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A jury that has listened to arguments and evidence for roughly four months in the Proud Boys seditious conspiracy trial that unfolded mere blocks away from the U.S. Capitol, has now entered deliberations. 

The mere physical task of sorting through the evidence before them is significant all its own and it is only eclipsed by the burden to finally render a verdict that is just and reflective of the instructions they received at the conclusion of what has been the Justice Department’s longest Jan. 6 trial to date. 

When Assistant U.S. Attorney Conor Mulroe took the podium for the final time this week in U.S. District Judge Tim Kelly’s courtroom, he faced the jury, his suit a dark blue and his tie a muted red, and harkened first to the words of the Proud Boys ringleader Henry “Enrique” Tarrio on Jan. 4, 2021:

“Whatever happens, Make it a spectacle.” 

Tarrio said this to his now co-defendant, Joseph Biggs, just before his arrest on the 4th. What followed was a sequence of events that led Tarrio to exactly where he found himself this week: listening to a federal prosecutor standing just a few feet away tell a jury of his peers that he was responsible for a conspiracy that nearly toppled democracy as they and America have only ever known it.

 The Proud Boys on trial include Tarrio, Biggs, chapter leaders Ethan Nordean and Zachary Rehl, and one of the group’s foot soldiers, Dominic Pezzola. They face no less than nine charges apiece for their alleged roles in the attack at the U.S. Capitol and their attempt to stop Congress from certifying an election that would ultimately end Donald Trump’s presidency after his popular and electoral defeat. 

Through evidence that included video footage and raft upon raft of the Proud Boys’ text messages as well as public social media posts scattered on Telegram or Parler as well as through the testimony of witnesses for and against the defense, the government weaved together the very crux of its historic case against the neofascist network. 

The defendants viewed themselves as “Donald Trump’s army,” Mulroe said. They were a self-stylized group of “radical” and “real men” who could and would be willing to strike down anyone or anything that opposed their vision of an America only Trump could lead. 

“They were hyper-focused on the election and what they viewed was the special role of the Proud Boys in a deadly serious conflict in American society,” Mulroe said. 

It was that “life or death” attitude among the Proud Boy defendants about the election and America’s future that finally reached its fever pitch on Jan. 6. It came to a head when they initiated the breaching of barricades and it spilled over when they assaulted or impeded police trying desperately to stop them. And it was no more clear, the prosecution argued, when those efforts coalesced into a disruption of Congress from its sacred and solemn business that lasted for several tense hours. 

At the close, the Justice Department showed jurors a montage of texts and posts where the defendants could be seen celebrating Trump’s “stand back and stand by” remark after the 2020 presidential debates. There were also other communications displayed where members appeared to agree it was time to stand up and fight against their perceived enemies—largely “antifa” at the start. 

When Biggs arrived in Washington on Jan. 5, he did so with the conviction that there was a “war of Americanism” underway and he believed it was “time for fucking war if they steal this shit,” Biggs once wrote.

Tarrio had offered up, “No Trump, no peace no quarter.” Nordean had proposed in texts to “fash the fuck out so we don’t have to worry about these problems anymore.” 

And when Biggs told fellow Proud Boys he believed “every lawmaker who breaks their own stupid laws should be dragged out of office and hung,” it was his now co-defendant Zachary Rehl who had also once called for something similar. 

Rehl wrote that he hoped there were “firing squads” for “the traitors that are trying to steal the election from the American people.” 

And if the taste for violence needed to be made any clearer, Mulroe pointed the jury’s attention to Nordean’s commentary ahead of the insurrection: “Live free or die hard, Politics ain’t working for nobody, it’s time to fucking rage.” 

For prosecutors, this case isn’t about patriotism run amok or free speech on steroids. It wasn’t about loose talk among rough men that came to nothing. The government asked jurors as they rendered their verdict to consider information before them and see it for what it is: These were people who had spent weeks building animosity towards law enforcement. These were people who believed, as several witnesses testified at trial, that a “civil war” was imminent and these were people who would do whatever was necessary to keep their preferred leader in office. 

At trial, prosecutors argued that after pro-Trump rallies in Washington in November and December 2020  had turned violent with Proud Boys brawling with people they deemed “antifa” in the streets, the group’s members quickly lost all reverence or respect they once harbored for the police. 

Jurors reviewed evidence where Proud Boys blasted police as wrongly defending “antifa” after the clashes that fall and winter. And after one of their leaders, Jeremy Bertino—who has since pleaded guilty to seditious conspiracy—was stabbed, the time to “back the blue” had ended.

Facing the jury on Tuesday, Mulroe recited a message Biggs had posted after Bertino was stabbed on Dec. 12. 

“We the people will treat your thin blue line like you do antifa. We’ll knock you to your senses… and bypass your unconstitutional asses,” Biggs said. 

Nordean sent messages saying he was “disgusted” with law enforcement and that they should encourage people to “back the yellow,” a reference to their group’s official colors of black and yellow. 

When Proud Boy and witness for the defense Fernando Alonso, admitted to calling police “coptifa” in court last month and said “maybe” Tarrio had once called them the same, he tried to backpedal, seeming altogether unwilling to say anything critical of the organization. Wearing Proud Boy colors in court, Alonso tried to qualify that Proud Boys don’t regard all police that way. 

Just the ones they believed were against them. 

These communications were evidence of an appetite for violence that led to the defendant’s intent and motive on the 6th. It was there as they marched toward the Capitol and Nordean used a megaphone to taunt police that “real men are here” and it was there when Nordean said  Proud Boys “represented the spirit of 1776” before warning police that day “they would remind those who have forgotten what their oath means.”

“Listen to the contempt in their voices,” Mulroe said as he played video footage of Proud Boys  marching group streaming past a small group of police scrambling to gear up. As they passed, men in the group screamed things like: “Pick a side,” “fucking scum,”  “honor your oath,” “treason,” and “traitors.”

The Proud Boys are alleged to have never intended to go to Trump’s speech as their main prerogative on the 6th. Instead, many of the Proud Boys waited for the proceedings to get started and “made a beeline for the barricades.” 

“The barriers were there to protect what was going on inside of that building… the proceeding was already underway when the first wave of rioters breached. Nordean, Biggs, Rehl, and Pezzola were all part of that first wave,” Mulroe said. 

The defense has insisted over the last 14 weeks that there was never a plan to storm the Capitol or stop Congress from certifying the election. Not a written one or a spoken one. No testimony ever emerged at trial from witnesses called by either the government or the defense that stated an explicit plan was in place. 

The Proud Boys maintain they only went to the Capitol on Jan. 6 to protest, support Trump, protect Trump supporters, and have their voices heard. 

When Bertino testified on behalf of the government in February, he told the jury he never heard a point-by-point plan communicated. But, he said, there was an understanding and agreement that they would do whatever was necessary to keep Trump in power. 

He described to the jury that ahead of the 6th, Proud Boys believed when “something big” would happen, they could rely on the “normies,” or Trump supporters otherwise unaffiliated with the Proud Boys, to get behind them. Bertino once described the Proud Boys in texts as the “tip of the spear.” Another Proud Boy, a low-level member named Matthew Greene, also referred to Proud Boys this way when he testified on behalf of the government. Greene has pleaded guilty to two charges including conspiracy and obstruction of a proceeding. 

“We always led the way and they were always behind us, the normies,” Bertino testified in February. 

Proud Boys were “ready and willing for anything that was going to happen,” Greene testified in January. They were “essentially the tip of the spear.”  

The Justice Department argues that all that unfolded at the Capitol on the 6th was not just sanctioned by Tarrio but that Tarrio was responsible for bringing his co-conspirators together, even if he wasn’t on Capitol grounds on Jan. 6. Mulroe also reminded jurors how Tarrio had never told his men not to use violence to achieve their ends. 

He didn’t on Jan. 6, Mulroe highlighted.

Instead, Tarrio posted on Parler “don’t fucking leave” and “proud of my boys” and “1776.” In a private chat for members of the group’s secretive subdivision known as the Ministry of Self Defense, Tarrio wrote “proud of y’all” as the Proud Boys invaded the Capitol. And on the night of the 6th around 11:14 p.m., he posted an ominous-looking video of himself standing in front of the Capitol with the words “premonition” to caption it. He had shot the video the night before on Jan. 5 but waited to post it. 

The Ministry of Self Defense wasn’t a back channel for run-of-the-mill rally operations or marketing as the Proud Boys had argued. The Proud Boys themselves weren’t a fraternity of roughnecks or harmless edge lords. 

“Ladies and gentlemen, let’s call this what it is. The Ministry of Self-Defense is a violent gang that came together to use force against its enemies,” Mulroe said. 

All of this was proof enough of Tarrio’s “explicit encouragement and direction.” 

This made up the defendant’s explicit agreement, he said. 

And if that wasn’t convincing beyond a reasonable doubt, Mulroe told the jury they should consider the sheer force the group used with its combined numbers enough to disrupt Congress. That too was an agreement, he argued. 

Pointing out how the defendants’ credibility had been shot through time and again, and perhaps most powerfully when Rehl and Pezzola mostly crumbled under cross-examination and delivered bitter, conspiracy-theory-laden testimony, Mulroe urged the jury to believe that the Proud Boys turned a peaceful process for more than 200 years into a “horrifying spectacle.” 

Just as Tarrio had commanded and several of his co-defendants agreed. 

“From the first breach to the last, these defendants joined together and that was an agreement. What that means, is even if you didn’t know about anything that had come before, even if you hadn’t seen the evidence of prior rallies, secret chats, Parler posts, MOSD, even if you pick things up on the afternoon, even if you only came to this at 12:30 a.m. on Jan. 6, you still have decisive evidence of their shared action toward a mutual goal,” Mulroe said. 

During the defense’s closing arguments, Tarrio’s attorney Nayib Hassan picked up where Tarrio’s other attorney, Sabino Jauregui, had begun when the trial opened.

The Proud Boys were a “scapegoat” for Trump, he said. 

“It was Donald Trump’s words. It was his motivation. It was his anger that caused what occurred on Jan. 6 in your beautiful and amazing city,” Hassan said. “It was not Enrique Tarrio. They want to use Enrique as a scapegoat for Donald J. Trump and those in power.”

Hassan hammered at the assertion that there was “no communicating of an understanding or of an objective” by Tarrio with anyone, or any of the defendants about stopping the transfer of power with force. 

Hassan argued that Tarrio never asked anyone to attack police, never broke a window, never crossed police lines. The government was trying to distract the jury from the reality of Proud Boys being violently attacked by antifa, he said. Bertino’s stabbing was the catalyst that led Tarrio to become consumed with plans for how to protect members when they attended rallies, rallies that were a protected expression of their rights. 

Bertino, who was once an intimate of Tarrio’s, and a high-ranking leader of the Proud Boys, was thrown under the bus by Hassan and other defense attorneys at close. It was a recurring theme as the trial wore on, too. 

In early April, the defense presented 46 text messages between Tarrio and Shane Lamond, a Metropolitan Police Department officer who had been on the force for more than two decades. He’s now under investigation by the FBI. Lamond has denied any wrongdoing. 

Tarrio’s attorneys argued Lamond and Tarrio had a symbiotic relationship where Tarrio would keep Lamond in the loop about Proud Boys activities with information flowing in a meaningful way. The existence of these communications on their face, according to Tarrio, proves there was no plan to attack the Capitol or stop Congress from certifying the election on Jan. 6 because he was engaging with law enforcement, not evading them. 

But prosecutors said the messages didn’t show Tarrio was very helpful to Lamond at all, and rather, deceived him and used their relationship to keep tabs on police. When it came to the 6th, for example, Tarrio told Lamond in one of their few dozen exchanges that Proud Boys may come to D.C. for the 6th and if they did, it would be in “extremely small numbers.” 

Proud Boys would show up by the hundreds on the 6th. The only thing Tarrio told Lamond in that exchange that was true was that Proud Boys wouldn’t be wearing colors that day. 

Tarrio may be reprehensible to the jury, Hassan said, but he urged them to put personal feelings aside about the ugly things chats showed Tarrio saying. 

“Your deliberations in the next few days will impact the rest of his life,” Hassan said. “If you have an abiding position that the government did not prove its case, its your obligation to speak up.” 

Steven Metcalf, a defense attorney for Dominic Pezzola, pleaded with the jury during an impassioned plea for the Proud Boy.

Pezzola faces the same seditious conspiracy charge and conspiracy charges as his co-defendants plus a robbery charge for his alleged stealing of a police riot shield from an officer who was knocked to the ground by Pezzola. 

“You hate him or me, I ask you to put that aside,” Metcalf said. 

Jurors should put their politics aside, he argued, because “this case has mostly been about the government using Dominic’s politics against him so each of you hate him.” 

Pezzola’s second day of testimony, which came not long before closing arguments, was explosive and frequently combative. Pezzola told the jury, who had sat and listened to the case for roughly four months, that the proceedings were “corrupt” and the charges “fake.” Metcalf said he warned Pezzola to “shut up” and not testify but the Rochester, New York Proud Boy really wanted to tell the jury: he trespassed, broke a window, and got a shield. 

“But seditious conspiracy? Seditious conspiracy?!” Metcalf said, loudly, driving home his disbelief. 

The government had “over-inflated” the case against the Proud Boys, Metcalf said. 

Biggs’ defense attorney Norm Pattis closed out the case for his client with an often meandering, objection-drawing treatise heavy on the defense of the First Amendment and lighter on the defense of his client’s actual conduct. It was also rich in attacking the government’s broader case overall and at one point Pattis even compared the charges themselves to conspiracy theory. 

“They [the defendants] have been criminalized for being present at the scene in what I will assert is basically a conspiracy theory,” he said. 

But when he did pick at the charges more, he balked at the government’s position that “concerted action equals an agreement.”

“My left eye!” Pattis wailed. “I go to a ball game and I cheer and someone buys me a hot dog at that moment. At that moment, did we all agree to buy that hot dog?” 

During the government’s rebuttal delivered by Assistant U.S. Attorney Nadia Moore, the prosecutor boiled it down to something more accurate under the law. 

“It’s no wonder they want you to focus on a specific plan to breach the Capitol. But we don’t have to prove a plan. There’s no requirement of a detailed plan. They’re not charged with that. They are charged with conspiracy,” she said. 

And then she offered an example, free of legalese.

“If I pull up to a red light and I rev my engine and a guy in a Mustang next to me does it back and the light turns green and we both peel out, even if we never met each other, even if we never said a word, we both formed an agreement,” she said. 

The agreement doesn’t have to be notarized, she added, and there’s no requirement to prove formal or express agreement to every detail. The government only needs to prove that the defendants agreed to oppose the certification by force. 

It could happen at the last second. 

And though she didn’t reference it in the government’s rebuttal argument, jurors did hear testimony from Matthew Greene in January that he had an “abstract” feeling of what they were doing as they marched on the Capitol but he wasn’t sure. 

It wasn’t until he saw the first barricade go down that the light bulb clicked on. 

“Oh shit, this is it,” he said he recalled thinking. 

After their first day of deliberations Wednesday, there’s no word of a verdict. The jury will meet daily from 9 a.m. to 5 p.m.

ADDITION: On Wednesday, jurors passed a note to the court asking for exhibit numbers on two exhibits: one from Rehl’s phone where he’s filming the breach at the first barrier and another video where Biggs “suggests they pull their masks up.”

I’m working on one more post integrating materials from the Douglass Mackey trial.

But first I want to comment about some investigative and prosecutorial details about the case.

I’ve made a timeline showing what got introduced in the troll chatrooms as evidence, other known activities of Mackey and the cooperating witness Microchip, and investigative details here. The timeline includes the following DM threads that were treated as part of the conspiracy for which Mackey was convicted:

• Madman 1
• Madman 2
• War Room
• Microchip’s chat

In addition, this exhibit, which was introduced under a different evidentiary rule (largely, but not entirely, Mackey’s comments, rather than those of the conspiracy), consists in part of conversations elsewhere sourced to FedFreeHateChat from earlier in 2015-2016, along with a number of two-person DMs involving Mackey or unindicted co-conspirators 1080p or Microchip.

As you read the threads, remember a few things about them. First, they’ve been extensively sanitized of the racist and misogynist language used in the threads. Anything that wasn’t directly relevant to proving either the means and goals of Mackey’s trolling, a conspiracy between the thread participants, or their intent in sending out false tweets to depress the turnout of Black and Latino Hillary supporters was excluded as prejudicial.

You can read some of what was excluded — and the very important debate about where Mackey’s free speech ended and where an attempt to impair the votes of Black and Latino Hillary supporters began — in these court filings:

• January 30, 2023: Mackey’s effort to exclude pre-September 2016 language and commentary from when he was banned by Twitter and inflammatory speech
• January 30, 2023: The government’s effort to get the contents of the four chatrooms, above, admitted
• February 24, 2023: Mackey’s response to the government’s motion
• February 24, 2023: The government’s response to Mackey
• February 28, 2023: The government’s reply to Mackey
• February 28, 2023: Mackey’s reply
• March 7, 2023: Mackey letter after meet-and-confer that details objections, revealing content of some excluded files
• March 7, 2023: Government memo after meet-and-confer
• March 10, 2023: Judge Nicholas Garaufis order laying out admissible exhibits
• March 11, 2023: Mackey letter seeking to exclude bigoted speech and FBI agent testimony
• March 13, 2023: Mackey letter seeking to exclude comment about women voting
• March 13, 2023: Government letter responding regarding bigoted speech
• March 19, 2023: Mackey letter objecting to specific inflammatory language and memes showing Trump in violent conquest

The outlines of this dispute will be critical to the inevitable appeal of Mackey’s guilty verdict.

These Twitter DM groups weren’t the only places these trolls organized, as portrayed by trial evidence. After one of Mackey’s bannings, he authenticated his new Twitter ID on Facebook and continued to work with others on Discord. The government did not introduce any of the related threads from TheDonald or 4chan with which — as a tweet from Microchip made clear — their efforts on Twitter were sometimes coordinated.

The exclusion of related 4chan activity is significant. At trial, Mackey took the stand and claimed he had gotten the text-to-vote meme for which he was charged from widely available 4chan threads, not from these DM groups, one of which he did not rejoin after being banned by Twitter on October 5. Mackey similarly claimed not to know the key players in workshopping this meme in the War Room twitter group beyond their user name.

The claim was pretty unconvincing; it may have been an attempt to deny forming a conspiracy with the others, or an effort to protect his online friends.

I’m interested in the picture of the conspiracy provided by these threads for several related reasons.

For starters, I’m interested in the troll — prosecutors referred to the account using a female pronoun — who first created a text-to-vote meme like the one that Mackey was convicted of. On October 27, 2016 on the War Room thread (which Mackey had rejoined after being banned), HalleyBorderCol (HBC) suggested, “let’s depress illegal voter turnout with a nice hoax ;).” Someone using the moniker P0TUSTrump argued they should hold off so the hoax would not get debunked before actually suppressing the vote. HBC responded by addressing him as “Donald” and explaining — using a British spelling for rumor — how rumors work, especially on social media:

people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.

Then, two days later, HBC posted the first of the vote-by-text (as opposed to vote-by-hashtag) memes using the text number that allowed DOJ to track the reach of those that Mackey would send on November 2.

As far as is public, prosecutors never charged HBC, in spite of her key role in planning a “hoax” to suppress turnout, but perhaps that’s because she lives in a place where they spell “rumor” with a “u.”

In fact, DOJ didn’t even identify HBC as an unindicted co-conspirator in the complaint against Mackey, though it does describe her actions. The complaint names Anthime “Baked Alaska” Gionet as CC#1 (compare ¶17 of the complaint with this DM), Microchip as CC#2 (compare ¶25 of the complaint with this DM), a troll named NIA4_Trump who got temporarily suspended along with Mackey in November 2016 as CC#3, and a thus far unidentified troll named 1080p who was instrumental in tweaking the memes to more closely mimic Hillary’s graphics as CC#4 (compare ¶22a in the complaint with this DM).

By the time DOJ described the co-conspirators in a footnote to their February 24 filing, however, HBC was first on their list.

As was noted in the government’s initial motion in limine, the government alleges that individuals who posted, shared, or strategized over how to optimize the deceptive images or the messages therein are co-conspirators, and that the statements of those individuals are admissible as co-conspirator statements. These co-conspirators include the Twitter users identified in the Government’s Motion in Limine: @Halleybordercol, @WDFx2EU7, @UnityActivist, @Nia4_Trump, @1080p, @bakedalaska, @jakekass, @jeffytee, @curveme, 794213340545433604 and @Urpochan, the latter of which was described but not specifically identified as a co-conspirator in that submission. The materials provided to defense counsel on September 23, 2023 [sic] include statements from the following additional users which are of a similar character and admissible as co-conspirator statements: @WDFx2EU8, @MrCharlieCoker, @Donnyjbismarck, @unspectateur and 2506288844.

Note this footnote treats a second Microchip account as separate rather than identifying that it knew Microchip was behind both accounts using the same naming convention, “@WDFx2EU#.” This was the period after DOJ had informed Mackey, on February 13, which Twitter handles its cooperating witness had used but before DOJ had publicly revealed that it had a cooperating witness.

When it came to cross-examining Mackey on his claims to know nothing about these people, however, AUSA Erik Paulson prioritized HBC.

Q I’d like to ask you about some of people in that room.

A Okay.

Q Who is HalleyBorderCol?

A That’s someone I just know as HalleyBorderCol. I don’t know anything more about that person.

Q Nothing more?

A Yes.

[snip]

Mr. Mackey, do you remember this page?

A Yes.

Q HalleyBorderCol says: Let’s did depress illegal voter turnout with a nice hoax.

A Yes.

Q POTUSTrump says: I like that idea Haley, but I think we should wait for the day before or the day of, that way they don’t have time to debunk the rumor. Needs to be earlier than that.

The government’s identification of HBC in the complaint, or not, doesn’t matter legally. What mattered legally for the purpose of the trial was that Judge Ann Donnelly ruled the government had presented sufficient evidence of a conspiracy to treat HBC as one for the purposes of hearsay exception rules; Donnelly ruled that all the accounts listed above were.

But DOJ’s decision to charge Mackey alone, and to make Microchip plead guilty after a series of proffers as part of a cooperation agreement, suggests DOJ exercized discretion to treat HBC and a few other key players differently, even while both at trial and in the development of the offending meme she had a larger role.

She certainly had a larger role in the text-to-vote meme itself than Baked Alaska, for example.

Baked Alaska is all over the trolling effort. He congratulates Mackey for being named the 107th most influential political tweeter of 2016, as everyone else did too, in March 2016. He warns against “roast[ing]” Bernie supporters, “cuz the more hatred they have for hillary the more likely they will join us in national or not vote at all,” in the same April 20, 2016 chat where he discusses the “new smart team” Trump has hired. On April 23, 2016, Baked Alaska asked Mackey via DM if he wanted to join the “Trump HQ Slack for more coordinated efforts?”

In May, Mackey asks for his help making #InTrumpsAmerica go viral. Baked Alaska boasts on July 24 that “we are controlling the narrative this is amazing.” In October, Gionet reminds other trolls to “make [minorities] hate hillary.”

At least as exhibited in the trial evidence, Baked Alaska’s sole overt act in the deceptive tweet involves instructing 1080p to “make a text message version of” the Tweet calling to vote remotely (it’s unclear whether Gionet calls 1080p or jeffytee “Gabe”). The tweets for which Mackey was convicted may have been his idea, but others executed the idea.

But it was enough for others to credit him with some responsibility for Trump’s win on November 9, 2016. “Tonight we meme’d reality,” Baked Alaska said after the win.

One more person’s role is of interest. Andrew Auernheimer — better known as Weev — was all over the earlier FedFreeHateChat, which came in for Mackey’s direct comments rather than as statements of co-conspirators. Weev seems to have spent the end of 2015 helping Mackey fine-tune his trolling skills. “Thanks to weev I am i[m]proving my rhetoric,” Mackey said in FFHC on November 19, 2015. “I just hope all this shitlording goes real life.”

Weev’s involvement is of particular interest because he was helping to run the Daily Stormer in pro-Russian territories. He was always one of the most obvious potential ties between Trump’s trolls and Russia. That’s one reason this paragraph, from the government’s motion in limine, reads very differently if you know “the Twitter user” in question is Weev.

On or about December 22, 2015, the defendant communicated with others in a Twitter direct-message group about sharing memes that would suggest certain voters were hiding their desire to vote for the defendant’s preferred Presidential candidate. The defendant stated, “it’s actually a great meme to spread, make all these shitlibs think they’re [sic] friends are secretly voting for Trump.” Several weeks later, on or about January 9, 2016, the defendant and another Twitter user discussed their Twitter methodologies. After the defendant stated that “Images work better than words,” the user stated “we should collaboratively work on a guide / like, step by step, each major aspect of the ideological disruption toolkit . . . ricky you could outline your methods of commentary / we could churn out a book like this, divide profits / and hand people a fucking manual for psychological loldongs terrorism.” The defendant responded “Yes… I think that would be good / I could do another chapter on methodologies from the ads industry– shit like my twitter ads stuff was very much the result of careful targeting, nobody’s managed to replicate it properly since.” Shortly thereafter, the Twitter user stated, “honestly at this point i’ve hand [sic] converted so many shitlibs that like, i am absolutely sure we can get anyone to do or believe anything as long as we come up with the right rhetorical formula and have people actually try to apply it consistently.” The defendant responded, “I think you’re right.”2 These statements, and those like them, are admissible and relevant to show, among other things, that the defendant’s intent in spreading memes was to influence people.

But Weev doesn’t appear, at least under the handle Rabite, after he celebrated the efficacy of the trolling on the day Trump sealed the nomination.

it’s fucking astonishing how much reach our little group here has between us, and it’ll solidify and grow after the general

“This is where it all started,” Mackey responded. But for Weev, that’s where his appearance in the trial evidence, under the moniker Rabite, at least, ended.

Weev’s absence — under his Rabite moniker, anyway — is all the more striking given that per a bench conference at trial, the search warrant specified that the specific meme Mackey ultimately sent out came from The Daily Stormer.

The search warrant also noted that the one that the defendant sent out was available on the Daily Stormer website, the American Nazi newspaper, as early as October 29, which is a couple days before the defendant did.

That is, Weev may have played a direct role in creating the meme in question. But unless he was posting under the moniker 1080p (who may have been referred to as “Gabe” by others), he was not credited with doing so in evidence presented at trial.

That differential treatment — and the changed focus on HBC in the trial as compared to the complaint — is one reason, but in no way the only reason, I’m interested in some other investigative details:

• Details about Microchip’s discussions with the government
• The timing of interviews with Hillary Clinton staffers and its disclosure to Mackey
• The decision not to call an investigative agent to the stand

According to a motion in limine dispute, an FBI agent named Jamie Dvorsky attempted to interview Mackey in Florida after his identity was disclosed in April 2018, which is when the FBI opened the case. Mackey first raised this issue on March 11 after he received materials on potential witnesses.

According to reports of FBI Special Agent Jamie Dvorsky, marked by the government as 3500-JAD-2 and 3500-JAD-17 (submitted under seal herewith), she and another agent traveled to Florida in 2018 and met Mr. Mackey at a Panera Bread in Boynton Beach. Mr. Mackey told her that he would be happy to speak to the agents if they would first contact his attorney, Richard Lubin. Mr. Lubin thereafter contacted Agent Dvorsky and said that Mr. Mackey would “100% cooperate and talk to the FBI.” Thereafter, Mr. Lubin did not contact the FBI nor return multiple calls.

When the government responded two days later, they described planning to call Dvorsky to explain how and when the FBI first opened the investigation.

As discussed with defense counsel, the government is calling Special Agent Dvorsky to testify as to when the government learned that the defendant was the user of the accounts that distributed the deceptive images and the initial investigative steps that were taken in the wake of that revelation. The chronology matters. As noted above, to the extent the defendant claims or suggests that the prosecution was somehow politically motivated, the fact that the government first identified the defendant in 2018 and began its investigation at that point is relevant in that regard. The government does not intend to elicit from Special Agent Dvorsky testimony that the defendant offered to cooperate with the FBI, but never followed through on the offer. Rather, to the extent that Agent Dvorsky will communicate the defendant’s statements at all, her testimony will be limited to the defendant’s telling her that he worked with Paul Nehlen.4 Accordingly, the limited testimony the government does intend to elicit is simply not prejudicial and does not warrant preclusion

They never did call her, though.

The FBI contacted Microchip, now their cooperating witness, around December 17, 2018 about a perceived threat he had made online in July 2018, but that may have been about a different case. Microchip then contacted Baked Alaska to inform him about the FBI visit, suggesting he has or had resilient ties to Baked Alaska.

Megan Rees, the FBI agent who ultimately obtained the arrest affidavit, was one of two FBI agents who visited Microchip’s home in December 2020, this time in conjunction with the Mackey case. When she wrote up that affidavit, she named Microchip, like Baked Alaska and 1080p, only as an unindicted co-conspirator.

But after Microchip saw that complaint, he reached out to the FBI via his lawyer.

Q Sir, my question to you is this: On February 4, 2021, did you reach out to Agent Rees and tell her that you had become aware that the person you knew as Ricky Vaughn had been arrested, and you believed you had information that would be useful to the FBI. Did you say that to Agent Rees?

[snip]

Q My first question is: When you reached out to Agent Rees on February 4, 2021, did you tell her that you had learned the person you knew as Ricky Vaughn had been arrested recently? Did you say that?

A Yes.

Q And in addition, did you tell her that you believed you had information that would be useful to the FBI?

A Correct.

Per his testimony on cross-examination, Microchip made a formal proffer around April 22, 2021.

At it, he claimed that the intent wasn’t so much to dissuade people from voting but just to push out as many messages as possible. He also claimed the chatrooms weren’t all that organized.

Q Sir, I’m going to ask you a question. Forgive the profanity in advance, but have you ever heard the term “shit posting”?

A Yes.

Q Do you recall telling the Government at this meeting that the focus was not on one message, it was on pushing out as many — as much content as possible?

[snip]

Q Do you recall telling the Government at that meeting that the participants in the chats were not as organized as many people believed?

A Yes, I remember saying that.

Q Do you recall telling the Government that there was no grand plan around stopping people from voting?

After several continuances and a revised memory of how organized things were, Microchip pled guilty on April 14, 2022. He had a meeting in advance of the disclosure of a cooperating witness on February 23, 2023. This post describes how Microchip testified to wanting to “infect” everything.

The timing of Microchip’s proffer is important, though, because it might explain any change in focus between the complaint and the evidence as presented at trial. That is, it might explain why prosecutors focused much more closely on HBC than Baked Alaska at trial.

But it also might explain any new investigative direction that DOJ took after first speaking with Microchip.

Mackey’s lawyer, Andrew Frisch (who has also represented VDARE), several times expressed curiosity about why the government used a summary FBI agent largely uninvolved in the case to introduce all the Twitter evidence, rather than putting the FBI agent who led the investigation, Megan Rees, on the stand.

MR. FRISCH: Can I put something on the record, unrelated to our prior conference. I intended at the close of the Government’s place to put a placeholder. But because of the way it worked, the jury was here, I couldn’t do it. I have been concerned as the trial has gone on that no case agent has testified. Maegan Rees didn’t testify, my friend Agent Granberg didn’t testify, and ultimately Agent Dvorsky did not testify. At one time or another. The key agent I’m concerned with is Agent Rees.

[snip]

MR. FRISCH: I’m mostly concerned about why no case agent testified and specifically whether there’s a reason, a bad reason, why Agent Rees’s 3500 has not been provided, obviously apart from when she attended Microchip interviews and things like that. I just wanted to put a placeholder, I’ll discuss it with the Government, I don’t want to hold things up. I wanted to register an objection at my earliest opportunity so if I can come back to it, if necessary.

[snip]

MR. FRISCH: I don’t know what she has, I don’t know what she said, I don’t know what’s in the reports. It’s just in my experience, it’s highly unusual that a trial happens without the case agent testifying, without any case agent testifying.

He’s not wrong, really, to question why the government didn’t use a case agent. Often, the government does so to keep someone who knows information inconvenient to the prosecution off the stand. For example, Durham may have used a paralegal in the Michael Sussmann case because the case agents had discovered some of Durham’s claims about the Alfa Bank anomaly were bullshit by the time of trial. Mueller used an agent focused on the obstruction part of the investigation in the Stone trial, who thereby could honestly say she didn’t know some of what DOJ subsequently discovered about Roger Stone’s actual ties to Russia when asked.

But it’s often (as it was in the Mueller investigation), done to hide parts of an ongoing investigation — something that a movement lawyer would surely have some interest in.

In this case, there are two obvious reasons to keep case agents off the stand.

The first is — as was revealed to Frisch after his opening argument — EDNY had a series of 18 interviews with Hillary’s campaign, between March 2021 and January 2023.

As Frisch laid out in a letter to the judge, after he opened, the government revealed those interviews, which, he claimed, he should have obtained.

The government’s second witness was Jess Morales Rocketto. On March 10, 2023, the Friday before the start of jury selection, the government first identified Ms. Rocketto as a witness. Thereafter, during jury selection, the government disclosed a report of the government’s then-recent interview of Ms. Rocketto, without disclosing any of eighteen reports of the government’s interviews of seventeen other representatives of the Clinton Campaign, conducted between March 2021 and January 2023. Ms. Rocketto testified that she was the Clinton Campaign’s digital organizing director; learned of vote-by-text memes using fake graphics during the final days of the campaign; found the memes’ misappropriation of the Clinton Campaign’s graphics and hashtag “#imwithher” to be such a “big deal” and so “jarring” that “you have to make a decision about what to do about something like this.” T 76, 78, 84-85, 90-92. See T 86 (The Court: “If you can avoid asking like terribly open-ended questions to this witness . . . . she has a lot to say, which is fine, but we’re never going to finish.”). On defense counsel’s subsequent cross-examination of Lloyd Cotler (a representative of the Clinton Campaign called principally to testify to steps to remediate the memes’ reference to a short code), defense counsel confirmed an unelaborated statement in the government’s report of Mr. Cotler’s interview that a Clinton Campaign worker named Amy Karr monitored social media, including 4chan [T 103], on which Mr. Mackey had seen the memes that he then shared.

The following morning, the government provided defense counsel with two reports of its interviews of Ms. Karr. At the lunch break, defense counsel requested that the government provide reports of all the government’s interviews of representatives of the Clinton Campaign. Highlights of the reports, summarized in the draft stipulation, contradicted the testimony and inferences elicited by the government from Ms. Rocketto and Mr. McNees. For example, Alexandria Witt, Senior Social Media Strategist, told the government that she referred vote-by-text memes to executive staff, but the general response was lackluster as though – – directly contradicting the very words used by Ms. Rocketto – – “this was no big deal.” Diana Al Ayoubi-Monett, another Senior Social Medical Strategist, said that she was mocked for taking “text-to-vote” memes seriously. Timothy Lu Hu Ball, a senior security expert, said that senior officials of the Clinton Campaign did not take the vote-by-texts seriously. Ms. Witt and Ms. Karr both were aware of and monitored “shit-posters” on social media supporting Clinton’s opponent. Memes containing misinformation about voting began to appear about three months before Election Day; there was no single influencer behind them; and senor staff, including campaign chair John Podesta, did not take concerns about the memes seriously. According to Matthew Compton, Deputy Digital Director (possibly Ms. Rocketto’s principal underling), the “#imwithher” hashtag had been somewhat commandeered with “unbelievable” amounts of irrelevant information, rendering it not “particularly useful.” Multiple witnesses told the government about records created by the campaign to track misinformation on social media (about which Mr. Mackey had been unaware and never attempted to subpoena or investigate). [my emphasis]

There’s no reason to believe these interviews were primarily pre-trial preparation. As the government explained in a bench conference, the government only handed them over after hearing what Mackey’s defense was in Frisch’s opening.

MR. PAULSEN: Your Honor, part of the reason we provided the 302s we did, is that we heard his opening argument, at the same time everyone did, and he made something like that argument. We turned them over at that point because it seemed like he was interested in that.

But even assuming Frisch’s description is accurate, what the Clinton campaign thought about Mackey’s trolling doesn’t change Mackey’s intent.

Which is what Judge Ann Donnelly ruled in the bench conference: this wasn’t Brady material, and besides, Frisch at that point still had several remedies available to him, such as calling the Hillary intern who identified some of the disinformation targeting Hillary on the dark web much earlier than anyone else.

THE COURT: Let me stop you there. I think I understand what you’re saying.

With respect to the issue — the e-mail telling people they could text to vote was not a big deal to the Clinton campaign. Why is that Brady material what their opinion of it is?

MR. FRISCH: Because they called Ms. Rocketto to essentially testify how horrible this was. How something had to be done right away. How she recognized this as a problem. That it specifically, in her view, was either targeted to or designed to affect or had the affect of effecting Latin American and African American voters. She was a terrific — she’s very charismatic and had a lot to say, that’s fine —

THE COURT: Why is someone —

MR. FRISCH: But I couldn’t cross-examine her with this information.

THE COURT: But you opened on it.

MR. FRISCH: But I didn’t know that the Clinton campaign agreed with my defense.

THE COURT: But who cares what their opinion is. The Clinton campaign can’t testify in court about what they think about something, any more than they can come — you didn’t object to it, she did say something was sneaky, I think I stopped her at some point. A particular person’s opinion of what the case is, I don’t understand how that is Brady material.

[snip]

[I]t’s the Court’s view that it’s not Brady material because it amounts to really, the essence is what the Clinton campaign thought about it, and that’s just not relevant. In fact, their opinion of it is no more valid than their opinion would be about whether Mr. Mackey is guilty or not. That’s not relevant, to the extent that’s the claim.

In his letter demanding an acquittal because of all this, Frisch explained that rather than calling any of these people as witnesses, he drafted a stipulation that the government rejected, which he then just emailed to Chambers.

Defense counsel emailed it to the Court (rather than electronically file it with a letter) when an issue unexpectedly arose early on the morning of the last day of trial about the government’s timely receipt of the draft stipulation; exigencies of the imminent trial day made preparation and filing of a letter impractical. But it would otherwise have been electronically filed to show that Mr. Mackey’s attempt at a mid-trial remedy for the government’s violation of Rule 5(f) and Brady had been rejected (though the government agreed to stipulate to a narrow portion thereof), thereby filling in the record and helping to show the consequent irreparable prejudice.

The letter mostly seems like a bid by a movement lawyer to turn the Mackey prosecution into the second coming of the Durham trial, an opportunity to investigate the victim of a bunch of malicious crimes in the 2016 election, in part to distract from the heinous things that Trump and his allies were doing.

All these interviews took place after the indictment and most presumably took place after Microchip first met with the government in April 2021.

Frisch seems uninterested in the obvious question presented by the revelation of 18 interviews with the Clinton campaign about disinformation targeting her 2016 campaign that went viral after being drafted on the dark web: Why EDNY was conducting these interviews, continuing well after any 5 year statute of limitations would have expired.

I don’t know the answer to that, but I bet the case agents do, which might be a good reason to keep them off the stand.

The other obvious reason to keep case agents off the stand has to do with knowledge of Microchip’s ongoing cooperation, which as the original motion revealing his cooperation describes, is something “beyond the scope” of this case.

In addition, since entering into the cooperation agreement, the CW has provided assistance to the FBI in other criminal investigations beyond the scope of this case. The CW is presently involved in multiple, ongoing investigations and other activities in which he or she is using assumed internet names and “handles” that do not reveal his or her true identity. The CW has not interacted with any witness, subject, or target in these investigations and activities on a face-to-face basis, and the government has no reason to think that the CW’s true identity has been compromised as a result of this work.

There’s no evidence that the ongoing interviews with the Clinton campaign about disinformation the dark web has to do with Microchip’s ongoing cooperation. There’s not even any evidence that the case agents in Mackey’s case are the ones he worked with subsequently; on the stand, he suggested he had not met with Agent Rees since his guilty plea.

Frisch’s job is to claim all this is about Douglass Mackey and it also likely serves his interests to drum up a false scandal about Hillary by publicly releasing these 302s.

But there’s a whole bunch of tangentially related issues that didn’t show up in this trial. There’s a bunch of this that isn’t about Douglass Mackey.

I woke up this morning, and as is my habit, I turned on the news. Today, I was shook by the news that Harry Belafonte had died. Throughout the day, obituaries and reminiscences have appeared, each lifting up various parts of his 96 years – his singing, his acting, his activism, his pride in his heritage, his compassion for the oppressed, and his disdain for those who oppress. So I thought I’d add my own thoughts, bringing in one piece that I haven’t seen mentioned in the coverage today.

Thirty three years ago, on May 21, 1990, a grand memorial service was held for Jim Henson, the creator of the Muppets. It took place at New York City’s mammoth Cathedral of St. John the Divine. Harry was one of the speakers that day, asked to speak because of his collaboration with Henson and the Muppets on several occasions. His remarks that day included this:

. . . But greater than [Henson’s] artistry was his humanity.

Unless you have moved among the wretched of the earth;
unless you have spent countless hours on the reservations of this country that house the Native Americans and the Indians who live out hopeless lives on their reservations;
unless you have moved among those who live in ghettos, contained by segregation and deprivation;
unless you have moved among vast peoples who sit on continents that are still struggling for their human rights and their dignity;
unless you have sat among tribes who care for children that face an existence of hopelessness;
you will never really understand Jim Henson until you have understood how he has touched the lives of those people.

Many have no hope.

Many mothers sit in many places, holding their children, desperately understanding that they will never be educated, they will never have a chance at life as it should be. And when they get a chance to see the smile of the faces of their children, as they develop the appetite to learn because they are watching Sesame Street, when they have developed the appetite to love in a loveless place because they have seen how friendly the Muppets and the creatures are to one another, when they find their own humanity in the humanity of these creations, then you have understood the real gift of Jim Henson and his colleagues.

I say this, because I have moved among those people, and I have seen in these wretched places smiles break out on faces that have never been familiar with the cause of a smile, and have come to life and have been touched in a profound way because Jim Henson said “There is hope, there is joy, there is the ability to love and to care and to find greatness in difference.”

This says a lot about Jim Henson, and a lot more about Harry Belafonte. The two of them collaborated on a number of projects, including his appearance on The Muppet Show, in which they used song and skits and “children’s stuff” to push the subversive idea that Harry spoke of at Jim’s memorial: there is hope, there is joy, there is the ability to love and to care and to find greatness in difference.

And that’s what made Harry Belafonte tick.

He knew that these things were true, because he had seen them, embraced them, and spent his life trying to spread them to the world, often at significant cost to himself. The story of a Chrysler representative trying to pull the plug on a Petula Clark special featuring Belafonte is but one example. Chrysler rep: “Could you reshoot that song with Petula Clark? She touched his arm, and we think our customers might take offense to a white woman touching a black man’s arm.” Harry’s producer: “No.” The song stayed, as recorded, but it again put Belafonte against yet another of the Powers That Be and made things harder for him down the line.

But back the Harry and the Muppets . . .

Who could not laugh at Harry having an epic drum-off with Animal? (Think of Dueling Banjos, except with percussion. And Muppets.)

Who could not smile at Harry swallowing his frustration with Fozzy Bear continually coming in late as Harry directed the cast of the Muppet Show in singing The Banana Boat Song?

Who could not be entranced with Harry and several African-styled Muppets singing the Belafonte/Henson song “Turn the World Around” and not want to dance and sing along? [This is the song that Harry sang at Henson’s memorial service after he finished his remarks quoted above.]

Harry Belafonte understood the power of song and story, especially to give voice and agency to those at the margins. In 2014, Belafonte spoke movingly at the New York Film Critics Circle Awards, when they honored the best director, Steve McQueen, whose film 12 Years a Slave had been received to great acclaim.

The power of cinema is an uncontainable thing and it’s truly remarkable, in its capacity for emotional evolution. When I was first watching the world of cinema, there was a film that stunned the world, with all its aspects and art form. They did a lot, at that time. The film was done by D.W. Griffith, and it was called The Birth of a Nation, and it talked about America’s story, its identity, and its place in the universe of nations. And that film depicted the struggles of this country with passion and power and great human abuse. Its depiction of black people was carried with great cruelty. And the power of cinema styled this nation, after the release of the film, to riot and to pillage and to burn and to murder black citizens. The power of film.

At the age of five, in 1932, I had the great thrill of going to the cinema. It was a great relief for those of us who were born into poverty, a way we tried to get away from the misery. One of the films they made for us, the first film I saw, was Tarzan of the Apes. [Ed note: The movie is called Tarzan the Ape Man.] In that film, [we] looked to see the human beauty of Johnny Weissmuller swinging through the trees, jump off, and there spring to life, while the rest were depicted as grossly subhuman, who were ignorant, who did not know their way around the elements, living in forests with wild animals. Not until Johnny Weissmuller stepped into a scene did we know who we were, according to cinema. . . .

A lot’s gone on with Hollywood. A lot could be said about it. But at this moment, I think what is redeeming, what is transformative, is the fact that a genius, an artist, is of African descent, although he’s not from America, he is of America, and he is of that America which is part of his own heritage; [he] made a film called 12 Years a Slave, which is stunning in the most emperial way. So it’s a stage that enters a charge made by The Birth of a Nation, that we were not a people, we were evil, rapists, abusers, absent of intelligence, absent of soul, heart, inside. In this film, 12 Years a Slave, Steve steps in and shows us, in an overt way, that the depth and power of cinema is there for now the world to see us in another way. I was five when I saw Tarzan of the Apes, and the one thing I never wanted to be, after seeing that film, was an African. I didn’t want to be associated with anybody that could have been depicted as so useless and meaningless. And yet, life in New York led me to other horizons, other experiences. And now I can say, in my 87th year of life, that I am joyed, I am overjoyed, that I should have lived long enough to see Steve McQueen step into this space and for the first time in the history of cinema, give us a work, a film, that touches the depths of who we are as a people, touches the depths of what America is as a country, and gives us a sense of understanding more deeply what our past has been, how glorious our future will be, and could be.

Whether he was honoring greats like Steve McQueen and Jim Henson, or singing songs with Petula Clark and Fozzy Bear, Harry Belafonte was finding hope, joy, love, and greatness in diversity as he embraced the differences in the world. He worked not only as a leader in the US civil rights movement, but also against apartheid in South Africa and returned there years after apartheid fell to encourage South Africa’s anti-AIDS efforts. He was a UNICEF ambassador and the Grand Marshall for the 2013 NYC Pride Parade. Read the various obituaries, and watch the various memorials, and you will see a man who moved among the powerless, and lived his life to give them the dignity that they deserve, the voice they lacked, and the rights that are their right.

The jam session in heaven tonight is going to be one for the ages, because daylight came and Harry got to go home.

________

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According to a discovery response letter sent on April 7, the government had only been able to access one of four laptops it seized from investigative reporter James Gordon Meek’s house when it searched his home for Child Sexual Abuse Material a year ago.

The government has not been able to access evidence item 1B4 and has not relied on any content from that device in its charges against your client. The laptop referenced in the complaint is evidence item 1B6. That item is and has been available for your review at the FBI facility, and a copy of the data was provided for your visit on March 16.

The government did seize four laptops from Mr. Meek. Those items are labeled 1B3, 1B4, 1B5, and 1B6. At this time, the government has only accessed 1B6.

The letter was made available as part of a motion to compel discovery filed last week.

That detail came in response to a question about why, when Meek’s legal team conducted an evidence review at the FBI on March 16, they were not able to access one of the laptops.

During our evidence review at the FBI on March 16, 2023, we were not able to review the contents of the laptop seized from Mr. Meek (item 1B4). Three of the data volumes appeared to still be encrypted. Our expert asked CART Gabriela Mancini about this issue, and Ms. Mancini explained that the laptop had not been “processed.” We noted that the government stated in the complaint affidavit that the FBI recovered 90 CSAM items from the laptop. It is unclear how this was done without processing the laptop.

[snip]

Furthermore, it is my understanding that the government seized a total of four laptop computers. Can you please confirm that 1B4 is a MacBook laptop, and the status of the other seized laptop computers?

These three still unexploited laptops are of some interest given the questions Meek’s (refreshingly competent, given what I’ve become used to from many of the January 6 lawyers) attorney Eugene Gorkhov raised in the MTC about how DOJ treated Meek as a journalist.

Most of the issues in the MTC are just competent lawyering: demanding more details about how the investigation into Meek moved from a DropBox tip to the National Center for Missing and Exploited Children to the Virginia State Police to the Arlington County Police to the FBI, and asking for evidence that the leaks to the press detailing aspects of the investigation show bias. Those questions are likely fairly easily explained (or blown off). If they’re not, they’ll provide leverage at trial, if not reason to dismiss the case.

It’s how DOJ treats a journalist when investigating him for suspected crimes entirely unrelated to his journalism that is of interest in this MTC.

Gorokhov describes receiving notice that DOJ used a filter team, both in advance of his April 2022 search and — presumably — in advance of investigating materials obtained with a warrant served on a cloud provider, back in November 2021. But DOJ refused to share the filter protocol.

In its search of the electronic devices seized from Mr. Meek’s residence, the government accessed Mr. Meek’s newsgathering materials, including communications, sensitive confidential sources, and work product. The government stated that it employed filter procedures while carrying out these searches. The discovery materials reference filter team memoranda dated November 24, 2021 and April 22, 2022. The defense has requested copies of these memoranda, Ex. 4 at 6, but the government has refused to provide them, claiming that they are work product and that, in any event, Mr. Meek has no reporter’s privilege because no such privilege exists. Ex. 5 at 5. Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

Gorokhov asks how that’s consistent with its media policy, particularly given the 2021 report on legal process used with journalists. He suggests Meek shows up twice there — first, in a subpoena approved by the Assistant Attorney General served on a media outlet (presumably ABC) to identify who accessed a particular news article, then Deputy Assistant Attorney General approval under a “suspect exception” before obtaining the first warrant targeting Meek.

Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

The government’s own policies and actions belie its position that Mr. Meek’s newsgathering materials are entitled to no protection. If this were true, then why did the government claim to implement filter procedures? Additionally, why did the FBI agents at the search ask Mr. Meek to identify devices containing newsgathering materials? The DOJ’s own policies reflect the recognition that newsgathering materials are entitled to protection: “The Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their Government.” 28 C.F.R. § 50.10(a)(2). To be sure, the DOJ’s policies provide more protection in circumstances where newsgathering activities are the subject of investigation, but the need to protect such information is recognized by the DOJ even in instances where the investigation is unrelated to newsgathering activities. See, e.g., 28 C.F.R. § 50.10(d)(2) (requiring authorization of Deputy Assistant Attorney General for the Criminal Division prior to issuing compulsory process to a member of the media for conduct unrelated to newsgathering); 28 C.F.R. § 50.10(o)(4) (“Members of the Department should consult the Justice Manual for guidance regarding the use of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.”).

19 See Ex. 6, Annual Report: Department of Justice Use of Certain Law Enforcement Tools to Obtain Information from, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media (Year 2021). The publicly available report indicates that in 2021, the Deputy Assistant Attorney General authorized a search warrant for an online account of a journalist in connection with a child exploitation investigation. The same report also states that “the Assistant Attorney General for the Criminal Division authorized the issuance of a grand jury subpoena to a news media entity in order to obtain IP address information for computers that accessed a particular online news article during a specified narrow timeframe.” The government has provided no records reflecting the latter investigative activity by the FBI, and

I highly doubt that Meek will get anywhere with this challenge for the legal reasons DOJ gave in its reply. There’s no reporter’s privilege, especially not in the Fourth Circuit, and especially not when a reporter has committed the offense at issue.

Your client has no reporter’s privilege in any way relevant to this case. The Fourth Circuit— following the Supreme Court—has declined to recognize a privilege for reporters in criminal proceedings even when the reporter is merely a witness to a crime. See United States v. Sterling, 742 F.3d 482 (4th Cir. 2013) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)). There is no basis for the assertion of any such privilege when the reporter has himself committed the criminal offense, and even less so where, as here, the crime is unrelated to his newsgathering activities. That the government voluntarily took steps to shield the case prosecutors from materials related to your client’s newsgathering activities does not create any right or privilege for your client, and there would be no suppression right or remedy available, even supposing that there had been a deviation from the protocols the government elected to impose upon itself. [my emphasis]

But note the reference to “this case.”

As consistent with DOJ’s assurances that they will only rely on one laptop to prove the CSAM case against Meek, the forfeiture language in the indictment applies to just that one laptop.

But given Gorokhov’s language in the MTC, the warrants were written to access everything.

Given that the investigation was purportedly focused on CSAM, which is limited to a “visual depiction” of minors engaged in sexually explicit conduct, it is not clear why the government sought to have law enforcement agents search the entirety of Mr. Meek’s files.

To be fair, FBI searches everything in CSAM cases, not least because of means that sophisticated users use to hide CSAM.

But it’s an especially apt question given that, the day after the search, the FBI discussed suspicions that Meek had classified documents.

The FBI’s internal documents and communications in the wake of the raid, disclosed to defense counsel only after Mr. Meek was charged, revealed that the government planned to investigate its suspicions that Mr. Meek possessed classified documents.

This is a loophole I pointed out when Merrick Garland first rolled his revised media guidelines. The guidelines offered new protections to reporters obtaining classified materials in the course of newgathering — as Meek would have been.

But it also exempted subjects from the guidelines if they were suspected of a non-newsgathering crime. Like CSAM possession. Or, in the case of Julian Assange, the hacking charge with which he was first charged (I believe the Espionage Act is also exempted, and foreign agents are definitely exempted).

This is, I suspect, an error that Rashida Tlaib made in her letter calling on Merrick Garland to drop the charges against Assange. She suggests that dropping the indictment would be in keeping with Garland’s new policy.

As Attorney General, you have rightly championed freedom of the press and the rule of law in the United States and around the world. Just this past October the Justice Department under your leadership made changes to news media policy guidelines that generally prevent federal prosecutors from using subpoenas or other investigative tools against journalists who possess and publish classified information used in news gathering. We are grateful for these pro-press freedom revisions, and feel strongly that dropping the Justice Department’s indictment against Mr. Assange and halting all efforts to extradite him to the U.S. is in line with these new policies.

Ignoring the possibility that DOJ has made a foreign agent determination with Assange — a very real possibility, in his case, in which case the policy doesn’t apply at all — it still seems that the plain language of the policy suggests once you become an investigative subject for a non-newsgathering crime — hacking in the case of Assange, CSAM possession in Meek’s case — then the application of the policy is uncertain.

As DOJ moves towards a June 20 trial date for Meek on CSAM charges, three of his laptops remain, unexploited, at the FBI. DOJ has said he has no reporter’s privilege interest in the CSAM case and that’s absolutely right. But those three laptops, obtained with a warrant approved on that suspect exception, as well as other reporting materials from the devices they did exploit, still remain in FBI’s custody, obtained with a warrant gotten under the suspect exception.

The charges against Meek are very serious and quite disturbing. But that makes his case a very good test of how Garland’s media policy applies with someone who is a suspect in an awful crime, but also, by any measure, an investigative reporter. DOJ seized, and is holding (in potentially encrypted form) materials and devices that relate to his newsgathering which would otherwise be covered by the news media policy. DOJ has kept these materials from the CSAM team. But after his prosecution, what will become of those materials?

Disclosure: In this post I describe my limited acquaintance with Meek going back to the Libby trial, with more recent interactions in 2018 or 2019.

Timeline

March 11, 2021: NCMEC received tip from Dropbox

June 2021: Virginia State Police served subpoenas on Verizon and Google

N.d.: VSP referred case to Arlington County Police Department

September 7, 2021: Referral from ACPD to FBI

November 24, 2021: Filter team memoranda

April 22, 2022: Filter team memoranda

April 27, 2022: Search

April 28, 2022: FBI email chain stating Meek may be in possession of classified information

October 19, 2022: Rolling Stone reported on search; Marjorie Taylor Greene tweet claims to know search was about CSAM

November 2, 2022: Gorokhov raises leaks with AUSAs

December 19, 2022: Rolling Stone reported “indictment” being prepared

January 31, 2023: Arrest affidavit [warning: exceptionally graphic language]

February 1, 2023: At detention hearing, DOJ incorrectly claimed Meek said his “life was over”

February 20, 2023: Consent motion for extension of indictment

February 24, 2023: Meek discovery letter

March 16, 2023: DOJ response, stating that it does not intend to produce filter team memo

March 30, 2023: Indictment

March 31, 2023: Follow-up discovery letter

April 7, 2023: Government response

April 20, 2023: Motion to compel disclosure

April 21, 2023: Judge Claude Hilton granted complex designation, set June 20 trial date

In a piece that I otherwise find unpersuasive, Josh Marshall argued that the reports that Fox News President Suzanne Scott didn’t tell Tucker why he was being fired explain why we’re getting such a conflicting range of explanations for his summary shit-canning.

It’s been reported that Suzanne Scott, CEO of Fox News, didn’t tell Carlson why he was being fired when she gave him the news. If that’s true, that pushes me more to consider this possibility. It also might explain why you have all this miscellany of often contradictory theories and explanations about what “contributed” to the decision. Maybe no one at Fox has any idea and all the sources are basically speculating about possible vulnerabilities they believe must be the answer.

Axios reported that Scott made the decision with Lachlan Murdoch to fire Tucker Carlson Friday night, though other outlets more credibly report that Rupert was also personally involved.

Fox surely anticipated that Tucker would sue, which may be why Scott didn’t give Tucker an explanation for his firing, yet. But that has created a void of uncertainty about the firing.

It is true that Abby Grossberg, the former Tucker producer who has sued Fox in SDNY for the hostile work environment at Fox generally and specifically on Tucker’s show, and sued Fox in Delaware for how they dealt with her testimony in the Dominion case, has an incentive to emphasize her role in the firing (as she has). I agree with Opening Arguments that the DE suit is far more likely to be related (a paragraph from her SDNY suit that has attracted attention, in which Tucker seemingly speaks favorably about statutory rape, is not tied to her own complaints and was already public). But I also think that the DE suit also includes a bunch of stuff designed to leverage Fox’s legal exposure that has nothing to do with the actual complaint. Plus, Tucker has little to do with the main thrust of the complaint; Scott and other corporate people do, so firing Tucker won’t help. Also note, as far as I understand it, the recordings Grossberg referred to in her suit seem to be transcribed interviews not otherwise aired on TV, not private recordings of Tucker.

Of note, the claim that Tucker asked but Grossberg was unable to get a Proud Boy lawyer to claim the insurrection was caused by FBI informants, for example, makes no sense.

Upon information and belief, in early-March 2023, Mr. Carlson attempted to spin and manufacture another false narrative to defray blame from Fox News about the January 6th insurrection, this time, characterizing the Capitol attack as an FBI coup, and not the logical result of Fox News’s reckless 2020 election fraud coverage. Specifically, Mr. Carlson requested that his team investigate the ongoing Proud Boys trial, which he asserted was “taking forever” because the “Biden Administration [wa]s trying to hide the huge number of FBI spies it had placed in the group.” As Head of Booking, Ms. Grossberg was twice directed to reach out to Dan Hull, one of the defense attorneys representing the Proud Boys, who indicated to her that he was available to come on to the TCT show as a guest but emphatically denied Mr. Carlson’s theory. Instead, Mr. Hull insisted that “no one made my client go up the hill. The Proud Boys wanted to,” and the FBI angle Mr. Carlson sought to peddle was “on the conspiracy side.” When Ms. Grossberg relayed Mr. Hull’s message to Tom Fox, a Senior Producer for TCT and her superior, he blithely replied “That doesn’t fit with what Tucker is looking for. You’ll have to find someone else who will say that.” Ms. Grossberg was told to ask Mr. Hull yet again if he would reconsider, to which Mr. Hull replied, “Please just tell [Tucker], if I get on the show, I will walk out if he asks about the FBI setting it up. […] Blaming the FBI for Jan 6th doesn’t cut it.” Mr. Carlson then requested that Ms. Grossberg investigate whether any other defense attorneys, including Steven Metcalf, would tout the conspiracy on air.

Dominic Pezzola lawyer Roger Roots seems to have, as a primary purpose, floating the kinds of conspiracy theories that will attract attention on Tucker’s show or Jim Jordan’s committee. And in his closing arguments, Nick Smith made wild leaps to push the informant angle. So the lawyers willing to make these claims were certainly available (if unwilling to risk a gag order by going on TV). Plus, Tucker’s propaganda about January 6 long predated the Dominion exposure

But Grossberg’s claim might be where this claim, from the LAT, came from (which has, in turn, led to the improbable claim that Epps’ complaints about Tucker’s coverage played a key role).

Murdoch also was said to be concerned about Carlson’s coverage of the Jan. 6, 2021, insurrection at the U.S. Capitol. The host has promoted the conspiracy theory that it was provoked by government agents, and Carlson has called Ray Epps — an Arizona man who participated in the storming of the Capitol but did not enter the building — an FBI plant, without presenting any evidence.

Tucker’s conspiracy theories about January 6 have been far more unhinged than anything Fox has been sued for by a voting machine company, and that’s saying something. But, again, they’re not a recent development — back in June 2021, Tucker defamed Thomas Caldwell’s spouse Sharon based off an unsubstantiated conspiracy theory.

All of which leads me to suspect that this, also from Axios, may best explain what brought Fox to firing Tucker.

A slew of material was uncovered during pre-trial discovery that implicated Carlson. More information could be out there that could be legally damaging for Fox as it stares down more defamation cases.

None of the rest of Axios’ explanations make sense (as Grossberg’s DE suit does, Axios lists stuff that would not implicate Tucker personally). Many of the other public explanations make no sense.

But what does seem plausible is that between Dominion, Smartmatic, and Grossberg’s twin suits, Fox lawyers have spent a lot of time reading through digital records of Tucker’s statements. And — again, it seems plausible — one or many of the things they’ve seen there made it clear Fox could no longer sustain the legal exposure Tucker (and his Executive Producer Justin Wells, who was also shit-canned) represented, possibly even for reasons unrelated to any of the lawsuits.

There’s an irony here.

Back when Tucker first revealed that he had been picked up in NSA intercepts of texts and emails he exchanged with Russian go-betweens, he claimed the NSA was trying to take him off the air. That was in 2021, and his FOIA to the NSA suggested the contacts had gone back to January 2019. In his more recent March complaint that his efforts to cozy up to Putin got “spied on” by the NSA, he revealed the NSA had read his Signal texts, as well as the emails he sent purportedly setting up an interview with Putin.

For all his wailing that the NSA’s access to such comms was an attempt to get him fired, it didn’t happen.

But once Rupert’s lawyers reviewed Tucker’s communications, it did.

I’m not arguing that Tucker’s coziness with Putin got him fired (though Glenn Greenwald keeps complaining, in two languages, that Tucker was fired for falsely claiming that members of the African People’s Socialist Party were arrested because of their opposition to the Ukraine war, rather than because they were on the FSB payroll).

I’m stating a truism. In virtually all cases, “surveillance” of your communications by your employer can have a far more immediate and lasting impact than surveillance of your communications by the NSA.

Update: Daily Beast says the final straw was the number of times he called Sidney Powell the c-word.

Update: In comments, wasD4v1d referenced this Aaron Blake piece making a similar point.

Update: Murdoch property WSJ reports that one of the big factors was the disparaging comments Tucker made about others.

On Monday, Mr. Carlson’s famously combative stance toward members of Fox News management and other colleagues caught up with him, as the network abruptly announced it was parting ways with him, just minutes after informing Mr. Carlson of the change.

The private messages in which Mr. Carlson showed disregard for management and colleagues were a major factor in that decision, according to other people familiar with the matter. Although many portions of the Dominion court documents are redacted, there is concern among Fox Corp. executives that if the redacted material were to become public, it would lead to further embarrassment for the network and parent company.

[snip]

The Dominion court filings are filled with examples of him disparaging colleagues, from calling for the firing of Fox News reporter Jacqui Heinrich for fact-checking Mr. Trump’s false claims about the 2020 election to complaining about the network’s news coverage, including the decision to call Arizona for Mr. Biden on election night.

Fox just announced that Tucker Carlson is out, effectively immediately.

I doubt this is Dominion related. It was too sudden. He signed off Friday pitching his show today and Fox was until minutes ago previewing the show.

Plus, Tucker is both less culpable for the specific claims in Dominion than Maria Bartiromo, and far more important for Fox viewership.

Update: As Rayne linked in comments, it is Dominion related, but it seems to be because of the things Fox discovered Tucker had said about management, not about his defamation of Dominion.

But it was Carlson’s comments about Fox management, as revealed in the Dominion case, that played a role in his departure from Fox, a person familiar with the company’s thinking told The Post.

“Do the executives understand how much credibility and trust we’ve lost with our audience?” Carlson wrote to a colleague in a message a day after Fox, like other media outlets, called the election for Joe Biden. In another message, he referred to management with an expletive: “Those f—–s are destroying our credibility.” He later wrote: “A combination of incompetent liberals and top leadership with too much pride to back down is what’s happening.”

Tucker’s Executive Producer is also out, though, so it’s likely more than just that.

One of the few perks I have here at Emptywheel is being able to say what I think. I think you should go buy and read The Shadow Docket by Steve Vladeck.

Mr. Vladeck has been intoning this for a long time. Here he was back in November 2019:

“But insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view,’”20 and for good reason. By waiting for most cases to go through multiple layers of review by lower courts (and, often, multiple cases going through those multiple layers), the Court gives itself the benefit of multiple rounds of briefing and argument — and, usually, lower court rulings — on which to base decisions to grant certiorari and, if necessary, analysis of the merits. To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity — and to necessarily tilt the Court’s limited resources toward an undoubtedly important, but importantly narrow, class of disputes. Worse still, such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.”

True then, and increasingly so now. In the age of the internet, books are given short shrift. But they are still vital and important. Sales of books, especially early, are vitally important. This is a book that is important, and quite affordable. If you can, please go give Steve a bit of support, he is a pretty decent chap and, hopefully, a friend.

From emptywheel: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

It was a risky move by Proud Boy defendants Zachary Rehl and Dominic Pezzola to take the witness stand. So it is for any criminal defendant. A skilled prosecutor can unwind even the most robust witness without alerting their subject to it until it is too late. 

It took four months of hearing evidence in the Proud Boys seditious conspiracy trial—which enters closing arguments on Monday—but this past week, jurors got it straight from the source when two of five Proud Boys on trial testified for once and all: Zachary Rehl and Dominic Pezzola. 

Their respective testimonies were often combative, the tension frequently high. Each man started out confident and cocksure, but the more Justice Department prosecutors pushed Rehl and Pezzola around the edges of their testimony, the more the men relinquished whatever tight grip they had over themselves when testifying under the far more amenable gaze of their own attorneys. 

Both sides have now rested and on Friday, jury instructions were issued. All that is left are closing arguments. It will be those final words that the jurors will have ringing in their ears when the book finally closes on this trial. But no matter how sweeping or evocative those final arguments may be, some of the trial’s most potent moments,  for better or worse, will belong to the testimony of two Proud Boys who favored speaking instead of silence. 

ZACHARY REHL: “Not that I recall.”

Zachary Rehl was one of two Proud Boy defendants to take the witness stand, and when under cross-examination by Assistant U.S. Attorney Erik Kenerson, his tone was often sharp, his face taut and eyes hard as he grew impatient with a barrage of questions from the federal prosecutor. 

The 37-year-old man’s face, which looks much younger than his years, was more softly animated when he spoke to his own attorney Carmen Hernandez. With her, his testimony would spill out rapidly as he told a jury that has now heard evidence for four months: there was no conspiracy to storm the Capitol on Jan. 6, 2021. There was no plan to stop proceedings nor impede law enforcement from doing their duty, he said again and again under oath. 

Police, he claimed, let protesters pass through barriers. He said he never saw any significant violence directed at law enforcement and didn’t realize there had been such conduct until later, though on the stand he conceded to witnessing “scuffles” between rioters and police. (He would distinguish “rioters” from “protesters” often.) But, again, he offered, there was no attempt by him to assault any officers while he was on Capitol grounds.

On this point, the son and grandson of a Philadelphia police officer was adamant and he would turn to face the jury as he said this, his eyes searching theirs to validate him.

But he didn’t turn to face the jury when Kenerson started walking Rehl through a sequence of video clips from the 6th, including those that his attorney tried and failed to keep out of evidence after they emerged following a weekend break in proceedings.

The prosecutor had Rehl identify himself in footage shot close-up and Rehl positively identified himself as wearing a black jacket, black goggles, a camouflage hat with orange writing, and a gaiter that appeared to have a chevron or some sort of triangular pattern on it.

When Kenerson asked Rehl if he recalled being by the giant media tower erected outside of the Capitol on Jan. 6 before entering the building, Rehl readily offered, he was  “around there.” 

But when asked if he could recognize a man in attire appearing identical to his at a slightly greater distance near this location, Rehl started to lock up. The man appeared to be wearing the same clothes Rehl had just identified as his own at closer range. And at this angle, appearing at a distance, the man appeared to be holding something dark in his hand. Rehl, with his brow furrowed, leaned into the monitor at the witness box and told the jury he couldn’t say what it was that the man was holding. 

Zooming in and out, the footage rolling back and forth, Kenerson pressed: Was this, in fact, his attire? Was this man Rehl? Was this his arm extended toward officers as he held something in his hand? 

“A lot of people wore the same clothes that day”, Rehl said. “I can’t confirm or deny that’s me.”

For several tense minutes, Rehl could not or would not confirm hardly anything presented to him including whether the color of clearly black sunglasses or goggles covering the man in question’s face in the sequence were in fact black. 

“Are they pink?” Kenerson asked incredulously, triggering a storm of objections from defense counsel.

Rehl’s demeanor became more irritated from that point forward and the gloves came off. He insisted the footage was “very blurry,”  although he would eventually concede as cross continued that the gaiter in question was “close” to the pattern of his own. The coat was similar too, but he wouldn’t say whether the more distinctive camouflage hat was his. Going around and around like this with Rehl, Kenerson eventually asked the Proud Boy outright if he assaulted any police before entering the Capitol with pepper spray.

“No,” Rehl said. 

Playing footage frame by frame that prosecutors said came from a bodyworn police camera, a man who prosecutors suggest is Rehl has a device in his hand. 

“I can’t tell but I would imagine it’s an OSMO,” Rehl said, referencing a small camera or recording device.

“Does a small recording device usually have streams coming out of them?” Kenerson asked.

Rehl said he couldn’t see a canister and could only see a hand. He conceded he could see “streaks” in the footage but not “spray” in the direction of police. He questioned the integrity of the evidence. The hand was holding something, he admitted, but if it was his hand, he said, it would be a camera. 

“Mr. Rehl, you’ve had overnight to think about it. You were spraying in the direction of police officers near the media tower on Jan. 6, 2021?” Kenerson asked. 

Rehl, who had been so emphatic of so much else in his testimony about Jan. 6, or about himself, or the Proud Boys as a whole, replied coolly: “Not that I recall.”

The prosecutor elicited from Rehl that after he left the area near the media tower, he was ultimately able to advance further onto the upper west plaza of the Capitol before going inside. Positioned high above, and as police were being overrun on both the west and east sides of the complex, he snapped a photo and narrated to Proud Boys in a text sent at 2:29 p.m: “civil war started.”

On redirect, he didn’t deny sending the message and instead claimed he was “basically mocking all the news we were hearing prior to the event,” he said.

He added that he was being “ironic.” 

“It’s all just a very peaceful scene, we were just standing around,” Rehl told his attorney.

Hernandez tried to steady the ship: “Is that your opinion today that everything that happened that day was irony?”

“Oh no no no,” Rehl said. 

When he went through his phone, after the fact, he said he realized what had happened. 

“It was a terrible day, a lot of bad stuff happened,” he said.

Nonetheless, he told the jury he was “proud of the turnout.” But on Jan. 7, as he started to “go through things and see what happened that day” he didn’t want to “associate” with it. 

And then with a remark that could cut both ways for a jury who had only just watched Rehl’s temper rise and flare, Rehl said: “Previously, I tried to have a good persona and that’s what I try to portray.” 

The scenes that unfolded around him as he got past police and pushed inside the complex didn’t strike him as unusual. 

“Nothing out of the ordinary for a protest?” Kenerson would ask him before ending Rehl’s cross-examination.

The prosecutor’s question was a direct quote from Rehl’s time on direct when described what he witnessed in Washington some 800 days ago now. 

“Nothing out of the ordinary for a protest,” Rehl repeated. 

“No further questions,” Kenerson said. 

Isaiah Giddings, (who Rehl testified came to D.C. with him and at least two other individuals, Brian Healion and Freedom Vy) said in his statement of offense to law enforcement that Rehl had asked other rioters on the 6th whether they had any “bear spray.” According to Giddings’s statement, Rehl never got it. 

In court, Rehl denied realizing he was in Senator Jeff Merkley’s office when he stopped in to have a smoke. But he admitted to lighting up and told the jury he regretted it. So many others were milling around smoking inside, he explained, he figured he would do the same. 

When asked on his last day on the stand, Rehl was able to identify his fellow Philly Proud Boy Giddings as one of the individuals in the lawmaker’s office with him. When Kenerson had asked him if he could remember what Giddings wore on the 6th, he couldn’t recall. When Hernandez played a video from inside Merkley’s office for the jury, he said he “thought Freedom and Brian might be there but I don’t see them.” 

“The door was already open when I got there,” he said. 

Rehl, perhaps still smarting from Kenerson’s cross, quipped that he didn’t think he “would be charged nine felonies” for smoking in the Capitol. 

When former West Virginia Proud Boy leader Jeff Finley testified, Assistant U.S. Attorney Nadia Moore asked Finley if it was Rehl’s idea to go inside the Capitol on Jan. 6.

“We discussed it. I was part of that discussion,” Finley testified in March.

“My question is: did he ask you, ‘you wanna go in?’” Moore said. 

Finley shrugged his shoulders as he sat in the witness box, his face mostly emotionless, and said: “I guess.”

He said he understood at the time they entered the Capitol, police did not want them there. Rehl would deny having a clear understanding of this when he would finally testify weeks later. 

Finley also admitted that he stopped by Merkley’s office and took a selfie. He said he took it in the doorway of the lawmaker’s office. After the 6th, Finley began deleting photos and advised other Proud Boys to do the same. He told the jury it was because he feared doxxing by the left if their devices were captured. Like Rehl, Finley was often curt with prosecutors but unlike Rehl, far more forthcoming. And unlike Rehl, Finley had already pleaded guilty, copping to a misdemeanor charge for entering restricted grounds. He’s serving a 75-day prison sentence.

Jurors saw text messages too that Rehl, a former U.S. Marine, sent to his mother on the night of Jan. 6 when he told her how “fucking proud” he was of the “raid” on the U.S. Capitol.

 It had “set off a chain reaction of events throughout the country” he gushed. 

He sent his mother a message in December 2020 as well after things had turned bloody in D.C. following a pro-Trump “Stop the Steal” rally. 

Four Proud Boys had been stabbed and a woman, who Rehl told the jury he suspected was “antifa,” had been brandishing a knife on the street that night. 

Footage that circulated among the far right network on their private channels as well as on public ones on Parler and Telegram showed the woman being cracked over the head with a helmet before crumpling to the ground. Impressed and celebratory “oohs” and “ahs” emanated from Proud Boys surrounding the grim scene. 

Prosecutors argue this graphic footage was something that Rehl and Proud Boys used as a recruitment tool ahead of the 6th and that it was a point of pride for them to display their violent tendencies.

Records extracted from Rehl’s device after his arrest show he sent the video to his mother. 

He blanched at the suggestion from prosecutors that he shared the clip with his mother because he was proud of the violence and any Proud Boys’ handiwork in it.  

To the contrary, he testified, he didn’t want his mother to think Proud Boys were the aggressors. 

“I didn’t want my mom of all people thinking we’re just going around being freaking bullies to people in the street,” Rehl said in court last week. 

When squaring off with the Justice Department, however, Kenerson brought out a series of text messages from 2020 that he argued showed Rehl had long wanted to “fast track” members into the Proud Boys who were the bullying type. He wanted members who were “ready to crack skulls” and wanted recruits “physically ready” for rallies. 

Rehl disagreed with the interpretation. He was joking, he said, when he told a fellow Proud Boy in one message he wanted all of their guys “to be jacked. LOL” 

“I was looking for guys who could hold their own. Doesn’t mean looking for violence,” he told Kenerson sharply.  

Rehl called much of this talk “street language.” 

There was always some such euphemism Rehl had on hand to describe his communications. He defended the Proud Boys as no more than a fraternity that liked to drink hard, “talk shit” or “bluster” and dabble in political activism to have their “voices heard” when they felt the need or weren’t partying.   

That dabbling, he admitted, included trips where he and his chapter members traveled from their Pennsylvania homes to attend events where they wanted to make a presence, like in Kalamazoo, Michigan, or St. Louis, Missouri, or Fayetteville, North Carolina. Or Washington, D.C.

Texts in evidence between Rehl’s co-defendant Joe Biggs and Henry Tarrio dated Dec.19 offered jurors a look into where the Proud Boys seemed to stand at that time. It was Biggs who wrote that when it came to recruitment efforts, they needed to forgo finding “losers who wanna drink.”

“Let’s get radical and get real men,” Biggs told Tarrio on Dec. 19. 

In this same exchange, Tarrio replied: “The drinking stuff helps mask and recruit. Although some chapters don’t leave their bars and homes.”

“No one looks at us from our side and sees a drinking club,” Biggs responded later in the chain to Tarrio. “They see men who stand up and fight. We need to portray a more masculine vibe.” 

Biggs would buy his airline tickets to D.C. the next day, telling Tarrio he was booked from Jan. 5 to Jan. 7. 

Within 24 hours of that conversation between Biggs and Tarrio, the Ministry of Self-Defense was stood up. 

According to prosecutors, it was then that Zachary Rehl, Ethan Nordean, Charles Donohoe, and a slew of other Proud Boys like Aaron Wolkind and John Stewart—alleged “tools” of the conspiracy—were added to MOSD. Donohoe has pleaded guilty to conspiracy to obstruct an official proceeding and assaulting an officer.

Jeremy Bertino, who has already pleaded guilty to seditious conspiracy and testified against the defendants at trial, would come aboard a few days later on Dec. 23. As for Dominic Pezzola, prosecutors say the Rochester, New York Proud Boy, and former U.S. Marine wouldn’t join the conspiracy until Jan. 2, 2021, when he was officially added into the MOSD chat group. 

Sitting inside the E. Barrett Prettyman courthouse just a few blocks from where he once stood shoulder to shoulder with rioters wildly overwhelming police, Rehl resisted the Justice Department’s allegations about MOSD’s real purpose and he tried to slap away suggestions that Proud Boys relied on violence as a key mechanism bonding their “western chauvinist” group.  

When prosecutors showed the jury evidence tied to an August 2020 rally organized against human sex trafficking and sexual assault in Fayetteville, North Carolina, Rehl grew particularly pointed. The rally was uneventful despite concerns that it would turn ugly when busloads of “antifa” would show up. (A rumor that circulated widely and never came to pass). Kenerson then showed texts suggesting Rehl’s history of being primed to take matters into his own hands when he saw fit. 

Pulling up messages extracted from Rehl’s devices, Kenerson asked him if he said he wanted to “fuck up antifa” at the North Carolina rally if they showed. Without missing a beat, Rehl said in court: “Actually, you know what, yes I did.” 

And, he added, he would have used “any can of mace I had” to stop anyone who would have stood in opposition to the people attending that rally that day. 

“You said you were going to beat them with a 12-inch dildo you picked up?” Kenerson asked. 

“Yes. Again, preparing for the worst,” Rehl said. 

Rehl said Proud Boys only ever “prepared for the worst.” 

Rehl said he wanted “the legal process to play out” on Jan.6 and his intentions were well-meaning. 

“I didn’t go in until I thought there wasn’t anyone in there,” he has said. “The Capitol was a public building. I thought it was fair game to go in.” 

On Jan. 7 in a Proud Boy chat entered into evidence dubbed “Philly PB E-Board,” Rehl lamented in the cold morning light: “Looking back, it sucked. We shoulda held the capital. After Trump conceding today, it all seemed like a waste.” 

Another Proud Boy, using the handle “Rod (Venezuela)” offered, “they should have let them finish the counting and when they didn’t accepted [sic] the challenges, rush in and set fire to that shit.” 

“Yup,” Rehl replied 24 minutes later. 

Rehl told Kenerson, “I see what you’re trying to do here,” and said his reply was to something else in the chat thread. 

In another message from Jan. 7, Rehl wrote on the “E-Board”: “The reason it feels like a waste is because all of these politicians getting scared and realizing they need to answer for this fraud, their [sic] all turning their back on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back right away. And fuck you FBI yeah I’m mad.” 

Rehl testified on direct that he believed Trump’s “last stand” to change the election results had been in December. He said people had held out hope that Trump could “pull a rabbit out of his hat” on the 6th but he also testified that he knew better. 

Personally, he said, he didn’t think Trump could pull a rabbit from his hat. He vowed over and over in court that he wanted a legal, constitutional process to unfold. There was never a conspiracy among him or any other Proud Boy to stop those processes or obstruct Congress from taking the necessary steps in the nation’s transfer of presidential powers. 

“I said some fucked up shit the day afterward,” Rehl told Kenerson on April 17. 

“But you just testified, you were only [concerned] about voting and yet you concluded, ‘everyone shoulda showed up armed?’” Kenerson asked. 

“Shoulda, woulda coulda. As opposed to the legal way,” Rehl said. “We didn’t do it that way.”

 

DOMINIC PEZZOLA: “Corrupt trial… fake charges”

Things had started out strong for Dominic Pezzola when he first took the witness stand this past week. He didn’t look anything like the man in the video footage jurors had seen of him for several weeks, particularly as the trial first began and prosecutors shared evidence of things like Pezzola’s victory smoke inside of the U.S. Capitol after he bashed open a window and hoisted himself and other rioters inside. 

The former Marine—a battalion known for its “first in, last out” mentality—was one of the first rioters to get inside the Capitol. 

He faces a slew of charges alongside his co-defendants though he is unique in that he faces a robbery charge for his alleged taking of a police riot shield from U.S. Capitol Police officer Mark Ode. Ode testified at trial in February that his experience on Jan. 6 was “terrifying” as he scrambled to replenish officers who were being overwhelmed by rioters invading the building and grounds. 

Rioters were using “some type of chemical spray;” he testified and at one point “it looked like a [person was holding a] small fire extinguisher walking around spraying officers.” It took Ode more than 10 minutes to recover his vision after he was doused.

Under questions from prosecutor Nadia Moore on Feb. 7, Ode said when he was knocked to the ground it was because he was being pulled down as he clung to his shield with one hand before it was wrestled away from him. 

On the witness stand, in a suit and tie, and sometimes with dark-rimmed glasses framing his face, salt and pepper hair, and beard neatly cut, Pezzola started his testimony by communicating what sounded a lot like genuine remorse about what had happened.

“I’m ready to do this,” Pezzola told attorney Steven Metcalf on first day before the jury. “I’m taking the stand today to take responsibility for my actions on Jan. 6 and I’m also taking the stand to explain how these men that I’m indicted with should not be roped into my actions.” 

Willing to cast himself apart from his co-defendants, Pezzola first couched his testimony with a folksy, warm delivery. 

“There was no conspiracy, it never existed,” Pezzola said. 

It was “the craziest damn thing,” he testified. 

“So, I got caught up in the craziness. I trespassed at the first breach, second, I think there may have been a third, I basically trespassed all the breaches and during the scuffle and whole shield incident, I did grab onto the shield and pulled onto it for fear of my own life because deadly force was being used on us by police,” he said.

Pezzola would tell the jury that he acted out a flash of adrenaline that coursed through his body and made him feel as if he were on “autopilot.” 

When he grabbed the shield it happened in a “split second,” he said. Someone else had grabbed it from police, he claimed, and then he grabbed it. And then, he turned to the jury while he confidently declared: “And we’ll have the proof to show this.” 

The Rochester, New York Proud Boy said he was upset as he “watched mothers grabbing their children to get them out of the way to avoid flashbangs.” (The next day on the witness stand he would clarify, “children” meant teenagers.) Elderly protesters, he said, had their “eyes split open” and people had “faces full of pepper spray.” 

“I was upset,” Pezzola said. 

What fueled his outrage to the point that he began screaming at police, he testified, was an injury sustained by another man, rioter Joshua Matthew Black. Black, who is not a Proud Boy, was found guilty this January for entering and remaining on restricted grounds with a deadly weapon. Black was carrying a knife and made it all the way to the Senate floor despite taking a munition to the face shot at him by police who were repelling him, Pezzola, and thousands of others in the crowd. 

Notably, Black posted social media videos after the 6th saying that he joined the mob and crossed barriers to get inside the Capitol because he wanted to “plead the blood of Jesus over it.”   

Black also claimed that he was shot in the face while he was attempting to help a police officer who “was on the ground with boots coming down on him.” 

Pezzola said after Black was shot, he got in closer for a “bird’s eye view of the damage it had done to him.”

“I knew if it had been a few inches higher that shot would have been fatal,” he said.

On direct, Pezzola spent considerable time telling jurors he was in “disbelief” of how police treated “unarmed crowds just pushing against riot shields.”

Things were “dire,” for them he testified. Things were “deadly.” 

Pezzola never saw combat during his time in the military but he compared the use of less-than-lethal munitions by police on the 6th akin to being “underfire by a machine gun or something.”

The military had taught him to ignore his flight response, he said. He claimed “flash bangs” soared into the crowd at a rapid clip but he wasn’t going to turn around or walk away. He was going to “neutralize the danger,” he said. 

Whether or not tales of his perceived heroics in the face of bodily harm were convincing to jurors, there was a palpable missing link in his narrative. 

Pezzola expounded on direct about “rubber bullets” whizzing past his eyes, head, and face. Yet at no point over the months of evidence presented from either side, has any video or photographic evidence emerged showing Pezzola hoisting the police riot shield in a defensive posture over his head or face. On the stand he said he covered his head and remembered bullets hitting right by where his head would have been, but those flew by, he claimed, when he was on the ground in the scuffle. 

When Kenerson pressed him, Pezzola couldn’t recall the moment he might have used the shield to cover his head. It was a “fog of war type thing,” he said. It was a “vague recollection.”

Footage did, however, show Pezzola carrying the shield, ascending Capitol steps with the shield, and then using the shield to smash apart a window. He also found time to take a selfie with it. In other video footage presented in court, Pezzola can be heard replying “yeah” when a man asks him if he had stolen a police shield. 

Pezzola said he only said that to get the person asking questions “out of my hair.” 

Once he was atop the scaffolding, video evidence shows Pezzola screaming at police: “You better be fucking scared! Yeah, you better be fucking scared! We ain’t fucking stopping. Fuck you. You better decide what side you’re on motherfuckers. You think antifa is bad, just you wait.”

In court, Metcalf asked Pezzola: “Did you use that shield to damage any property?”

“I did. When I made it up to the terrace… I did break one pane of glass. One. Someone used a two-by-four… it’s been proven over and over it was less than $1,000,” Pezzola said. 

This is a point that he emphasized more than once as he testified, saying that each pane only cost $774. Further, according to Pezzola, a pane to the left of the one that he broke with the riot shield was already shattered by the two-by-four and therefore: “I struck a completely destroyed pane of glass with a shield,” Pezzola told AUSA Kenerson.

 “I wouldn’t consider it a pane anymore,” he said. 

When Kenerson asked him if he was saying he thought he did no damage, Pezzola smiled wryly at the attorney and told him he was just “twisting his words.”

Where he had been cool, calm, and seemingly collected on direct, Pezzola’s demeanor changed abruptly on cross. He grew more defensive and his tone more abrasive and angry. He smirked regularly or laughed under his breath at Kenerson’s questions.  

“Your goal of busting the window was to have someone to listen to you?” Kenerson asked. 

“Correct,” Pezzola said. 

They were there to express their First Amendment rights, he said. They were “trespassing,” he admitted, but this was the way to “have their voices heard.”

“And this was the way to get the government to listen to you?” Kenerson asked again, footage of him entering the Capitol still on the screen for jurors. 

“At this moment? Correct,” Pezzola said. 

Besides a claim of self defense from police he deemed overzealous, the Proud Boy and his attorney also played down the alleged robbery of the shield by playing up the fact that Pezzola gave the shield back to another police officer before leaving the building. Nonetheless, on cross, the 43-year-old Proud Boy said that was a “last-minute decision.” 

Pezzola met with Charles Donohoe after he got the shield and together, they and Proud Boy Matthew Greene of New York, who testified at trial and has pleaded guilty to conspiracy and obstruction already, moved toward a concrete wall. Donohoe would help him carry the shield for a time, Pezzola affirmed. Jurors also saw a text message Donohoe sent to Rehl and other Proud Boys on Telegram moments after Pezzola got the shield.

When describing his military service to the jury, Pezzola took pains to highlight his experience with antiarmor rockets and crowd control, but in fact, he was never a military police officer, and his very limited experience using flash bangs was restricted to his short stint in the Marines more than 20 years ago. When prosecutors asked him if he was aware that police used sting balls on Jan. 6, a device that delivers less damage than a flash bang, Pezzola refuted it. 

Whatever was used, they were used improperly, he said. 

When Kenerson asked Pezzola how he knew this to be true, he elicited that the only training the Proud Boy had received on crowd control was from a few handouts he received while serving in the military. 

He had no training on “sting balls” he conceded, but that didn’t stop him from offering his non-expert testimony on their deadliness. 

“You’ve never worked with police and you have never taken their protocols?” Kenerson asked. 

“No,” Pezzola replied. “But I know police brutality when I see it.” 

“So the standard you’re applying here is the Dominic Pezzola standard?” Kenerson said. 

“You don’t need to be trained to know that an explosive can kill you,” he said. 

Pezzola emphasized again how he was “afraid for his life” and then footage played in court of him hoisting the riot shield in the air—though not defensively over his head—while he chanted “USA! USA! USA!”

Underpinning the prosecution’s charges is its “tools theory,” which argues that Proud Boys activated their conspiracy to stop proceedings by relying on fellow Proud Boys and “normies” or average protesters alike, in large numbers to aid them, wittingly or not, on Jan. 6.

To that end, prosecutors showed Pezzola video from outside of the Capitol near the Peace Monument. Pezzola testified that he heard a “ruckus” near that area while he was near a line of food trucks. He went off to investigate. It just so happened that when he arrived, barriers were knocked over already, he said.

Kenerson pointed out in footage from the first breach near the Peace Monument that quite “fortuitously” Pezzola appeared at the breach with a Proud Boy from New York right behind him identified as “Hooks.” Hooks was grabbing onto Pezzola as they flowed past police. But Hooks wasn’t with him at the food trucks. 

It was a “contained area,” Pezzola said, adding that he was bound to run into somebody he knew.

When New York Proud Boy William Pepe was seen pulling down barricades in video footage and Kenerson started to ask about it, Pezzola deflected immediately to invoking a highly-favored conspiracy theory that it was rioter and former Oath Keeper Ray Epps who told him and others to breach the barriers and go inside the Capitol. 

Pezzola then suggested to jurors that Epps was a government informant. 

“Mr. Pezzola, you have absolutely no evidence that Ray Epps is a government informant, do you?” Kenerson said. 

“I’ve seen no evidence he isn’t,” Pezzola shot back. 

There was plenty of evidence of his fellow Proud Boys “bumping into” Pezzola on the 6th at critical times, however. 

Like when Pezzola was first approaching the scaffolding, he identified himself in a series of frames from this area and then identified fellow Proud Boys William Pepe, Art Lashone (who he came to D.C. with) and again, “Hooks” and other Proud Boys. After he left the Capitol, he would see Greene again at his hotel, he said, and another Proud Boy identified in court as “Ronie.” When someone asked whether “Ronie” had bear-sprayed a police officer, Pezzola couldn’t say whether he recalled the conversation. He also couldn’t remember what he thought or said when Jeremy Bertino messaged Proud Boys around this time either to tell them they “should have gone further.” 

Pezzola’s temper grew most hot when Kenerson grilled him about his reasons for joining the Proud Boys. Where a day before Pezzola had smiled sheepishly and even laughed as he remarked that at 43 years old, he may have been “too old” to be a Proud Boy when he joined, he was downright surly when Kenerson asked him about his convictions that a “civil war was imminent” in the weeks before Jan. 6. 

It was a fact that the “other side” was trying to destroy the nation, Pezzola said. 

He and his way of life were under daily attack, he said. 

In a letter found in his property after his arrest, Pezzola once wrote at length about his hopes and fears, and his anxieties of a takeover of America by “radical socialists” or communists. Prosecutors say the letter was one Pezzola intended to submit to the Proud Boys when applying to join the organization. This was sometimes a requirement for prospects to the organization in late 2020.  

“You wanted to stand first on line to protect those you love and what you stand for?” the prosecutor asked. 

Angry and defensive, Pezzola testified: “That’s correct and that’s in line with standing against this corrupt trial with your fake charges.” 

He called the trial “fake” at another point too when Kenerson brought up social media posts Pezzola had upvoted or liked, including those from Tarrio and others, like one from Proud Boy Jeremy Bertino who said if the government wanted to declare war on the American people, they could have it. 

Pezzola boiled over. 

“At this point, if I didn’t have a case, I would probably bring up things like this too,” he sniped. 

Kenerson nodded passively and brought up a photo of Pezzola on the ground appearing to wrestle a riot shield away from an officer. 

“So is this fake evidence to you?” he said. 

“I say you interpret it fakely… this is a phony trial because of the way you’re trying to push it off,” Pezzola said. 

Like Rehl, Pezzola denied there was any “plan” on Jan. 6. Maybe they planned to storm the liquor store, he said, but that was it. Otherwise, when he got to D.C. on the 5th, he had no idea what to expect. He wanted to hear Trump speak. On the morning of the 6th, Pezzola said at first he didn’t know who was in charge. It was a “mishmash” of people, he testified initially. Then he said he assumed his now co-defendant Ethan Nordean was in charge because he held a megaphone. Then he said when they started marching to the Capitol, he knew that whoever was in front was leading the group. Extensive video footage played for the jury has shown Nordean and Biggs and Rehl were always at the front of the marching group with Nordean and Biggs specifically commanding the marching group consisting of dozens of Proud Boys to stop or go.

With yet more of his machismo to display, Pezzola finally said Nordean was in charge of the group. 

But “not of me,” he said. 

He was in control of himself. 

At trial, prosecutors also worked to pick apart whatever credibility Pezzola may have lent to his testimony by bringing out details about his lies to the FBI in the early days following his arrest.

In March 2021, while he was incarcerated, Pezzola claimed that he witnessed—firsthand—his co-defendant Joe Biggs and another man, Ryan Samsel, speak to each other moments before the very first breach of the Capitol. Pezzola told the FBI he saw Biggs flash a gun—a 9MM Beretta—and then he said Biggs told Samsel he better “defend his manhood” by plowing past police to prove he wasn’t antifa.

In court, Pezzola testified that he lied about this episode to the FBI at least twice because he thought it would improve his conditions at the jail where he was being held before this trial began. Video footage from the 6th shows Samsel and Biggs speaking but it has not yet been made clear what Samsel said to Biggs in that moment or vice versa. Samsel goes on trial later this summer. 

Pezzola said Samsel was detained in the jail cell next to him initially, and told him this story. Right away Pezzola said he knew it was fake but he nonetheless saw the story as a one-way ticket out of solitary confinement or to receiving his medication he was cut off from or for better “soy free” food that he wasn’t allergic to. He was eventually moved. 

Pezzola also told the FBI that when he was at the Peace Circle, he saw a group of Proud Boys harassing a young boy wearing a Black Lives Matter shirt and that he saw Samsel defend the boy and that later, Pezzola even escorted the boy away from the scene. All of that was untrue, all of it a lie. But admitting that it was a lie specifically more than once or twice in court was a visible struggle for Pezzola.  He time and again met Kenerson’s questions about the veracity of his statements to the FBI with the retort: “I wasn’t there” instead of “that’s not true” or “I lied.”

Though Pezzola testified that he believed the lie about Biggs is what ultimately got him moved into better conditions, Kenerson pointed out how self-serving Pezzola had been. He only got a hand up by falsely incriminating Joe Biggs. 

Pezzola seemed offended by the suggestion. Where loyalty to the Proud Boys was often just under or at the surface of his testimony, and he proudly proclaimed that he had refused to cooperate with the DOJ or take a plea deal, two years ago Pezzola seemed to sing a different tune. 

His attorney at the time, Jonathan Zucker, appeared to express interest in a plea agreement for Pezzola, saying that the father of two teenage girls was “consumed with guilt” and wanted to “disavow and seek to sever any relationship and involvement in future activities of the Proud Boys or similar groups.” 

 

The other day, DOJ announced charges in two cases related to FSB efforts to recruit in the US and overseas. Neither set of allegations was entirely new. But what got added to the allegations is of some interest.

Certainly, the fact that American citizens got charged in a Florida case for not disclosing that their political activism was funded, in part, by the FSB, seems to be of interest to Glenn Greenwald. The charges, along with a few overt acts, and the names of two FSB colleagues are what got added to an earlier indictment against the FSB handler, Aleksandr Ionov, filed last July.

Glenn won’t shut up about those charges, making appearances on Glenn Beck and Tucker Carlson’s show so all of them could lie about why members of the African People’s Socialist Party were charged.

The members of the APSP weren’t charged because they disagree with Joe Biden. They weren’t charged because they oppose the war in Ukraine.

They were charged because after one, Omali Yeshiteli, went on an all-expenses paid trip to Russia in 2015, the group started getting funding and completing requests for their FSB handler, Aleksandr Ionov, who ran a front called the Anti-Globalization Movement of Russia. For example, shortly after the trip, Ionov wrote the group and asked them to start a petition against the genocide of the African people in the US so that AGMR could start using it as propaganda. And when Russia needed someone to legitimize the “Donetsk People’s Republic,” in 2020, Ionov contacted the Floridians to publicly do so. And when Russia wanted to protest Twitter’s restrictions on Russian disinformation after the Ukraine invasion, Ionov flew one of the Americans to San Francisco to make it happen.

Russia wanted to be able to point to a certain kind of dissidence in the US, so they paid money to help sustain it. And the Americans didn’t disclose that they knew they were working with agents of Russia.

Glenn thinks only rich people like Tony Podesta should be held to foreign agent laws (Podesta wasn’t charged under a different law, FARA, for hiding his ties to a Ukrainian front group that Paul Manafort set up because he was paid by Manafort, and in any case, Glenn didn’t think much of Manafort’s charges for hiding the ties in real time). Glenn doesn’t think other people should have to disclose if they’re taking money — after they go on trips to Russia and start spouting Russian talking points non-stop from that point forward — from Russian spies.

It’s an interesting cause for Glenn and Tucker — who has his own curious tale about Russian ties — to champion.

Which brings us to the other case.

It charges Natalia Burlinova with attempting to do what Ionov succeeded in doing: getting Americans and others to unwittingly act as agents of Russia by recruiting them through her Russian government backed NGO, Creative Diplomacy, or PICREADI.

Burlinova was sanctioned — along with Ionov — last year, which suggests they may have a tie, perhaps the FSB officer they both report to.

Since she was already sanctioned, which would likely prevent her from traveling in any case, this complaint serves largely as a speaking document, which allows everyone she has had prior association with to understand her ties to the FSB.

For example, the complaint provides a detailed description of a trip she made to the US in 2018 and the emails the American participants sent to Burlinova after meeting with her. It doesn’t provide the content of the emails — but it makes those who sent them aware that the FBI knows what got sent.

Of even more interest is an article a former participant of Burlinova’s event wrote in 2020. Without explaining how he received it, Burlinova’s FSB handler sent it to her and said it’d be a really huge deal if it were published.

On October 30, 2020, the FSB Officer forwarded to Burlinova an article written by a participant in the 2019 Meeting Russia program, which argued that Russian malign influence efforts were actually legitimate uses of state soft power. The FSB Officer commented to Burlinova that the article was a huge result for them and would be revolutionary if printed by a named English-language newspaper in the United States and a named English-language newspaper in Europe.

The complaint doesn’t tell us whether it was published (update: it was this one, which was also posted on Burlinova’s site; h/t Alex Finley). But the description would be plenty for its author to understand that it had been the focus of internal discussion at the FSB.

Both these indictments necessarily focus on the US, but both conspiracies are international. Laying out the charges in the US and arresting anyone that would one day be arrested might something the FBI would want to do before sharing the underlying intelligence with allies.

And some of the details describe the greater international success of this effort. One of Burlinova’s biggest successes, for example, came in seeing two former participants in her yearly event elected to parliament.

On October 5, 2018, Burlinova informed the FSB Officer about two prior participants in another Russian public diplomacy program in which Burlinova had been involved. Burlinova reported that the two prior participants, both of whom resided in a European country, were running for public office. Burlinova stated that these were the results that take years to come into fruition. The FSB Officer responded that this was truly the result for which they were striving and requested that Burlinova provide more information about these prior participants and the election for public office so that the FSB Officer could prepare a report. The two candidates ran for parliamentary positions; one won in that election, and the other was elected subsequently to parliament.

Again, we don’t know which members of parliament these are and in which country, but others in their country likely recognize it.

A report in the WaPo — the timing of which may be coincidental or may explain why DOJ rolled out the charges earlier this week — describes the stakes. It describes the Kremlin’s involvement in the red-brown coalition opposing the Ukraine war in Germany.

The coming together of political opposites in Berlin under the banner of peace had been percolating for months, though the union remains ad hoc and unofficial. But marrying Germany’s extremes is an explicit Kremlin goal and was first proposed by senior officials in Moscow in early September, according to a trove of sensitive Russian documents largely dated from July to November that were obtained by a European intelligence service and reviewed by The Washington Post.

The documents record meetings between Kremlin officials and Russian political strategists, and the Kremlin’s orders for the strategists to focus on Germany to build antiwar sentiment in Europe and dampen support for Ukraine. The files also chronicle the strategists’ efforts to implement these plans and their reports back to the Kremlin. The documents do not contain any material that records communications between the Russian strategists and any allies in Germany. But interviews show at least one person close to Wagenknecht and several AfD members were in contact with Russian officials at the time the plans were being drawn up.

Like the Florida effort, the German one features manifestos written by the Kremlin.

The aim of a new political formation, according to a document dated Sept. 9, would be to win “a majority in elections at any level” in Germany and reset the AfD to boost its standing beyond the 13 percent the party was polling at then. The reset, laid out among the documents in a proposed manifesto for the AfD that was written by Kremlin political strategists, includes forging the AfD into the party of “German unity” and declaring sanctions on Russia as counter to German interests.

[snip]

It is not clear from the documents how the political strategists working with the Kremlin attempted to communicate with members of the AfD or other potential German allies about Moscow’s plans. But soon after the Kremlin gave the order for a union to be forged between Wagenknecht and the far right, AfD deputies began speaking in support of her in parliament and party members chanted her name at rallies. Björn Höcke, chairman of the AfD in Thüringen in eastern Germany, publicly invited her to join the party.

This is the same kind of effort — but much more impactful — as the Ionov one was fostering in the US (though the right wing secessionist described in it as an unindicted co-conspirator, understood to be Louis Marinelli, was not arrested).

And it’s the kind of horseshoe leftist that Greenwald once posed as before he joined up with Tucker full time … most recently to claim these socialists were arrested for their dissidence and not because they were hiding ties with Russian spies.

Update: RFERL did a bunch of interviews with people who attended Burlinova’s program, some who were shocked about the FSB tie, some who were quite blasé about it.

I’m not sure whether it was just chance or whether Ben Smith knew in advance that BuzzFeed would announce the closure of its news division on the same day that he posted an account of publishing the Steele dossier. His account doesn’t explain whether the cost of defending against serial Russian lawfare for publishing the dossier made it harder, in the aftermath, to pay journalists’ salaries, but it’s a question that deserves an answer.

But Ben’s account — which focuses, as most of Ben’s writing does, on insider news media stuff — makes two grave errors.

The first is that — even though he quotes Pete Strzok describing how the dossier framed the Russian investigation, thereby inoculating Trump against accountability for the very real scandalous behavior he had with Russia — Ben falsely suggests that the dossier was the genesis of the public concern about Trump’s ties to Russia.

We had embedded it as a PDF, which meant that it could travel context-free, without our article’s careful disclaimers, and that’s exactly what happened. I watched uneasily as educated Democrats who abhorred Trump supporters’ crude rants about child sex rings in Washington pizza joints were led by the dossier into similar patterns of thought. They read screenshots of Steele’s report; they connected the dots. They retweeted threads about how the plane of a Russian oligarch—previously unknown to them, now sinister—had made a mysterious stop in North Carolina.

[snip]

It had blown wide open a Russia investigation and forced voters to ask just why Trump seemed so friendly with Vladimir Putin.

[snip]

An FBI agent who investigated Trump, Peter Strzok, later said the dossier “framed the debate” in a way that ultimately helped Trump: “Here’s what’s alleged to have happened, and if it happened, boy, it’s horrible—we’ve got a traitor in the White House. But if it isn’t true, well, then everything is fine.”

The notion that Democrats and national security hawks weren’t concerned about Trump’s Russian ties until January 10, 2017 is ludicrous. The effort to understand Trump’s Russian ties went into high gear on July 27, 2016, when he encouraged Russia to attack his opponent and floated recognizing the annexation of Crimea. It never stopped thereafter.

And, as I had to explain patiently to Columbia Journalism Review, even the intense press reporting on Trump’s real ties to Russia started before January 10, because the WaPo was already onto Mike Flynn’s lies about his outreach to Sergey Kislyak by then. Strzok’s point, I think, is that publishing the dossier made it easier for Trump to get away with attempting to undermine sanctions on Russia and all the rest because at least undermining sanctions wasn’t a pee tape.

No one needed the dossier to heighten concerns about Trump’s fondness for Russia. That’s a myth created by Russiagate [sic] peddlers trying to distract from the very real scandal of Trump’s ties to Russia.

Ben’s other silence, though, is irresponsible.

As I have noted, as the Carter Page IG Report makes clear, and as Republicans in Congress have come to agree, there’s abundant reason to believe that Russians started feeding Igor Danchenko with disinformation from the start. Lawyers for Oleg Deripaska were likely the client for a Steele collection effort targeting Paul Manafort in March 2016. According to declassified footnotes in the IG Report, Deripaska likely learned of the dossier project before the second report. And he demonstrably played a double game throughout 2016, getting Steele to feed Bruce Ohr damaging claims about Manafort at the same time as his aide, Konstantin Kilimnik, was exploiting Manafort’s legal and financial vulnerability to get information on the Trump campaign and a commitment to help carve up Ukraine.

This dynamic is utterly central to understanding the dossier. Someone who played a central role in the 2016 Russian operation knew about the dossier project, and had means to know of Danchenko’s collection network, almost from the start. And that makes it likely that at least some of the content of the dossier was tailored to be wrong in ways that benefitted the Russian operation.

Ben’s silence about the likelihood that he unwittingly peddled Russian disinformation is all the more embarrassing given how his post transitions directly from suggesting that John Durham had “poked holes in Steele’s sourcing” to noting that there was something that Trump actually was lying to cover up: the impossibly lucrative Trump Tower deal in Moscow.

Simpson then told Ken something he didn’t know: Steele had been working the case of the president-elect, Donald Trump, and he’d assembled evidence that Trump had close ties to the Kremlin—including claims that Michael Cohen, one of his lawyers, had held secret meetings with Russian officials in Prague, and that the Kremlin had a lurid video of Trump cavorting with prostitutes in the Ritz-Carlton Moscow that would come to be known as the “pee tape.”

[snip]

But although the biggest-picture claim—that the Russian government had worked to help Trump—was clearly true, the release of Special Counsel Robert Mueller’s investigation in April 2019 did not support Steele’s report. Indeed, it knocked down crucial elements of the dossier, including Cohen’s supposed visit to Prague. Internet sleuths—followed by a federal prosecutor—had poked holes in Steele’s sourcing, suggesting that he’d overstated the quality of his information.

And there had always been a more mundane version of the Trump-Russia story. Trump was the sort of destabilizing right-wing figure that Putin had covertly supported across Europe. Trump’s value to Putin was related not to a secret deal, but to the overt damage he could do to America. And Trump, BuzzFeed News’s Anthony Cormier and Jason Leopold discovered, had a more mundane interest in Russia as well: He had drawn up plans to build the biggest apartment building in Europe on the banks of the Moskva River. The Trump Organization planned to offer the $50 million penthouse to Putin as a sweetener.

That real-estate project wasn’t mentioned anywhere in the dossier. Yet it seemed to explain the same pattern of behavior, without the lurid sexual allegations or hints of devious espionage.

The man responsible for publishing both the Steele dossier and the best reporting on the Trump Tower Moscow deal seems not to understand that false claims about Michael Cohen in the dossier were likely there because of the Trump Tower deal.

Ben invokes what Durham’s failed prosecution revealed about (what Ben mistakenly claims to be) Danchenko’s sourcing, without laying out the import of Danchenko’s ties to Charles Dolan: Dolan gave the source of the Cohen claims in the dossier, Olga Galkina, direct access to Dmitri Peskov, the one man in Russia with proof that when Trump falsely claimed in July 2016 that he wasn’t pursuing real estate deals in Russia, he was lying. Even Durham implied this was the import of Dolan’s relationship with Galkina! Dolan was important because he put Galkina, who was sending dirt on Trump to her childhood buddy, Igor Danchenko, in close touch with Peskov.

The source of the claims that Cohen had secret communications with the Kremlin in the dossier had direct ties to the one guy in Russia, Peskov, who provably knew that Cohen really did have secret communications directly with the Kremlin that he and Trump were lying to hide.

Once Trump publicly lied about chasing real estate deals in Russia in July 2016, it made the notes Peskov’s aide took, showing that Cohen had agreed to work with sanctioned banks and a retired GRU officer as fixer in order to chase one such deal, far more valuable to Russia, particularly after it became clear in the US that the GRU was behind the hack of Hillary. So it is likely not random at all that someone with direct access to Peskov told Danchenko that Cohen — who was lying to hide his real direct contact with the Kremlin during the election — had other, more damning direct contact with the Kremlin. It raised the stakes of Trump’s and Cohen’s lies. It raised the value of Russia’s silence about the earlier conversation with Peskov. To the extent that everyone kept their shared secret — and they did for the entire first year of the Trump Administration — it provided cover for the lies that Cohen would tell to Congress.

From the start, the FBI had warnings that the Cohen in Prague story was disinformation. And it just so happens that the story, which came from someone with ties to Peskov, repeated a true fact that Peskov knew: that Cohen really did have secret communications with the Kremlin, communications that had already compromised Trump and Cohen with Russia before the hacking even started. If the Cohen in Prague story was disinformation (and, again, FBI got warnings it was the day after Ben published the dossier), it was disinformation that made that earlier compromise more powerful.

And Ben Smith, who played a key role in disseminating that likely disinformation, appears to not even understand that, much less want to reflect on his role in being an unwitting mule for Russian disinformation.