The Hybrid Hatchet Conspiracy: A Premeditated Plan to Surround the Capitol on January 6

/51 Comments/in , /by

Contrary to what you might read on Twitter, I have not been predicting that Trump will be held accountable for January 6. Rather, I am observing–based on actual court filings and the evidence in them–that if he or his associates were to be held accountable, that would happen via conspiracy indictments, indictments that have already reached within two degrees of Trump’s closest associates. In a hearing yesterday, Christopher Wray answered one after another question about holding Trump accountable by talking about conspiracy indictments, so it seems he may agree with me.

Just the other day, for example, I suggested we might see prosecutions of those involved in the rallies, as opposed to busting into the Capitol.

Together, those posts argue that if any kingpins will be held accountable, it will be through a conspiracy prosecution. I note that one of the conspiracies has already reached back to the Willard Hotel, where Roger Stone was staying and where the call patterns suggest possible consultation with people present at the hotel. And I suggest that not only will there will be further conspiracies (I’m pretty confident about that prediction) but there may be more complex prosecutions tied to people who were involved in the rallies rather than the riot or who were discussed explicitly with Rudy Giuliani (I’m far less confident about that possibility).

That doesn’t mean Donald Trump, or even Roger Stone or Rudy Giuliani, are going to prison. It’s not clear what kind of evidence is out there. It’s not clear how loyal these famously paranoid people will be without the constant dangle of pardons that Trump used to buy silence during the Mueller investigation.

Earlier in the week, I noted that DOJ had already charged one of the speakers on January 5, Brandon Straka, and has been holding him in a kind of limbo awaiting what look like possible charges of obstruction and civil disorder.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet.

Last night, DOJ rolled out a conspiracy indictment that alleges that Alan Hostetter, another of the speakers on January 5, conspired with five other Three Percenters to “corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.”

The indictment is slightly different than the other conspiracies charged against militias thus far (and therefore may be yet another degree more vulnerable to challenge), insofar as it charges 18 U.S.C. § 1512(k), the conspiracy charge tied to obstruction, rather than conspiracy itself 18 U.S.C. §371. Plus, just one of the accused defendants — Erik Warner — managed to enter the Capitol (another, Russell Taylor, chose not to enter because he didn’t want to do so while armed), so even the trespassing charges may be more vulnerable to challenge. Two of the men — Derek Kinnison and Warner — are also charged with obstruction for trying to delete the Telegram chat they used for organizational purposes.

But if this indictment withstands legal challenge, it is in some ways far more provocative than the existing militia conspiracies. That’s because it’s not just a militia conspiracy indictment.

The indictment is a hybrid: one that charges a group that is both a militia, the Three Percenters, but also men who played an organizational role in the larger event via an anti-mask turned into election conspiracy group, the American Phoenix Project. The conspiracy language of the indictment repeatedly describes the men flashing their Three Percenter signs or otherwise identifying themselves as such.

KINNISON attached a picture of himself, MARTINEZ, and WARNER with the following message: “From left to right, I’m Derek aka midnightrider the short guy, Tony aka blue collar patriot, Erik aka silvir surfer…. We are 3 percent so cal. Also coming with us is redline Ron [MELE].” In the photo, all three are flashing a hand signal that designates affiliation with a Three Percenter group.

[snip]

On January 2, 2021, KINNISON, MELE, WARNER, and MARTINEZ met at MELE’S house in Temecula, California. Before leaving in the SUV, the four men posed for a photograph in which they all made a hand gesture signaling affiliation with a Three Percenter group.

[snip]

MELE, MARTINEZ, KINNISON, and WARNER also congregated on the National Mall and posed for a photo there. In the photo, MARTINEZ, KINNISON, and WARNER made a hand signal showing affiliation with a Three Percenter group.

But the indictment also describes how Hostetter formed the Phoenix Project as an anti-mask group and then used it to sow violence against those who supported the democratic result of the 2020 election.

In Spring, 2020, ALAN HOSTETTER (“HOSTETTER”) founded the American Phoenix Project to oppose government-mandated restrictions arising from the COVID-19 pandemic. After the 2020 U.S. Presidential election, HOSTETTER, RUSSELL TAYLOR (“TAYLOR”), and PERSON ONE used the American Phoenix Project to support former President Donald J. Trump and protest what they asserted was a stolen or fraudulent election result. TAYLOR and PERSON ONE became directors of the American Phoenix Project in the Fall of 2020.

From at least in and around November 2020, HOSTETTER used the American Phoenix Project as a platform to advocate violence against certain groups and individuals that supported the 2020 presidential election results.

It describes how in a post on November 27, Hostetter demanded that “tyrants and traitors need to be executed.” It explains that at a rally in Huntington Beach on December 12, Hostetter gave a speech calling for executions.

The enemies and traitors of America both foreign and domestic must be held accountable. And they will. There must be long prison terms, while execution is the just punishment for the ringleaders of this coup.

This demand for long prison terms may come back to haunt Hostetter if he is ever sentenced for his attack on America.

Because of its hybrid structure, I suspect this indictment may serve as a node to connect other conspiracies together. Obviously, we should expect to see parallel Three Percenter conspiracies. Given how Guy Reffitt’s known actions that day parallel those of these conspirators, and given what prosecutor Jeffrey Nestler said in a status hearing for Reffitt the other day, I would be unsurprised if the superseding indictment Nestler said was imminent was a conspiracy of the Texas Three Percenters Reffitt was organizing.

I also expect that some of the 30 other people described to have taken part in the The California-DC Brigade Telegram chat described in this indictment to be charged in their own conspiracy indictment.

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

The indictment makes it clear that these Three Percenter defendants coordinated with other members of the DC Brigade using a coordinated radio channel, 142.422 on the day of the insurrection; they were conspiring with others, in addition to each other.

On the Telegram chat, Taylor explicitly talked about coming to DC armed.

I am assuming that you have some type of weaponry that you are bringing and plates as well.

Importantly, some of these other people from SoCal did engage in assault, and given Hostetter’s public statements plus the mention of “willing[ness] to fight” in this Telegram description and Taylor’s mention of weapons, the Three Percenter conspirators may be implicated by association in their violence (which, along with weapons charges that have not been charged, could serve as inducements for members of this conspiracy to flip).

So I believe this indictment will link in conspiracies with other Three Percenters and with other Southern Californian anti-maskers.

But the role of the rallies in the indictment is even more intriguing.

Hostetter set up an earlier organizational Telegram chat on November 10. It was used to plan travel to DC for the November Million MAGA March as well as the January 6 insurrection. In the language describing the overt acts in this conspiracy, the indictment focuses closely on posts and other events starting on December 19. It linked Trump’s Tweet calling for “Big protest in D.C. on January 6th.” It describes an Instagram post Hostetter posted under the Phoenix Project moniker the same day, calling for people to join him. It describes that Hostetter and Taylor reserved rooms in a Kimpton Hotel on December 20, earlier planning than many of the Oath Keepers. It describes how Taylor renamed the Telegram chat to “The Californian Patriots–Answer the Call Jan 6” on December 20.

Then, having tied the travel of these organizers of a network of radicalized Southern California Trump supporters to Trump’s call on December 20, the indictment describes that this group got booked to speak at the January 5 rally.

On December 30, 2020, KINNISON sent a text message to MELE, WARNER, and MARTINEZ in which he attached a flyer advertising the January 5, 2021 rally outside the Supreme Court, at which TAYLOR, HOSTETTER, and PERSON ONE were named speakers for the American Phoenix Project.

The indictment doesn’t describe how this happened, though the government obviously has enough comms to have some insight into it.

Then, that same day, December 30, Taylor posted his plans for the days of January 5 and 6. His post stated a clear plan to work with Stop the Steal to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am shart and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

This plan is structurally the foundation in the indictment for the leadership role these men played in the SoCal contingent of anti-maskers. For example, the next section describes how just after this post, the men created the DC Brigade chat, including its calls for anti-maskers from Southern California to come to DC armed to and expecting a fight.

DOJ has been working on this indictment for six months. That’s still lightning fast for a conspiracy indictment, but unlike the other militia conspiracies, it has not been jury-rigged together as one after another co-conspirators’ phones get exploited.

And what it does, at a minimum, is to tie the anti-mask community in Southern California into a network with the Three Percenters.

More importantly, it suggests the organizing surrounding the rally on January 5 included a premeditated plan to surround the Capitol on January 6.

Planes, Trains, and Automobiles: The Metadata of Insurrection

/50 Comments/in /by

Kevin Douglas Creek, whose arrest was announced yesterday, is your garden variety January 6 defendant accused of assaulting cops in the extended fighting on the West Terrace that day.

But his arrest affidavit is a lesson in all the ways that insurrectionists, or any other travelers, leave a path of metadata that can be tracked later.

While the FBI described that someone reported comments Creek made in a visit to the Northside Forsyth Hospital days after the riot — Creek said that, “he was gassed before in the military where he never experienced the types of effects he was experiencing this time” — it appears that no one tracked down that tip directly (many of those who were gassed on January 6 would have only weak trespassing cases against them).

It seems likely that Creek was identified anew based off his Be on the Lookout pictures captured from two alleged assaults against cops. The affidavit doesn’t say he was identified through facial recognition, but the inclusion of the two clearest BOLO pictures of him in the affidavit suggests that’s likely.

Investigators often use driver’s license pictures to match for facial recognition, and indeed, this affidavit describes validating Creek’s BOLO to his Georgia driver’s license (though not the use of facial recognition to get there).

Your affiant reviewed a driver’s license photo issued to Creek and the Facebook profile photos posted by Kevin Creek and also compared these to images and videos of AFO-296. By comparing these photographs to the videos and images from the U.S. Capitol, your affiant believes the images are all consistent with Kevin Douglas Creek.

Once they IDed Creek as a suspect, they started accumulating proof of his travel. While Creek drove to insurrection, Air Marshals at Atlanta’s airport nevertheless witnessed Creek entering his F-150 at the airport, which tied him to his license plate.

Your affiant reviewed records obtained from open sources and verified that a F-150 Supercrew with license plate ending in XXX5830 is registered to Creek. Federal Air Marshals have also observed Kevin Creek entering this vehicle at the Hartfield Jackson International Airport in Atlanta, Georgia.

Once they tied Creek to his license plate, they tracked his drive to DC.

This license plate was run by an FBI-Atlanta Task Force Officer through Leonardo, a Automatic License Plate reader in Georgia. Leonardo automatic plate reader captured Creek driving to D.C. from Georgia on at 8:44 am on January 5, 2021 and returning at 6:11 pm on January 7, 2021. On both occasions, the reader registered the license plate on I-85 in Franklin County, Georgia.

Given Franklin County’s location on the border with South Carolina, Georgia’s license plate reader probably picked up Creek on his way into South Carolina on I-85 on January 5 and on his way back into Georgia on January 7.

Along the way, his credit card purchases showed him buying gas going and returning.

For example, on January 5, 2021, Creek used his credit card at Shell Oil in Petersburg, VA, Quinns in Arlington, VA and at Panera Bread in Burlington, NC. On January 7, 2021, Creek used his credit card at QT in Anderson, SC and at BP in North Chester, VA.

His credit card not only placed him at what was then a Courtyard in Arlington, but showed that he took the metro into the city on January 6.

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.

This tipped off the FBI that three people were traveling with Creek. Creek told the FBI whom he traveled with in an interview on May 21, but if he hadn’t, the FBI would have been able to use surveillance video from the hotel and the Metro to figure out who the others were, especially the two that appear to have left the Capitol with him shortly before 4:37PM.

At the beginning of this investigation, there was a focus on how many rioters had IDed themselves on social media. In Creek’s case, he may have deleted his live streaming from the attack before anyone chased down the tip based off his hospital visit (FBI ran some kind of GeoFence off of people live streaming to Facebook from inside the Capitol, but it’s not clear Creek ever entered the building).

An open source search was conducted to identify any social media accounts in the name of Kevin Creek. A search of Facebook revealed an account with the handle Kevin Creek. This Facebook profile shared a photo of a “Nailed It Roofing and Restoration” business card. Nailed It Roofing and Restoration is registered with the Georgia Corporations Division with a registered agent of Kevin Douglas Creek.

[snip]

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.

As described then, the only lead the FBI got from Creek’s Facebook was the tie to his business, “Nailed It Roofing and Restoration.”

But even without leaving boasts on Facebook for the FBI to find, Creek nevertheless left a clear trail of metadata in his wake as he traveled to insurrection.

Update, June 18: The government is not opposing a motion to revoke Creek’s detention order, citing (among other things), his “significant cooperation with law enforcement” since he was first interviewed.

The Gateway Pundit’s East Capitol Door Oath Keeper Conspiracy

/13 Comments/in /by

In a motion arguing that accused Oath Keeper Jason Dolan should be held without bail, the government accuses Dolan of inventing an alternative story to explain how the East doors of the Capitol got opened on January 6.

Many of these detention motions aren’t all that convincing about the danger of the defendant; I find this one to be. The government shows the three gun cases that Dolan and fellow Floridian Kenneth Harrelson stashed at the Ballston Comfort Inn before the insurrection.

The government explains that Dolan spent a decade as a marksmanship instructor while serving as a Marine and that Dolan appears to have hidden at least two guns that his neighbor said he owned in advance of being arrested.

The motion describes that Dolan and Harrelson were “near” the Capitol on January 5, which the government suggests was, “likely to conduct surveillance for their operation the following day.”

It describes how, after busting into the Capitol, Dolan, Harrelson, and Kelly Meggs spent six minutes outside Nancy Pelosi’s office (note, I think the government misleadingly suggests this photo came from Harrelson or Meggs).

Hours later, Meggs talked about how “we” had looked for Pelosi.

The government also shows that the attorney that Dolan shares with the former President, Michael Van der Veen, was wrong when he claimed there was no ongoing contact between Dolan and the Oath Keepers; Dolan and Harrelson were in communication via Signal leading up to Harrelson’s arrest.

But that’s not the most interesting part of the detention motion.

The government argues that Dolan is the source for this Gateway Pundit story, which was set up with the involvement of the Oath Keeper’s PR attorney, Kellye Sorelle (and so would constitute another recent contact with the Oath Keepers to prove Van der Veen wrong). They point to this video seized from Harrelson’s phone, showing the person in front of him, whom other pictures identify as Dolan, taking a picture of the just-opened East door.

That’s almost exactly the picture that shows up in the Gateway Pundit article.

(Note, Gateway Pundit cropped that image, I didn’t.)

That makes the intent of the Gateway Pundit story more interesting. It claims that the existing explanation for how the East doors got opened is that a Marine Major “went inside and managed to run around and open up the doors.”

Retired Marine: We’re on the top level now – about 15 feet from the doors just before they opened up. People are yelling and screaming. Everyone’s cheering, all kind of stuff. It’s chaotic. But we’re just kind of there. And then all of the sudden the doors open up from the inside. I have a picture taken about two seconds before the doors opened. And then I have a picture taken about six seconds later and the doors were open.

Jim Hoft: And they were not opened from the outside?

Retired Marine: They were opened from the inside. Now one of the stories I read recently was that some Marine, some Marine Major, went inside and managed to run around and open up the doors. And I think that was on your website, as well. But here’s what I can tell you about magnetic locks. If a door is locked by a mag lock it cannot be opened from the outside or the inside unless the person controlling that door opens that door by turning off the magnetic lock which those doors according to the photos I took are equipped with. [my emphasis]

The point of the story is to argue — based on the source’s experience working at US Embassies overseas, which Dolan did — that it would be impossible to open doors secured by magnetic locks. That’s not true: for safety reasons it has to be possible to open such doors from the inside, which is what the government claims did happen.

It’s how Dolan inserts Marine Major Christopher Warnagiris into the story, claiming that Warnagiris opened the doors from the inside, that I find particularly interesting.

That’s not what he is alleged to have done though. Warnagiris is alleged to be the first person in the East door, as if he knew — standing there on the Capitol steps fifteen feet in front of where Dolan was standing at the same time — that they would be opened.

Then Warnagiris prevented the cops from closing the doors once they had been opened, all the while helping others (which would hypothetically include the Stack that Dolan entered with) get in.

Without the tie to Warnagiris, this story would seem like nothing more than a ham-handed attempt to claim that the Stack could not have “broken” in, because to open the magnetic doors, someone would have had to have let them in. Maybe that’s all it is.

But the story serves as much to obscure what fellow Marine Warnagiris did as what Dolan and the rest of the stack did. Given that both Marines seemed to know those doors would open, I find that an interesting story to tell.

The Hole in the Senate January 6 Report Created by DOJ’s Non-Cooperation

/52 Comments/in /by

The Senate Rules/Homeland Security Report on January 6 is as helpful for the holes it identifies as it is for the questions it answers.

The most amazing hole pertains to the actions of the Secret Service. The report notes that the Secret Service attended a preparatory meeting on January 5, and like the FBI, Secret Service raised no warnings about the violent mob that their primary protectee was convening in DC.

He has stated that in a January 5 meeting with USCP leadership, members of the Capitol Police Board, and officials from the FBI, U.S. Secret Service, and DCNG, no entity “provided any intelligence indicating that there would be a coordinated violent attack on the United States Capitol by thousands of well-equipped armed insurrectionists.”153

The Report notes that then-Capitol Police Chief Steve Sund called Secret Service and asked for help on the day of the riot.

At 1:01 p.m., Mr. Sund also requested assistance from the United States Secret Service.79

[snip]

Mr. Sund testified that he first contacted MPD, followed closely by the U.S. Secret Service Uniformed Division.457

But the language about the agencies that did come to help does not mention Secret Service.

After 3:00 p.m., additional reinforcements from federal agencies began to arrive, and USCP turned to extracting and securing congressional staff.111 A number of agencies and entities provided assistance, including DHS; the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Montgomery County Police Department; the Arlington County Police Department; the Fairfax Police Department; and Virginia State Troopers.112 With this help, USCP secured the Senate and House chambers, along with the basement, subways, first floor, and crypts by 4:28 p.m. 113 DCNG personnel began arriving at the Capitol at approximately 5:20 p.m.114 By 6:14 p.m., USCP, DCNG, and MPD successfully established a security perimeter on the west side of the Capitol building.115

We’ve been focusing for months on the delayed response from DOD, but all this time Secret Service’s role has gone little noticed (and I’m still interested in Park Police’s absence). The silence here suggests that Secret Service blew off an explicit call for help as a mob threatened both Mike Pence and Kamala Harris.

As the report notes, Secret Service’s lead agency, DHS, has not yet fully complied with the Senate’s information requests.

Most entities cooperated with the Committees’ requests. There were notable exceptions, however: the Department of Justice and DHS have yet to fully comply with the Committees’ requests for information, the Office of the House of Representatives Sergeant at Arms did not comply with the Committees’ information requests, and a USCP Deputy Chief of Police declined to be interviewed by the Committees.

As to DOD’s slow response in deploying the Guard on the day of the attack, the report suggests that Army Secretary Ryan McCarthy had a key role in it.

There are multiple conflicting stories about what happened at DOD. It was clear from his testimony that former Acting Secretary Christopher Miller genuinely didn’t understand how much of a delay there was with the deployment of the National Guard. An important detail included in the report is that Miller believed the Guard had his okay to deploy by 3:04, but McCarthy dawdled until after 4:32, after other law enforcement had secured much of the Capitol.

By 4:32 p.m., Mr. McCarthy and his D.C. counterparts had agreed upon a “task and purpose” for DCNG, “identif[ied] link-up locations, and confirm[ed] key leaders at each site.”656 Accounts differ as to who within DOD needed to approve the final plan in order to deploy DCNG troops to the Capitol. Mr. McCarthy briefed Mr. Miller on the plan, who raised no objections.657 But Mr. Miller informed the Committees that he did not need to approve the plan—in his view, his 3:04 p.m. authorization was all encompassing and as soon as Mr. McCarthy and General Walker finished their mission analysis, DCNG had all necessary authorizations to deploy.658 General McConville informed the Committees that, although he did not know for sure, he believed Mr. Miller did need to approve the deployment plan.659

The reason why McCarthy dawdled is important, though.

After a bunch of conflicting excuses about the delay itself, there’s a section addressing why the Quick Reaction Force wasn’t deployed (ironically, given that the Oath Keepers seemed more prepared to release theirs than the entire DOD). After yet more conflicting excuses, McCarthy said that one reason the QRF couldn’t be deployed was because DOD needed to “link up with an organization and contact.”

General Walker also testified that the QRF was outfitted with all the equipment needed to go to the Capitol and was “ready to go” before 5:00 p.m.694 General McConville stated that “there was never an intent to have a quick reaction force going in to clear the Capitol.”695 Neither Mr. McCarthy nor Mr. Miller recalled whether the QRF had its civil disturbance gear available at Joint Base Andrews. Mr. McCarthy also noted that he was never informed that the QRF was at the Armory, equipped, and prepared to depart for the Capitol.696 When asked whether the QRF was properly equipped to respond to the Capitol, even if that was not the original intent, General McConville reiterated the importance of the assigned mission: “it depends on what the mission was.”697

Mr. McCarthy also acknowledged that, even if properly equipped, the QRF still needed to be briefed on the new mission.698 “I wanted to be clear of the concept for operations and how we were going to bring these [available DCNG personnel, including the QRF] together, make sure they ha[d] the right equipment, a clear understanding of their mission, and then link up with an organization and contact.

In other words, the reason the Pentagon couldn’t send a QRF to fight mobs prepared with their own QRF was because there was no lead agency to oversee them.

One of the most important sections of this report describes how Trump made DOJ — the same agency that had deployed even BOP officials during the summer — the lead agency on January 6. But DOJ did nothing. Miller explained that’s why he got so involved — because DOJ did nothing. “Somebody needed to do it,” he explained. And then McCarthy repeatedly used the lack of a lead federal agency as his excuse not to deploy the Guard. This discussion of DOJ’s disavowals of being the lead federal agency is one of the few areas where the report reiterates that an agency refused to cooperate with the Senate.

All DOD officials interviewed stressed the importance of the designation of a lead federal agency to support operations on January 6. The lead federal agency is “the nexus and locus for all information flow” and ensures that everything is coordinated and synchronized across federal agencies and departments.556 Mr. Miller noted that DOD “should never, ever be the lead federal agency for domestic law enforcement,” except for the establishment of martial law.557 Indeed, Mr. McCarthy required an agency to be designated before supporting the Mayor’s request for National Guard assistance. 558 According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

Although DOD understood that DOJ was designated as the lead federal agency, there appears to have been no clearly established point of contact within the department, according to Mr. McCarthy, which he found “concerning.”561 Prior to January 6, Mr. McCarthy sent a letter to Acting Attorney General Jeffrey Rosen outlining the Army’s operational plan in support of the Mayor’s request and reached out informally to David Bowdich, FBI Deputy Director, because the two had worked together previously.562 But Mr. McCarthy claimed, even during the attack, he was never provided an official point of contact at DOJ and had no contact with DOJ or FBI officials until approximately 4:00 p.m. 563 General McConville also stated that DOJ was designated as the lead federal agency; however, he noted that DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency.564 General McConville stressed the importance of integrated security plans and acknowledged that had there been one on January 6, DOD’s response time would have been quicker.565

In contrast, Mr. Miller stated Richard Donoghue, Acting Deputy Assistant Attorney General, served as DOJ’s operational lead on January 6.566 Notably, however, Mr. Miller acknowledged that, during the attack, he convened calls with Cabinet members to share information and ensure everyone was on the same page.567 When asked why he convened the calls, as opposed to the lead federal agency, Mr. Miller responded, “somebody needed to do it.”568 Mr. Miller was not familiar with any actions DOJ took to coordinate the federal response on January 6.569

On May 12, 2021, Jeffrey Rosen, the Acting Attorney General on January 6, testified at a House Oversight hearing that it was “not accurate” that DOJ was the lead federal agency for security preparations on January 6. 570 He stated that DOJ’s responsibilities were specific to intelligence coordinating and information sharing.571 DOJ has not acknowledged that it was designated the lead federal agency for January 6 and has yet to fully comply with the Committees’ requests for information. 572

In this post, I suggested the January 6 investigation hypothetically could (which is no guarantee it will) reach far more of the potentially criminal behavior than virtually everyone not following closely believes.

But in addition to the two areas where I expressed doubt that could happen — members of Congress, and DOD itself — this report makes it clear that DOJ remains a key subject that should be investigated.

It’s not at all clear that the FBI can or would investigate DOJ’s former top leaders.

Admittedly, DOJ — along with DOD, DHS, and Interior — is conducting a review of DOJ’s role that day and in weeks leading up to it (it’s not clear DHS’ review will include Secret Service, which has its own IG).

Review Examining the Role and Activity of DOJ and its Components in Preparing for and Responding to the Events at the U.S. Capitol on January 6, 2021

The DOJ Office of the Inspector General (OIG) is initiating a review to examine the role and activity of DOJ and its components in preparing for and responding to the events at the U.S. Capitol on January 6, 2021. The DOJ OIG will coordinate its review with reviews also being conducted by the Offices of Inspector General of the Department of Defense, the Department of Homeland Security, and the Department of the Interior. The DOJ OIG review will include examining information relevant to the January 6 events that was available to DOJ and its components in advance of January 6; the extent to which such information was shared by DOJ and its components with the U.S. Capitol Police and other federal, state, and local agencies; and the role of DOJ personnel in responding to the events at the U.S. Capitol on January 6. The DOJ OIG also will assess whether there are any weaknesses in DOJ protocols, policies, or procedures that adversely affected the ability of DOJ or its components to prepare effectively for and respond to the events at the U.S. Capitol on January 6. If circumstances warrant, the DOJ OIG will consider examining other issues that may arise during the review.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

DOJ IG has suggested that it is looking into the late Trump term shenanigans. But it’s not clear that it would look at why DOJ let a violent mob assault the Capitol.

Which, given the Senate report, is an issue that needs far more scrutiny.

Welcome to Lisa Monaco’s DOJ, E Jean Carroll Lawsuit Edition

/56 Comments/in , , , , , , , /by

During Lisa Monaco’s confirmation hearing, several people joked about how few questions she was getting. Because Vanita Gupta had been targeted by Republicans, Monaco was left for broad swaths of the hearing, a spectator to that effort.

There were some good exchanges. In addition to complaining about DOJ’s refusal to respond to questions from Democratic members of Congress, Sheldon Whitehouse asked about OLC, to which Monaco provided an anodyne answer that was enough for Whitehouse, who was going to vote for Monaco one way or another. Josh Hawley asked some legitimately good questions, including about end-to-end encryption. To those questions, Monaco hewed a middle ground and an adherence to the laws on the books. John Cornyn asked the same question Republicans harped on with Merrick Garland, whether she would let John Durham finish his work, to which she responded that her job is to make sure he has the resources to do so, which (while more nuanced that it sounded) shut down that line of questioning.

It was a testament to how shallowly Republican staffers interpreted Lisa Monaco’s long career that Chuck Grassley asked Monaco whether she had involvement in Crossfire Hurricane — the answer was obviously no, given her White House role at the time. But Grassley didn’t ask whether her position at the nexus of Mike Flynn’s efforts to obtain information from the Obama White House in advance of making calls with Sergey Kislyak that Flynn lied to hide would affect her view of the Russian investigation. Perhaps only Susan Rice was more personally betrayed by Mike Flynn’s outreach to Russia, and yet Republicans seemed to not even realize that Flynn and KT McFarland sent Tom Bossert to query Monaco in advance of Flynn’s covert call with Russia, making her the Obama person most directly victimized by Flynn’s underhandedness.

That blithe ignorance of how Monaco’s personal history might affect her tenure extended beyond the Senate Judiciary Committee. For example, while every Assange supporter has targeted Biden and Garland for their pleas to drop the Assange prosecution, none have thought about the fact that Monaco was in charge of the response to the 2016 Russian interference campaign that led even WikiLeaks sympathizers in the Obama Administration to completely reconsider Assange’s game and his longterm relationship with Russia (then again, Assange supporters, almost to a one, have convinced themselves to believe bullshit propaganda about that decision being made under Trump).

Most people have failed to ask these questions about Monaco’s career experiences, even though as Deputy Attorney General, Monaco runs DOJ on a day-to-day basis and makes a lot of these decisions and serves as a key advisor to Garland where she doesn’t.

As a result of the very surface approach to Monaco’s career, there were a whole slew of questions in her confirmation hearing that should have been asked (and should be asked before Monaco’s close associate Matt Olsen is confirmed as National Security Division head), but were not. When Lisa Monaco was Robert Mueller’s top advisor in 2006, for example, what role did she play legalizing the phone dragnet aspiring to collect the phone records of all Americans under FISA’s Section 215? Given her past failures to fulfill promises of transparency, specifically as it relates to FISA, what can she do to ensure she will deliver on such transparency as Deputy Attorney General? What was her role in the execution of Anwar al-Awlaki, and what does that say about her willingness to support unfettered executive authority? With the value of hindsight, does Monaco believe that she was suckered into continuing John Brennan’s permissive approach to drone strikes as White House Homeland Security Advisor, and if so what would she do to give herself the leverage to actually change bad policies baked in by her predecessors?

Don’t get me wrong: Monaco has almost unparalleled qualifications to be Deputy Attorney General, she brings a lot of great qualities to the job, and I’m sure she’s a lovely person. But there was almost no consideration about what affect her long tenure at DOJ and in National Security roles would have on her view towards Presidential authority and DOJ institutional precedent before she was confirmed.

Indeed, in perhaps the question that got closest to asking how she would treat initiatives from career DOJ officials already in place, Monaco explained to Amy Klobuchar that she viewed her job as to empower the people at DOJ she believed operated from an inherently unpartisan stance.

Klobuchar: After the last four years where civil servants withstood political interference, what do you see your role is as restoring the trust in the Department of Justice?

Monaco: Well Senator, as I said in my opening remarks, I think that the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. And they want to see equal justice under law, and they want to do the work that this Committee has done on a bipartisan basis to administer criminal justice reform. And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.

This is the belief system that leads Monaco to respond to a question about career DOJ prosecutor John Durham’s clearly politicized investigation by saying that her job is to make sure he has the resources he wants to continue that investigation.

In her role at DOJ, Monaco has overseen some key wins: with the announcement yesterday that FBI had seized much of the ransomware payment that Colonial pipelines had paid Dark Side hackers, with her quiet presence on the public line listening as Paul Hodgkins made the first pure guilty plea of the January 6 investigation, with the decision — on her first full day in office — to let SDNY resume its investigation into Rudy Giuliani’s foreign influence peddling.

But also under her leadership, DOJ has delayed notice to NYT about an effort to get their Internet records in a clearly politicized investigation. DOJ has moved to hide the contents of a Bill Barr memo that clearly abused his authority and the role of OLC (and with that decision, protected career employees who were making similarly dubious claims when Monaco ran the National Security Division). DOJ has defended a lot of legal stances that were obviously political on their face, most recently and egregiously by sustaining DOJ support to give Trump immunity from suit in his attack on alleged rape survivor, E. Jean Carroll. That is, as she did before with Cheney’s Stellar Wind and Brennan’s drone program, Monaco seems to have chosen not to make a clean break from the horrible policies of her predecessors, choosing instead to ensure the continuity of the institution.

Again, Lisa Monaco oozes intelligence and competence; she’s undeniably qualified to be where she’s at. But she also got where she’s at by cleaning up the messes left by Stellar Wind, the torture program, and John Brennan’s drone program by improving those shitty policies without demanding any accountability for the abuse of DOJ and presidential authority they entailed. Plus, as a career DOJ official, she’s going to defend professionals who did stupid things on the orders of a deeply politicized boss.

Particularly in the wake of the decision to defend Trump against Carroll’s suit, people are wondering how Merrick Garland could make such a horrible decision. My suspicion is they would be better asking what Lisa Monaco’s role was in the decision.

Merrick Garland Agreed He Would Go after January 6 Kingpins, if Evidence Merits

/61 Comments/in /by

There continue to be questions about how we’ll ever get accountability for January 6 without a January 6 commission to do that work.

In an exchange yesterday, for example, Bart Gellman asked what questions we’d most want a January 6 commission to answer, and I responded, “Why there’s such a broad belief that a criminal investigation won’t answer those questions.” In response, NYT’s Alan Feuer speculated that,

DOJ’s 500ish criminal cases will not ultimately touch the potential liability in 1/6 of political figures including but not restricted to the former president.

This prosecution writ large is (speculation alert) likely to be restricted to verifiable perpetrators, not possible instigators. The range of crimes (s.a.) are likely to include the known ambit: obstruction, assault, civil disorder, trespass etc. Sedition may not be charged.

Things can change. Evidence can emerge. But after five months, it seems unlikely (speculation alert) that DOJ is assuming the responsibility for searching out root causes as opposed to building demonstrably provable cases.

I think Feuer’s is a fair observation, though I disagree that holding “instigators” accountable is at all the same as “searching out root causes.”

In my opinion, it is way too premature to judge where a complex investigation will lead after only five months, which is an infancy in terms of such things (it took almost exactly a year from the time that FBI got the tip about George Papadopoulos until he was arrested, the first arrest of the Mueller investigation, which itself was lightning fast). And while it is true that the current universe of charges includes those crimes Feuer lays out — obstruction, assault, civil disorder, trespass — even that list leaves out conspiracy. The boilerplate description DOJ uses to describe the complexity of the investigation notes that such a list (which includes conspiracy) is non-exclusive.

The spectrum of crimes charged and under investigation in connection with the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assaults on federal and local police officers, firearms offenses, civil disorder, obstruction of an official proceeding, possession and use of destructive devices, and conspiracy.

Importantly, if we believe Merrick Garland’s response to a Sheldon Whitehouse question in his confirmation hearing, the Attorney General is committed to let the investigation proceed wherever the evidence leads, specifically to include “funders, organizers, ring leaders” and even any kingpins to this insurrection.

Whitehouse: With respect to January 6, I’d like to make sure that you are willing to look upstream from the actual occupants who assaulted the building, in the same way that in a drug case, you would look upstream from the street dealers to try to find the kingpins, and that you will not rule out investigation of funders, organizers, ring leaders, or aiders and abettors who were not present in the Capitol on January 6. Fair question?

Garland: Fair question. And again, your law enforcement experience is the same as mine, investigations — investigations, you know, I began as a line Assistant US Attorney and was a supervisor, we begin with the people on the ground and we work our way up to those who were involved and further involved. And we will pursue these leads wherever they take us. That’s the job of a prosecution.

That’s why I wrote these three posts:

Together, those posts argue that if any kingpins will be held accountable, it will be through a conspiracy prosecution. I note that one of the conspiracies has already reached back to the Willard Hotel, where Roger Stone was staying and where the call patterns suggest possible consultation with people present at the hotel. And I suggest that not only will there will be further conspiracies (I’m pretty confident about that prediction) but there may be more complex prosecutions tied to people who were involved in the rallies rather than the riot or who were discussed explicitly with Rudy Giuliani (I’m far less confident about that possibility).

That doesn’t mean Donald Trump, or even Roger Stone or Rudy Giuliani, are going to prison. It’s not clear what kind of evidence is out there. It’s not clear how loyal these famously paranoid people will be without the constant dangle of pardons that Trump used to buy silence during the Mueller investigation.

But even in what we’ve seen, we’ve seen a focus on who paid for things (such as the payment to Joshua James’ wife tied to “protecting” Roger Stone), who organized buses (there are at least four defendants involved with such things) or otherwise funded transportation, as well as media promotion both before and media communications while at the insurrection worked. Thus far, Charles Donohoe is the primary person who was charged in an organizational role but who didn’t enter the Capitol, but the Proud Boys and Oath Keeper conspiracies seem pretty focused on Enrique Tarrio and Stewart Rhodes (I’m not sure how useful Rhodes would be to map out the larger conspiracy).

And that’s just what we’ve seen. We recently learned that the President’s own lawyer still doesn’t know that the investigation of Michael Cohen had started eight months before he got involved in an effort to dangle pardons, long after Mueller had already obtained Cohen’s Trump organization emails. We have no idea whose lives the FBI are unpacking with warrants that are not showing up in arrest affidavits. Certainly, the FBI and DOJ are getting far more thoughtful about what gets shared publicly when.

My point is assuredly not to promise that Roger Stone and Rudy Giuliani will go to prison. But the question of the possible scope of the January 6 investigation, as distinct from the likely one, is dictated primarily by the structure of the conspiracy uniting people who legitimately entered into an agreement with each other to achieve the goal that every currently charged conspiracy shares: to obstruct the certification of the vote count on January 6. If Trump’s associates entered into an agreement with the Proud Boys and Oath Keepers, if there’s evidence of them doing so, and if marginally credible witnesses are willing to trade cooperation for less time in prison, then some kind of accountability is possible, albeit still highly unlikely.

That probably does rule out some accountability, even assuming a best case scenario. For example, with a few possible exceptions, I see no way that the conduct of members of Congress would get beyond Speech and Debate protections. Similarly, I don’t see how any conspiracy investigation would work its way up from the crimes at the Capitol to incorporate anyone at DOD stalling the National Guard response.

But as I noted to Gellman, I want to know the basis for certainty about what the investigation might discover. Because the investigation is already just two degrees of separation from Donald Trump via both Rudy and Stone, and that’s just what we can see looking at what prosecutors have been willing to share.

On January 6, Look to the Continuances

/22 Comments/in /by

Riley June Williams — the woman with ties to the far right who was shown on video directing people around the Capitol and is accused of abetting the theft of Nancy Pelosi’s laptop — has not yet been indicted. Normally, the Speedy Trial Act gives prosecutors a limit of time — roughly 30 days — to formally charge you after you’re arrested. But with Williams, the government has been using a series of motions to extend this timeline. They currently have until July 21 to indict Williams.

That, by itself, isn’t all that unusual. But amid an ongoing conversation about whether the January 6 investigation will hold the most powerful accountable for the insurrection, I want to point to the existing long unindicted defendants to suggest, again, we don’t really know where this investigation is going.

Tracking which January 6 defendants haven’t been indicted is one way to identify cases that might be more interesting than others. Jon Schaffer’s case got continued for months leading up to his entry into a cooperation agreement on April 16. And Christopher Kelly’s case got continued for months before the government moved to dismiss it on June 1. At least some of these weren’t the boilerplate unopposed motions for a continuance, citing the unprecedented challenge of assembling all the evidence in this case, that have been used in most defendants cases; they were more specific requests for more time to conduct the investigation. As the disparate fate of these two men suggests, you can’t really tell what is interesting about a case if the formal charging is delayed.

But such non-boilerplate continuances are one thing I track (and I know other journalists do too) for potentially interesting cases. They happen in formally charged cases, too (for example, QAnoner Doug Jensen’s case got continued until tomorrow in such a fashion after prosecutors enhanced his own legal exposure). But it is easier to track the especially interesting delays in cases, like Williams’, where the defendant hasn’t been indicted yet.

To be sure, such continuances don’t guarantee a case will be interesting. A number of these cases end up in delayed felony charges (though that’s true of the boilerplate continuances as well). Sometimes these delays are attributable to delays in attorneys getting approved to represent defendants in the DC District. In several cases, such continuances were used when either the defendant or their lawyer got COVID. Sometimes, it even seems like the system has lost defendants (with just a handful of exceptions, thankfully not those being detained). There are a couple of defense attorneys and a couple of prosecutors who just seem to like doing it this way.

Often, lawyers attribute the delay to plea discussions (though that’s generally the reason for the unopposed continuances, as well as the consent ones).

Sometimes something else seems to be going on. For example, Prosecutor Brandi Harden has twice gotten continuances in the case of Emanuel Jackson, the developmentally challenged homeless man who walked into the middle of the insurrection off the street and was handed a baseball bat which he used to assault cops, with the explanation, “There are outstanding issues related to Mr. Jackson’s case, that the parties are continuing to address.”

In several cases, such continuances seem to tie to a defendant’s other existing legal problems. For example, Bryan Betancur violated probation by lying about his purposes for going to DC on January 6, and so has been thrown back in jail because of it (though Betancur’s friend, Britney Dillon, was recently charged in the riot). In another example, when the FBI searched Adam Honeycutt’s home in association with this January 6 arrest warrant, they found guns and marijuana that exposed him to charges in Florida; DC prosecutors are delaying his January 6 prosecution until after a trial this week on the possession charges in Florida. But in at least one of those cases — that of Kash Kelly, charged with just misdemeanor trespassing — the delay comes with a defendant who was discussed in a conversation involving Rudy Giuliani and who cooperated against his fellow gang members in his drug-related prosecution in Illinois. The fact that Ryan Samsel’s then girlfriend, Raechel Genco, has had her own trespassing case continued, makes his more intriguing, though there’s a long list of reasons that readily explain why Samsel’s prosecution has been delayed, not least that he was brutally beaten by someone yet to be determined while he in the DC jail.

All that said, I wanted to point to some clusters that may suggest future developments. An easy one are the cases of Emily Hernandez, her uncle William Merry, and their friend Paul Westover all of which have been delayed with continuances. They traveled to insurrection together and show up in pictures showing off the piece of a sign from Nancy Pelosi’s office they stole.

It would be unsurprising to see these cases get combined into a conspiracy, possibly with others from St. Louis.

That said, a goodly number of defendants awaiting formal charges were in Pelosi’s office, including Williams.

Along with Williams, there are others, like Anthime Gionet, who have known ties with America First or were in the vicinity of others self-identifying as America First who are also awaiting their charges.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet. On May 24, the parties asked for a continuance and excludable delay until August, but Magistrate Judge Robin Meriweather hasn’t yet issued an order approving that. (There’s one other person that engaged in higher level organizing, but I suspect it’s the choice of her attorney.)

Update: This morning Judge Meriweather signed the Straka continuance.

Update: Doug Jensen wants to go work while he awaits resolution of his case (specifically mentioning self-surrender) so he settle his affairs and take care of his family.

Accused Terrorist* Leader Ethan Nordean Complains He Got Charged with Trespassing

/16 Comments/in /by

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

Don’t get me wrong; I think Smith is a good lawyer and I’m grateful for the January 6 defense attorneys who are making aggressive challenges to the charges against their clients; it’s an important check on the First Amendment risks of this prosecution. And I imagine the filing was all ready to go before yesterday’s status hearing, where Kelly kept repeating that he is sympathetic to the plight of the defendants, but noted that the last motion Smith filed — a motion for a Bill of Particulars, a kind of motion that, in general, rarely succeeds — probably tolls the Speedy Trial clock whether or not Kelly were prepared to rule against prosecutors’ request for more time.

But tactically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

The 66-page motion goes one by one, arguing that every charge against Nordean is vague or wrongly applied. Obstruction — 1512 — only applies for Congress when it is engaged in an investigative function, not what Nordean claims (notwithstanding the questions that sympathetic members of Congress raised about the vote count) was just a formal technicality. Leading an insurrection also doesn’t have the requisite corrupt nature, because threatening the Vice President and the Speaker of the House with assassination would not have the effect of influencing members of Congress to do what the mob wanted. Civil disorder — 231 — was designed to jail civil rights leaders and so (it suggests) shouldn’t be used against a guy trying to invalidate the votes of 81 million Americans. A riot affecting a vote count that affects every state and shut down much of DC did not affect interstate commerce. There were other police, in addition to the Secret Service at the Capitol, and so the specific terms of 1752 — the trespassing charge — don’t apply here. Plus, poor Ethan Nordean had no way of knowing that barriers that were clearly in place when he started the approach to the Capitol were barriers meant to keep him out. And, finally (though this comes off as half-hearted), Nordean has no idea what property his conspiracy depredated even though it has been discussed ad nauseum in past hearings.

Along the way, Smith shades the case in ways that prosecutors will easily rebut, as when he suggests Nordean, whom the indictment cites invoking revolution as early as November 27 (and so even before the states certified their votes), was motivated out of a sincere belief that the election was stolen because of voter fraud.

Nordean did so, the government alleges, in the misguided belief that the legislature should refuse to certify the vote upon a review of evidence that he mistakenly contended showed voter fraud.

[snip]

Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided.

He lays out the legislative history for many of these laws. He provides the entire history of the Executive Mansion. He falsely represents that the only people who are being charged with 1512 are gang members like Nordean. More ridiculous still is the claim that hundreds or thousands of other people aren’t being charged with 1752 and so Nordean’s charge must solely stem from his gang membership, when in fact, virtually every person who is being charged, is being charged with 1752.

Some of these arguments have merit. For example, I’ve repeatedly raised concerns about the way the government has hung all its felony counts on a fairly novel reading of obstruction (basically, the argument that the insurrectionists were obstructing the official proceeding of certifying the vote). But other defendants — albeit mostly Proud Boys — are already bringing these challenges (and more are likely to now that Paul Hodgkins’ plea has made it clear that the government will insist defendants plead to that count). The DC Circuit is far more likely to assess those arguments on their legal merits if someone like business owner Jenny Cudd, who actually attended Trump’s rally before heading to the Capitol, and who didn’t preassemble a mob of 100 gang members to attack the Capitol even before Trump’s speech (that said, Cudd’s challenges thus far have been motions to change venue and to sever).

I would like the 231 challenge to succeed, but similar challenges have thus far failed when launched by people in actual states rather than the nation’s capital that by its geographic nature can carry out little commerce without transit through Maryland and/or Virginia, and in protests that would have been prosecuted solely by state cops if Billy Barr didn’t bigfoot on the events

Even Smith’s challenge to the trespassing charge was genuinely interesting when he made the same argument for another of his clients, Couy Griffin, who attended Trump’s rally and is not alleged to have entered the Capitol itself. But it works very differently for a guy who, rather than attending Trump’s rally, instead spent the morning of January 6 preparing a mob to march on an event that was important precisely because Mike Pence, along with his Secret Service detail, would be there conducting official business.

That’s the thing about being charged along with 450 other people: Where a claim has legal merit, other defendants are going to make such challenges. Those other defendants will be taken more seriously by the DC Circuit (the detention case for Chris Worrell has already shown that the DC Circuit sees the Proud Boys’ role in this as distinct from the unaffiliated defendants). And most of those defendants, if they succeed, won’t be promptly charged with insurrection or seditious conspiracy to sustain the prosecution.

And if any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

The worst thing about this motion, though, is that both the substance of it and that it was filed by one of the key terrorist leaders of this attack serves as the single best argument I’ve seen for passing a domestic terrorism statute. I don’t want January 6 to lead to passage of a domestic terrorism statute so the government has a way to criminalize membership in the Proud Boys. But claiming that Ethan Nordean shouldn’t even be held accountable for trespassing is a good way to ensure that one is passed.

*I believe it is legally accurate to use the term “terrorist” with Nordean because the government has charged him with a crime that can carry a terrorist enhancement — and in fact the government laid that out explicitly in the superseding Front Door indictment. I also believe the January 6 attack was a classical case of terrorism: the use of political violence to achieve a political goal.

At the Barricades: Newly Discovered Video Depicting Timothy Hale-Cusanelli

/35 Comments/in /by

Last week, I reluctantly argued that Timothy Hale-Cusanelli, a Nazi-sympathizer, may have been overcharged and based on that detained for four months.

I think it likely that DOJ has made an error, of another sort, with Nazi sympathizer Timothy Hale-Cusanelli, detaining him for four months based off a mistaken belief he played a more important role in January 6 violence than he did.

Hale-Cusanelli was arrested on January 15, three days after a co-worker of his, who was already an NCIS informant, alerted the FBI that Hale-Cusanelli took part in the riots and had, in the past, espoused fairly extreme white supremacist views. On January 14, the informant recorded Hale-Cusanelli describing giving hand signals to the mob and taking a flag that Hale-Cusanelli described as a “murder weapon” to destroy.

Hale-Cusanelli’s arrest warrant, which charged him with the misdemeanor trespassing charges everyone gets charged with along with a civil disorder charge, included no video from the day of the attack. When the government indicted him, they added obstruction charges and abetting.

[snip]

But the accompanying discovery summary in fact seems to confirm what Zucker has said: he has received no or next to no surveillance video of his client in the Capitol, and what he has gotten appears to pertain primarily to a different person he represents (Zucker also represents Jerod Wade Hughes and Thomas Webster, and did represent Dominic Pezzola for a period).

[snip]

This guy has absolutely loathsome views. But they are views protected by the First Amendment — and also views shared by a goodly percentage of the other January 6 defendants, many of them out on personal recognizance. The others who, like Hale-Cusanelli, were of particular concern to the government because they held clearance on January 6 also engaged in physical assault — and Freddie Klein was released even after that. As I noted, the government spent two months confirming details of active duty Marine, Major Christopher Warnagiris’ far more important conduct from the day before arresting him, and then let him out on personal recognizance.

While the government has provided evidence that he did intend to obstruct the vote count, nothing in his conduct from the day substantiates the civil disorder challenge. Yesterday, Fifield asked for two more months to find that evidence.

The other day, Hale-Cusanelli had a court hearing to discuss two things: replacing Jonathan Zucker, and speedy trial waiver. The hearing started with Judge Trevor McFadden granting the request for a new lawyer. And based partly on having just obtained a new lawyer, McFadden granted some of the government’s request for another month continuance.

That is, by changing lawyers, Hale-Cusanelli relieved the pressure on the government to substantiate the case against him immediately (though he is appealing his detention so will get that opportunity before the DC Circuit).

That said, in the discussion of swapping lawyers, Zucker explained that a video he had just received presented the bulk of the evidence against his client (and seemed convinced that it was substantial evidence).

While it may not be the same video, a researcher found a YouTube that depicts Hale-Cusanelli, working in concert with the most organized of the insurrectionists, moving police barriers.

This is the kind of evidence that, against other defendants, has substantiated the 231 civil disorder charges that I had previously expressed skepticism about. So I retract my concern that Hale-Cusanelli is overcharged.

Note, this is also a testament to something I’ve pointed out elsewhere: While there’s this sense that all the video from the event has created a panopticon of the event, one the participants contributed to, there are gaps in that panopticon, particularly where insurrectionists were battling Capitol Police who (unlike MDP officers) were not equipped with Body Worn Cameras the day of the event. Plus, the scaffolding set up for the inauguration may have obscured some other actions.

Paul Hodgkins Pleads Guilty to Obstruction

/14 Comments/in /by

Paul Hodgkins just became the first January 6 defendant to enter into a straight up guilty plea. He pled guilty to one count of obstruction and faces a sentencing range of 15 to 21 months.

The plea provides a hint at how DOJ will deal with straight guilty pleas: Hodgkins got his trespass related crimes dismissed. But he will also face $2,000 restitution for the damage done to the Capitol, on top of whatever he is fined in conjunction with his obstruction charge. My rough count says 170 other January 6 defendants are facing that obstruction charge, many with other more serious crimes on top of it (though a few defendants are challenging it as applied).

The plea hearing also explained what I had noted was the one notable thing about him: that he put on latex gloves before he touched some papers on the Senate desks. In fact, he had them in a First Aid kit he always carries with him, and he put them on to offer Joshua Black — who had an open wound from a plastic bullet that kept bleeding all day — medical care. After Black declined his offer of help, Hodgkins took them back off.

Hodgkins explained that he didn’t know Black (or, it sounds like, anyone else he had stormed the Senate with).

Hodgkins’ statement of offense mentioned twice that he was wearing Trump garb at the time. Judge Randolph Moss repeated that when he was trying to clarify that the picture he was shown did depict Hodgkins.

Given some comments before the hearing started, it sounds like Deputy Attorney General Lisa Monaco listened in on the public line. This plea was a big deal, because it sets a pattern DOJ surely hopes others will follow.