Donald Trump Would Withhold Evidence about Whether Enrique Tarrio Really Did Visit the White House Last December

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One of the most dramatic events of 9/11 came when Dick Cheney authorized the shootdown of United flight 93, and only afterwards contacted President Bush to confirm the order.

At some time between 10:10 and 10:15, a military aide told the Vice President and others that the aircraft was 80 miles out.Vice President Cheney was asked for authority to engage the aircraft.218 His reaction was described by Scooter Libby as quick and decisive, “in about the time it takes a batter to decide to swing.” The Vice President authorized fighter aircraft to engage the inbound plane. He told us he based this authorization on his earlier conversation with the President.The military aide returned a few minutes later, probably between 10:12 and 10:18, and said the aircraft was 60 miles out. He again asked for authorization to engage.TheVice President again said yes.219

At the conference room table was White House Deputy Chief of Staff Joshua Bolten. Bolten watched the exchanges and, after what he called “a quiet moment,”suggested that theVice President get in touch with the President and confirm the engage order. Bolten told us he wanted to make sure the President was told that the Vice President had executed the order. He said he had not heard any prior discussion on the subject with the President.220

The Vice President was logged calling the President at 10:18 for a two-minute conversation that obtained the confirmation. On Air Force One, the President’s press secretary was taking notes; Ari Fleischer recorded that at 10:20, the President told him that he had authorized a shootdown of aircraft if necessary.221

The revelation was an early warning about Cheney’s willingness to assume the power of the President. But identifying it also allowed the government to consider tweaking presidential authorities and improving communications for such moments of crisis.

We know this happened, as laid out in the 9/11 Report, based on Switchboard Logs that recorded Cheney’s call to Bush, the Presidential Daily Diary recounting the President’s and Vice President’s actions, and Press Secretary Ari Fleischer’s notes.

218.White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

219. For Libby’s characterization, see White House transcript, Scooter Libby interview with Newsweek, Nov. 2001. For the Vice President’s statement, see President Bush and Vice President Cheney meeting (Apr. 29, 2004). For the second authorization, see White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

220. Joshua Bolten meeting (Mar. 18, 2004); see also White House notes, Lewis Libby notes, Sept. 11, 2001 (“10:15–18:Aircraft 60 miles out,confirmed as hijack—engage?VP:Yes.JB [Joshua Bolten]:Get President and confirm engage order”).

221. For the Vice President’s call, see White House record, Secure Switchboard Log,Sept.11,2001; White House record, President’s Daily Diary, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001. Fleischer’s 10:20 note is the first mention of shootdown authority. See White House notes, Ari Fleischer notes, Sept.11,2001; see also Ari Fleischer interview (Apr. 22, 2004).

These are precisely the kinds of records that, according to a declaration from the White House Liaison with the National Archive, Donald Trump wants to withhold from the January 6 Select Committee, including from Committee Co-Chair Liz Cheney. The declaration was submitted in support of a filing opposing Trump’s effort to invoke privilege over such files. Politico first reported on the filing.

According to NARA’s Liaison John Laster, Trump is attempting to invoke privilege over precisely the analogous records from during the January 6 terrorist attack: presidential diaries, switchboard records, and Press Secretary Kayleigh McEnany’s records.

32. First Notification: The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows, (ii) the files of Senior Advisor to the President Stephen Miller, (iii) the files of Deputy Counsel to the President Patrick Philbin, (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities, (v) the White House Office of Records Management, and (vi) the files of Brian de Guzman, Director of White House Information Services.

31. President Trump made particularized assertions of executive privilege over 46 of these 136 pages of records (including seven pages of records that, as noted above, had been removed as non-responsive). He asserted privilege over: (i) daily presidential diaries, schedules, appointment information showing visitors to the White House, activity logs, call logs, and switchboard shift-change checklists showing calls to the President and Vice President, all specifically for or encompassing January 6, 2021 (30 pages); (ii) drafts of speeches, remarks, and correspondence concerning the events of January 6, 2021 (13 pages); and (iii) three handwritten notes concerning the events of January 6 from Mr. Meadows’ files (3 pages).

32. Second Notification: The Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

33. President Trump made particularized assertions of executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

34. Third Notification: The Third Notification includes 146 pages of records transferred to NARA from (i) the White House Office of the Executive Clerk and (ii) the files of Deputy White House Counsel Patrick Philbin.

35. President Trump made particularized assertions of executive privilege over 68 of these 146 pages of records. He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages), an email chain originating from a state official regarding election-related issues (3 pages), talking points on alleged election irregularities in one Michigan county (3 pages), a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and notes apparently indicating from whom some of the foregoing were sent (2 pages). [my emphasis]

While the (very good) DOJ filing describes that Trump is withholding documents that prior Presidents had shared, it doesn’t provide examples of the how useful this information had been in understanding past terrorist attacks.

And these documents aren’t even the potentially most damning documents, either.

Because the committee request asks for communications referring to the Proud Boys’ and election results and includes Enrique Tarrio on a list of enumerated individuals covered by the request, the response from NARA might reveal whether the Proud Boys’ leader was telling the truth when he claimed to visit the White House on December 12, or whether the White House truthfully reported that he had simply joined a tour of the building.

All documents and communications referring or relating to QAnon, the Proud Boys, Stop the Steal, Oath Keepers, or Three Percenters concerning the 2020 election results, or the counting of the electoral college vote on January 6, 2021.

From April 1, 2020, through January 20, 2021, all documents and communications concerning the 2020 election and relating to the following individuals:

[snip]

Enrique Tarrio,

[h/t miladysmama for this observation]

The attempt to withhold basic White House documents about who showed up when is not, just, an obvious attempt by Donald Trump to cover up his own crimes. It’s not just an attempt to hide how, in contrast to Dick Cheney, he did nothing as the nation’s capital was attacked.

It’s also an attempt to hide whether Trump invited the terrorists inside the White House to plot the event.

 

3 Things: Memory, Memory, the 6th of January

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[NB: Check the byline, thanks. /~Rayne]

Next week the UK observes another Guy Fawkes Day, the anniversary of the failed assassination in 1605 of King James I, his privy council, and the House of Lords. Children used to recite a rhyme to commemorate the day:

Remember, Remember the 5th of November, Gunpowder, Treason and Plot

The U.S. has now survived its own Guy Fawkes Day; members of Congress, the Vice President and Vice President-elect were sheltered from a mob of insurrectionists who had been incited to rebel and obstruct congressional proceedings.

Unlike Guy Fawkes and his fellow conspirators, the conspirators and insurrectionists who temporarily disrupted Congress on January 6 and who continue their seditionist schemes will not be hung, drawn, and quartered if prosecuted and found guilty.

~ 3 ~

Marcy’s crunching away on some January 6-related posts right now, but we could use some fresh thread to tide us over to discuss recent developments related to the insurrection.

Let’s start with the unexpected heroics of the National Archives and Records Administration (NARA) which disclosed in a very early Saturday morning court filing that Donald Trump was trying to block release of 750 documents out of 1600 identified and requested by the House’s January 6 commission during its investigation — documents over which Joe Biden as the current president chose not to exert privilege.

The commission also filed a brief supporting its position that Trump as the former president does not have the authority to claim executive privilege over Trump administration documents sought by the commission.

You’ve likely read POLITICO’s report — the tl;dr version is Kyle Cheney’s Twitter thread describing NARA’s filing.

What boggles the mind is how Trump has tipped his hand as to which documents are most damning.

The cherry on top is NARA’s filing which details Steve Bannon’s role in the seditious conspiracy to incite rebellion and insurrection. Ryan Goodlaw at Lawfare wielded a highlighter for us:

Oh my. That’s just so good. It’s payback by NARA for all the crappy additional work they’ve had to do to archive the history of the Trump administration — all those tedious reconstructions of papers Trump had a nasty habit of shredding into confetti now coming home to roost.

~ 2 ~

Now add the claim reported today in Salon that Michael Flynn may have conspired to extort performance from Pennsylvania GOP elected officials in order to reseat Trump in the White House. U.S. Senate candidate for Pennsylvania, Everett Stern, who owns and operates a private intelligence company, had been contacted by persons associated with Flynn’s effort.

Stern says he’s shared information about the approach and related communications with the feds.

What’s deeply concerning about this plot is the possible involvement of foreign entities:

… Because of his intelligence background, Stern claims at least two people representing a Flynn-linked group called “Patriot Caucus” approached him earlier this year after a speech with an offer to hire his firm to gather “dirt” on officials and recruit others to assist in the plot. At one point, one of the men allegedly told Stern that they had retained the services of active intelligence officials “both domestic and foreign.” …

This sounds very much like something Flynn would do based on his past record of involvement with foreign agents.

Stern was also encouraged to achieve the ends desired using violence if necessary — “accomplish the mission even if you have to use domestic terrorism” — which he found very disturbing.

He’s recorded a YouTube video statement which sounds awkward and uncomfortable, and yet he sounds wholly legitimate in his concerns about the situation, including the lawyer for one of the intelligence targets.

Assuming Stern’s claims all check out, one might wonder if it was Bannon who set Flynn on this plot given Bannon’s relationships in PA.

UPDATE: Scott Stedman at ForensicNews tweeted Stern’s a serial fabricator. I guess we’ll let the feds sort that out. Have to ask yourself why a GOP candidate would commit political suicide with their own party and trash the cred of their private intelligence business at the same time while potentially risking federal charges for false statements.

~ 1 ~

Bannon appears to have played a more direct role in lead-up to the January 6 insurrection, along with working relationships to state-level contacts; Flynn may have been/may still be pressuring states’ elected officials using extortive tactics…

Does John Eastman’s ongoing involvement with state legislators complement their efforts?

It already looks like Eastman’s activities on and before January 6 complemented the activities Bannon and Flynn set in motion with their incitement intended to terrorize both Congress and VP Pence:

Sure would be nice to know if Bannon, Flynn, and Eastman had some overlapping communications.

Oh, and Rudy Giuliani.

Same, Jim Bourg, same. Good on you getting this photo.

~ 0 ~

ADDER: If you haven’t already read the Washington Post’s investigative expose examining the run-up to, the day of, and the aftermath of January 6, you should do so. It’s worth your time even if you’ve been following along closely as both the House January 6 commission and the DOJ investigations have unfolded. You may see things which spawn more questions than the reporting answers.

I still don’t buy the benign spin put on former acting Secretary of Defense Christopher Miller’s role, for example. There’s a reason Trump wanted him in that role after Esper resigned; the multiple times Miller failed to respond to requests for National Guard support on January 6 looks like a particular reason.

~ 0 ~ 0 ~

I wonder if in the future children will have a rhyme to recall Trump’s January 6th autogolpe plot.

Memory, Memory, the 6th of January, Sedition, Insurrection, and Trump…

I certainly hope we have a few bonfires each January 6 to keep our memories fresh.

Steve Bannon Was Made to Testify, Truthfully, Once

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Chuck Rosenberg has an interesting prosecutor’s analysis arguing — based on Steve Bannon’s indictment for fraud — that Bannon can never be made to testify truthfully, and so DOJ should be considering criminal contempt to send a message.

Recall, in August 2020, federal prosecutors in Manhattan indicted Bannon and others for “defraud[ing] hundreds of thousands of donors, capitalizing on their interest in funding a border wall to raise millions of dollars, under the false pretense that all of that money would be spent on construction,” according to a Justice Department press release. As a legal matter, that meant that a grand jury found probable cause to believe that several defendants – including Bannon – committed an egregious fraud. Before Bannon could be tried on those felony charges, former President Trump pardoned him.

It makes sense for Justice Department prosecutors to ask whether Bannon – accused of defrauding hundreds of thousands of donors – would tell the truth about the January 6 insurrection. And because Bannon has demonstrated his disdain for the work of the select committee, helped spread election misinformation and fanned the flames ahead of the insurrection, it seems that he might be an unwilling witness and an untruthful witness. In that case, pressuring Bannon to testify seems pointless.

The notion of letting someone off the subpoena hook because they are unwilling to testify, or because they are untruthful, or both, is distasteful. Accountability matters, before Congress and in the criminal justice system. We should expect people to come forward and tell Congress what they know, to help better understand the events leading up to that awful day and to ensure that something like that never happens again.

But some people are more interested in staging insurrections and discrediting valid elections than they are in speaking the truth. Some people might use a congressional forum not to help heal the nation, but to further sow division. In that case, pursuing civil contempt against Bannon to pressure him to testify makes little sense. But charging him with criminal contempt – punishing his defiance – sends the right message to him and others.

I’m in no position to question Rosenberg’s wisdom speaking as a prosecutor.

But the public record suggests that Bannon can be coerced to testify in damning ways. That’s what happened with the Mueller investigation, possibly assisted with Bannon’s staged testimony to the House Intelligence Committee.

Steve Bannon is known to have testified in various forms at least nine times (this post analyzes Bannon’s second Mueller interview, this post describes how he read from a White House script at his second HPSCI interview, this post describes how he inched closer to the truth, and this post includes links and analysis on the Mueller interviews liberated by BuzzFeed).

  1. January 16, 2018: Bannon did an interview with the House Intelligence Committee at which he refused to testify about the Transition and Administration and falsely claimed the campaign would have all relevant emails on Russian interference, which served to cover-up damning emails he had with Roger Stone.
  2. February 12, 2018: Bannon’s first Mueller interview largely covered obstruction; as with the HPSCI interview days later and the SSCI interview nine months later, Bannon hid his involvement in sanctions discussions during the transition.
  3. February 14, 2018: Bannon’s second Mueller interview finished obstruction topics and covered campaign related events and included some breathtaking lies about his role and knowledge of optimizing the hacked releases.
  4. February 15, 2018: After Devin Nunes shared the transcript of his first interview with the White House, Bannon did another HPSCI interview and largely read from a pre-arranged script from the White House designed to hide (among other things) his involvement in discussions about sanctions before Mike Flynn attempted to undermine Obama’s sanctions on Russia.
  5. October 26, 2018: After Mueller obtained communications proving a number of Bannon’s lies in the earlier interviews, he inched closer to the truth on obstruction and the WikiLeaks releases (including about a December 2016 meeting between Roger Stone and Trump that Trump wanted Bannon to attend as a witness), though still told incredible stories about his ties to Russia during the transition.
  6. November 19, 2018: In an appearance before the Senate Intelligence Committee, he told suspected lies that the committee referred for prosecution. [I’ve excerpted the parts of his testimony quoted in the SSCI Report here.]
  7. January 19, 2019: The content of a January 19, 2019 interview and grand jury appearance (one that took place after Mueller obtained Bannon’s HPSCI transcripts) remains entirely sealed, but he was forced to adhere to some of it at Roger Stone’s trial and Stone has recently accused Bannon of betrayal in this appearance.
  8. Unknown date (possibly July 26, 2019): A trial prep interview with DC’s AUSAs at which Bannon tried to back off his grand jury testimony.
  9. November 8, 2019: After prosecutors forced him to match his grand jury testimony, Bannon testified to speaking to Stone about the hacked emails both before and after he joined the Trump campaign.

Somehow, Mueller’s attorneys were able to get Bannon to be more truthful in that grand jury appearance, and then with it, they forced him to adhere to his more damning testimony at Roger Stone’s trial. But Stone’s continued attacks on Bannon suggest Bannon’s grand jury testimony extended beyond his trial testimony.

My guess is that Mueller’s team got Bannon to tell something approximating the truth on some topics via a range of tactics. First, Bannon originally lied about when he used his personal email on the campaign; after Mueller obtained some damning emails with Roger Stone from that email, Bannon conceded more of the truth. Additionally, Bannon clearly was playing different audiences for different purposes (for example, Republicans ensured that the entirety of the HPSCI investigation served to get Trump flunkies to tell false cover stories, and as noted, Bannon literally read from a White House issued script in his second appearance). But that likely served to alert prosecutors to what Bannon was trying to hide (and in the case of Bannon’s efforts to hide his knowledge of discussion of sanctions during the transition, Mueller actually got somewhat useful testimony from Flynn). Finally, it seems likely that prosecutors used earlier lies to coerce Bannon to tell the truth later in their investigation.

To be clear, the January 6 Select Committee doesn’t have the time to coerce some truths out of Steve Bannon, though it’s possible that DOJ could use any testimony he did offer as Mueller’s team seems to have done during their investigation, as a means to corner him about prior lies.

In any case, tough his testimony helped convict Roger Stone (after which Trump pardoned the rat-fucker), whatever truths Bannon told during the Mueller investigation were useless. The truthful bits remained sealed in an unreleased 302 and grand jury testimony, of no use to the public.

Still, the overriding lesson from Bannon’s book of laughter and forgetting is that his past lies and changing loyalties can be exploited, if you have the time to really work on him.

January 6 Defendant Kevin Creek Ends Up with a Single Assault Charge

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Yesterday, DOJ charged Kevin Douglas Creek with one count of assault. The charge adds to the evidence that DOJ is letting cooperative defendants plead down without entering into a cooperation agreement.

Creek — a former Marine from Georgia — was first charged with assault of what his arrest affidavit called, “multiple officers,” and civil disorder. One of those alleged assaults included kicking a cop.

As the arrest affidavit describes (and I wrote up here), the first tip against Creek came from a hospital worker who described that he admitted his involvement in the riot when getting treated at a hospital for delayed effects from tear gas.

On January 10, 2021, a complainant reported to the FBI that on January 9, 2021 or January 10, 2021, an individual named Kevin Creek made comments while visiting Northside Forsyth Hospital about his involvement at the U.S. Capitol riot on January 6, 2021. Creek disclosed that he was tear gassed at the Capitol on January 6, 2021. Creek discussed running up the stairs of the Capitol building and attempting to get inside. Creek talked about having trouble at the door he ran to because the police were gassing individuals at his door. Creek also mentioned he was bruised from his activity at the Capitol and admitted to a long car ride to get to DC. Creek made general comments regarding always being armed but did not directly say whether he was armed at the Capitol.

Later on, the FBI released Be on the Lookout photos for Creek.

In an FBI interview with counsel on May 21, Creek seemed evasive about how he first learned about the protest and described only partly regretting his conduct at the riot.

Initially, Creek told affiant he was live streaming January 6th and posted the stream and photos on his Facebook account. Creek deleted those photos once he returned home. Creek stated he may have heard about the protest from his twitter account (handle @KevinDCreek) but stated he could not remember for certain.

When asked if Creek regretted his conduct on January 6th, he responded: “50/50”.

Creek was arrested on June 9. After he was jailed for five days, the US Attorney’s Office in Northern Georgia successfully got Creek detained pretrial; the magistrate’s order finding for detention emphasized that he had “assaulted several Capitol Police officers.”

Creek’s attorney moved for release, and Jacob Strain, the AUSA (a detailee from Utah) handling this case agreed, citing (in part) Creek’s, “significant cooperation.”

Based on the defendant’s law-abiding conduct after January 6th, his lack of criminal history, and his significant cooperation with law enforcement, the United States submits its position that conditions can be fashioned to reasonably assure the defendant’s appearance and effectively assure the safety of the community. [my emphasis]

In a hearing, it became clear that DC’s US Attorney’s office was saying Creek should be released while Northern Georgia’s was trying to enforce their District policy that those who assault law enforcement are presumptively detained (Northern Georgia would later try to override the release conditions of one of the few Black January 6 defendants, Antionne Brodnax, who moved into the District).

The thing is, there’s no sign yet of Creek’s, “significant cooperation with law enforcement.” His arrest affidavit makes it clear he went to insurrection with three others, two of whom remained with him until after 4PM.

Travel records obtained from Washington Metropolitan Area Transit Authority confirm that on January 6, 2021 at 8:15am, Creek’s credit card was used to purchase four metro cards. These metro cards were used to traveled from Rosslyn Station McPherson Sq Station at approximately 8:17 am. At 11:07 am, one metro card was used to return to Rosslyn Station from McPherson Station. The other 3 cards returned from Arch-Navy Memorial Station to Rosslyn Station at 4:37 pm. Arch-Navy Memorial Station is located about .8 miles to the U.S. Capitol.

But I’m not aware of any arrests of other people from the Atlanta area who might have traveled with Creek.

His discovery lists the body worn cameras of three officers, including Daniel Hodges.

In short, from early on, DOJ said he had provided “substantial cooperation,” using the word — substantial — usually reserved for 5K letters after a defendant has successfully completed the terms of cooperation agreement. And now, four months after his arrest, his assaults on “multiple officers” have been charged as a assault, presumably setting up a plea hearing (while I assume it’s just a coincidence, his next scheduled hearing date, December 17, is the same date as the coordinated status date for the Oath Keeper cooperators).

It’s not clear what to make of this charging decision. But the discussion around Creek’s pre-trial release seems to suggest cooperation that may explain similarly situated January 6 defendants are being charged with multiple felonies and Creek will presumably plead to a single count.

But this charging decision will have one other effect: Those, like David Judd, who claim only Portland defendants charged with assaulting cops get charges dismissed will now have to explain why a January 6 defendant who traveled across three states to attend the Trump riot will likewise have his civil disorder charge dropped.

Update: This post has been substantially corrected to reflect that this appears to be a felony. Creek was charged by information, but the charge includes physical contact that makes it a felony.

After Describing DOJ’s January 6 Language as “Schizophrenic,” Judge Beryl Howell Imposes a Sound Baseline Sentence

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In the sentencing hearing for Jack Griffith yesterday, Beryl Howell spent several hours berating the government for the way they’ve charged the January 6 cases. Here’s Zoe Tillman’s coverage of the hearing.

Howell repeatedly expressed puzzlement at how the Justice Department was managing the Jan. 6 cases, especially for defendants charged solely with misdemeanor crimes. She questioned prosecutors using “scorching” rhetoric to describe the severity of the attack on the Capitol while also using words like “trespass” to describe what some defendants, including Griffith, did that day. She described the government’s brief as “almost schizophrenic.”

She also pressed prosecutors to explain why the government was offering plea deals for low-level charges that limited judges’ options at sentencing, especially when prosecutors had articulated that one goal of these cases was to prevent a similar postelection attack on the peaceful transfer of power in the future.

“This is a muddled approach by the government,” she said. It is “no wonder,” she said, that some people “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”

Howell’s complaint about the seeming inconsistency between DOJ’s rhetoric on the attack itself and the charges being filed may stem, in part, from the fact that Howell has a greater proportion of misdemeanor defendants than other judges, and so doesn’t see how there’s a continuum among defendants. Of the 30-some defendants whose cases she has, Grady Owens and James McGrew are two of her only more serious cases, plus Nick Ochs and Nick DeCarlo from the Proud Boys.

But her complaint about the way DOJ has tied judges’ hands on sentencing raises an important point. She worried about whether DOJ will really be able to collect restitution payments, given that that normally happens as part of supervised release and these class B misdemeanors don’t permit that (something discussed at length yesterday). And ultimately, she decided that because that’s all Griffith was asked to plead to, she wouldn’t sentence him to jail time, as DOJ had requested.

That said, several minutes after she issued her ruling for a 3 month probationary period, she added a term of supervised release that confused me and others covering it. I think the sentence she did impose — three months in home confinement with a GPS, as part of three years of probation — is not a bad one for those DOJ charges with misdemeanors.

Defendant sentenced on Count 5 to serve a term of thirty-six (36) months Probation which includes a special condition of 90 days of home confinement; Defendant ordered to pay a $10.00 special assessment and restitution in the amount of $500.00; imposition of a fine waived. Government’s oral motion for the dismissal of Counts 2, 3, and 4, granted as to Defendant JACK JESSE GRIFFITH. Bond Status of Defendant: Defendant placed on Probation.

Howell focused closely on deterrence — and argued that sentences without jail time will not adequately deter further events. But Griffith will still face a three month period where his conditions of release are more harsh than they currently have been, outfitted by a GPS. And by sentencing him to an extended probationary period, Howell has limited the degree to which Griffith can engage in armed insurrection.

As it is, the courts are overwhelmed with the number of January 6 defendants. Even without the legitimate challenges to the way DOJ has used obstruction in this case, it’s unlikely they would have been able to charge more felonies. This sentence is a way to limit the possibility Griffith will rejoin an insurrection without submitting him to radicalization in prison.

And as of right now, between Tanya Chutkan’s jail terms and Trevor McFadden’s brief probation terms, the misdemeanor sentences are disconcertingly all over the map. I’m hopeful that this sentence will serve as a better guideline going forward.

There’s one more detail of yesterday’s hearing worth noting. James Pearse, the AUSA in charge of most of the legal issues in this investigation, gave Judge Howell a detailed explanation of how DOJ had come up with the $500 restitution amount (with $2,000 for felony defendants). He described that the Architect of the Capitol came up with a damages amount in May, and DOJ spread that over the estimated number of people who had entered the Capitol. He described their estimate at that point was 2,000 to 2,500.

This means DOJ has come up with the same estimated number as the Sedition Hunters did (as described in this Ryan Reilly piece; click through for links), working off an estimate of flow rate of people coming into the Capitol.

In the weeks after the attack, law enforcement officials estimated that 800 people had entered the Capitol. That number stuck around in media coverage for months, becoming a benchmark against which the FBI’s progress has been measured. The 800 figure has been mentioned in stories as recently as this week.

In reality, as online sleuths have discovered over the past several months, that’s only a fraction of the scope of criminal activity that day. A HuffPost analysis of public-facing data on the Capitol attack, combined with the findings of online investigators working under the #SeditionHunters moniker, shows that the total number of Jan. 6 participants who could face charges if identified tops 2,500.

Federal investigators have quietly ticked up their own estimate. In a budget request earlier this year, the FBI told Congress that “approximately 2000 individuals are believed to have been involved with the siege.” Law enforcement officials did not dispute HuffPost’s 2,500 figure.

That means federal authorities have charged about 25% of the suspects who could face criminal charges for their conduct on Jan. 6. At the current pace, it would take federal authorities until early 2024 to bring cases against 2,500 defendants. And some of the easiest cases to bring, the “low-hanging fruit,” have already been charged.

Online investigators, who have been responsible for identifying countless Jan. 6 defendants and will play a role in dozens of forthcoming FBI cases, have counted more than 2,000 individuals they say breached the Capitol building. These sleuths refer to the people they say they spotted inside the Capitol as “Sedition Insiders,” and have collected the highest-quality image they’ve found of each rioter (even if that photo was snapped while the suspect was outside the Capitol).

When Pearse offered this number, he explained that DOJ didn’t want to explain how it came up with this number — which led me to quip that maybe they had used the Sedition Hunter number. That’s not possible, though, as the calculation predates it. It’s likely, then, that this number relies (at least partly) on the number of trespassers identified using cell tower dumps, which reflect all the phones and Google access, less those who had a legal reason to be in the Capitol.

Ultimately, of course, this means that restitution won’t pay for all the damage to the Capitol, as prosecutors seem to be limiting further misdemeanor arrests to those who serve an investigative purpose (such as to obtain their cell phone for evidence against others).

Unless, of course, prosecutors ultimately move towards holding organizers accountable for the damage their mob incited.

Whatever the case, DOJ continues to fall short of providing compelling explanations of how all the parts of the riot fit together in either public statements or court filings. And on that level, Judge Howell’s complaint deserve closer attention from DOJ.

Merrick Garland Assures Sheldon Whitehouse the January 6 Investigators Are Using All Investigative Techniques, Including Following the Money

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In spite of the 650 defendants, the conspiracy structure that could easily encompass Trump and his flunkies, and apparent steps to lock in testimony of those privy to the actions of organizers, most people remain panicked that DOJ is not aggressively investigating January 6, including those who organized it. Yesterday in a Senate Judiciary Committee hearing with Attorney General Merrick Garland, Senator Whitehouse expressed concerns that DOJ was not trying to understand who funded the January 6 riot. In response, Garland strongly implied that DOJ was.

Whitehouse: Now, I don’t know what’s going on behind all of that, but I’m hoping that the due diligence of the FBI is being deployed not just to the characters who trespassed in the Capitol that day and who engaged in violent acts, but that you’re taking the look you would properly take at any case involving players behind the scenes, funders of the enterprise, and so forth, in this matter as well and there’s been no decision to say, we’re limiting this case to the people in the building that day, we’re not going to take a serious look at anybody behind it.

Garland: Senator, I’m very limited as to what I can say–

Whitehouse: I understand that.

Garland: –Because I have a criminal investigation going forward.

Whitehouse: Please tell me it has not been constrained only to be people in the Capitol.

Garland: The investigation is being conducted by the prosecutors in the US Attorney’s Office and by the FBI field office. We have not constrained them in any way.

Whitehouse: Great. And the old doctrine of “follow the money,” which is a well-established principle of prosecution, is alive and well?

Garland: It’s fair to say that all investigative techniques of which you’re familiar and some, maybe, that you’re not familiar with because they post-date your time are all being pursued in this matter.

We are still just nine months into this investigation, an instant in the terms of complex conspiracy investigations like this one (which was a point that Garland made in a House Judiciary Committee hearing earlier this week). It’s not clear what DOJ is going to be able to prove in court. And given yesterday’s fake outrage from Republicans, it’s not clear DOJ will complete such an investigation before Republicans win a Congressional majority at mid-terms.

But at least for now, DOJ appears to be conducting the kind of investigation everyone wants them to.

DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

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In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.

Merrick Garland’s Dodges on Investigating Former Presidents

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In the oversight hearing today, Eric Swalwell tried to grill Attorney General Garland on whether DOJ would reconsider the OLC memo holding that a sitting President cannot be indicted. Garland dodged answering any specific question. But along the way he laid out some principles that he might apply regarding the investigation of a former President.

Swalwell: General Garland, in 1973, an Office of Legal Counsel memo outlined the parameters for indicting a sitting President and said that you cannot do that. Twenty-seven years later, that memo was updated to reaffirm that principle. Twenty-one years later, we have seen a former President test the bounds of Presidential authority, and I’m wondering, would you commit to revisiting that principle, whether or not a President, while sitting, should be indicted?

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

Merrick Garland Explains that the January 6 Investigation Isn’t Taking All that Long

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A lot of people here and elsewhere complain about how long it is taking to bring January 6 perpetrators to justice. In response to a question from Pramila Jayapal this week, Merrick Garland explained that, in his view, it actually isn’t taking so long. He adds some details (in this clip and elsewhere in the exchange with Jayapal) about the investigation, including how DOJ is attempting to standardize plea deals.

On the question you asked, which is why this is taking so long? This is really not long at all. I’ve been in lots of criminal investigations that took way longer. We’ve arrested 650 people already, and keep in mind that most of them were not investig–arrested on the spot, because the Capitol Police were overwhelmed. So they were people who had to be found, they had to be found by sometimes looking at our own video data, sometimes from citizen sleuths around the country identifying people, then they have to be brought back to Washington DC,  then discovery of terabytes of information has to be provided, and then all this was occurring while there was a pandemic and some of the grand juries were not fully operating, and some of the courtrooms were not fully operating. So I’m extremely proud of the work that prosecutors are doing in this case, and the agents are doing in this case. They’re working 24/7 on this.

“Civil War Started:” Zach Rehl’s Blow-by-Blow of the Riot

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Since Jonathon Moseley has taken over as Zach Rehl’s defense attorney, he has filed a series of really ridiculous motions.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

The government responded to these motions in two different filings yesterday. One motion opposed Rehl’s request for a Bill of Particulars, for discovery that (a table in the motion shows) DOJ has already provided, and for a Parler post that DOJ says doesn’t appear to exist. Another motion opposed Rehl’s bid to reopen his pre-trial detention.

The latter basically argues that all the ridiculous gaslighting Moseley is doing has not presented anything that was not known to Rehl when Tim Kelly last denied his motion for bail.

In his motion and the three supplements, the defendant raises no information that was both unknown to him at the time of the original detention litigation before this Court and that would have a material bearing on the detention decision. The Court should accordingly decline to reopen the detention hearing and should deny the defendant’s motion.

Along the way, the motion makes a point I keep making: the Proud Boy leaders keep excusing their actions by claiming some tie to Trump’s speech or a protest, except that they never went to his speech, heading instead to the Capitol to kick off a riot.

The defendant focuses on what the videos show of the Proud Boys’ activity prior to the breach of the Capitol grounds, and it focuses on two videos that were explicitly made for public consumption. The defendant’s reliance on the videos mentioned in the First Supplement moreover ignores the evidence of the conspirators’ coordinated actions immediately prior to, and again after the breach of the First Street barriers. The defendants arrived near the site of the Ellipse—where speeches were to occur—and then immediately marched to the Capitol away from the demonstration. The defendants were not there for a peaceful demonstration; they went to the Capitol to participate in a violent protest.

[snip]

The Court should not accept Rehl’s invitation to conclude that the fact that the Capitol Police issued some permits negates his mens rea. See Mem. at 10-12. The defendant has not proffered that he knew of any permits issued or that he believed he was participating in a permitted demonstration when he rushed past trampled police barriers. If that is the defendant’s subjective memory, he certainly knew that on June 30. But setting that aside, any claim he makes now—for the first time nine months after the riot—that be believed he was participating in a permitted protest should carry no weight in the Court’s analysis, as those claims are belied by the fact that the defendant entered the grounds not at the site of any permitted protest, but through trampled police barriers.

[snip]

The best proof of what defendants planned is what they did—and did not do—on January 6. They did not attend the demonstration at the Ellipse; they marched to the Capitol. And the defendant celebrated the group’s accomplishments and characterized it for what it was—violence and threatened violence to corruptly influence the vote of the American people.

The government motion scoffs at Rehl’s claim to support the cops, noting that a fundraiser Moseley pointed to in a supplement supporting his renewed bail request had been started the day he submitted the filing, and had raised no funds.

The defendant also proffers that he is the son and grandson of police officers and is a longtime supporter of the “back the blue” movement. E.g., Second Supplement at 3. This information, even if true, was known to him at the time of the June 30 hearing, and thus does not provide a reason to reopen the hearing. The fundraiser that the defendant allegedly set up “to raise money for any injured police officers,” see id., is not material to the Court’s detention analysis. According to an ICANN9 lookup, the domain name healcapitolpolice.com was registered on October 6, 2021—the same day that defendant filed the First Supplement referencing that website and the alleged fundraiser. As of October 15, 2021, that website redirects anyone who clicks on it to a GiveSendGo crowdfunding page that states that the campaign has raised $0 and “is currently disabled and can not receive new donations.”

It shows that because of the way Rehl’s lawyer submitted a Reuters article that (I’ve shown) misunderstood the investigation, it cut off a reference to Rehl and his co-conspirators.

The passage Moseley failed to include affirms that FBI had discovered the Proud Boys had a goal of breaking into the Capitol.

Stone, a veteran Republican operative and self-described “dirty trickster”, and Jones, founder of a conspiracy-driven radio show and webcast, are both allies of Trump and had been involved in pro-Trump events in Washington on Jan. 5, the day before the riot.

FBI investigators did find that cells of protesters, including followers of the far-right Oath Keepers and Proud Boys groups, had aimed to break into the Capitol. But they found no evidence that the groups had serious plans about what to do if they made it inside, the sources said.

But the most interesting part of the motion includes citation of multiple texts Rehl sent during the riot, which (the government claims) not only proves that Rehl lied in a previous filing about texting only his spouse from the riot, but shows he was providing a blow-by-blow account of the riot to four other people in which he stated, before Dominic Pezzola broke into the Capitol but after they had surged onto Capitol grounds, that “everyone raided the Capitol.”

In addition to the post-election rhetoric the Court cited in granting the government’s motion to revoke the magistrate’s release order, many of the defendant’s statements from January 6 and 7 underscore the government’s assertion that he possessed a criminal mens rea on January 6. For example, in contrast to defendant’s claim that “gathering at the U.S. Capitol was specifically authorized” by permit (Mem. at ¶ 55), shortly after defendant and his coconspirators had surged onto Capitol grounds, Rehl texted four other contacts, “Everyone raided the Capitol.” At the time that text was sent, 1:15 p.m., the defendant and his coconspirators had pushed into the West Plaza, but they were still approximately 30 minutes from beginning to push up the stairs to the Upper West Terrace. At 1:34 p.m., Rehl texted the same group, “We’re at a standstill, cops are dropping concussion bombs and pepper spraying, people are pepper spraying back and fighting riot cops.” At 2:29 p.m., after hordes of rioters had entered the building, defendant texted the same group, “Civil war started.”4 He followed at 2:48 p.m. with “They just broke all the doors and windows open, people are pouring in.”

The defendant’s statements after January 6 further underscore that the defendant’s focus on that day was not Antifa. On January 7, 2021, he texted the same group mentioned in the previous paragraph, “Trump basically conceded. We lost our country, we shoulda held the capital” and “Once Pence turned his back he was fucked, but was hoping we all sent a message yesterday, I guess that was the message to ben [sic] the knee, its depressing.” In a different Telegram chat on January 7, Rehl stated, “Looking back, it sucked, we shoulda held the capital. After [T]rump conceding today, it all seemed like a waste.” He continued, “The reason why it feels like a waste is because instead of all these politicians getting scared and realizing they need to answer for this fraud, they are all turning on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back the right way,” and “I imagine the next time people aren’t showing up unarmed. I’m not trying to fed post, I’m just stating facts, normies turned on the cops man, we didn’t start any of the violence, all we did was a couple of chants.”

4 These text messages stand in contrast to the defendant’s assertion that he only texted his wife to let her know he was safe and that he only knew of the full scale of the attack at the time of the impeachment trial. See First Supplement at 8.

Zach Rehl described the riot on the Capitol that he and his co-conspirators kicked off as a “civil war.” That expresses a mens rea that goes well beyond simply trying to obstruct the vote count.