Todd Wilson: The Seditious Conspiracy Grows Branches

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Yesterday, Oath Keeper Todd Wilson pled guilty to seditious conspiracy and obstruction. He’s from North Carolina, and while the Sedition Hunters who have followed the Oath Keepers closely had been tracking him and had noticed Ed Vallejo did not redact Wilson’s name on a transcript submitted in Vallejo’s detention fight, Wilson’s information was rolled out just the morning before he pled. He went from being charged to pleading to sedition in a matter of hours.

(In other news, Judge Amit Mehta released Vallejo to home confinement yesterday.)

What we see in statement of offense — and, I suspect, what we’ll see going forward — is DOJ making little-noticed parts of a much broader network visible. As with Georgia Oath Keeper Brian Ulrich’s statement of offense, for example, Wilson’s provides hints of damning discussions that happened at the state level.

In November 24, 2020, in the “NC OK County Leaders” Signal chat, a group member advised, “we all need to be very careful about what we post here . . . While Signal is end-to-end encrypted, it’s always safest to operate under the assumption that someone is monitoring our conversations electronically.”

For sixteen months, the non-specialist focus on the Oath Keepers has been tracking The Stack and those directly associated with it (though Oath Keeper researchers always had a broader focus). But we’re going to increasingly see pieces of this conspiracy that were visible, but not seen, because the spectacle of The Stack attracted most of the attention. Some of those little-seen aspects of the larger network may prove far more important.

One testament to that is that Wilson showed up, but was not noticed, in photos already submitted to the docket in Oath Keeper cases.

Wilson’s presence in the Rotunda is actually one of the tactically most important parts of his statement of offense. Wilson entered the Capitol from the west side and then helped open the East doors from inside.

Even before he entered the building, though, Wilson was one of four people with Stewart Rhodes watching the building as it was first assaulted and he was with Rhodes as the Oath Keeper leader first entered restricted grounds.

Just before 1:30 p.m., in response to a claim by an Oath Keeper affiliate on the “Leadership Intel Chat” that Antifa had breached the Capitol, Rhodes replied: “Nope. I’m right here. These are Patriots.” Minutes later, Rhodes posted to the group that he was standing at the comer of the Capitol building with four people to include Wilson. Rhodes then posted to the “DC OP: Jan 6 21 Signal group chat: Pence is doing nothing* As I predicted.” Rhodes added, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.”

[snip]

Shortly after 2:00 p.m., Wilson, Rhodes, and others bypassed barricades and Capitol Police officers, and unlawfully entered the restricted grounds of the Capitol. While advancing, Wilson heard Rhodes proclaim that they were in the midst of a “civil war.” Through plumes of smoke, Wilson could see mobs of people climbing up scaffolding and descending on the Capitol. Rhodes soon directed his followers to meet him at the Capitol. [my emphasis]

From there, Wilson (who escaped notice in part because he wasn’t kitted out like the others and who was a member of the Oath Keepers Intelligence Signal chat) entered the building with the goal of gathering intelligence.

At 2:34 p.m., Wilson entered through the Upper West Terrace Doors of the Capitol—the first of the co-conspirators to breach the building. Wilson was armed with a pocketknife and wore a neck gaiter and beanie hat to mask his appearance. Wilson entered the Capitol with the goal of disturbing the Congressional proceeding and gathering intelligence. [my emphasis]

Four minutes later, Wilson was helping push open the East doors, thereby helping The Stack and others open a second front of the attack.

By 2:38 p.m., Wilson had marched through the Rotunda to the east side of the Capitol where he joined in the center of a mob of people trying to push open the Rotunda Doors from inside of the building. Two Capitol police officers stood in front of the closed doors attempting to keep the mob at bay.

[snip]

At approximately 2:39 p.m., the Rotunda doors were forced open, and a mob of people forcibly entered the Capitol through the doors. The entering mob included fourteen Oath Keepers co-conspirators—many of whom were wearing paramilitary clothing and patches with the Oath Keepers name, logo, and insignia—who had moved up and through the crowd on the east side of the Capitol in a military-style “stack” formation (“Stack One”), Wilson took cell phone video of them entering. The Rotunda Doors and surrounding facade suffered thousands of dollars worth of damage during the attack on the Capitol.

Wilson traveled with the others for a bit and may have accompanied the group that went to hunt down Nancy Pelosi.

Wilson walked through the Capitol for the next fifteen minutes, at times interacting with Dolan, Harrelson, and other co-conspirators who were heading southbound toward the House of Representatives.

The Oath Keepers got to insurrection later than the Proud Boys that day. But Wilson’s path makes the Oath Keepers more central players in the pincer effect seemingly coordinated with the Proud Boys and Alex Jones than previously known.

That’s the tactically important part of his statement of offense.

The part that has attracted the attention, however, is that not long after 5PM, Wilson witnessed Rhodes make a call on speaker phone to someone who could directly access Trump.

At the Phoenix Hotel, Rhodes gathered Wilson and other co-conspirators inside of a private suite. Rhodes then called an individual over speaker phone. Wilson heard, Rhodes repeatedly implore the individual to tell President Trump to call upon groups like the Oath Keepers to forcibly oppose the transfer of power. This individual denied Rhodes’s request to speak directly with President Trump. After the call ended, Rhodes stated to the group, “I just want to fight.”

The Phoenix Park Hotel parking garage, remember, is where Enrique Tarrio met with Rhodes on January 5, more details of which were released Monday in a detention memo for the Proud Boys leader.

Tarrio claims that his surreptitious meeting with Elmer Stuart Rhodes III and others in an underground parking garage was “secondary to why he was there.” Defendant’s Motion at *5 Tarrio’s claim is plainly disproven by video of the event, but even if it were accurate, it misses the point.

First, Tarrio intentionally traveled to the Hall of States Parking Garage near the Phoenix Hotel where he met with others who were planning to remain in Washington, D.C. Tarrio’s decision to do so—even while at risk of violating the D.C. Superior Court stay-away order— demonstrates that even after his arrest, Tarrio remained engaged in planning for January 6. This point is further underscored by Tarrio’s efforts to rejoin encrypted communications and coordinate with Nordean and Biggs about the plans for January 6. Second Superseding Indictment (ECF 305) at ¶¶ 63-67 (Biggs: “I gave Enrique a plan. The one I told the guys and he said he had one.”).

Second, video from the documentary crew shows Tarrio making the conscious decision to travel to an underground downtown parking garage to meet with others rather than departing Washington, D.C., as he had been ordered to do. Specifically, filmmakers captured Tarrio preparing to enter the Phoenix Hotel. The next clip captured Tarrio standing outside the hotel near a truck. When asked what happened, Tarrio told the filmmaker, “We went in [the Phoenix Hotel] and somebody advised us that they’re going to call the cops.” Tarrio was then advised by a female companion, “I think we should leave.” The next clip showed Tarrio in a truck stopped outside the Phoenix Hotel, with Tarrio talking to two people standing on the sidewalk. Tarrio then directed the driver of the truck to travel around the corner from the hotel and enter the Hall of States parking garage—where he offered to pay for the entry. While driving down the ramp into the garage, Tarrio was filmed on a phone call advising the other communicant that he could not come back near the front of the hotel because “they’re already looking out the window.” Tarrio then provided directions to the underground garage. The same two people with whom Tarrio communicated in front of the Phoenix Hotel appeared less than five minutes later in the underground parking garage, along with a handful of others.

Going forward, I suspect it would be ill-advised to assume the word “co-conspirator” assumes the conspiracy in question is entirely self-contained in one militia.

That’s worth keeping in mind when trying to guess whom Rhodes called. The most obvious candidate would be Roger Stone, and I promise you, before this is done, we’ll learn that Stone or his flunkies were involved in similar conversations.

But by the time of this call, per this WaPo piece, Stone was already fleeing. (h/t William Ockham)

Stone had said he expected to attend a meeting with administration officials on pardons that had been pushed back to 6 p.m. because Trump had “ruined the schedule for the day.” But following the riot, Stone and Davis left D.C. for the private flight.

Before Stone leftthe Willard for Dulles around 5 p.m., he paused for a photo in front of a hotel TV showing coverage of the riot.

And Wilson’s statement of offense gives the kind of nod to Mike Flynn that earlier Oath Keeper filings had restricted to Stone.

In December 14, 2020, after reading an article posted by a group member in the “Leadership Intel Chat” titled, “General Flynn warns of unelected ‘tyrants,’ says ‘time for God-fearing Americans to fight,'” Wilson replied, “It is time to fight!” [link added]

And Wilson has ties to people who have ties to Flynn.

So who knows? It could be Stone, it could be Flynn, it could be someone else — like Rudy or Mark Meadows — who genuinely did have direct access to the President.

The point being, we’re very close to a point, if not already there, where this networked conspiracy is going to coalesce such that it’s no longer about discrete militia groups, but it’s about people sitting in hotel rooms blocks away from the direct assault on the Capitol.

Update: Corrected the date of the garage meeting.

Update: The correct name of the hotel is the Phoenix Park.

WaPo Polls Whether Trump Should Be Charged Without Polling His Most Serious Suspected Crimes

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WaPo is out with a poll showing that a slight majority of Americans believe Trump should be charged for what they claim was “his role in this incident.”

Except they polled only one of Trump’s suspected crimes, “encourag[ing] his supporters to march to the U.S. Capitol, where the riot followed.” They don’t even describe that as incitement, which is the only way it’d be a crime.

But the poll is largely meaningless because they don’t poll the more egregious crimes for which Trump might be charged. Among the things they didn’t poll, all of which are being investigated, is whether Trump should be charged if he:

  • Raised funds by making claims about election results he knew to be false
  • Badgered Brad Raffensperger to alter enough votes so he could win Georgia
  • Had a role in fraudulent electoral certificates from seven swing states, some of which were submitted to the Archives
  • Entered into an agreement, either directly or through someone like Roger Stone, with the militias that directed the assault at the Capitol
  • Made a request of Mike Pence he knew to be illegal and, when Pence refused, sicced his mob on Pence, threatening the Vice President’s life
  • Deliberately limited law enforcement and National Guard response at the Capitol
  • Dangled pardons (one provided, in Steve Bannon’s case) to get others to help sow the Big Lie
  • Aided and abetted assaults on cops

It is mildly interesting that WaPo found a majority of the country believes Trump should be prosecuted for something that, as described, is probably not a crime. It would be far more interesting to see polling on whether Trump should be prosecuted for any of the potentially far graver crimes there is evidence he committed.

The Conspiracy to Use a Very Large Trump Sign as a Weapon To Obstruct the Vote Certification

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Yesterday, a guy named Marshall Neefe pled guilty to conspiracy to obstruct the vote count (18 USC 1512(k)) and assault (18 USC 111(a)).

Unless you’re a really avid reader of this site, you’ve likely never heard of him. He’s just a QAnoner from Pennsylvania who planned with his buddy Brad Smith to arm themselves, with a club and a knife, respectively, and head to DC in response to Trump’s call.

The assault that Neefe pled to was, as part of a mob, using a very large Trump sign to push cops off their defensive line.

On the Capitol grounds, NEEFE and SMITH participated in hoisting and pushing a large metal sign frame holding a oversized “TRUMP” sign into a defensive line of Metropolitan Police Department (“MPD”) and USCP officers attempting to prevent rioters from further advancing on the West Front plaza of the Capitol. NEEFE understood and admits that at all times, these officers qualified as federal law enforcement officers and were engaged in performance of their official duties. The all-metal sign frame was approximately at least eight feet tall and 10 feet wide, welded with screws, and supported by large casters that were approximately the size of a man’s head. As described by one USCP officer who was part of the defensive line, the sign frame was heavy and it took at least 15 officers to carry the sign away after the rioters thrust into their line.

NEEFE’s hands were on the large metal sign for at least 10 seconds, including while the sign made contact with the line of officers. NEEFE advanced forward with the sign and other rioters into the line of officers, and retreated from the line after officers drove him and others back with pepper spray.

As part of his plea, Neefe didn’t plead guilty to 18 USC 111(b), using a deadly weapon. But his sentencing guidelines do treat the very large Donald Trump sign as a dangerous weapon.

Neefe is by no means the only one charged with assaulting cops with a very large Donald Trump sign.

But it’s significant, in this case, because of the way the conspiracy against Neefe and Smith was charged.

Neefe and Smith, like several of the other “lesser conspiracies” charged against non-militia members, started conspiring to participate in an insurrection in direct response to Trump’s own statements.

While both spoke in revolutionary terms immediately after the election, they viewed what is almost certainly Trump’s December 19 tweet as a direct call to action. Smith even called it a call to action on December 22.

SMITH: The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

NEEFE: We goin? . . . Cause hot damn son i really wanna crack some commie skulls.

SMITH: Yeah I”m going 100%. This is way more important than the last one actually. This one’s literally to save the city from chaos while they do their thing in the capital [typos original]

Smith also tried to recruit others to join them, citing (as other accused Jan6ers were in the same period) Trump’s orders as uniquely explicit.

Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesn’t burn down right away. It’s the only time hes ever specifically asked people to show up. He didn’t say that’s why  but it’s obviously why.

Somehow (how is of particular interest to me, given Smith’s apparent reference to one of the earlier rallies for Trump in DC), Smith’s understanding of the plan changed by December 31, when he raised storming the buildings with Neefe.

I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.

Smith continued to try to recruit others to come storm the buildings with him.

Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.

And the day before the attack, Smith called to, “Sacrifice the Senate!!!!!”

In the aftermath, both Smith and Neefe referenced Pence to explain their actions. “Then we heard the news on pence,” Neefe posted, “Amd  [sic] lost it …. So we stormed.” Smith, probably writing before Congress completed certification in the early hours of the morning on January 7, claimed that, “Pence cucked like we knew he would but that was an Unbelievable show of force and it did its job.”

All of which is to say that the very large Trump sign in Neefe’s guilty plea is more than symbolic. These totally random dudes took Trump’s call to violence as an order. They armed themselves, came to DC having at least considered taking over buildings, and did so explicitly in response to the demands Trump made of Pence.

In the context of the conspiracy, as charged, this largely meets the terms Amit Mehta laid out when ruling it plausible that Trump entered into a conspiracy with the Proud Boys and Oath Keepers. “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding.” Indeed, they even fit the framework Mehta laid out when deeming it plausible that Trump aided and abetted assaults — like the one using a very large Trump sign — on cops at the Capitol.

As noted, this conspiracy was charged under 18 USC 1512(k), meaning the sentence can be enhanced — as the guidelines have been, with Neefe — because of the use of threats. With this guilty plea, Trump may literally be on the hook for conspiring to obstruct the vote certification via his joint liability in using that very large Trump sign as a weapon to prevent the certification of Joe Biden’s win.

The Tactics of the Louis Enrique Colon Cooperation Agreement

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As Capitol Police attempted to lower a barricade protecting the tunnels of the Capitol on January 6, Proud Boy Louis Enrique Colon reached out and prevented it from closing, then placed a chair to further obstruct the gate.

While inside the Capitol building, defendant observed co-defendants Chrestman, Felicia Konold, and Cory Konold at various points inside of the building, including in a downstairs area of the Capitol near where several retractable doors were being lowered by police officers in an attempt to stop rioters from proceeding further into a portion of the building. To prevent one of the doors from closing, defendant used his hands to stop the door and placed a chair in the door’s path, while co-defendant Kuehne and another individual placed a podium in the path of another door.

That’s the basis of the single charge to which Colon pled guilty as part of a cooperation agreement yesterday, 18 USC 231, Civil Disorder.

Defendant knowingly obstructed, impeded, and interfered with law enforcement officers while those officers were lawfully engaged in their official duties incident to a civil disorder that was occurring inside of the Capitol. Among other things, defendant prevented officers from closing a retractable door which was intended to prevent rioters from advancing further into a portion of the restricted Capitol building.

In my opinion, this is, by any measure, the most lenient overt plea deal a January 6 defendant has gotten (and a comment that one of the lawyers in the plea hearing yesterday made suggested that it had recently been sweetened). On top of this charge and trespassing, Colon was originally charged in a conspiracy with other members of the Kansas City Proud Boys, as well as individually with obstruction. With credit for cooperation, according to his plea deal, the former cop may avoid any prison time.

That’s all the more remarkable given that Colon’s statement of offense reveals that he went to the Capitol with a pocket knife and an axe handle.

Among other things, defendant purchased and modified an axe handle to be used as both a walking stick and an improvised weapon

[snip]

Defendant and the group ultimately made their way to the west side of the Capitol’s grounds, outside of the restricted, fenced-off perimeter which had barricades staffed by USCP officers. At the time, defendant was wearing a backpack, pocket knife, tactical vest, tactical gloves, boots, and a helmet adorned with orange tape.

While the knife may be too short to trigger enhancements, carrying an acknowledged weapon has been used to enhance the penalties of others, though it is also the kind of thing prosecutors have used to flip people.

In other words, either Colon’s cooperation is so valuable, or DOJ needed it so badly, that he got a really sweet plea deal even in spite of bringing an “improvised weapon.”

So I’d like to discuss what DOJ may be doing tactically.

First, some background. The Oath Keepers investigation has been marked by a relentless march of new cooperators, publicly unveiled: Jon Schaffer, Graydon Young, Mark Grods, Caleb Berry, Jason Dolan, Joshua James. Boom. Boom. Boom. Boom. By contrast, just two of the overt Proud Boy cooperators have the kind of plea deal that implicates the wider conspiracy, Matthew Greene and Charles Donohoe. For whatever reason — apparently thinner staffing, greater numbers of participants, difficulties created by Enrique Tarrio’s arrest and delayed phone exploitation, investigative equities, corrupt lenient treatment, or a more important role in the overall investigation — DOJ has been using different tactics to get cooperation from Proud Boys and other key far right personalities. As an example, Jeff Finley (like Brandon Straka and likely, soon, Baked Alaska) seems to have cooperated in advance to avoid a felony altogether. So did Jeremy Grace, though his statement of offense implicated his far more complicit father who, if he ever cooperated, might implicate far more important tactical players. Ricky Willden’s statement of offense barely hints at what he knew that day.

Particularly given a reference made to Colon “continu[ing]” his cooperation in the hearing yesterday, this feels more like the kind of deal Finley got, where someone works their way out of more serious charges (which in Colon’s case would be obstruction with a weapons enhancement) ahead of time. That kind of cooperation makes it less visible, but also may make testimony harder to impeach down the road.

With that in mind, I’d like to look at four aspects of his statement of offense.

First, as virtually all conspirators who flip do, Colon implicated his co-conspirators, describing how:

  • Ryan Ashlock, Christopher Kuehne, and another individual traveled with Colon from Kansas City
  • Kuehne brought two AR-15 or similar assault rifles on the trip
  • Kuehne, at defendant’s suggestion, purchased orange, fluorescent tape so the group would be able to identify each other in a crowd
  • William Chrestman, Kuehne, and Ashlock, and others met on January 5 to talk about safety
  • The Konold siblings joined their group on the way to the meet-up at the Washington Memorial
  • Colon saw Chrestman, Felicia Konold, and Cory Konold as police officers attempted to stop rioters from proceeding further into a portion of the building (though the statement of offense doesn’t describe their efforts to prevent it) [my emphasis]

That is, at one level Colon’s cooperation simply shores up the third major Proud Boy conspiracy, just like Donohoe, Greene, and Finley provided direct evidence against the Leader conspiracy.

But consider this big story from Alan Feuer from September. According to 302s that defendants have gotten, one of just two known actively-handled informants among the Proud Boys that day said he had no advance knowledge of plans to disrupt the vote certification.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

[snip]

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day. In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol. The informant’s identity was not disclosed in the records.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

As Feuer noted at the time, if you ignore that this Proud Boys showed up late, this informant’s testimony significantly undermines claims of prosecutors.

There are multiple clues in Feuer’s article and elsewhere — most notably the reference to a young woman (likely to be Felicia Konold) — that this informant was affiliated with the Kansas City cell.

He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

In other words, until such time as DOJ secures testimony to contradict that of their informant, these interviews remain a weak point in the case against the Proud Boys.

They may have gotten that testimony yesterday.

Now consider what this particular cell of the Proud Boys did — and why that may have led DOJ to be satisfied with just the less serious 231 charge against Colon.

DOJ has charged conspiracy tied to January 6 in a bunch of ways: most spectacularly with some Oath Keepers, seditious conspiracy, also with those Oath Keepers (and the alleged Brian Sicknick assailants), conspiracy to injure an officer, and for most people charged with a conspiracy, either the conspiracy charge tied to the obstruction statute (18 USC 1512k, which carries greater penalties), or conspiracy under 18 USC 371.

But for a few of the Proud Boy conspiracies, including this Kansas City cell, the 371 conspiracy had two objects: to obstruct the vote count, but also to obstruct the cops. That’s basically a conspiracy to commit 18 USC 231, the charge Colon pled guilty to.

And the particular act of obstruction that this cell engaged in — preventing the cops from closing the gates leading to tunnels via which rioters correctly believed members of Congress had fled — is one of the most important tactically. That is, this may show not just a desire to mess with the cops, but a plan to go after members of Congress.

This cell is important for the means by which the Proud Boys made things work on January 6. And Colon may be a key witness to the tactical implementation of plans that went into that day.

Finally, consider the description, from Colon’s statement of offense, of this meeting the night before.

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

DOJ has been doing a lot of work unpacking the degree to which coordination happened at meetings on January 5 (I expect we’ll see it in more expected plea agreements going forward). These meetings were critically important for getting everyone on the same page, including a bunch of people who weren’t otherwise affiliated.

We have no idea what this meeting was — we’re still looking for details on a meeting that Joe Biggs and Ethan Nordean attended around 9PM the night before, though I doubt that’s what this is.

The description is important for several reasons. First, the focus on “group safety” seems to match the informant’s claim that, “On the eve of the attack … the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists.” Except if it’s that same meeting, then the informant would have also heard someone express a desire to take DC by force, in response to which Kuehne, who is a former Marine, said he was ready to go. At the very least, this description could correct the informant’s claims; it may prove them false.

But it also significantly advances the evidence that some of the Proud Boys, like some of the Oath Keepers, were thinking of using force against the government.

That’s the kind of evidence that has, with the Oath Keepers, helped persuade others to plead out and cooperate.

Update: Note that Robert Gieswein also wore orange tape to insurrection; he allegedly sprayed cops trying to close that barricade.

Steve Bannon’s “Alleged” Non-Contemptuous Behavior

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On Friday, the two sides in the Steve Bannon contempt prosecution filed a bunch of motions about the scope of the case. They are:

Office of Legal Counsel memos

The fight over OLC memos is likely to get the bulk of attention, possibly even from Judge Carl Nichols (who relied on one of the OLC memos at issue in the Harriet Miers case). While there’s no telling what a Clarence Thomas clerk might do, I view this fight as mostly tactical. One way for Bannon’s attempt to fail (Nichols improbably ruling that OLC memos cannot be relied on in court) would upend the entire way DOJ treats OLC memos. That might have salutary benefits in the long term, but in the short term it would expose anyone, like Vice President Dick Cheney, who had relied on OLC memos in the past to protect themselves from torture and illegal wiretapping exposure themselves.

In my opinion this challenge is, in part, a threat to Liz Cheney.

But as DOJ (I think correctly) argues, none of this should matter. That’s because — as they show with two exhibits — none of the OLC memos apply to Bannon, and not just because he was not a government employee when he was plotting a coup.

On October 6, 2021, Trump attorney Justin Clark wrote to Bannon attorney Robert Costello (citing no prior contact with Costello), instructing him not to comply to the extent permitted by law:

Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to: (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not provide any testimony concerning privileged material in response to the Subpoena.

But on October 14, Clark wrote and corrected Costello about claims he had made in a letter to Benny Thompson.

Bob–I just read your letter dated October 13, 2021 to Congressman Benny Thompson. In that letter you stated that “[a]s recently as today, counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”

To be clear, in our conversation yesterday I simply reiterated the instruction from my letter to you dated October 6, 2021, and attached below.

Then again on October 16, Clark wrote Costello stating clearly that Bannon did not have immunity from testimony.

Bob–In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

In other words, before Bannon completely blew off the Committee, Trump’s lawyer had told him not to do it on Trump’s account. (See this post which captures how Robert Costello had tried to bullshit his way through this.) That, by itself, should kill any claim that he was relying on an OLC memo.

Bannon’s prior (alleged) non-contemptuous past behavior

For different reasons, I’m a bit more interested in DOJ’s attempt to prevent Bannon from talking about what a good, subpoena-obeying citizen he has been in the past. Costello had made this argument to DOJ in an interview Bannon is trying to get excluded.

DOJ argues, uncontroversially, that because Bannon’s character is not an element of the offense, such evidence of prior compliance with a subpoena would be irrelevant.

Just as the fact that a person did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another, whether the Defendant complied with other subpoenas or requests for testimony—even those involving communications with the former President—is irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here.

I expect Judge Nichols will agree.

What I’m interested in, though, is the way the filing refers to Bannon’s past compliance with subpoenas as “alleged.” It does so nine times:

The Defendant has suggested that, because he (allegedly) was not contemptuous in the past, he is not a contemptuous person and was not, therefore, contemptuous here.

[snip]

Mr. Costello advised that the Defendant had testified once before the Special Counsel’s Office of Robert S. Mueller, III (the “SCO”), although Mr. Costello did not specify whether the pertinent appearance was before the grand jury or in some other context; once before the U.S. Senate Select Committee on Intelligence; and twice before the U.S. House of Representatives Permanent Select Committee on Intelligence. See id. Although, in his letter to the Committee and his interview, Mr. Costello said nothing about whether the Defendant was subpoenaed for documents by those authorities and whether the Defendant did produce any, and he did not say whether those other subpoenas or requests were limited to communications with the former President or involved other topics as well, the Defendant and Mr. Costello have asserted, essentially, that the Defendant’s alleged prior compliance demonstrates that he understands the process of navigating executive privilege, illustrates his willingness to comply with subpoenas involving communications with the former President, and rebuts evidence that his total noncompliance with the Committee’s subpoena was willful.

[snip]

The Defendant cannot defend the charges in this case by offering evidence of his experience with and alleged prior compliance with requests or subpoenas for information issued by Congress and the SCO.

[snip]

The Defendant’s alleged prior compliance with subpoenas or requests for information is of no consequence in determining whether he was contemptuous here.

[snip]

Specifically, the Defendant’s alleged compliance with other demands for testimony is not probative of his state of mind in failing to respond to the Committee’s subpoena, and his alleged non-contemptuous character is not an element of the contempt offenses charged in this case.

[snip]

1 1 To the extent the Defendant seeks to introduce evidence of his general character for law-abidingness, see In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003), he cannot use evidence of his alleged prior subpoena compliance to do so. Evidence of “pertinent traits,” such as law-abidingness, only can be introduced through reputation or opinion testimony, not by evidence of specific acts. See Fed. R. Evid. 404(a)(2)(A); Fed. R. Evid. 405(a); Washington, 106 F.3d at 999.

[snip]

Second, whatever probative value the Defendant’s alleged prior compliance in other circumstances might serve, that value is substantially outweighed by the trial-within-a-trial it will prompt and the confusion it will inevitably cause the jury.

[snip]

The Defendant’s reliance on counsel and/or his alleged good faith in response to prior subpoenas is thus not pertinent to any available defense and is irrelevant to determining whether his failure to produce documents and appear for testimony in response to the Committee’s subpoena was willful. [my emphasis]

The reason DOJ always referred to Bannon’s past compliance with subpoenas as “alleged” is because calling the claim “bullshit” — which is what it is — would be unseemly in a DOJ filing.

As a reminder, here’s the history of Bannon’s “alleged” past compliance with subpoenas (it is unknown whether he was subpoenaed in the Build the Wall fraud investigation):

HPSCI: Bannon got subpoenaed after running his mouth off in the wake of the release of Fire and Fury (Republicans likely acceded to that so they could discipline Bannon for his brief and soon-aborted effort to distance himself from Trump). In his first appearance, Bannon refused to answer a bunch of questions. Then, in a second appearance and after the intervention of Devin Nunes, Bannon reeled off a bunch of “no” answers that had been scripted by Nunes and the White House, some of which amounted to misdirection and some of which probably were lies. Bannon also claimed that all relevant communications would have been turned over by the campaign, even though evidence submitted in the Roger Stone case showed that Bannon was hiding responsive — and very damning — communications on his personal email and devices.

SSCI: Bannon was referred in June 2019 by the Republican-led committee to DOJ for making false statements to the Committee.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

All were involved in closely scrutinized meetings in the Seychelles before Trump’s inauguration.

[snip]

No charges were filed in connection with the meetings. But investigators suspected that the men may have been seeking to arrange a clandestine back-channel between the incoming Trump administration and Moscow. It’s unclear from the committee’s letter what Bannon and Prince might have lied about, but he and Prince have told conflicting stories about the Seychelles meeting.

Prince said he returned to the United States and updated Bannon about his conversations; Bannon said that never happened, according to the special counsel’s office.

Mueller: Over the course of a year — starting in two long interviews in February 2018 where Bannon lied with abandon (including about whether any of his personal comms would contain relevant information), followed by an October 2018 interview where Bannon’s testimony came to more closely match the personal communications he had tried to hide, followed by a January 2019 interview prior to a grand jury appearance — Bannon slowly told Mueller a story that more closely approximated the truth — so much so that Roger Stone has been squealing about things Bannon told the grand jury (possibly including about a December 2016 meeting at which Stone appears to have tried to blackmail Trump) ever since. Here’s a post linking Bannon’s known interview records and some backup.

But then the DC US Attorney’s Office (in efforts likely overseen by people JP Cooney, who is an attorney of record on this case) subpoenaed Bannon in advance of the Stone trial, and in a preparatory interview, Bannon reneged on some of his testimony that had implicated Stone. At Stone’s trial, prosecutors used his grand jury transcript to force Bannon to adhere to his most truthful testimony, though he did so begrudgingly.

In other words, the record shows that Bannon has always been contemptuous, unless and until you gather so much evidence against him as to force him to blurt out some truths.

Which is why I find it curious that DOJ moved to exclude Bannon’s past contemptuousness, rather than moving to admit it as 404(b) evidence showing that, as a general rule, Bannon always acts contemptuously. His character, DOJ could have claimed, is one of deceit and contempt. The reason may be the same (that contempt is a one-time act in which only current state of mind matters).

But I’m also mindful of how the Mueller Report explained not prosecuting three people, one of whom is undoubtedly Bannon.

We also considered three other individuals interviewed — [redacted] — but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

That is, one reason Bannon wasn’t prosecuted for lying to Mueller was because of his import in, at least, the ongoing Roger Stone prosecution. That explains why DOJ didn’t charge him in 2019, to retain the viability of his testimony against Stone. I’m interested in why they continue the same approach. It seems DOJ’s decision to treat Bannon’s past lies — even to SSCI! — as “alleged” rather than “criminally-referred” by SSCI, may also reflect ongoing equities in whatever Bannon told the the grand jury two years ago. One thing Bannon lied about at first, for example, was the back channel to Dubai that may get him named as a co-conspirator in the Tom Barrack prosecution.

But there were other truths that Bannon ultimately told that may make it worthwhile to avoid confirming that those truths only came after a whole bunch of lies.

Update: Thanks to Jason Kint for reminding me that Bannon refused to be served an FTC subpoena pertaining to Cambridge Analytica in 2019.

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

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As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.

Where Was Doug Jensen Radicalized? Russia’s 2016 Election Tampering

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Last May, I observed that QAnon had far more evident success in getting its adherents in places to obstruct the vote certification on January 6, 2021 than the organized militias did.

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.

While he didn’t make it to the Senate floor, that’s true, in part, because of the fervor with which QAnoner Doug Jensen sprinted up the stairs after Officer Eugene Goodman (though Jensen’s fervor was also one of the things that Goodman exploited to buy time to evacuate the Senate).

According to an FBI interview Jensen did just days after the insurrection (the transcript was released as part of a suppression motion that is unlikely to work), that was his stated intent.

He wanted QAnon to get credit for breaching the Capitol.

I wanted Q to get the attention.

Q. I see.

A. And that was my main intention basically —

Q. Um-hum.

A. — was to use my shirt. I basically intended on being the poster boy, and it really worked out.

The transcript is a tough read. It reveals (as the court filings associated with many of the January 6 defendants do) the urgency with which the US needs to address mental health treatment. It reveals how Trump’s propagandists won the allegiance of a blue collar union member who had previously voted Democratic.

But most vividly, it reveals how Jensen got radicalized into QAnon. And that started — as he repeatedly describes — from the files stolen from John Podesta released by WikiLeaks in advance of the 2016 election. He planned to vote for Hillary (!!!) until he came to believe the misrepresentations he read (pushed, in significant part, by accused Proud Boy leader Joe Biggs) of the Podesta files. When the flow of Podesta files ended, Jensen was left with a void, which Q drops filled shortly thereafter. After that, Jensen came to believe Trump’s lies that he had been shafted by the Deep State, by some guy (Peter Strzok) and his girlfriend whose name he couldn’t remember. Perhaps as a result, Jensen came to believe of Putin that, “this guy don’t seem so bad, you know.”

Also, Q said — Q has said things, okay, so like — and anonymous, okay. I follow that, Mayjan (ph.) and all that stuff, you know, because basically I was not into politics until the Wiki leaks dropped, and then when I realized about Haiti, and the Clinton Foundation, and the kidnappings all through the Clinton Foundation, and then I learned about Epstein Island and then I learned Mike Pence owns an island, right — or not Mike Pence, Joe Biden owns an island next door, and then I find that Hunter Biden and Bris Moldings (ph.) and all that, I knew about that a year or two ago.

[snip]

It all started with all the crap I found out about Hillary Clinton, John Podesta, you know, all of that stuff, and then so right before I was going to vote for Hillary, I was like, whoa, we’ve got to vote Trump in because we can’t have Hillary. And then I start finding things like we were supposed to be dead by now, and if Hillary would have won, we were going to be attacked by North Korea or Iran. We were going to go to war, and we would most likely — half of us wouldn’t be here right now if Trump wouldn’t have won that election is what I got from it.

[snip]

You guys have an FBI thing that you released all that Ben Swan who was on ABC years ago and he tried to expose pizza gate and he got fired that night from ABC, and he works for RT now.

[snip]

I am for America, and I feel like we are being taken over by communist China, you know, and the whole Russian collusion was fake. I don’t know what the deal with Russia is, but I don’t know, Vladimir Putin, he seems to be like a decent person, but I could be crazy, you know. But I think we were taught from a young age to hate Russia and all of this stuff. I’ve researched on Vladimir Putin. I was like this guy don’t seem so bad, you know, but I don’t know, you know.

[snip]

A. And all this information, and Trump’s taking down all these people, you know? And — well, firing them or whatever, you know? Like Brennan, Clapper, you know, that guy that I hate with his girlfriend, I can’t remember their names. Those texting back and forth. But they were all like top, you know, members, they’re high up and stuff.

Q. Yeah.

A. And you saw that they were out to destroy Trump, and they were members of our, you know, Central Intelligence or our FBI, you know?

[snip]

I did not preplan nothing. I am not a leader. I am just a hardcore patriot. I am a diehard — I believe all this stuff to be true, and I feel like Trump’s just got the absolute shaft from everything around, our own government, the media.

[snip]

So I voted both terms for Obama, and during the presidency, I thought he was a great president. The health thing. The health thing didn’t benefit me and my family because I had union health insurance. So I got no benefits from it, but I was happy that all those people got insurance, you know? And so I was happy with him. And then I was going to vote for Hillary because I’ve been a democrat my whole life.

Q. Yeah.

A. And then the WikiLeaks thing happened and I had to start questioning where I was getting my info from. And that’s when I realized, you know, holy cow, I can’t vote for this woman. And then it became — like I started telling everybody I know about WikiLeaks and everything else back then. And then that died off when Trump won. And then I didn’t really have anything. I was happy Trump won, you know? And then all of a sudden Q drops started. And it was just — that’s all I did —

Q. Yeah.

A. — was follow those Q drops. [my emphasis]

This is a narrative of how an information operation started by Russia six years ago continues to poison American politics, up to and including persuading Americans to affiliate with the architect of that information operation.

After that radicalization process — Jensen described to the FBI — he readily responded to the propagandists trying to help Trump steal an election: Lin Wood, Sidney Powell, and Rudy Giuliani, as well as the December 19, 2020 Trump tweet that arose out of their machinations. And so he drove all night from Iowa to answer Trump’s call.

Q. How’d you find out about the rally?

A. Well, I found out from the rally from all the different people I follow.

Q. I see.

A. Which — so like — I’m not saying it’s JFK, Jr., but one of the people I follow on Twitter, his name’s John F. Kennedy, Jr., and then Linwood. Linwood’s new. Like everything Linwood has dropped in the last couple weeks is old news, like that’s all old new to me, and so Linwood got me fired up, Sidney Powell got me fired up. Rudy Giuliani got me fired up, you know, and then I go to this Trump rally and I was just hoping it was show time basically, and then he gets done with this rally and I’m just kind of like — he’s like, oh, let’s all go march down peacefully, you know. He didn’t tell us to go storm the building, okay.

[snip]

A. Trump’s posts. Trump posted make sure you’re there, January 6 for the rally in Washington, D.C., I’ll have some great info, and so that to me was, oh, here it comes, because — and then, you know, all he said, well, where’s Hillary? Well, where? I already know that. Q said where’s Hillary four months ago, you know, so I was kind of like that’s all you got, where’s Hillary? You know, he — and then he got us all fired up to go to that White House, and then it just all happened so quick and I just wanted to make sure that I wanted to be in the front. Basically I wanted to get that Q shirt the attention —

Q. Right.

A. — is what my goal was. [my emphasis]

There are few better summaries of the damage done by the sustained information operations that both Russia and Trump pursued — with the Burisma attacks, at least, provably in coordination — over the last six years. The self-described poster boy for the insurrection got there as a result of a sustained series of information operations that started with Russia’s attempt to tamper in the 2016 election.

Only, Doug Jensen makes it clear: Russian didn’t just tamper in the election. It tampered with the American psyche.

The Valentine’s Day Massacre: How DOJ Lost Lucas Denney and Found Enrique Tarrio

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The biggest publicly known fuck-up of the January 6 investigation thus far is when DOJ lost Lucas Denney. He’s the self-described President of the North Texas Patriot Boys. He was arrested in December with Donald Hazard and charged in another militia-related conspiracy.

Their conspiracy is interesting for several reasons:

  • Denney paid Hazard’s way to DC via fundraising that picked up after Trump announced the rally
  • At least as Denney told it, they coordinated with the Proud Boys
  • They did relatively more to arm themselves than other militias (and appeared relatively more focused on brawling with cops)
  • Denney was palling around with Ted Cruz during the summer

Hazard was charged for wrestling with some cops on the stairs under the scaffolding, which ended up knocking out one of them. Denney was grappling with cops for some time, and ultimately had a hand in pulling Michael Fanone into the crowd.

DENNEY then turned towards Officer M.F., swung his arm and fist at M.F., and grabbed M.F., pulling him farther down the stairs, as depicted below. DENNEY then himself fell backwards into the crowd. In the images below, DENNEY is circled in red; Officer M.F. is circled in yellow.

The FBI started investigating these guys from day one. By April, the government had obtained both men’s Facebook accounts. They were finally arrested on December 13. He was ordered detained by a magistrate judge in Texas. It took the Marshals until January 31 to get him to DC.

Just days earlier, Denney’s case had been moved from AUSA Benet Kearney to Jennifer Rozzoni. Between some confusion about when Denney’s initial appearance in DC would be, the shift of prosecutors, and the crushing schedule that both John Pierce and Rozzoni have, they simply never got his initial appearance scheduled. Around then, William Shipley, the far more competent attorney who does the actual lawyering for the Pierce boondoggle, joined the case and immediately started filing for release based on how long DOJ had left him sitting in DC.

On March 7, DOJ obtained a one count assault indictment against Denney alone based on his assault of a different cop, not Fanone, mooting some of the legal basis for his release. Then Shipley, thinking he was getting cute, advised his client to plead guilty to that charge as a way to stave off all the other conspiracy charges he was facing. As a result, Denney pled guilty right away to an assault charge that could get him 71 months. While his exposure on January 6 is probably eliminated with the guilty plea, it’s not for any plotting he did afterwards.

When he pled, Rozzoni was very careful to enter into the record how much of discovery Denney’s attorneys had seen and what they may not have when advising him to plead.

Losing Denney — a very-well connected militia member accused of assaulting cops — was a colossal mistake, though Shipley’s tactics saved the government from having to release him. It seemed, at the time, to be a symptom of just how overloaded the January 6 investigation has made DOJ.

And while that’s surely part of it, subsequent events make it clear that something else was going on at the time.

First, some details about grand juries. When the government is charging people with misdemeanors, they don’t need to get an indictment from a grand jury. But felonies require presenting the evidence to a grand jury.

When grand juries expire, DOJ can’t just tell a new grand jury about what the other grand jury did. They have to present all the evidence anew.

When people have asked whether DOJ will open a grand jury to investigate Trump, I have responded that they already had a grand jury. In fact, I noted, they had used at least five by the turn of the year. But as my lists below make clear, not all those grand juries were the same. Virtually every single important case — all the conspiracies, all the most important assault cases (both for import of victim or size), and most of the other cases — were presented to a grand jury seated on January 8, two days after the riot. (These lists are very incomplete but I will update them going forward.)

Most spectacularly, the relentless Oath Keepers conspiracy kept going back to the same grand jury superseding the initial charges, on February 19, 2021 (S1), on March 12 (S2), on March 31 (S3), on May 26 (S4). Then they started flipping people. Then they kept superseding, on August 4 (S5), on December 1 (S6), until, on January 12, 2022, just 369 days after the grand jury started investigating, the case split into several interlocked conspiracies, one of them charging Stewart Rhodes and others with seditious conspiracy. On March 2, DOJ got their first guilty plea to seditious conspiracy, from Joshua James, who not only knew what Rhodes was doing the day of the riot, but also knew (and reported back on) what Roger Stone was doing.

But even while that grand jury was marching relentlessly towards charging Rhodes with sedition, it was also charging the majority of hundreds of other January 6 defendants.

The Proud Boy march has not been that focused. While all the initial Proud Boy conspiracies were charged by the same group of anonymous private citizen who would ultimately charge Rhodes with sedition, when necessary, DOJ would use another grand jury with the Proud Boys as well. The Front Door conspiracy was first superseded by a January 11 grand jury (which might be the regularly seated one, but which picked up a lot of the flood in that period). When DOJ superseded Nick DeCarlo’s conspiracy with Nick Ochs, they used a grand jury seated on November 10.

The government seemed to use a regular May 25 and August 11 for similar necessities. But when the government wanted to charge Ronnie Sandlin and Nate DeGrave in a conspiracy, they waited for months — from April until September, a month and a half after Josiah Colt had flipped on them — to present it to that January 8 grand jury.

Oh shit, now I’ve forgotten about Lucas Denney, just like DOJ did.

The point I’m trying to make is that, for that relentless year while that grand jury was finalizing the sedition charges, it also charged almost all major January 6 felonies. That group of two dozen anonymous Americans saw all of this.

Until the Enrique Tarrio indictment. The indictment against the Proud Boy head obtained on March 7 was from a new grand jury, one seated on Valentine’s Day. The same grand jury from which DOJ got their last minute single count indictment against Denney.

I’m still testing this, but it appears that after its non-stop year of indicting insurrectionists, the last thing the January 8 grand jury may have done was charge the seditious conspiracy. Before February 14, other January 6 indictments (MacCracken, AJ Fischer, and Bilyard, for example) were handled by the August 11 grand jury. Then after February 14, new January 6 indictments (like Beddingfield, Johnson, and Bingham) were done by the November 10 grand jury.

Until March 7, when that February 14 grand jury started indicting people, starting with Enrique Tarrio.

The period when DOJ lost Lucas Denney appears to be the three-week period when DOJ was shifting from the January 8, 2021 grand jury to the February 14, 2022 grand jury.

DOJ ended their first grand jury with sedition. They opened their second grand jury with Tarrio — who may or may not have known about the riot before Trump announced it.

Update, May 6: In response to a Zach Rehl request for the exhibits the government will use in its case in chief against the Proud Boys, DOJ points to what must be how they read over the evidence from the one grand jury to the other:

In the meantime, the government has turned over information and materials that provide a clear roadmap regarding the government’s anticipated case-in-chief. Specifically, following the return of the Second Superseding indictment, the government turned over to defense counsel a 160-page grand jury transcript, with exhibits, and a detailed 96-slide PowerPoint presentation containing the evidence supporting the charges against the defendants.

January 8

  • All Oath Keeper
  • Proud Boy Leader
  • DeCarlo
  • Kuehne (KC Proud Boy)
  • Klein (North Door Proud Boy)
  • Pezzola (Front Door Proud Boy)
  • Hostetter (3% SoCal)
  • Rodriguez (SoCal Anti-Mask)
  • Sandlin (disorganized conspiracy)
  • Munchel
  • Khater (Sicknick)
  • Sibick (Fanone)
  • McCaughey (all)
  • Sabol
  • Horning (Jacob Hiles’ co-defendant, so tied to Riley)

January 11

May 25

August 11

November 10

February 14

Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense

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As I’ve been expecting for some time, Proud Boy Charles Donohoe pled guilty today — to one count of 18 USC 1512(k) (the obstruction conspiracy statute) and one count of assault.

There are few new details in his statement of offense. The most important ones are that:

  • Enrique Tarrio fast-tracked the membership of Dominic Pezzola, the Proud Boy who would be the first to break through a Capitol window with a stolen riot shield on January 6, into the Proud Boys, thereby putting Tarrio directly on the hook for Pezzola’s action
  • Donohoe originally didn’t intend to attend the riot, but did to fill in a leadership gap once he learned Tarrio would be arrested

Most of the rest of the statement of offense is designed to implicate the entire, strictly-enforced hierarchy of the Proud Boys in several kinds of criminal exposure.

First there’s the plan to use violence to obstruct the vote count — something that was planned before Tarrio was arrested, and so something in which he is clearly implicated.

At least as early as January 4, 2021, and prior to Donohoe’s decision to travel to D.C., Donohoe was aware that members of MOSD leadership were discussing the possibility of storming the Capitol. Donohoe believed that storming the Capitol would achieve the group’s goal of stopping the government from carrying out the transfer of presidential power. Donohoe understood that storming the Capitol would be illegal.

[snip]

Donohoe was not given details of the plan referred to by Biggs, but Donohoe understood from discussions among the MOSD and other Proud Boys that the objective in Washington, D.C., on January 6, 2021, was to obstruct, impede, or interfere with the certification of the Electoral College vote. Donohoe understood from discussions that the group would pursue this through the use of force and violence, in order to show Congress that “we the people” were in charge.

[snip]

Within minutes of arriving, members of the crowd breached the barriers and advanced onto Capitol grounds. Donohoe saw Nordean and Biggs advance onto Capitol grounds and followed them. Donohoe believed these actions were intended to stop the certification of the Electoral College vote.

This implicates everyone in the chain of command in using violence to obstruct the vote certification.

Then there’s the damage to the Capitol that Pezzola did with that riot shield — and all the damage that followed.

Shortly after throwing the water bottles at officers, Donohoe encountered Pezzola. Donohoe recognized Pezzola as a Proud Boys member and confirmed that fact with another Proud Boys member. Donohoe then grabbed the riot shield that Pezzola was holding and led Pezzola to the rear of the West Plaza. After reaching the rear of the concrete area of the West Plaza, Donohoe posted a message to MOSD leaders at 1:37 p.m. that read, “Got a riot shield.” While standing at the rear of the plaza, Donohoe took a picture of Pezzola holding the riot shield and making a hand gesture associated with the Proud Boys.

Donohoe then advanced back toward the Capitol in an effort to locate other Proud Boys members. Upon arriving near the base of a set of concrete stairs, Donohoe recognized a Proud Boys member known as “Milkshake” at the front of the crowd standing opposite a line of officers. Donohoe heard shouting and other discussion among those surrounding him indicating that the crowd was preparing to push toward the Capitol. Donohoe recognized that the concrete stairs offered a path to advance further toward the Capitol. Donohoe and others in the crowd pushed up the stairs. It was reasonably foreseeable to Donohoe that the use of force to advance toward the Capitol would involve property destruction by members of the Proud Boys who had been led to the Capitol by Nordean and Biggs.

[snip]

The attack on the Capitol resulted in substantial damage, requiring the expenditure of more than $1.4 million dollars for repairs.

This is important because 18 USC 1361, willfully doing more than $1,000 of damage to a government building, can carry a terrorism enhancement if done to coerce the government, which (very loosely speaking) can add roughly 10 years to any sentence imposed. Donohoe’s statement of offense says that the foreseeable damage the Proud Boys did with the goal of obstructing the vote certification was $1.4 million.

Finally, there’s the violence that happened, starting with Donohoe’s own water bottles but including Milkshake’s assault on cops and all the other violence that was foreseeable.

Donohoe threw two water bottles at a line of law enforcement officers engaged in the lawful performance of their official duties who were attempting to prevent the mob’s advance in the West Plaza at the Capitol building. It was reasonably foreseeable to Donohoe that members of the Proud Boys who had been led to the Capitol by Nordean and Biggs would engage in assaults on law enforcement.

[snip]

Donohoe intended to use force and did, in fact, use force to obstruct, impede, or interfere with the certification of the Electoral College vote, and did forcibly assault, resist, oppose, impede, intimidate, or interfere with, officers or employees of the United States.

In taking such actions, Donohoe intended to influence or affect the conduct of the United States government. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding, including Members of Congress, Congressional staff, and law enforcement officers with the Capitol Police and Metropolitan Police Department.

This language — and Dan Scott’s more serious assault and by association all the assaults that happened that day — is important because the conspiracy tied to obstruction, 18 USC 1512(k), can carry enhancements for things like attempted murder and attempted kidnapping, making the maximum penalty 30 years instead of 20.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and

Since this post is about the passive voice, let me note that murders were attempted on January 6.

As I said, what this statement of offense does is implicate the entire chain of a very hierarchical command in criminal exposure for the intentional use of violence and the foreseeable damage to the Capitol as part of a plan to coerce Congress to halt the vote certification. Everyone from Tarrio on down is implicated in this, and several specifics about Donohoe’s statement of offense will ensure that Tarrio can’t escape responsibility because he was absent and Donohoe filled in.

But it is the foundation of that hierarchy that is so remarkable.

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

This is like announcing a plan to “Stand back and stand by” using the passive voice.

Update: Yesterday, WV Proud Boy head Jeffrey Finley pled guilty in what appears to be one of the misdemeanor pleas tied to advance cooperation. His statement of the offense strongly implicates Zach Rehl, with whom he co-traveled for part of the day.

The Evidence Needed for a Trump Prosecution

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It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

  • Trump and the militias jointly pursued an effort to disrupt the vote certification
  • Trump planned the unpermitted march to the Capitol
  • Trump encouraged the use of force and threats to thwart the certification from proceeding
  • Trump knew supporters would respond to his calls to come to DC and march on the Capitol
  • Trump called for collective action
  • Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
  • Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

  • Trump tried to persuade Pence to disrupt the vote certification
  • He publicly appealed to Pence to do so
  • He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

  • Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
  • Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

  • Trump held lots of meetings to talk about plans to obstruct the vote count
  • Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

  • Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
  • Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
  • Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.