January 6 Insurrection Archives - Page 72 of 76

Congress versus the Constitution: Merrick Garland’s Second Reconstruction

February 26, 2021/30 Comments/in 2020 Presidential Election, Department of Justice, Impeachment, January 6 Insurrection, Terrorism /by emptywheel

Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.

A Tale of Two Zip Tie Guys: The Different Fates of Eric Munchel and Larry Brock

February 23, 2021/130 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I’ve been following the case against Zip Tie Guy, Eric Munchel, and his mother closely. Last week, they appealed their pre-trial detention to the DC Circuit, in which is likely to be one of the first Circuit challenges to DOJ’s interpretation of this case, and one that is definitely a close case.

Last week, there was a development in the case against the other Zip Tie Guy, retired Air Force Lieutenant Colonel Larry Brock. Like Munchel, Brock showed up in videos on the Senate floor kitted out, wielding zip ties. Like Munchel, Brock voiced radical views, including a willingness to sacrifice himself for Trump before the insurrection.

Two family members and a longtime friend said that Brock’s political views had grown increasingly radical in recent years. Bill Leake, who flew with Brock in the Air Force for a decade, said that he had distanced himself from Brock. “I don’t contact him anymore ’cause he’s gotten extreme,” Leake told me. In recent years, Brock had become an increasingly committed supporter of Donald Trump, frequently wearing a Make America Great Again hat. In the days leading up to the siege of the Capitol, Brock had posted to social media about his plans to travel to Washington, D.C., to participate in Trump’s “Save America” rally. Brock’s family members said that he called himself a patriot, and that his expressions of that identity had become increasingly strident. One recalled “weird rage talk, basically, saying he’s willing to get in trouble to defend what he thinks is right, which is Trump being the President, I guess.” Both family members said that Brock had made racist remarks in their presence and that they believed white-supremacist views may have contributed to his motivations.

His social media posts even mentioned the Oath Keepers and Three Percenters.

Unlike Munchel, Brock also made it to Pelosi’s office, though he denies entering it.

Another thing differentiates Brock from Munchel: when Brock won pre-trial release, the government didn’t appeal that decision. At the time, the government suggested Brock likely faced more charges.

But on Friday, DOJ filed an information against Brock. While the information adds trespassing charges — six in total — it didn’t add felony charges. That’s fairly remarkable, because those who, like Brock, evinced a willingness to do extreme things to keep Trump in power have typically been charged with obstructing the certification of the vote. The same is true of those who made it to the floor of the Senate.

It’s definitely too early to tell (indeed, fairly recently, prosecutors said they weren’t prepared to talk plea deals). But this has all the appearance of someone who is preparing to plead guilty, presumably with a cooperation deal.

The people prosecuting him — DC AUSA Ahmed Baset and NSD AUSA Justin Sher (who joined the case on February 11) — are also on the Oath Keepers conspiracy indictment is another reason to believe that might be true. Indeed, Sher just joined the team on February 11. Baset and Sher are also on the Munchel prosecution team.

I would hope all these tea leaves suggest that Brock is about to flip, and not just for investigative reasons. If a retired officer were to get special treatment this early in the investigation, it would bode poorly going forward. For now, we can say that the two Zip Tie Guys are facing different fates.

Update: Later in the day, April Ayers-Perez (who appears to be a detailee from another US Attorney’s office) replaced Baset on Brock’s case.

Update: Corrected Brock’s rank.

Update: Today Brock pled not guilty to the trespass charges against him, suggesting this is, in fact, just an apparently inexplicable preferential treatment of a privileged defendant.

Government Uses T-Word about the Oath Keepers

February 23, 2021/79 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As noted in an update here, Jessica Watkins has now conceded that she didn’t meet with the Secret Service on January 6. Rather, as she entered a pen for VIPs, she obeyed when they told her stash her tactical gear outside the pen, which means hours before she stormed the Capitol believing that protected persons Mike Pence, Nancy Pelosi, Chuck Grassley, and Kamala Harris were inside wearing that tactical gear, she had been told by the Secret Service not to wear it around protected persons.

She has also admitted that the Butler County jail put her on suicide watch when she went on a hunger strike, but insists that because she doesn’t believe she was suicidal, the treatment must have been retaliation because she’s transgender (which wasn’t public at the time). None of that eliminates the danger to transgender people in prison or the inhumanity of suicide watch as imposed by US jails and prisons, but she does admit she has been, “treated with respect and dignity” in the DC jail.

That “clarification” was submitted too late for the government to address it. But in their response to Watkins’ motion for bail, they addressed the problem I laid out — that the government has not provided direct evidence tying Watkins’ cell to the violence of destroying the Capitol doors, but has relied on the destruction, generally, to adopt a presumption of detention — this way:

The defendant cannot rebut the presumption of detention in this case. First, she has been charged and now indicted by a federal grand jury for Aiding and Abetting in the Destruction of Government Property, an enumerated offense under 18 U.S.C § 2332(b)(g)(5)(B) from which the presumption of detention arises. The evidence remains unrebutted that she participated in a violent mob that broke the door through which she “forc[ed] entry into the Capitol” moments later. The defendant argues that she did not intend to destroy property and even told others not to engage in such conduct (at 8), however, has no explanation for the video depicting her, along with other Oath Keeper members and associates, gleefully embedded within this mob outside of the Capitol building before moving inside with them after the door was breached. As she stated in the “Stop the Steal J6” Zello app channel, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.” (ECF 15 at 2). Any confusion about the defendant’s intent behind this action, as well as whether law enforcement approved of the breach and entry, is clarified by her January 6 Parler post in which she responds to a comment challenging whether she actually forced entry by confirming, “Nope. Forced. Like Rugby. We entered through the back door of the Capitol.” See Criminal Complaint, January 19, 2021 (ECF 1 at 9).

Second, because the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

The government further relies on communications from October 15 (again, demonstrating the problems with Watkins’ own timeline) and texts directly with Stewart Rhodes to lay out her ideology.

While the defendant asserts that she was just following the constitution and is respectful of law and order (at 4), her adherence is clearly subject to her own understanding of what the Constitution and law mean. As Watkins stated in a text message sent to a recruit on October 15, 2020, when describing her militia: “We are Constitutionalists: non-racial, non-partisan, pro-government so long as that Gov’t follows the Constitution.” The notion that “[s]he recognizes that former President Trump is just that – a former President,” (at 4-5) is belied by the defendant’s statements urging for the need to “fight, kill, and die for our rights” should Biden “still be our President.” (ECF 15 at 4).

[snip]

Finally, detention is necessary because the defendant’s release poses a serious risk of flight. 18 U.S.C. § 3142(f)(2). She has indicated a willingness to go “underground if this coup [Biden election] works,” which comports with the “Warning” issued by the Oath Keeper leader, Person One, calling the current administration “an illegitimate regime” and on members to refuse to obey any acts or orders flowing from this government that are necessarily unconstitutional. (ECF 15 at 13). Moreover, her allegiance to the Oath Keepers and belief in the righteousness of her actions on January 6th has only calcified in the days since. When discussing over text with Person One a media report that portrayed her conduct and that of her fellow Oath Keepers from that day in a negative light, the defendant maintained,

If he has anything negative to say about us OATHKEEPERS, I’ll let you know so we can sue harder. Class action style. Oathkeepers are the shit. They rescued cops, WE saved lives and did all the right things. At the end of the day, this guy better not try us. A lawsuit could even put cash in OK coffers. He doesn’t know who he is playing with. I won’t tolerate a defamation of character, mine or the Patriots we served with in DC. Hooah?!

She has a detention hearing today, which will be an early test of the government’s attenuated use of the damage to the Capitol to label this as terrorism.

The government has shown she planned and trained a cell to fight Joe Biden’s government starting even before the election. Watkins herself has now shown that the Secret Service told her to take off her tactical gear when entering a secured area. The government has now shown she doubled down on her allegiance to the Oath Keepers after the destruction of the insurrection became clear.

We’ll see later today whether that’s sufficient cause to label someone a terrorist.

Jessica Watkins Defends Herself by Claiming the Armed Militia Parade Was Part of the Plan

February 21, 2021/86 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In a bid to spring her client from jail pre-trial, Jessica Watkins’ attorney Michelle Peterson accuses the government, twice, of wielding rhetorical flourishes to portray Watkins’ actions in the worst light.

The government’s rhetorical flourishes aside, there is insufficient evidence to demonstrate that Ms. Watkins would be either a risk of flight or a danger to her community if she were released on stringent conditions.

[snip]

The government’s motion for detention is filled with rhetorical flourishes design to inflame the passions of its readers without supporting evidence, e.g., “Watkins single-minded devotion to obstruct though violence” p.1, “this was a moment to relish in the swirling violence in the air” p. 2, and references throughout to her attire as “camouflage.”

It’s true that the government motion for detention portrays Watkins’ actions as a grave threat.

The profoundly brazen nature of Watkins’s participation in the January 6, 2021 assault on the Capitol was uniquely dangerous and continues to impact security in the District and beyond. Watkins joined a violent mob that overwhelmed law enforcement and destroyed government property, re-creating in modern times events not seen in this nation since the War of 1812. In this backdrop, Watkins and her co-conspirators formed a subset of the most extreme insurgents that plotted then tried to execute a sophisticated plan to forcibly stop the results of a Presidential Election from taking effect. And she did this in coordination and in concert with a virulently antigovernment militia members.

But Peterson accuses the government of rhetorical excess while excusing Watkins’ own actions and inflamed self-description of them by suggesting that Watkins was simply helpless in the face of Trump’s lies.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media.

[snip]

However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen.

[snip]

While some of the rhetoric she allegedly engaged in is troubling, she fell prey to the false and inflammatory claims of the former president, his supporters, and the right wing media.

Unless and until Trump’s own crimes get added to these conspiracy indictments, these detention memos will continue to dispute what to call the terrorist event that happened on January 6. Until that time, the government will be relying on legal maneuvers, like charging the Oath Keepers with abetting the physical damage to the Capitol — because the doors through which they breached the building suffered significant damage — as a way to get the presumption of detention tied to a domestic terrorism charge. And defense attorneys will continue to argue that entering the Capitol in military formation after two months of preparation for action in response to the election outcome does not amount to a crime of violence.

I don’t believe we need a domestic terror statute. But we need language to describe domestic terrorism. Because we don’t have agreed on language for this thing, an event that forced the Vice President, the Speaker of the House, and the Vice President-Elect to flee from threats of imminent assassination, these disputes will continue to struggle to fit these actions into our existing categories.

Still, even in Peterson’s description of the problem, there are problems with this story. Watkins’ brief admits that she engaged in apocalyptic rhetoric, but suggests that all happened in November, long before and dissociated from the apocalyptic event.

The government includes statements Ms. Watkins is alleged to have made about the election and the need to fight, kill, or die for rights and statements about being prepared to fight hand to hand. However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen. They are not even alleged to have been made about the January 6 events. The statements were not directed towards law enforcement and are as easily interpreted as being prepared to encounter violent counterprotesters as they had on earlier occasions. And importantly, according to the government, Ms. Watkins made it clear that she would do nothing that was not specifically requested by the President. However misguided, this shows an intent to abide by the law, not violate it. [my emphasis]

Peterson describes the events of January 6, by contrast, as the natural response of veterans anticipating that the then-President might invoke the Insurrection Act, as his disgraced former National Security Advisor Mike Flynn and others demanded.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media. The report of the potential invocation of the Insurrection Act took root in the online community of Trump supporters and led many local militias to believe they would have a role if this were to happen. Ms. Watkins was one of those people. In November, she believed that the President of the United States was calling upon her and her small militia group to support the President and the Constitution and she was ready to serve her Country in that manner. However misguided, her intentions were not in any way related to an intention to overthrow the government, but to support what she believed to be the lawful government.

The problem is, these claims are totally refuted by the timeline.

Flynn was probably the earliest prominent advocate for martial law. That was on December 1, after the November comments in question. Watkins, meanwhile, was looking for a sign even before that, on November 9.

Her concern about taking action without his backing was evident in a November 9, 2020, text in which she stated, “I am concerned this is an elaborate trap. Unless the POTUS himself activates us, it’s not legit. The POTUS has the right to activate units too. If Trump asks me to come, I will. Otherwise, I can’t trust it.”

That’s before the earliest Trump incitement cited by the defense, a November 21 rally in GA.

See id., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 21, 2020 3:34 PM) (Watch: Hundreds of Activists Gather for ‘Stop the Steal‘ Rally in Georgia https://t.co/vUG1bqG9yg via Breitbart News Big Rallies all over the Country.

The earliest moment when Watkins spoke specifically in terms of the Insurrection Act was December 29, long after some of her most inflammatory comments.

In a text exchange with Co-defendant Donovan Crowl on December 29, 2020, she informed, “[w]e plan on going to DC on the 6th” because “Trump wants all able bodied Patriots to come,” and how, “[i]f Trump activates the Insurrection Act, I’d hate to miss it.”

Yet as early as October 26, Watkins was already timing militia training to inauguration.

Watkins emphasized this point to another recruit on October 26, 2020, noting, “the election is imminent. We do have Basic Training/FRX coming up in January though … others who join before then without experience will be REQUIRED to attend for the full week. Donovan already has his Drill Sergeant mode going haha. The rest of us will be training with them to get us all field-ready before inauguration.”

That shows a continuity between Watkins’ pre-election statements and post election plans.

On November 9,2020, WATKINS, the self-described “C.O. [Commanding Officerl of the Ohio State Regular Militia,” sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a weekJong “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “l need you fighting fit by innaugeration.”

And some of her most inflammatory language came in mid-November, such as when, on November 17, she spoke of killing and dying for “our” rights.

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

and:

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

Or, her comments on November 19 about going “underground if this coup works.”

Indeed, on November 19, 2021, Watkins went so far as to text a contact that, “If anything, we need to go underground if this coup works,” as well as for the need “to be cautious as hell going forward” since “[i]f they still this election, we are all targets after Jan 20th.”

Again, this precedes the first instance of incitement from Trump cited by Watkins’ attorney, on November 21.

Moreover, Peterson’s claim that when Watkins spoke of the beauty of the insurrection to a reporter, she was just referring to the National Anthem, is totally refuted by the actual record.

Their evidence is that 40 minutes after the Capitol had been breached, she went to the Capitol and entered the building. By that time, the door had already been opened. The government acknowledges that “the crowd aggressively and repeatedly pulled on and assaulted” the doors of the building to get inside, causing damage. Ms. Watkins is charged with aiding and abetting this offense, but there is no evidence that this was something she had a criminal intent to do. She would have to have shared in the intent to destroy property, when in fact, she attempted to stop people from destroying property. She talked of the beauty of the peaceful protest, but acknowledged that it was only beautiful until she started hearing glass break. When she spoke of the beauty, she was referring not to the violence, but to the chants of USA and the singing of the National Anthem.

In the actual interview, Watkins specifically spoke of “standing our ground” against the cops because “they attacked us.”

“To me, it was the most beautiful thing I ever saw until we started hearing glass smash. That’s when we knew things had gotten really bad.” Watkins also states, “We never smashed anything, stole anything, burned anything, and truthfully we were very respectful with Capitol Hill PD until they attacked us. Then we stood our ground and drew the line.”

Her claim that “they attacked us,” may reflect her co-conspirator Thomas Caldwell’s false claim that the cops were “teargassing peaceful protestors.”

On January 6,2021, at approximately 2:06 p.m., CALDWELL sent WATKINS a text message stating: “Where are you? Pence has punked out. We are screwed. Teargassing peaceful protesters at capital steps. Getting rowdy here… I am here at the dry fountain to the left ofthe Capitol[.]”

That is, it’s not just Donald Trump who riled her up. So did her buddies in the militia (as she riled up fellow members).

Moreover, Watkins’ lawyer makes much of the fact that Watkins’ formation did not enter the Capitol until 40 minutes after it was breached. But that was long after she operated on a belief that the cops had targeted “protestors,” and it reflected actions planned a week in advance.

Perhaps the most intriguing comments in Watkins’ filing — and the most unintentionally damning — are the description of Watkins serving as “escort” or “security” for pro-Trump politicians.

Ms. Watkins has no prior history of violence and has tremendous respect for law enforcement and the Constitution of the United States. Indeed, although misguided, she believed she was supporting the Constitution and her government by providing security services at the rally organized by Mr. Trump and the republican lawmakers who supported his goals.

[snip]

On January 5 and 6, Ms. Watkins was present not as an insurrectionist, but to provide security to the speakers at the rally, to provide escort for the legislators and others to march to the Capitol as directed by the then President, and to safely escort protestors away from the Capitol to their vehicles and cars at the conclusion of the protest. She was given a VIP pass to the rally. She met with Secret Service agents. She was within 50 feet of the stage during the rally to provide security for the speakers. At the time the Capitol was breached, she was still at the sight of the initial rally where she had provided security. The government concedes that her arrival at the Capitol was a full 40 minutes after the Capitol had been breached. [my emphasis]

I believe this is the first description of the Oath Keepers’ role as “security” as these events in any of the legal filings in the case. But it doesn’t seem to help any of the co-conspirators.

Jessica Watkins was invited to an extremist revival event and given a VIP badge. She did so in the guise of providing security. But she admits she was almost 50 feet away from the stage, in no way the right location to be providing security (moreover, I think this claim is somewhat inconsistent with that the reported analyses shows, because members that would become the Stack left early, perhaps in response to Caldwell’s text).

Her brief further describes that she and her kitted-out militia were to provide “escort” to marchers to the Capitol, and she appears to know the intent was to march to the Capitol. One way or another, that still means her stated purpose — the reason she was wearing a VIP pass provided by official organizers (including Ali Alexander and Alex Jones) — was to ensure that those marching on the Capitol were accompanied by a militia that had plans to take up arms if things went badly.

I’m really grateful to Watkins’ attorney for providing the FBI reason to go ask the Secret Service and event organizers about this plan for an armed escort to the Capitol. This may accelerate the process of incorporating at least Roger Stone and Jones into these conspiracy indictments.

But it simply doesn’t help the cause of claiming that the Oath Keepers weren’t part of an organized conspiracy to interrupt the legal vote count. Does that mean that Jessica Watkins should be detained because people incited by the Proud Boys demolished the Capitol door? No. Does it mean she poses a threat because the organization she help[ed] lead started planning even before the election to have people trained to take action? Yes.

In November, Watkins wanted to make sure that Trump himself wanted her militia to take action. Her lawyer claims that Watkins was awaiting the invocation of the Insurrection Act. But even without that invocation, according to this filing, she envisioned serving as the military guard for a march of people from the White House to the Capitol seeking to overturn the election results.

And thanks to this defense filing, prosecutors can start talking about this earlier part of the conspiracy now.

Update: Peterson has submitted a clarification that has made the comments about the Secret Service even more damning. She didn’t meet the Secret Service. She spoke with them as she was coming through security for the VIP pen, from which she fancies she was “providing security.” And they told her to leave her tactical gear outside the pen.

Jessica Watkins, through counsel, respectfully submits this clarification to her motion for release pending the outcome of her case. Counsel apologizes for being less than clear on a couple of points raised in the original motion – something that unfortunately became obvious by media inquiries. Counsel in no way meant to imply that Ms. Watkins met with the Secret Service. A better verb would have been “encountered.” Ms. Watkins spoke with Secret Service members early in the day when she was coming through the check in point for the VIP area. The point counsel was attempting to make was that she encountered law enforcement, including Secret Service officer on her way to providing security for the rally. She was given directives about things she could and could not do, including directions to leave all tactical gear outside of the VIP area, and she abided by all of those directives. Ms. Watkins does not suggest that she has any direct knowledge that her role as security was sanctioned by anyone other than people involved in organizing the rally. She certainly did not mean to suggest that she was hired by the U.S. Secret Service to perform security. Counsel again apologizes for any confusion created by the inartful language used in the motion.

Effectively, then, hours before she entered the Capitol, which was full of protected people, including the Speaker of the House, President Pro Tempore, Vice President-Elect, and the Vice President that Donald Trump had just targeted, Watkins was told not to bring her tactical gear close to another set of protected people. And once she left the VIP pen where she was “providing security,” she put that tactical gear back on.

That only serves to emphasize the degree to which she was targeting Congress.

The New Recruits on the Front Line on January 6

February 21, 2021/57 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

In addition to adding six more people to the Oath Keeper conspiracy indictment originally charged against Jessica Watkins, DOJ added some new overt acts. Among others, it added training.

Training and recruitment were always part of Watkins’ alleged actions:

On November 9,2020, WATKINS, the self-described “C.O. [Commanding Officer] of the Ohio State Regular Militia,” sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a weekJong “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “l need you fighting fit by innaugeration.” WATKINS told another individual, “It’s a military style basic, here in Ohio, with a Marine Drill Sergeant running it. An hour north of Columbus Ohio[.]”

On November 9,2020, WATKINS asked a recruit if he could “download an App called Zello” and stated, “We all use Zello though for operations.”

On November 17 , 2020, when a recruit asked WATKINS for her predictions for 2021 , WATKINS replied, among other statements:

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

and:

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

The original indictment also described Donovan Crowl attending a training session in December.

On December 12-13,2020, CROWL attended a training camp in North Carolina.

The superseding indictment adds to these details. It includes descriptions of how 54-year old Graydon Young and his 52-year old sister Laura Steele joined the Oath Keepers.

31. On December 3, 2020, YOUNG emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “looking to get involved in helping. . ..”

33. On December 19, 2020, YOUNG wrote to a Facebook group: “Please check out Oath Keepers as a means to get more involved. Recruiting is under way. DM me if you want more info.”

38. On December 26, 2020, YOUNG wrote an email to a Florida company that conducts training on firearms and combat. YOUNG wrote, in part, “l trained with you not long ago. Since then I have joined Oath Keepers. I recommended your training to the team. To that effect, four of us would like to train with you, specifically in your UTM rifle class.”

52. On January 3, 2021, STEELE emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “My brother, Graydon Young told me to submit my application this route to expedite the process.” Later in the day, STEELE emailed KELLY MEGGS and wrote, “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.” The following day, STEELE sent an email to an Oath Keepers address, copying both YOUNG and KELLY MEGGS, attaching her Florida Oath Keepers membership application and vetting form, and writing, “I was just requested to send my documents to this email.”

And the arrest affidavit for the Parkers describe them discussing joining Watkins’ militia because their own had largely dissolved.

On December 27, 2020, Bennie Parker texted Watkins, “I may have to see what it takes to join your militia, ours is about gone.” Also on December 27, 202, Bennie Parker texted Watkins, “Yes and you and Sandi and I are like minded you guy [sic] aren’t that far away . . . . “

Effectively, that means that the organized stack (also included as an overt act in the superseding indictment) included at least three people — ~~Crowl,~~ Steele, Young, and Sandi Parker — who had just joined either Watkins’ militia or the Oath Keepers generally (Bennie, who’s 70, is not known to have entered the Capitol).

For all that it attracted media attention for that organized stack, the Oath Keepers weren’t as instrumental to the launch of the coup attempt as the Proud Boys.

But there, too, the militia was relying on new recruits. Dominic Pezzola claims (not entirely convincingly) that the insurrection was just his second action with the Proud Boys (though his first was the December MAGA March, where he was in close proximity to Roger Stone’s Oath Keeper body guard Robert Minuta).

Of more interest are the details Felicia Konold shared about her experience leading the mob.

She did a Snapchat video gleefully describing how much power she had exercised.

I’m watching the new guys

Fuuuck

Dude, I can’t even put into words. I. I. Never.

I never could [unintelligible] have imagined having that much of an influence on the events that unfolded today.

[Laughs]

Dude, people were willing to follow. You fucking lead, and everyone had my back, due, everyone, fucking wall, legit, in the air, up against the fence, [unintelligible], three lines of police, fence, me, not even on the ground, my feet weren’t even on the ground, all my boys, behind me, holding me up in the air, pushing back.

[Laughs]

We fucking did it.

Her arrest affidavit also quotes her on saying she was, “recruited into a fucking chapter from Kansas City,” complete with a challenge coin. The government’s detention memo for William Chrestman describes that he, “readily recruited two individuals from Arizona [Felicia and her brother Cory] to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.” (It’s likely the case against Chrestman relies on an FBI interview of Konold, which has not been publicly cited.)

And it didn’t stop there. Experts have talked, abstractly, about how January 6 served as a recruiting boon for right wing terrorists. That’s shown tangibly in a detail from Royce Lamberth’s opinion Zip Tie Guy Eric Munchel granting the government’s motion for his detention. Even as images from Munchel’s antics in the Senate had attracted close focus and on the same day the government obtained a warrant for his arrest, Zip Tie Guy reached out — via Signal — to the Proud Boys in an effort to join up.

There is also no evidence that Munchel is a member of any violent groups, thought the government has presented evidence that Munchel was in contact with a member of the Proud Boys after January 6 and was interested in joining the group. See Signal Chat Tr. (Jan. 9-10, 2021).

On top of being an explicit attempt to prevent Joe Biden from assuming the presidency, January 6 was also a recruitment bonanza, providing both a goal in advance to work towards, but also a networking opportunity permitting in-person recruitment.

The insurrectionists breached the Capitol with flagpoles and bullhorns. And some of the key players leading that breach were recent recruits to the organized militia leading the way. Meanwhile, Stewart Rhodes, Joe Biggs, and Ethan Nordean were watching from relative safety.

Update: I’ve fixed the Stack numbers; I think Crowl may have been training rather than being trained at the came in North Carolina in December.

Enrique Tarrio Really Doesn’t Want the FBI to Search His Laptop

February 21, 2021/19 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

While there has been a close focus on the federal charges against the terrorists who mobbed the Capitol on January 6, there has been less focus on the lawfare Proud Boy leader Enrique Tarrio has been waging in his DC case.

Tarrio likely avoided federal charges like those filed against Proud Boy leaders Joe Biggs and Ethan Nordean by getting arrested two days earlier on charges associated with vandalizing a Black church and possession of a firearm. But Tarrio is complaining that his bail conditions — which prohibit him from entering DC except for reasons related to his prosecution — violate his First Amendment.

Thus, undersigned counsel invites the government to explain, at a hearing before the Court, what reasonable and credible justification it can offer for barring from the District of Columbia a person who is accused of a possessory felony offense (that does not even involve possession of bullets or a gun) and misdemeanor destruction of a Black Lives Matter flag.

[snip

This ban is especially harsh in Mr. Tarrio’s case, as: (1) he is an activist who needs to be in the District from time to time to organize and protest; (2) many American citizens are concerned about the policies of the Biden administration and thus have a right to redress by appearing at protests in the District; and (3) trials are extremely delayed due to the COVID-19 pandemic, meaning that the “temporary” ban from the District will likely, in effect, result in a long-term ban if this Court does not modify it.

More interesting still, Tarrio moved to require the court to have a hearing before granting a warrant to search the phone or laptop that were seized from Tarrio when he was arrested (and he’s particularly interested in getting his laptop returned to him if and when the DC cops image it in response to a warrant).

Given the privacy interests at stake and the important legal issues at play, Mr. Tarrio requests that any execution, or issuance, of a warrant be temporarily halted to provide undersigned counsel the opportunity to respond. Further, defense counsel should be notified of, and be allowed to attend, any government/police request/application for a search warrant of Mr. Tarrio’s electronic devices (including his cell phone and laptop computer), online accounts, or any other item in which Mr. Tarrio has a privacy interest.

The DC Superior court rejected both requests (Tarrio is appealing the bail motion). In the latter case, Judge Robert Okun did so because the court has not issued a warrant, and Tarrio has no right to make a pre-emptive challenge in any case.

If I understand the posture of the request, however, nothing happening in the DC Superior court would prevent the DC US Attorney’s office from asking the DC District Court for a warrant to serve on the DC police — which is where they’d go if they were seeking the contents of the laptop as part of its January 6 investigation.

When Tarrio assaulted the Asbury United Methodist Church in December, he did so knowing it would create a cause among the far right. The same may be true of his decision to bring two magazines to DC — it may have been deliberate provocation in an attempt to bring a Second Amendment challenge.

So that may be all that’s going on here — an attempt to play the victim.

That said, given first the WaPo and now a NYT report that the DC US Attorney’s office is considering opening an investigation into the role that Tarrio’s buddy Roger Stone played in the insurrection — conveniently timed leaks that will ensure this comes up in Merrick Garland’s confirmation hearing tomorrow — I wonder whether Tarrio was stupid enough to bring a laptop to his insurrection with something genuinely sensitive on it.

Pezzola

Dominic Pezzola Suspects the FBI’s Cooperating Witness Is the Guy Who Recruited Him into the Proud Boys

February 20, 2021/89 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

A number of people are pointing to this motion to modify bond by Proud Boy Dominic Pezzola, the guy who helped kick off an insurrection by breaking the window of the Capitol with a stolen police shield, reporting either that Pezzola is bidding to plead out or that that the Proud Boys are turning on themselves.

Both may be true.

But buried within the filing is a far more inflammatory allegation. Pezzola, the guy who kicked off the entire assault on the Capitol on January 6 in coordination with other Proud Boys, is suggesting that someone who came to serve as an FBI cooperating witness less than a week after an attack that purportedly took the FBI entirely by surprise, was actually the guy who recruited him into the Proud Boys and set him up with a thumb drive loaded up — unbeknownst to him, he maintains — with the Anarchist’s Handbook, including its bomb-making plans.

Pezzola makes the allegation by rebutting the claim he is dangerous, the basis by which Magistrate Robin Meriweather. came to deny him bail.

As Pezzola notes, Meriweather denied him bail not because of a presumption of detention or a concern he would flee. It was because he posed a danger to the public. Meriweather framed that presumed danger as arising from a thumb drive loaded with the Anarchist’s Handbook found at his home and the testimony of a witness.

In determining that Pezzola’s release presented “danger” to the community the Court cited 2 factors from the prosecution’s proffer: (1) the claim that Pezzola participated in a group conversation when others expressed an intention to return to DC with weapons to commit acts of violence; (2) recovery of a thumb drive with plans for making, bombs, poisons, etc.

Per Pezzola’s arrest affidavit, the witness was someone whom the FBI interviewed at least twice before obtaining an arrest warrant against Pezzola on January 13, just a week after the insurrection. The description of witnesses in the total universe of January 6 affidavits are totally inconsistent (in part because so many different FBI Agents wrote them), meaning we can’t conclude anything by the description an agent uses. Nevertheless, this one was always among the only ones that seemed to be an insider. The witness is someone who described Pezzola as “Spaz” right away (though elsewhere he is called Spazzo), described Pezzola as bragging about breaking into the Capitol, and he described the group — the Proud Boys — as capable of killing Nancy Pelosi or Mike Pence, and planning more actions.

The FBI has spoken to an individual your affiant will refer to as “W-1” for purposes of this affidavit. W-1 stated that W-1 was in Washington, D.C., during the protests that occurred on January 6, 2021.

W-1 stated that after the events at the Capitol as described above, he or she spoke to an individual he or she knows as “Spaz,” along with other individuals. W-1 stated that during that conversation, “Spaz” bragged about breaking the windows to the Capitol and entering the building. In a subsequent interview W-1 clarified that “Spaz” said that he used a Capitol Police shield to break the window. W-1 said that “Spaz” can be seen on the cover of many newspapers and recognizes him from those photographs. W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance.

I had thought this witness would be one of numerous Proud Boy hangers on who was hanging around in DC after the attack, but as we’ll see, Pezzola believes it’s the guy he commuted to insurrection with.

The witness first told the FBI that the Proud Boys were preparing an event on January 20th (which is consistent with other reports).

According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

Then, in a later interview (again, remember that this is before January 13), the witness said maybe the next event wasn’t inauguration, but soon after. Whenever it was, it’d involve guns.

In a later interview, W-1 stated that the group had no definitive date for a return to Washington, D.C, but W-1 re-iterated that the others agreed there would be guns and that they would be back soon and they would bring guns.

The witness also misidentified Doug Jensen, the QAnon adherent who chased officer Goodman up the Capitol stairs, as someone else, presumably a member of the Proud Boys, only to clarify later that someone else was the individual in question.

In W-1’s initial interview with law enforcement, W-1 initially incorrectly the individual in the black knit hat in the foreground of this photograph as someone I will refer to as “Individual A.” W-1 later clarified that the person in the knit hat is not in fact Individual A and identified a different person in a separate photograph as Individual A.

Thus far, this witness sounds like he’s telling the FBI what he expects they most want to hear, something you often hear from informants trying to maximize their own value. By misidentifying Jensen, he may have falsely suggested the Proud Boys chose where to go in the Capitol. And by promising there would be more events, featuring violence (again, which is consistent with what public chatter was at the time), he heightened the urgency of case against the Proud Boys.

As Pezzola describes in his motion for bail, he suspects the person who said the Proud Boys had ongoing plans is a guy he drove home to New York with from DC.

Pezzola maintains no recollection of the referenced conversation but suspects if the conversation did occur in his presence it could have only occurred in the car on the return trip from Washington when Pezzola was asleep in the car. Upon information and belief, the CW is not detained. Rather he has reached an agreement where he is making allegations against others in order to avoid his detention for what is actually his greater involvement in the underlying events.

That would explain why William Pepe, also from NY, was named Pezzola’s co-conspirator: presumably both were in the same car speaking to the same guy, which is how the government had confidence that Pepe’s actions were coordinated with Pezzola’s and not, for example, the two other people charged with kicking off the attack on the Capitol, Robert Gieswein and Ryan Samsel.

As Pezzola describes, “it is alleged” that he’s just a recent recruit to the Proud Boys (something I don’t necessarily buy, but it seems to reflect Pezzola parroting back what he’s seen in discovery so far).

Pezzola’s alleged contact with the “Proud Boys” was minimal and short lived. It is alleged he had no contact prior to late November 2020. Upon information and belief, the prosecution alleges his first contacts occurred around that time. They principally amounted to meeting for drinks in a bar. Prior to January 6, 2020, there is no allegation that Pezzola took any action with the “Proud Boys” that was in anyway criminal or violent. His only event prior to January 6, 2021, was that he attended a MAGA rally in support of Donald Trump in December 2020. There is no allegation he was involved in any criminal or violent activity there.

He claims that the cooperating witness is actually far more involved in the Proud Boys.

Addressing these in turn: There is a claim as the prosecution pointed out that a “cooperating witness” claimed that Pezzola was present in a group when someone professed an intention to return on January 20, 2021, Inauguration day to instigate more violence. However, there is no claim Pezzola made those statements nor that he expressed a similar intent1 nor any intention to participate in any acts of violence, let alone murder. Although the defense cannot be certain it is believed the “cooperating witness” (CW) who has made these claims is actually someone who was a much more active participant in the “Proud Boys” than Pezzola, having been with the organization for a much longer time than Pezzola’s alleged association and much more active.

And Pezzola claims that the thumb drive showing possession of bomb making instructions was actually given to him by the guy he suspects of being the cooperating witness.

What was unknown at the time of the prior hearing is that the thumb drive at issue was given to Pezzola, probably by the Prosecution’s CW5 when that person was making efforts to introduce Pezzola into the “Proud Boys.”

Finally, Pezzola further alleges that the guy he suspects of being the cooperating witness confessed to spraying cops with pepper spray, an assault that has not been charged (only Giswein and Samsel were charged with outright assaults on cops).

Although it is impossible to know with certainty at this point, if the defense supposition about the CW is correct, that person admitted to spraying law enforcement with a chemical agent, likely “OC or Pepper” spray during the January 6 event.

It is true that Pezzola nods to making a plea deal in this filing.

Although the Court can play no role in disposition negotiations, via counsel Pezzola has indicated his desire to begin disposition negotiations and acceptance of responsibility for his actions. He seeks to make amends.

But there’s little chance DOJ can offer him a deal that will help him rebuild his life. Even in this filing, he admits he was attempting to stop the vote count, the goal of every overriding conspiracy charge thus far, which would be a key part of any seditious conspiracy case. He doesn’t deny he broke into the Capitol; he instead disingenuously downplays the import of being the first to do so, noting that numerous doors and windows were breached over the course of the day. His claim he has never used his Marine training since his service is inconsistent with the way he walked through the Capitol with much greater operational awareness than many of the other rioters. Plus, even in his first bail hearing, Pezzola insisted he was not a leader of the attack, which — if he was a recent recruit, makes total sense (and is consistent with Felicia Konold, someone else who played a key role, but who was just a recruit-in-progress). So he wouldn’t necessarily have that much information on anyone except those who gave him directions and the guy in the car, not necessarily enough to trade as the guy who kicked off the insurrection, even if he was acting on orders.

He’s likely fucked one way or another, not least because he’d be far less useful as a cooperator if everyone knew he had a plea deal.

But Pezzola’s allegation is troubling for several more reasons.

As noted, the FBI interviewed this cooperating witness at least twice before January 13, suggesting at the very least that the FBI reached out to him right away (or vice versa), rather than collecting more information on the person’s own role. And in spite of two variations in his story — misidentifying Jensen and equivocating about when the next operations were planned — his testimony was deemed credible enough to implicate someone he may have recruited and provided other the other damning evidence on.

The FBI knew that Enrique Tarrio and the rest of the Proud Boys were coming to DC for the January 6 events, which is how they were prepared to arrest him on entry in DC. They knew that during the Proud Boys’ previous visit, the group had targeted two Black churches. DOJ had investigated threats four members of the Proud Boys had made against a sitting judge in 2019.

And yet, not only didn’t FBI prevent the January 6 attack kicked off by the Proud Boys, they didn’t even issue an intelligence warning about possible violence.

It’s possible this witness genuinely did just reach out to the FBI and try to pre-empt any investigation into himself. It’s possible that as the FBI has done more review (including of video outside the Capitol, where a pepper spray attack on cops likely would have occurred), they’ve come to grow more skeptical of this witness.

But it’s also possible that the FBI has ties with witnesses — possibly this guy, and very likely Rudy Giuliani interlocutor James Sullivan, who said he was in contact with the FBI — who have more information on those who set up this insurrection, rather than just busting down the window. Particularly given the unsurprising news that investigators are scrutinizing the role that Roger Stone and Alex Jones might have played (Rudy is not mentioned, but not excluded either), it seems critical that the FBI not adhere to its counterproductive use of informants targeting a group (no matter how reprehensible) rather than action.

The FBI has a lot to answer for in its utterly inconceivable failure to offer warnings about this event. If their informant practices blinded them — or if they’re making stupid choices now out of desperation to mitigate that initial failure — it will do little to mitigate the threat of the Proud Boys.

Proud Boys “Cell Leader” William Chrestman Says He’s Not Organized Crime, Was Just Acting on Orders

February 18, 2021/92 Comments/in 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

I’m working towards posts on how DOJ is treating the different members of the Proud Boys charged with crimes relating to January 6 and how DOJ’s past history with the group makes their failure to warn about January 6 all the more damning.

But first, I want to look at what William Chrestman’s lawyers said in a memo arguing he should not be detained pre-trial.

As a reminder, Chrestman was charged with conspiring with four other people, all wearing orange tape, both to obstruct the counting of the electoral vote, and to impede law enforcement officers during a civil disorder. Of particular note, Chrestman and those with him physically prevented cops from shutting access to tunnels through which members of Congress had been evacuated.

The government’s detention memo calls Chrestman an “apparent leader of this particular cell” and describes that he recruited two people from Arizona (Felicia Konold, whom charging documents say the FBI interviewed, but from which interview they didn’t quote, and her brother Cory) to take part in the riot.

Defendant Chrestman readily recruited two individuals from Arizona to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.

As such, the action of a group led by Chrestman directly ensured the ongoing threat to members of Congress, to say nothing of the difficulties they caused police trying to limit the incursion of the rioters.

In the memo, Federal Public Defenders Kirk Redmond and Chekasha Ramsey offered a more extended version of an argument other defendants have made, arguing that Chrestman had good reason to believe not just his actions — but the Proud Boys’ generally — must have been sanctioned by the President. [footnotes below replaced with links]

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

Their calculations were wrong. The five weeks since January 6 have broken the fever dream. The Proud Boys are “radioactive now.”18 Any “air of respectability is gone.”19 The Proud Boys are in “disarray, as state chapters disavow the group’s chairman and leaders bicker in public and in private about what direction to take the Proud Boys in.”20 Their leader was arrested, then “outed as a longtime FBI informant, a role he has now admitted to.”21 And not insubstantially, a number of their members have been arrested for their roles in the January 6 attack. [my emphasis]

The filing goes on to quote extensively from impeachment evidence and Mitch McConnell’s post-acquittal statement, reiterating Trump’s central role in all this.

Even before it gets there, though, the memo makes an argument I expect we’ll see more of, one which very much resembles the argument Bill Barr’s DOJ made to diminish prior threats from the Proud Boys.

Third, the government’s evidence is a far cry from what courts have found constitutes sufficient evidence of a serious risk of obstruction justifying detention. Threatening to kill a witness,4 injure a witness,5 or manufacture false evidence6 is the kind of stuff that gets one detained under 18 U.S.C. § 3142(f)(2)(B). More similar to our facts is United States v. Demmler, 523 F.Supp.2d 677 (S.D. Ohio 2007). There, the “Government allege[d] that Demmler talked about enlisting other defendants in the underlying Poulsen case in his and Poulsen’s scheme[.]”7 But whether the defendant “would have followed-up on these musings had he not been arrested, and whether he would do so now, are entirely speculative. It is just as likely, on this record, that Demmler’s arrest on federal charges has chastened, rather than emboldened, him.”8 So too here.

4 United States v. Fontanes-Olivo, 937 F.Supp.2d 198, 201 (D. P.R. 2012) (Authorizing detention based on potential obstruction where defendant told witness that “one of ‘his people,’ could ‘get rid of you’ based on a rumor that the UM was cooperating with authorities.”).

5 United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (When “defendant, if released, will attempt to injure or intimidate other prospective witnesses (and if the evidence supports said conclusion) then, too, detention is authorized”).

6 United States v. Robertson, 608 F.Supp.2d 89, 92 (D. D.C. 2009) (“Given the extraordinary lengths that these defendants went to in their efforts to tamper with witnesses and manufacture utterly false, misleading evidence at trial—and in light of their proven success in achieving a hung jury in one trial already—this Court ultimately has no choice but to detain these defendants prior to trial.”).

7 Demmler, 523 F.Supp.2d at 683.

8 Id.; See also United States v. Simon, 760 F.Supp. 495 (D. V.I. 1990) (Detention inappropriate even when defendant attempted to speak with a juror in his brother’s murder trial; although “conduct is inexcusable, it is a far cry from the venality, corruption and violence of the sort common in organized-crime cases, designed to destroy the integrity of the criminal justice system.”)

A year ago, Bill Barr’s DOJ said threats from the Proud Boys might “technically” be obstruction, but such a sentencing enhancement, “typically applies in cases involving violent offenses, such as armed robbery.” Almost exactly a year later, Chrestman’s attorneys argue that threats from the Proud Boys and the threat of ongoing Proud Boys action, “is a far cry from the venality, corruption and violence of the sort common in organized-crime cases.”

This passage is far less persuasive than those invoking Trump. After all, Chrestman threatened police he would, “take your fucking ass out,” if they shot protestors, and further incited others to fight back.

Defendant Chrestman stood directly in front of Capitol Police officers who were attempting to guard the Capitol. Defendant Chrestman yelled at the Capitol Police officers, “You shoot and I’ll take your fucking ass out!” At a different point, Capitol Police officers attempted to arrest one person from the crowd, and Defendant Chrestman encouraged other members of the crowd to stop the Capitol Police from arresting him. Among other things, Defendant Chrestman said to other members of the crowd, “Don’t let them take him!”

Particularly backed — as Chrestman was — by mobs of thousands, that threat was every bit as serious as the one Chrestman’s lawyers cite in Fontanes-Olivo. And the Proud Boys have long been considered an organized hate group, so the allusion to organized crime is actually on point.

More importantly, Chrestman’s completed act — the success that he and others had at delaying the count of the electoral count vote — did grave damage to the integrity of our democracy, a point prosecutors made in their detention memo.

The nature and circumstances of the charged offenses weigh heavily in favor of detention. Defendant Chrestman, a member of a right-wing militia, knowingly and willfully participated in a riot that was designed to prevent the United States Congress from certifying the results of the 2020 Presidential election. Not only did Defendant Chrestman participate in the riot, he assumed a leadership role by shouting “Whose house is this?” and encouraging the crowd to “Take it!”

Words alone may never communicate the true nature of the crimes that were carried out on January 6. It is an event that cannot be measured in the number dead, injured, or wounded, but rather in the destabilizing effect that it has had on this country. This destabilizing effect is precisely what Defendant Chrestman envisioned when he decided to travel to the Capitol, helped lead others into the U.S. Capitol, and participated in the Proud Boys’ participation in the riot at the Capitol building.

The problem is that not just Donald Trump but even his Department of Justice (to say nothing of the line law enforcement officers cited by Chrestman’s lawyers) have long minimized the risk fo such a threat.

That said, the fact that Donald Trump got precisely the destabilizing blow to democracy and the terror he wanted is no reason to let Chrestman go free. Instead, Chrestman makes a great argument that Trump should be treated as a co-conspirator.

Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

February 18, 2021/44 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

Sealed Filings: The Serial Arrests of Insurrectionists Peter Stager, Jeffrey Sabol, and Michael Lopatic

February 17, 2021/34 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Because I’ve been closely tracking the slow roll-out of the people behind the close to 140 assaults on cops on January 6, I’d like to look at how the arrests of three men indicted today, Peter Stager, Jeffrey Sabol, and Michael Lopatic were rolled out by DOJ. They were indicted for the assault on a cop, BM, dragged down the steps and repeated beaten while in a prone position.

After a different cop, CM, attempted to help, Lopatic punched him repeatedly.

Lopatic then walked down to BM and removed his body camera. He threw the camera away on his way home to Lancaster, PA.

Sabol was also charged with assaulting a third cop, AW.

What appears to have happened is that Sabol, realizing what he had done, went off the deep end and got stopped by cops on January 11 in NY. He admitted he was at the riot, but (even after telling cops he was “wanted by the FBI”), he claimed he had only been trying to protect BM, the officer he assaulted with a police baton.

The next day, cops started fielding tips that Stager was the one caught on tape saying, “Everybody in there is a treasonous traitor. Death is the only remedy for what’s in that building.”

Both Sabol and Stager were charged on January 14, but only with impeding an officer (18 USC 231), not assault.

It’s not yet clear how the FBI found Lopatic, but on January 20, they sent out a BOLO on him and eight others in conjunction with an assault on two DC cops.

When DOJ indicted all three men on January 29, they had IDed but not yet located Lopatic. The motion to seal described that Lopatic — who had taken BM’s body worn camera and disposed of it on his way home — might continue to flee prosecution (though that may be boilerplate).

In other words, while they had the first two main perpetrators of one of the more alarming attacks on cops identified within a week of the attack, DOJ undercharged them and waited to indict them to ensure they’d have Lopatic in custody before revealing any assault charges on the first two.

DOJ is beginning to release charging documents on more of the assault defendants. But with many of them — including Lopatic — it’s clear they’re willing to do more to avoid arrest.

Which is likely why, over a month after the attack, DOJ has still just identified about 35 people responsible for the 139 assaults on cops.

Timeline

January 11: Clarkstown, NY, police stop Jeffrey Sabol’s car for driving erratically. He tells them, “I am tired, I am done fighting,” “My wounds are self-inflicted,” I was, “fighting tyranny in the DC Capital,” “I am wanted by the FBI.”

January 12: FBI receives a tip that Peter Stager is the person a video saying, “Everybody in there is a treasonous traitor. Death is the only remedy for what’s in that building,” and seen dragging MPD cop “BM” down the steps in front of the Capitol. Another person describes Stager as the one beating the cop with a flagpole.

January 13: Law Enforcement interviews Sabol. He claims the first assault of a cop caught on tape was actually him, “patting him on the back” and saying, “we got you man.” He claims the second assault — in which he was depicted hitting a cop with a police baton — was him attempting to “protect the officer.”

January 14: Peter Stager charged with just civil disorder, 18 USC 231. Jeffrey Sabol charged, again with just civil disorder.

January 20: FBI releases BOLO poster of Lopatic.

January 29: Sealed indictment obtained against Stager, Sabol, and Lopatic. It charged Stager and Sabol with beating BM with a police baton and a flagpole, Sabol of assaulting a third officer (AW), Lopatic of assaulting CM That day DOJ moved to seal the indictment because,

Defendant Lopatic has not been arrested. Law enforcement is locating the defendant and preparing to arrest him. Moreover, law enforcement is endeavoring to identify additional individuals who were involved in the assaultive conduct in the instant case.

Placing the defendants’ indictment on the public docket at this time could cause the defendant to flee or continue flight from prosecution…

February 3: Lopatic arrested.

February 9: Motion to unseal indictment, motion for detention for Lopatic.