligence other than the one specifically discussed in the government’s submission.

This is how FISA problems get so bad (as the FBI back door searches did) such that it takes years before FISC learns and catalogs current problems: it requires reporting, not imposes prohibitions, and as a result only learns if there are problems months or years after the fact.

Probably, this change did not result in a relaxation of the rules regarding who could unmask US person identities. Probably, the changes imposed under Grenell and Ratcliffe were just an attempt to root out people they deemed to be disloyal to Donald Trump. Probably, this has resulted in the same fairly strict rules regarding the unmasking of US person identities that were in place before.

But it’s fairly ironic that Boasberg suspected that a change made in a certification signed by John Ratcliffe would make it easier for the government to unmask the identities of Americans who had been captured in FISA surveillance — because that’s the kind of thing the GOP led a years-long campaign accusing others of.

Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

/29 Comments/in , , /by

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

In Adding Matthew Greene to a Conspiracy with Dominic Pezzola, DOJ Formally Alleges the Proud Boys Committed a Crime of Terrorism

/27 Comments/in /by

At a detention hearing for Charles Donohoe yesterday, Magistrate Judge Michael Harvey asked a long series of questions, including what a “normie” is, what Telegram is (it is stunning that a DC Magistrate doesn’t know that, but that’s a testament they won’t accept US legal process), and whether “Milkshake,” who had been described saying a lot of really damning things in an organizational channel, was part of the conspiracy. AUSA Jason McCullough said that DOJ is still assessing Milkshake’s — whose real name is Daniel Lyons Scott — criminal liability, but since he was filmed fighting with some cops, I’d be arranging legal representation if I were him.

Along the way, however, the questions led McCullough to provide several new details on the Proud Boy conspiracy. One question he didn’t answer is whether the government knows that Donohoe succeeding in “nuking” some texts describing organizational efforts, as he described wanting to do after Enrique Tarrio got arrested.

McCullough also revealed something that was not yet public: the government had rounded up another Proud Boy, Matthew Greene, and indicted him in what I call the Proud Boy “Front Door” conspiracy along with Dominic Pezzola and William Pepe. In doing so, they did something more important for their larger case. First, they changed the purpose of the conspiracy from what it was originally charged to match all the other militia conspiracies (from busting through the first door to obstructing the vote count). Here’s what the militia conspiracies currently look like as a result:

It was probably fairly urgent for DOJ to do this (and Greene’s inclusion may have been just a convenient rationale). Here’s how the indictment changed from the original Indictment to the Superseding one (S1):

In general, the government is charging Pepe and now Greene with more than they originally charged Pepe with based on a theory that they abetted Pezzola’s alleged crimes. But the critical change is highlighted. Originally (marked in pink), just Pezzola was charged for breaking the window through which the initial breach of the Capitol happened. But in this indictment (marked in yellow), DOJ charges Pepe and Greene for abetting Pezzola in breaking that window.

The reason they did this is because 18 USC 1361 is the crime for which DOJ is arguing that all key Proud Boy defendants can be detained pre-trial, not just Pezzola, but also Joe Biggs, Ethan Nordean, Zach Rehl, and Charles Donohoe. In detention hearings, the government has argued that it counts not just as a crime of violence that allows the government to argue that a defendant is eligible for detention, but also that, because it was done to coerce the conduct of government, it triggers a terrorism designation for detention purposes.

This is how the argument looks in detention memos:

As it did before, the United States moves for detention pursuant to 18 U.S.C. § 3142(e)(3)(C), which provides a rebuttable presumption in favor of detention for an enumerated list of crimes, including Destruction of Property in violation of 18 U.S.C. § 1361. The United States also seeks detention pursuant to 18 U.S.C. § 3142(f)(1)(A), because Destruction of Property, in violation of 18 U.S.C. § 1361, is a crime of violence. Moreover, when Destruction of Property is “calculated to influence or affect the conduct of government by intimidation or coercion,” it also qualifies as a federal crime of terrorism. See 18 U.S.C. § 2332b(g)(5)(B).

This was an issue in the Monday detention hearing before Judge Tim Kelly for Biggs and Nordean. After the hearing, he required the government to submit a picture of Pezzola breaking that window.

And it will likely become an issue when Joe Biggs, at least, appeals his detention, as he noticed he would do yesterday (it would be a still bigger issue in Nordean or Donohoe’s case).

In fact, the government has been making this argument for some time.

But it wasn’t until this supserseding indictment that the government formally aligned Pezzola’s actions — including spectacularly breaking that first window with a riot shield — with the rest of the Proud Boy indictments, in fact making them (as the government has already argued) the same conspiracy, a conspiracy involving terrorism.

Last Month, Baked Alaska Got to Ditch His Ankle Bracelet

/12 Comments/in /by

While I am probably missing a few examples, I can think of just two defendants that DOJ has voluntarily loosened release conditions for without some kind of purpose tied to employment: Jon Schaffer, when he entered into a cooperation agreement with the government, and far right propagandist Baked Alaska, AKA Anthime Gionet, last month.

A warrant for Gionet’s arrest was obtained on January 7 and he was arrested on January 15 on misdemeanor charges of trespassing. He was released on personal recognizance but, unlike many other trespassing defendants, he was outfitted with a GPS monitor to make sure he stayed in AZ.

He was sent away and has never since been charged via Information.

On March 23, DOJ added a second attorney to this simple trespassing case, Christopher Brown. On March 26, Gionet asked to lose the ankle bracelet, based (in part) on a claim that he is media and (in part) on a claim that other misdemeanors he faces in AZ won’t likely go to trial. On March 29, DOJ asked for a consent motion to continue the case for another month past March 29 saying they’re trying to “resolve” this issue; this is the same kind of motion to continue they used in the Schaffer case (as opposed to unopposed motions to continue, as they’ve used in most other January 6 cases). And on March 31, the government said that, while it doesn’t agree with Gionet’s claim to be media, they don’t mind if he ditches his ankle bracelet because he’s been a good little Nazi sympathizer while out on release.

The defendant has asked this Court to remove Global Positioning System (GPS) monitoring from his release conditions. In his motion, the defendant argues that he is a member of the news media. The government disagrees. Nevertheless, because the defendant has been compliant with his release conditions to-date, the government does not oppose the instant motion.

On its face, it was an inexplicable move, particularly given the way the January 6 defendants have pointed to each other’s release conditions like 400 children complaining about unfair treatment to their mother.

When Larry Brock, also (currently) facing just trespass charges asked to change his release conditions, the government objected both to permitting Brock to travel freely in TX as well as access to the Internet. “The Defendant has not provided a change in circumstances to justify a change in release conditions,” the government argued. (John Bates overruled the government on the latter point.)

And when Felicia Konold, accused in a more serious Proud Boy conspiracy, made a similar argument about good behavior in a bid to lose her GPS monitor, the government argued that good behavior was insufficient reason to change release conditions. Indeed, in that case they pointed to her pending DUI case (like Gionet’s misdemeanor charges, in AZ), to suggest her behavior wasn’t all that great. “In sum, the defendant has not raised any novel issue that merits any meaningful change of her release conditions,” the government explained in opposing her request.

When Nicholas DeCarlo, functionally equivalent to Gionet as a right wing propagandist (albeit charged, in addition to trespassing, with conspiracy, obstruction, and for damaging the Capitol), asked to have his GPS removed, the government said nothing had changed to justify the change. “Finally, there have been no change in circumstances, other than the passage of time, that would justify these instant modifications.”

But in Gionet’s case, with no visible change in circumstances, and with pending state charges just like Konold, he ditched the ankle bracelet.

It’s certainly possible that the government, in the wake of the Eric Munchel decision (released the same day Gionet made his request), didn’t want to bother fighting this more aggressively. It’s possible they’re more sensitive to the claim that Gionet is a journalist than they let on — except that in the wake of this exchange, they’ve continued to arrest people making similar claims.

Or it’s possible something more interesting is going on. Ordinarily, a Nazi sympathizer facing a trespass charge wouldn’t have anything to deal to the government; nor would a trespass charge incent a defendant to make a deal.

Except that’s not the only exposure Gionet has or had.

On January 22, between the time Gionet was first charged and when he was arraigned, Federal prosecutors in Brooklyn charged Douglas Mackey in a conspiracy to interfere with others’ right to vote, based off Mackey’s social media campaign encouraging Hillary voters to vote by hashtag rather than casting a legal vote. Mackey was the only of the co-conspirators charged, but according to Luke O’Brien — who first broke Mackey’s true identity — Gionet was one of the four other co-conspirators described in the complaint.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

In the time that nothing has been happening in Gionet’s January 6 charge, Mackey has been indicted and his team has been reviewing evidence. On March 29 — just after DOJ added a second attorney to the Gionet case — DOJ added a third attorney to Mackey’s case.

With five prosecutors between the two cases, things are clearly more complex than the filings suggest.

And that may be the change in circumstances that allowed Gionet to ditch his ankle bracelet.

Update: Michael Daughtry, accused of trespassing, also got to ditch his ankle bracelet after wearing it for a week.