Index to posts in this series

The standard story of the origin of our nation tells us that the Declaration of INdependence asserts that all men are created equal and naturally endowed with certain rights including the right to life, liberty and the pursuit of happiness; that the Revolutionary War was fought to uphold these principles; and that the principles are instantiated in the Constitution. We didn’t always live up to those principles but we’ve always worked towards them, and we get closer all the time. P. 9 et seq. In the first post in this series, we saw that the Declaration doesn’t fit well with the standard story. What about the Revolutionary War and the Constitution?

The Revolutionary War

Roosevelt doesn’t think there was a single cause for the War.

Different people sought independence for different reasons, and likely they sometimes said what they thought would advance their cause rather than what they truly believed. History requires interpretation, and a claim to possession of the one singular truth is a hallmark of ideology. P. 55.

The Declaration explains the decision of the Colonists to throw off English rule. It claims that governments derive their just powers from the consent of the governed. The Declaration complains that the King cut off trade between the Colonies and the rest of the world. It claims that the King ignores the laws and even the courts of the Colonists. The King attacks the Colonies directly, keeps a standing army in the Colonies, and quarters troops on the population. The King imposes taxes on the Colonies even though they are not represented in Parliament. The King stirs up the “merciless savages” to attack and murder the Colonists. The only reference to slavery is oblique: the King “… has excited domestic insurrections amongst us….”

No doubt one or more of these claims were a factor for some of the Colonists. The principle of consent itself may have motivated some of them. The listed claims may have motivated others. Perhaps some were motivated by a desire to bring about equality or at least to end slavery (Thomas Paine and Benjamin Franklin, for example.) Roosevelt points out that protecting slavery may have brought others into the war:

There isn’t much evidence supporting the idea that slavery was an issue. Of course just as people say things they don’t believe to advance their cause, others may keep quiet about their actual reasons if they would hurt the cause. There was little to be gained by saying we’re rebelling because we want to enslave people. Roosevelt suggests that

… for some of the Patriots, a desire to preserve slavery was one reason—and maybe a strong one—to declare independence[.] On its face, this is pretty plausible. Just as it seems unlikely that northern Patriots had slavery at the front of their minds, it is unlikely the southern ones didn’t have it at least at the back of theirs. P. 53.

In any event it’s hard to argue that the War was fought over the principle of equality for anyone except white men and especially white men with property. A telling detail: the British offered slaves freedom if they fought for the King. After the War the Colonists demanded the return to slavery of those people. The British refused.

Nor was the Revolution fought to advance a broad principle of equality. Roosevelt says that the statement that all men are created equal is a reference to the fictional state of nature assumed to exist in the beginning. The broader concept of equality would have to wait for the French Revolution and the Declaration of the Rights of Man and of the Citizen in 1789. It asserts that “Men are born and remain free and equal in rights.” This is a statement about real people living in real societies, not imaginary savages in the wild.

The Constitution

The Constitution was necessary because the Articles of Confederation failed to create a strong enough central government. The states were fighting among themselves, refusing to adhere to treaties, imposing trade restrictions and refusing to pay the debts incurred in the Revolutionary War. The preamble states the reasons for adoption of the Constitution, starting with “to produce a more perfect union”, and ending with “to secure the blessings of liberty to ourselves and our posterity.” Roosevelt says that the chief goal of the Constitution was unity, with liberty at the bottom of the list.

If the Constitution were actually about individual human rights, it would include provisions that protected the rights of individuals. It doesn’t. The Founders Constitution restricts the Federal Government’s right to intrude on the specific rights in the Bill of Rights, but the states were free to intrude as much as their own constitutions allowed. It took the 14th Amendment to change that, and to make the Federal Government the guarantor of individual rights against itself and against the states.

As to slavery, there are three provisions that directly or indirectly support its continuation: the Three-Fifths Clause, a provision barring the Federal Government from ending the international slave trade until 1808, and the Fugitive Slave Clause. Each of these cemented the power of the slave states.

The Three-Fifths Clause redressed the population imbalance between the slave states and the rest, allowing slaves to be counted at ⅗ of a person for purposes of calculating the number of Representatives allocated to each state. It worked with the provision giving each state two senators to insure a balance in the legislature between slave and free states. In addition it gave the slave states an edge in the Electoral College with respect to population. Thomas Jefferson would have lost the election of 1800 to John Adams without the Three-Fifths Clause. Ten of the first 12 presidents were slavers. P. 76.

The prohibition on ending the slave trade before 1808 enabled slavers to rebuild their holdings by importation after losses in the Revolutionary War. The British offered freedom to any slave who fought for the King, and thousands of slaves accepted this offer. Others escaped their bonds. The Colonists demanded return of these escapees, but the British refused. The outcome is that slave population rose from 697,497 in the first census of 1790 to 1,191,362 in the 1810 census.

The Fugitive Slave Clause says that slaves who escaped to a free state did not gain their freedom, and that the free state was required to return them to their enslavers. This was a big win for the slavers. Under the Articles, each state determined how it would treat slaves in their territory; in fact that rule remained in effect as to slaves brought to free states by their masters. The Constitution stripped the States of their right to decide the question of slavery as to escapees, which today we would call a violation of States Rights.

As South Carolina delegate Charles Cotesworth Pinckney boasted upon his return from the Constitutional Convention, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” P. 79.

Discussion

1. The standard story has a central place in our understanding of ourselves as Americans, regardless of other political views. Other nations have national stories, but it seems like we put a lot of emphasis on this story and the two documents, more than citizens of other countries do.

2. One consistent element of our self-image as Americans is that we consent to our government. In prior posts I’ve discussed the theoretical idea of the social contract. That’s not what I’m talking about. We believe that government only works if people consent to it.

Apparently that belief is not shared by a substantial of Republicans today. In this they are like the secessionist Confederates, as Heather Cox Richardson shows.

“We do not agree with the authors of the Declaration of Independence, that governments ‘derive their just powers from the consent of the governed,’” enslaver George Fitzhugh of Virginia wrote in 1857. “All governments must originate in force, and be continued by force.” There were 18,000 people in his county and only 1,200 could vote, he said, “But we twelve hundred . . . never asked and never intend to ask the consent of the sixteen thousand eight hundred whom we govern.”

3. Regardless of what Jefferson meant with the phrase all men are created equal, today we flatly mean that we’re all born equal, we’re all entitled to equal rights, and that one function of government is to guarantee that equality.

Apparently that belief is not shared by a substantial number of Republicans.

DOJ has unsealed the arrest affidavit for Jack Teixeira.

It describes the following investigative steps (and leaves out the one that Bellingcat got to first):

April 9 [Not described]: Based on conversations with the guys involved, Aric Toler lays out how documents traveled from servers we now know were operated by Teixeira onto WowMao.

April 10: FBI interviews the user who cross-posted a document released by Teixeira (this may be Lucca), who provided information about how Teixeira had first leaked text, then leaked documents, as well as providing basic information about Teixeira.

On or about April 10, 2023, the FBI interviewed a user of Social Media Platform 1 (“User 1”). According to User 1, an individual using a particular username (the “Subject Username”) began posting what appeared to be classified information on Social Media Platform 1 in or about December 2022 on a specific server (“Server 1”) within Social Media Platform 1. According to User 1, the individual using the Subject Username was the administrator of Server 1. User 1 indicated that the purpose of Server 1 was to discuss geopolitical affairs and current and historical wars.

According to User 1, the individual using the Subject Username initially posted the Government Information as paragraphs of text. However, in or around January 2023, the Subject Username began posting photographs of documents on Server 1 that contained what appeared to be classification markings on official U.S. Government documents.

[snip]

User 1 also described to the FBI his interactions with the individual posting under the Subject Username. In the course of those interactions, User 1 learned that the individual posting under the Subject Username called himself “Jack,” appeared to reside in Massachusetts, and claimed that he was in the United States Air National Guard (“USANG”). User 1 described the individual posting under the Subject Username as a white male who was clean-cut in appearance and between 20 and 30 years old.

April 12: Subpoena returns from Discord reveal that Teixeira registered the server in question under his own name, from his mom’s address, which is the same address the Air National Guard had for him.

According to these records, the individual using the Subject Username is the administrator of Server 1, the billing name associated with the Subject Username is “Jack Teixeira,” and the billing address associated with the Subject Username is a specific residence in North Dighton, Massachusetts. Teixeira listed the North Dighton, Massachusetts residence as his primary residence on employment paperwork with the USANG. On April 13, 2023 the FBI arrested TEIXEIRA at that residence in North Dighton, Massachusetts.

April 13: User1 gave a positive ID of Teixeira based on his driver’s license

On April 13, 2023, User 1 also identified TEIXEIRA’s Registry of Motor Vehicles photo from a photo lineup as the individual he knew as “Jack” who had posted Government Information under the Subject Username on Social Media Platform 1.

nd: OGA1 provides log files showing Teixeira printing out the single charged document the day before it got cross-posted.

The Government Document posted on Social Media Platform 1 was accessible to TEIXEIRA by virtue of his employment with USANG. According to a U.S. Government Agency, which has access to logs of certain documents TEIXEIRA accessed, TEIXEIRA accessed the Government Document in February 2023, approximately one day before User 1 reposted the information on the Internet. User 1 told the FBI that the information he reposted was originally posted on Server 1 by the individual using the Subject Username.

nd: OGA2 provides log files showing Teixeira searching for this leak investigation the day the leak was first reported.

In addition, according to a second U.S. Government Agency, which can monitor certain searches conducted on its classified networks, on April 6, 2023, TEIXEIRA used his government computer to search classified intelligence reporting for the word “leak.” The first public reporting regarding the Government Information appeared on or around April 6, 2023. Accordingly, there is reason to believe that TEIXEIRA was searching for classified reporting regarding the U.S. Intelligence Community’s assessment of the identity of the individual who transmitted classified national defense information, to include the Government Document.

Update: Spelling error of Teixeira fixed.

 

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 took more than three months but this week at the Proud Boys seditious conspiracy trial, the first defendant to step forward and testify was the group’s Philadelphia chapter leader Zachary Rehl. 

Rehl took the stand over two days and emphatically denied that there was a plan to stop Congress from certifying the 2020 election on Jan. 6, an argument that shouldn’t surprise any juror that has patiently heard evidence over these last 53 days. 

The violence that consumed the U.S. Capitol was never part of the objective— if there even was an objective Rehl would say, because, after all, there was no plan. He wasn’t in a position to direct what happened, he testified, and at the end of the day, he asked jurors to believe he was just a man who liked to protest and party afterward. 

Rehl has sat at the back of U.S. District Judge Timothy Kelly’s courtroom now for months as the evidence in the case against him and his co-defendants Henry “Enrique” Tarrio, Joseph Biggs, Ethan Nordean, and Dominic Pezzola, has stacked up at a punishingly slow pace. 

When Rehl finally sat in the witness box, with a U.S. Marshal seated behind him barely visible to the jury, his speech was often muddled, his hands rarely still. 

The 37-year-old former U.S. Marine at times seemed overeager to get his side of the story out, occasionally speaking over his attorney, Carmen Hernandez as she conducted her direct examination.

After Donald Trump told them to stand back and stand by at the presidential debates—”let’s be real, the biggest platform in the world mentioned the Proud Boys,” Rehl testified on Tuesday—the influx of new recruits had exploded. This was one of the precursors to Henry Tarrio’s creation of the group’s exclusive Ministry of Self Defense, or MOSD, he said. 

At trial, the defense has worked to throw off the allegation that MOSD was a hub for Proud Boy leaders to coordinate a plot for Jan. 6.

Instead, they argue it was a division for chapter leaders to discuss their “marketing” and “operations” for rallies or other events they would attend, and moreover, to establish protocols for self-defense after the stabbing of North Carolina chapter leader Jeremy Bertino on the night of the “Stop the Steal” rally in December 2020. Bertino has since pleaded guilty to seditious conspiracy. 

Tarrio, Biggs, and Nordean, Rehl testified, led the MOSD “marketing team.”’ Rehl ran “operations” with fellow Proud Boy John Stewart, also known as Johnny Blackbeard. Stewart has pleaded guilty, Tarrio’s attorney Sabino Jauregui let slip in court in October 2022. The only other member of the operations team was a third man that Rehl said he could not recall the name of in court. 

The Seattle Times reported that the third member was Proud Boy Robert Fussell aka Rex Fergus from Washington State. Notably, a web archive shows Fussell’s Parler profile photo was once a selfie with Roger Stone, a key player in Trump’s push to overturn the 2020 election results. There is no public record that Fussell has been charged with any crimes.

It was “clear as day,” Rehl told the jury this week that the Ministry was only about protecting Proud Boys and nothing further. Yet during proceedings this February, prosecutors showed jurors clips from a Dec. 30, 2020 video conference for the Ministry where Rehl, Tarrio, Nordean, Biggs, and other members discussed the 6th.

Conversation did involve concerns over how they would respond to potential threats from “antifa” or leftists at the looming event. But tucked into the roughly 90-minute meeting (which was one of only two pieces of evidence that Joseph Biggs entered before waiving his right to testify; the other was a mostly biographical stipulation heavy on his military service) were several moments where information about the 6th seemed to be gatekept.

In one segment, Tarrio tells someone who asked for details about Jan. 6 that it would be discussed in a separate chat later and on what would amount to a need-to-know basis for people who would “be on the ground.”

Some of the people who would end up on the ground were the men Rehl brought into MOSD himself including Isaiah Giddings, Brian Healion, and Freedom Vy. Rehl told the jury he agreed to bring a “10-man team” to D.C., and that this was an expectation set by Tarrio for other chapter leaders during the Dec. 30 MOSD meeting.

Prosecutors said this was a “fighting force.” Rehl’s attorney has recoiled at the suggestion during trial. Last month before bringing West Virginia Proud Boy Jeff Finley in for testimony on Rehl’s behalf, she argued unsuccessfully that Finley’s charging decision should be entered into evidence to deflect the government’s claims that Rehl brought a “fighting force” into the Capitol. 

Since Finley pleaded guilty to a single misdemeanor charge of entering restricted grounds, and Finley and Rehl had spent time together in and out of the Capitol, this, she argued, should go toward supporting Rehl’s claims of his own peaceful and lawful conduct on Jan. 6. 

On his own time before jurors, Rehl recounted how he drove to D.C. with Healion, Giddings, and Vy. They shared a room at the upscale Darcy hotel on the 5th, “protested” on the 6th, marched and, yes, he admitted, went inside the Capitol. On the stand, Rehl’s attorney didn’t spend much time at all asking Rehl to explain his time inside Senator Jeff Merkley’s office where Proud Boys and rioters congregated and at least one individual smoked marijuana. After he left the Capitol, he said he got drunk with his friends. And when it was all over on Jan. 7, he returned to Pennsylvania, drove his friends home, and spent the afternoon “hungover,” “stressed” and “hungry” he said. 

Rehl’s delivery on this sequence of events sounded confident as he moved through the details rapidly. When they left, the men had purchased beers, a 30-case for each, he said. 

But once off the stand, a source reached out to Empty Wheel to “clarify” that record: the beers were purchased on the way to Washington. So, in effect, it was a pre-game instead of a post-game celebration, a detail that in the grand scheme of the charges he faces wouldn’t seem to matter so much. The “clarification” however, did make Rehl’s testimony seem all the more rehearsed. 

Though Rehl, whose father was a policeman and his grandfather too before him, said he thought the violence of Jan. 6 was a “disgrace” and he testified that he did not and could not have impeded or assaulted officers nor would he condone those who did, a day after the attack on the Capitol, Rehl seemed nonetheless pleased with the role he ultimately played in the greater events of the day. 

“Bad ass pic in DC,” Rehl wrote in a text message sharing this photo on Jan. 7:

His reverential attitude toward law enforcement in court also breaks with what his one-ztime brother in black and yellow, Isaiah Giddings, told authorities about Rehl after Giddings pleaded  guilty to disorderly conduct. Rehl, like Tarrio, Nordean, Biggs, and hundreds of other Proud Boys by mid-December 2020, had turned on police, he said. 

Text messages and videos in evidence have indicated steady animosity from Proud Boys toward police in the run-up to the 6th. And on that morning, video footage shows Nordean, with Rehl and Biggs just nearby, repeatedly stoking fury and zeroing in on law enforcement and their treatment of the group’s head honcho.

“Enrique shows up and gets detained before he gets to D.C. and he’s charged with two felonies, multiple felonies for what?” Nordean shouted through a megaphone to a group gathered around him on Jan. 6. 

Tarrio was arrested in D.C. on Jan. 4 for burning a Black Lives Matter banner that he stole from a historic Black church on Dec. 12. When arrested, he was also charged with possessing two high-capacity firearm magazines. Jurors have seen dozens of text messages where Tarrio’s arrest appeared to throw the defendants and other members, including Rehl, into a tailspin as they worried about whether Tarrio had the wherewithal to delete Proud Boy communications from his phone. 

Later, when Proud Boys in a large marching group passed police on the street who were gearing up, one Proud Boy, Chris Worrell, was heard yelling at officers to “pick a side” and to “honor your oath.” Worrell allegedly attacked police at the Capitol with pepper spray. He’s pleaded not guilty and waived his right to a trial by jury. 

As for Rehl, he wasn’t seen or heard attempting to dissuade Worrell, if he heard him at all, and he wasn’t seen or heard ever attempting to dissuade any Proud Boys from their ugly and often violent rhetoric in their chats. 

When Hernandez asked Rehl about this in court, his tone was particularly pointed and he tapped the desk before him with a single finger to punctuate his words. If he didn’t say anything to someone it didn’t mean anything. He wasn’t there to police the chats, he said. 

“I’m my own person,” the Proud Boy chapter president said. 

Their members were “grown ass men,” he added.

When Hernandez asked him what that meant, he offered testimony that would seem almost too perfect for prosecutors to pass up once they get Rehl under cross-examination next week. 

“It’s someone who takes responsibility for their own actions, conduct, and statements. If a man goes into a chat and says something stupid, that’s on him. Unless a guy is in a chat sitting there and saying he’s going to go attack someone, if he’s got plans—well, it’s just probably bluster anyway.”

Rehl hung a lot of his testimony’s weight on blustering. But prosecutors argue it wasn’t just empty talk but proof of motive and intent. 

That would include a Jan. 7 text stream found in the new MOSD channel that was set up after the old MOSD chat was nuked following Tarrio’s arrest. 

In a stream of those messages shown to jurors this week, one Proud Boy, “E-Geezy” urged members to “have faith… we did our part yesterday.” Another Proud Boy “Joshua Maxstud” responded but his message is missing, something that digital forensic experts have testified indicates they were deleted. 

Rehl replied after the blank text: “I find this hard to believe now. I’m proud as fuck of what we accomplished yesterday. But we need to start planning we are starting planning for a Biden presidency.” 

Rehl told jurors when he said he was proud he was referring to the protest on Jan. 6 generally speaking. 

“What I saw was huge crowds of people waving flags protesting and I was proud to be part of something like that. Like I said, it was a historical moment,” he said. 

And as for his remarks about “planning” for a Biden presidency, Rehl said it was about telling people to “stop with the conspiracies” of a stolen election. 

Just a few weeks before, Rehl seemed more than happy to endorse those conspiracies. And to the point of bloodshed. 

In a Nov. 16 text message, Tarrio voiced his concerns that if Biden “stole” the election, Proud Boys would be “political prisoners.” Nordean, in a text the next day, said the “Spirit of 1776 has resurfaced… good luck to all the traitors…you’re gonna need it.” 

Rehl replied: “Hopefully the firing squads are for the traitors trying to steal this election from the American people.” 

Rehl told the jury he never intended to go inside the Capitol on Jan. 6 but when he finally decided on it, he testified that he had no idea anyone was inside but Capitol Police officers. At one point he said he thought lawmakers had left and Pence had been evacuated. 

At another point, he told the jury: “Well there was a proceeding going inside, I didn’t want to affect anything going on inside. I wanted the legal process to play… this is the process our country was founded on. That’s what was playing out on Jan. 6 and I had no intention to go into that building if members of Congress were going to be in that building and I didn’t go in there until after I knew they weren’t going to be in there,” he said. 

Police officers weren’t barring any door to his entry when he got inside either, he claimed. 

“At the time, they seemed welcoming to people coming in at that time [sic],” Rehl said. 

The scenes were reminiscent of a crowded “baseball game” or a “concert” with so many people crowded into a single area and heading in a single direction. 

He told the jury it was other Trump supporters who were “rowdy” instigators that knocked over barriers and plowed through police lines. It wasn’t him or the Proud Boys.

“I seen some people shaking some gates over there. Honestly, when that was going down, I knew of protests going on at Capitol grounds. I thought people were trying to get there earlier, some of the protests were being advertised to go on at 1 p.m. It was 12:53… when we collided with that crowd of people, that crowd was really rowdy and when they started shaking the gate, I heard it and I went over there to investigate the scene and see what’s going on,” Rehl said.  “The people shaking barriers must have been just trying to get to a stage, he said. 

“You’re giving me this look,” he then remarked to his attorney, “But it’s the honest God’s truth.”

At 2:49 p.m. on Jan. 6, as some of the worst violence exploded inside the Capitol, records show Rehl sent a text to Proud Boys: “They just broke all the doors and windows open. People pouring in.” 

On his first day testifying, Rehl told the jury he didn’t see any violence toward anyone. He told the jury he didn’t see any Proud Boy engaged in any violence.

“I didn’t think anyone had done anything at all,” he said. 

That included his co-defendant Dominic Pezzola, the New York Proud Boy and member of the Ministry of Self Defense who was seen in video footage bashing open a window with a police riot shield he allegedly stole from an officer during an intense scuffle. Prosecutors allege Pezzola’s actions allowed rioters to stream inside the Capitol, ultimately setting off the first major breach of the day. 

On his second day of testimony, Rehl left Pezzola to swing in the wind. 

“He went off on his own,” Rehl said. 

Pezzola, also a former Marine, had discredited MOSD with his actions.

This was what MOSD was “supposed to prevent,” he testified.

“I guess it made us all look bad,” he added. 

This January, when Proud Boy Matthew Greene testified on behalf of the government, he said he and Pezzola were “openly expecting a civil war” and that this was the commonly held belief among the group. 

Rehl wasn’t standing very far from where Pezzola allegedly stole the riot shield from police in a bitter tug-of-war but Rehl testified he couldn’t see anything. Video footage shows Rehl facing in the overall direction of the episode with Pezzola and he can be seen his hands up, gripping a cell phone as he films. Rehl said he couldn’t see anything too far ahead of him in the crowd. 

Rehl denied as well that it was his voice captured by his phone in a video he shot where a man’s voice is heard screaming “fuck them, storm the Capitol!” before an initial breach of police barriers around 10:17 a.m. 

At trial, his wife Amanda testified that she didn’t recognize the voice as Rehl’s. Through a rushed and rambling explanation in court, Rehl said the voice wasn’t his but was from a man just nearby. Prosecutors have tried to draw comparisons for the jury by sharing that footage and another video where Rehl is heard clearly exclaiming that he thinks he can see Trump’s motorcade in the road before he and other Proud Boys finally make it to the Capitol.

Separately, in yet more footage, Rehl can be seen and heard perfectly clearly urging Proud Boys that members of the press or media should be shooed off as they first gather at the Washington Monument on the morning of the 6th. 

He told the jury he didn’t want the press around because he feared being doxxed. Ironically the footage of Rehl saying this is shot by Proud Boy videographer Eddie Block who was live-streaming. 

The defense has argued often that a conspiracy wouldn’t be filmed and conspirators wouldn’t ask media of any kind to follow them or document their activities. 

Jan. 6 was essentially a “photo op,” Tarrio’s attorney Sabino Jauregui has argued.

 Other witnesses for the defense have called it a “meet-and-greet” and that’s what Rehl has chalked it up to as well. 

And yet when Block is filming the Proud Boys on multiple occasions on Jan. 6, trying to capture every moment he can while asking for “likes” and “subscribes” on the live stream, he can be heard remarking at various points that he should give Nordean, Biggs, Rehl and others like Charles Donohoe, space or privacy when they would stop along the route to the Capitol and huddle only with each other. 

Donohoe has pleaded guilty to conspiracy to obstruct an official proceeding as well as assaulting, resisting, or impeding officers. 

Further potentially hampering Rehl’s credibility, text messages extracted from the defendants’ phones show Rehl telling members of MOSD they have to delete their messages person by person after Tarrio was arrested just before the insurrection. 

Donohoe, who originally gave the instruction about deleting messages to MOSD members after Tarrio’s arrest, replied to Rehl: “Well at least they won’t get our boots on ground plans because we are one step ahead of them.”

In that same vein, Rehl’s co-defendant Joe Biggs on Jan. 5 told members in the newly stood-up MOSD chat he had just talked to Tarrio and “we just had a meeting woth [sic] a lot of guys. Info should be coming out.”

“We have a plan. I’m with Rufio,” Biggs wrote, using Nordean’s handle in their chat, Rufio Panman. 

“What’s the plan so I can pass it to the MOSD guys?” Donohoe asked. 

“I gave Enrique a plan. The one I told the guys and he said he has one,” Biggs replied. 

Outside of the presence of jurors this week, Rehl’s attorney let her anxiety about the Justice Department’s impending cross air out. 

They would “savage” her client once given the chance, she told Judge Kelly. 

It was expected that Rehl would finish his testimony early this week and that prosecutors would be crossed by Wednesday with defendant Dominic Pezzola in the wings to testify right afterward. A scheduling issue with a juror abbreviated the week precluding the jury from sitting on Thursday and Friday. 

Perhaps milking an opportunity to let jurors sit with her client’s testimony over a long break or perhaps trying to avoid the inevitable cross of her client, Hernandez spent the bulk of her direct examination of Rehl asking questions at a grindingly slow pace on Wednesday afternoon. Oftentimes, she would flip through her notes at the podium as the court sat in silence for a minute or two at a time. For at least a half hour, she went down the list, charge by charge, even breaking the sentences apart to elicit a yes or no answer from Rehl. 

“Did you aid and abet anyone with throwing a watter bottle at a law enforcement officer?” Hernandez asked. 

“No,” Rehl testified. 

“Did you aid anyone with throwing a water bottle at a law enforcement officer?” she asked.

“No,” Rehl testified. 

“Did you abet anyone with throwing a water bottle at a law enforcement officer?” she asked. 

“No,” Rehl testified. 

It went on and on like this. 

Jurors in this trial have already been subjected to long and near-daily delays due usually to internecine fights over evidence sparked by the defense (with a lot of the issues already litigated pre-trial). Adding to this, late last month CNN reported that several jurors had been approached by members of the public outside of the courthouse. One juror said she felt she was being followed. 

On Thursday, while the jury was out, a hearing that was meant to be sealed from the public and press was not, and in the process, reporters who had gathered in the media room briefly heard proceedings. CNN reported it was during this time that they learned Judge Kelly would deny a motion for mistrial from all of the defendants sparked by the episode with the jury. 

The defense suggested since the jurors had talked to each other about the confrontations, they couldn’t be impartial. Kelly disagreed. 

Next week, Pezzola is on course to testify. 

Though things came yet again to a grinding halt this week, the parties and judge generally seem optimistic that they could finally get into closing arguments within the next week to week and a half. And then it will be left to the jury to deliberate.

 

CORRECTION: The initial report stated that Finley cooperated with the government. He did not. He had a plea agreement but he was subpoenaed for his appearance by Rehl’s attorney.

I’m going to share something I’ve been laughing to myself about for months, since before I wrote this post on how the financial aspect of Jack Smith’s investigation would be a way to break through the otherwise formidable wall of lawyer-witnesses between investigators and Trump’s crimes.

There’s a reason why the fundraising aspect of Trump’s Big Lie has been accessible to investigators, even beyond the fact that there’s boatloads of financial evidence available with a subpoena. That’s because reporters, including Josh Dawsey, were able to track Trump’s fundraising in real time back in 2020, and when they saw what he was doing, they asked the Director of Communications for Trump’s campaign, Tim Murtaugh, about it.

Heck, Dawsey even wrote a story on December 1, 2020, over a month before the Big Lie led to an insurrection, reporting on this scam.

President Trump’s political operation has raised more than $170 million since Election Day, using a blizzard of misleading appeals about the election to shatter fundraising records set during the campaign, according to people with knowledge of the contributions.

The influx of political donations is one reason that Trump and some allies are inclined to continue a legal onslaught and public relations blitz focused on baseless claims of election fraud, even as their attempts have repeatedly failed in court and as key states continue to certify wins for President-elect Joe Biden.

Much of the money raised since the election is likely to go into an account for the president to use on political activities after he leaves office, while some of the contributions will go toward what is left of the legal fight.

[snip]

The donations are purportedly being solicited for the Official Election Defense Fund, whose name is featured prominently atop the Trump campaign’s website.

There is no such account, however. The fundraising requests are being made by the Trump Make America Great Again Committee, a joint fundraising effort of the Trump campaign and the Republican National Committee. As of Nov. 18, that committee also shares its funds with Save America, a new leadership PAC that Trump set up in early November and that he can use to fund his activities after the presidency.

Dawsey appears to have gotten no response from Murtaugh.

What happened with his inquiry instead — along with one Politico’s Maggie Severns sent on November 11 and a follow-up question CNN’s Jeremy Diamond sent on November 24 — is that Murtaugh, who could have no conceivable attorney client privilege, sent the query to Justin Clark, who otherwise would have attorney-client privilege, along with a bunch of other senior campaign officials, to ask whether they should “still ignore” press inquiries about the fundraising.

In the case of Dawsey’s email, they said things like this to each other:

On Nov 30, 2020, at 7:03 PM, Tim Murtaugh <[email protected]> wrote:

I side with no comment. He’s going to write about the split and if we say stuff about legal expenses it will serve to highlight the argument that the fundraising pitch is misleading.

From: Jason Miller <[email protected]> Sent: Monday, November 30, 2020 7:24 PM

To: Tim Murtaugh <[email protected]> Cc: Sean Dollman <[email protected]>; Justin Clark <[email protected]>; Bill Stepien <[email protected]>

Subject: Re: [EXTERNAL]$$$$$$

Fair points. Sean -what are the reporting deadlines for these respective entities -12/15? It will be tougher to dodge such answers after reporters can find it themselves.

[snip]

Re: [EXTERNAL]$$$$$$

We should talk tomorrow about whether to just announce this by press release like we would any other fundraising announcement. If we have the numbers we can discuss how the breakdown among entities needs to be messaged. Also key, as Jason pointed out, that POTUS is on board with how it will be described. [my emphasis]

In response to Dawsey’s query back on November 30, 2020, Murtaugh, Clark, Jason Miller, CFO Sean Dollman, and Campaign Manager Bill Stepien exchanged emails recognizing that the fundraising pitch they were using was misleading, strategizing how they were going to continue to distract journalists from the misleading aspect of their pitches after they had to disclose their fundraising, and noting that they were going to ask Trump if he was comfortable with them fluffing journalists on how they were misleading small donors.

And Murtaugh, because he had no conceivable privilege in these exchanges, sent this exchange to the January 6 Committee and, I assume, to DOJ when they subpoenaed him.

That’s why I find it hilarious that Dawsey, in a report on a new set of subpoenas sent out in March that follow ones sent in December or November and September, wonders whether prosecutors will find the same kind of damning evidence that Trump’s campaign knew they were engaged in fraud as the Steve Bannon Build the Wall fraud did.

It’s unclear whether prosecutors will find similar kinds of evidence to support an indictment in this case.

I’m pretty sure they’ll find it, because that evidence has your name on it, Josh! One way Jack Smith will prove that Trump’s people knew they were lying to the rubes sending in their spare cash is by showing how panicked the campaign was when people like Dawsey started to ask about it.

WaPo suggests the subpoenas he describes disclose “the breadth of Smith’s investigation” and claims this prong of the investigation follows the release of the January 6 Committee Report.

The special counsel’s increased interest in fundraising follows the December release of the final report of the House select committee that investigated the Jan. 6 attack, which concluded that the Trump campaign and Republican National Committee’s joint fundraising operation brought in $250 million between the November election and Jan. 6, sending as many as 25 emails to supporters each day, many claiming that the election had been “rigged” or that Democrats had tried to steal the presidency and urging people to join the “Trump Army.” The Trump campaign sent several emails on Jan. 6 itself, including one declaring, “TODAY. This is our LAST CHANCE … The stakes have NEVER been higher. President Trump needs YOU to make a statement and publicly stand with him and FIGHT BACK.”

But not only have other outlets been reporting on it, CNN reported in December that this financial prong of the probe (which like NYT, they reported in September) had been going on, at that point, for a year, though the PAC prong of it may have post-dated the J6C presentation of this scam last June.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

That may be why Merrick Garland has been saying the investigation was following the money since October 2021, at which point the similar fraudulent fundraising investigation into Sidney Powell was reported by … the Washington Post.

The investigation into fundraising fraud is important by itself for the (outside) possibility it’ll lead Trump’s supporters to turn on him for cheating them. It could help to prove that Trump’s efforts to obstruct the vote certification on January 6 were “corrupt” by any definition of the term that the DC Circuit will ultimately adopt. But it likely also serves as a useful prosecutorial tool not just because it had a public-facing aspect that resulted in non-privileged conversations like the one above, but also because a goodly number of Trump people who weren’t implicated in the actual election theft were involved and cognizant of the financial fraud.

It’s something like 34 paragraphs deep into this WaPo report on how a bunch of documents got shared on a Discord server named “Thug Shaker” before WaPo reveals there was another name for the specific room in which someone who works on a military base shared classified information: bear-vs-pig, an allusion to Russia’s invasion of Ukraine.

The documents were another lesson for younger members in how OG thought the world really worked. The member said OG wasn’t hostile to the U.S. government, and he insisted that he was not working on behalf of any country’s interests. “He is not a Russian operative. He is not a Ukrainian operative,” the member said. The room on the server where he posted the documents was called “bear-vs-pig,” meant to be a snide jab at Russia and Ukraine, and an indication that OG took no sides in the conflict.

Before you get to that detail, the WaPo offers this apocryphal reference to Reality Winner’s leak.

The photographs of printed secret documents now seen by millions may offer clues to the federal agents searching for OG. Reality Winner, who leaked secret National Security Agency documents to the news website the Intercept in 2017, was compromised by secret markings on printouts that helped narrow the search.

There’s no evidence in the search warrant affidavit or detention motion that the FBI had to use the dots on the document Winner printed out. They didn’t need to. She was one of just two people at her workplace who printed out the document, for which she did not have a need to know. She was easy to find using little more than subpoenas, as this dude is likely to be.

But the reference to Winner, someone who leaked a document that alerted Russia to what collection the NSA had on one of Russia’s most elusive hacking groups even though she had no known reason to want to help Russia, is an important reminder that often the best way to recruit someone to leak is via means other than asking them to help a hostile country.

Indeed, even the teenagers interviewed by the WaPo describe, whether they recognize it or not, that “OG” is a narcissist craving for adulation, even if comes from teenagers or people posing as teenagers in a Discord chat room.

The young member was impressed by OG’s seemingly prophetic ability to forecast major events before they became headline news, things “only someone with this kind of high clearance” would know. He was by his own account enthralled with OG, who he said was in his early to mid-20s.

“He’s fit. He’s strong. He’s armed. He’s trained. Just about everything you can expect out of some sort of crazy movie,” the member said.

[snip]

OG was the undisputed leader. The member described him as “strict.” He enforced a “pecking order” and expected the others to read closely the classified information he had shared. When their attention waned, he got angry.

[snip]

The dramatic and yet nonchalant presentation also reminded the group that OG could lay his hands on some of the most closely guarded intelligence in the U.S. government. “If you had classified documents, you’d want to flex at least a little bit, like hey, I’m the big guy,” the member said. “There is a little bit of showing off to friends, but as well as wanting to keep us informed.”

OG is a right wing guy with Top Secret clearance who has been soured by conspiracy theories.

But OG had a dark view of the government. The young member said he spoke of the United States, and particularly law enforcement and the intelligence community, as a sinister force that sought to suppress its citizens and keep them in the dark. He ranted about “government overreach.”

OG told his online companions that the government hid horrible truths from the public. He claimed, according to the members, that the government knew in advance that a white supremacist intended to go on a shooting rampage at a Buffalo supermarket in May 2022. The attack left 10 dead, all of them Black, and wounded three more. OG said federal law enforcement officials let the killings proceed so they could argue for increased funding, a baseless notion that the member said he believes and considers an example of OG’s penetrating insights about the depth of government corruption.

And whether the foreigners in the Discord server had followed OG there or even had elicited these leaks, they surely saw the same thing a bunch of teenagers saw: he would and did leak to feed his own ego and rationalized doing so with claims about the Deep State, the same kind of claims that the former President spreads regularly.

The member estimated that the server hosted people from Europe, Asia and South America. “Just about every walk of life.” Of the roughly 25 active members who had access to the bear-vs-pig channel, about half were located overseas, the member said. The ones who seemed most interested in the classified material claimed to be from mostly “Eastern Bloc and those post-Soviet countries,” he said. “The Ukrainians had interest as well,” which the member chalked up to interest in the war ravaging their homeland.

For years, U.S. counterintelligence officials have eyed gaming platforms as a magnet for spies. Russian intelligence operatives have been suspected of befriending gamers who they believe work for intelligence agencies and encouraging them to divulge classified information, a senior U.S. official said, speaking on the condition of anonymity to discuss sensitive information.

As WaPo notes, spooks have recognized for some time that gaming platforms and other semi-private chat rooms are havens for spy recruitment.

The easy part of this investigation will be figuring out who OG is. Subpoenas on Discord and even these kids’ call records will identify him. The hard part will be figuring out who the other foreigners in the room were, and whether they enticed OG to leak this stuff or treated it as an auspicious benefit of being there.

This was a room focused on Ukraine and OG was an easy mark. One of the main questions at this point is whether he needed the nudge to leak these or really did so just to impress a bunch of teenagers.

Update: NYT reports that a member of MA’s Air National Guard is the person in the chatroom.

The national guardsman, whose name is Jack Teixeira, oversaw a private online group named Thug Shaker Central, where about 20 to 30 people, mostly young men and teenagers, came together over a shared love of guns, racist online memes and video games.

Two U.S. officials confirmed that investigators want to talk to Airman Teixeira about the leak of the government documents to the private online group. One official said Airman Teixeira might have information relevant to the investigation.

Update: While I was out to dinner, Teixiera was arrested.

 

So, while some digital jackass named “Microchip” is dominating so much discussion here, let us talk about other things.

When I was a kid, I read Mad Magazine.

If I had to ride my training wheels bicycle there to the local store, I did. There were Playboys there on the shelf, and I did not even know that yet. I went for Mad. Alfred E. Neuman.

There were a lot of “illustrators” of Mad over the years, too many to go into currently, but (thank you Scribe) Al Jaffee was one of the most important.

“Microchip” is a blip, Al Jaffee spanned, and influenced, in a very good way, generations.

[NB: check the byline, thanks! Update(s) will appear at bottom of post. /~Rayne]

This isn’t going to be a very long post because others have already covered the news that Twitter, Inc. is no more having been subsumed by its successor, X Corporation.

See Slate’s coverage which has one of the earliest and more thorough reports, or TechCrunch’s report.

Elmo has been stuck on name X for decades; he named his online bank business launched in 1999 x.com. That business merged in 2000 with rival Confinity, an online bank founded by Peter Thiel and others. The merged entity became PayPal.

Before Elmo closed on the purchase of Twitter, he’d said that Twitter was a path toward a new online business based on an application.

The intention was to create an “everything app” as popular as TikTok and as encompassing as WeChat — both of which are Chinese apps.

The X naming convention is in head-to-head competition with Google’s X company founded in 2010 — “X, the moonshot company” as Google styles and tags the entity. Funny, that; both Musk and Google wanting off-world exploration.

It’s possible the move to dissolve Twitter, Inc. and reconstitute it under X corp is merely consolidation of Musk-helmed businesses in Nevada where parent organization X Holdings is already incorporated. Twitter was already a subset of a Special Purpose Acquisition Company (SPAC) under the April 25, 2022 terms of sale.

The dissolution of Twitter as a Delaware corporation is merely the next step of the acquisition process.

However it’s an open question why Musk moved the entire corporation to Nevada instead of leaving Twitter in Delaware as Tesla, Inc. remains.

Could it be that Elmo is so afraid of Delaware’s Chancery Court and discovery should a lawsuit be filed against Twitter that he chose to weasel the corporation into Nevada to avoid it?

Here’s a list of advantages to incorporating a business in Nevada as compared to other states:

• Nevada law protects both directors and officers from individual liability for any acts committed by or on behalf of the business (with the exception of fraud).
• Jurisdiction for legal suits is in the state where the business incorporated.
• Nevada has significant privacy rights and doesn’t share any company information with the IRS. Therefore, no one will know the owner’s name of the corporation.
• You don’t have to identify the shareholders of the corporation.
• Unlimited stock is allowed.
• Nominee shareholders are allowed.

Could it be that Elmo is so concerned about his own personal liability that he moved the corporation to Nevada to avail himself of protections for owners/principals?

Or is one of these other advantages paramount — like the privacy rights which may be extended to investors like Prince Al Waleed bin Talal Al Saud or Marc Andreesen‘s a16z?

How will we know if/when the microblogging platform formerly known as Twitter becomes the agent of a foreign government should ownership shift even more substantially to foreign entities through a combination of equity and debt?

Whatever Musk has up his sleeve he certainly didn’t tip in his interview this week with the BBC,  which the Beeb summarized in six points:

1. He denies hate speech on Twitter has spiked
2. He voted for Joe Biden
3. He says Twitter is beating the bots in war on disinfo
4. He’s against banning TikTok
5. He would turn down $44bn for Twitter
6. He will back down on how BBC is labelled

I don’t know about you but I don’t believe most of this; it reads like the Liar’s Paradox.

Whatever this corporate shell game is about, I know Elmo is still burning Twitter down a bit more each day, including his labeling NPR as a “state-affiliated media” outlet after the GOP has ensured for decades public broadcasting must be starved of funding. Receiving but 1% of its annual revenues from the federal government, NPR has now left Twitter.

The departure of NPR and its 52 feeds makes this revenue forecast appear more reliable:

Oops, I mean this forecast:

Though it still looks like gambling, yes?

~ ~ ~

UPDATE-1 — 2:30 P.M. ET 13-APR-2023 —

And there it is, the birth of X Corp’s “everything app.”

CNBC: Twitter partners with eToro to let users trade stocks, crypto as Musk pushes app into finance

Who in their right mind would trust their financial information to Elon Musk’s latest Rube Goldberg machine?

Knowing the exposure this business has to foreign investors located in countries which have questionable affinities with the U.S., why would anyone do this if they weren’t a crackpot Elmo fanboi?

I’ve now read the substantive transcripts in the trial of Douglass Mackey, the far right troll who was convicted last month of conspiring to violate the voting rights of Hillary voters in the 2016 election.

As I noted in my first write-up of the verdict, the case has lessons that remain quite pressing, as loud boys on, who own, and claim to be interested in regulating Twitter attempt to make the site more welcoming to far right election disinformation. I plan to write that up.

Before I do, though, I want to talk about Microchip, the cooperating witness who pled guilty to the same conspiracy as part of a cooperation agreement in 2022.

We first learned the FBI had a cooperating witness on March 8 of this year, when Judge Nicholas Garaufis ordered the government to unseal its request to keep its informant’s identity secret. The filings in that discussion did not describe much about the timing or scope of his cooperation, other than that those he is targeting have the technical skills that might lead to him being hacked if he were discovered.

The fact of the CW’s cooperation is sure to be seen by many in that community as a profound betrayal, with the result that, at a minimum, online harassment is bound to follow the CW should his or her identity become a matter of public record. That harassment can have negative consequences in and of itself. In addition, to claim that intense online attacks do not endanger a person’s physical safety is to ignore the reality of our current world, as evinced in common newspaper headlines. See, e.g., Sheera Frenkel, The Storming of Capitol Hill Was Organized on Social Media, N.Y. TIMES, Jan. 6, 2021, available at https://www.nytimes.com/2021/01/06/us/politics/protesters-storm-capitol-hillbuilding.html; Eric Lipton, Man Motivated by “Pizzagate” Conspiracy Theory Arrested in Washington Gunfire, N.Y. TIMES, Dec. 5, 2016, available at https://www.nytimes.com/2016/12/05/us/pizzagate-comet-ping-pong-edgar-maddisonwelch.html. It is simply (and regrettably) a fact of the times that many acts of politically motivated violence in current society arise from campaigns of online harassment.

Beyond the risk to the CW, the potential consequences include the disruption of the CW’s ongoing work with the FBI. It is certainly true that the nature of this work is online and anonymous, but, if the CW’s name and location were to become known, the CW would become a target for all who believe that they might be under investigation (whether they are or not). Given the technical proficiency of those with whom the CW associates, it is not difficult to envision multiple scenarios in which the CW’s online work could be jeopardized by way of a cyberattack (at a minimum).

Microchip’s identity can’t be that well protected. As soon as this pre-trial discussion was posted, Mackey’s lawyer, Andrew Frisch, contacted the government to tell them he had learned of the informant’s real identity independently (possibly via Anthime “Baked Alaska” Gionet) and at least one researcher I’ve spoken with since seems to have a plausible theory as to his real identity.

But I assumed, based on those filings, that Microchip had flipped in advance of Mackey’s arrest.

The actual details are more complicated — and a bit unpersuasive, as AUSA William Gullotta got Microchip to explain in his testimony on March 23.

The thing I find most unbelievable is Microchip’s claim that he only joined Twitter — in any capacity — in July 2015, just months before he started playing a central and expert role in expanding the reach of anti-Hillary trolling.

Q When did you start using Twitter?

A Back in around July of 2015.

Q When did you start using the alias Microchip on Twitter?

A Anywhere from November 2015 through March 2016, somewhere around there.

I find this claim so surprising because, in his description of his trolling, Microchip described the kind of Twitter expertise that normally takes years to build. And two 2017 articles celebrating Microchip’s expertise (Buzzfeed, Politico) describe that he exhibited expertise from the start of his identity in November 2015.

For example, Microchip described how — the implication is all of his engagement was Microchip — he used various levels of operational security to succeed in creating new accounts anonymously, from the start.

Q When you would set up your accounts, did you set them up anonymously?

A I did.

Q How do you go about doing that?

A Using virtual private networks or proxy IP address services.

Q What’s a virtual private network?

A It’s, basically, somebody who sets up servers across the world in different locations and then you can tie into that service so you appear as if you are at that location and then they feed the internet through that.

Q So it would mask your true location from Twitter?

A That’s right.

Q What other information did you need to provide to Twitter to set up a new account?

A Yes, you need an email address or a phone number or both.

Q So would you just set up anonymous email addresses —

A Oh, yeah, through Google, Gmail, you set up a account and then you set up a Google Voice account and then if you need to change a phone number on that, you pay ten bucks and you get a new phone Number.

His description of various means to exploit Twitter to inject extremist views into the mainstream come off as pathological … but extremely savvy.

Q And why would you want it to be on a trending list?

A Because I wanted our message to move from Twitter into regular society and part of that would be — well it’s based on the idea that, you know, back then maybe — I don’t know, 10 to 30 percent of the US population was on Twitter, but I wanted everybody to see it, so I had figured out that back then, news agencies, other journalists would look at that trending list and then develop stories based on it.

Q What does it mean to hijack a hashtag?

A So I guess I can give you an example, is the easiest way. It’s like if you have a hashtag — back then like a Hillary Clinton hashtag called “I’m with her,” then what that would be is I would say, okay, let’s take “I’m with her” hashtag, because that’s what Hillary Clinton voters are going to be looking at, because that’s their hashtag, and then I would tweet out thousands of — of tweets of — well, for example, old videos of Hillary Clinton or Bill Clinton talking about, you know, immigration policy for back in the ’90s where they said: You know, we should shut down borders, kick out people from the USA. Anything that was disparaging of Hillary Clinton would be injected into that — into those tweets with that hashtag, so that would overflow to her voters and they’d see it and be shocked by it.

Q Is it safe to say that most of your followers were Trump supporters?

A Oh, yeah.

Q And so by hijacking, in the example you just gave a Hillary Clinton hashtag, “I am with her,” you’re getting your message out of your silo and in front of other people who might not ordinarily see it if you just posted the tweet?

A Yeah, I wanted to infect everything.

Q Was there a certain time of day that you believed tweeting would have a maximum impact?

A Yeah, so I had figured out that early morning eastern time that — well, it first started out with New York Times. I would see that they would — they would publish stories in the morning, so the people could catch that when they woke up. And some of the stories were absolutely ridiculous — sorry. Some of the stories were absolutely ridiculous that they would post that, you know, had really no relevance to what was going on in the world, but they would still end up on trending hashtags, right? And so, I thought about that and thought, you know, is there a way that I could do the same thing.

And so what I would do is before the New York Times would publish their — their information, I would spend the very early morning or evening seeding information into random hashtags, or a hashtag we created, so that by the time the morning came around, we had already had thousands of tweets in that tag that people would see because there wasn’t much activity on Twitter, so you could easily create a hashtag that would end up on the trending list by the time morning came around.

Perhaps most chilling is his description of how participants in this anti-Hillary trolling knew there was nothing to the John Podesta emails they made the focus of their October 2016 trolling.

It didn’t matter. They didn’t care.

They were aiming to cause chaos to hurt Hillary’s chances of winning.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact- check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

Microchip was actually one of the people who, on October 30, 2016, brought the idea of getting Hillary voters to vote from home from 4Chan to the War Room where anti-Hillary trolls workshopped ways to make it more realistic and ensure that Trump voters wouldn’t also fall for the meme.

And, as he described it, during 2016, Microchip was paying up to $500 a month, between two services, to use bots to expand the reach of right wing trolling.

A Yeah, so one of the first services to kind of seed the followers was a service called Add Me Fast, A-D-D, M-E, F-A-S-T, and that service is kind of like a peer networking service where I would insert the tweet into that service, somebody else would insert a tweet and then, we would retweet each other’s information, right? And you could gain points doing that and, if you accumulate points, you can then expend those on likes, followers, retweets. So that service, I would spend sometimes $300 a month on it. That would give you around a thousand to three thousand retweets, likes, or follows.

[snip]

Another step is using Fast Followerz and that’s F-A-S-T and then F-O-L-L – – Q O-W-E-R-S? A Yeah, but it’s with a “Z,” it’s with a Z at the end. .com, yeah. And that service you spends like, a monthly fee of, you know, a hundred to two hundred, sometimes three hundred bucks a month. And they have control of all the bots, so you don’t actually retweet anything, but you put in your Twitter handle or you put in a tweet that you want to get retweeted, and the service that I would use would be 50 to a hundred followers, something like that, a day, and then those followers would also retweet or “like” my tweets anywhere from three to five times.

No one explained where Microchip came up with $500 a month to make anti-Hillary trolling go viral.

On cross-examination, however, Mackey’s lawyer, Frisch, did get Microchip to admit that when he started cooperating with the FBI on this case in 2021, he had both IRS and bankruptcy debts.

Also on cross, Microchip described that he’s not paid for any of the assistance he provides to the FBI — though as he prepared for the trial in February, he described liking the “structure” working with the FBI provided his life.

Q Without telling us what you’re doing, how often do you do this work for the FBI?

A As often as needed, essentially.

Q You’re not getting paid for it; right?

A That’s right.

Q In fact — in fact, you met with the FBI on or about February 23, 2023, earlier, about a month ago; do you remember that? Mr. Paulson was there, Mr. Gullotta was there. All three prosecutors were there.

A Yeah, I think that was here in Brooklyn.

Q And you asked — you said — you said — do you recall saying that you wanted to keep working with the FBI because the FBI provided a structure that was valuable to you?

[Frisch refreshes his memory with his 302]

Q And that’s what you said; right?

A Yes.

While the trial showed that Mackey was important to the effort to suppress the votes of Black and Latino Hillary voters because he had so much reach, particularly among the more general public in 2016, Microchip — who claims to have been a newB Twitter user in July 2015 — seems to have played a more important role in professionalizing all aspects of the anti-Hillary campaign.

Mackey made these memes popular; Microchip made them work.

Which makes the timeline more curious. By all appearances, the FBI knew of Microchip long before they charged Mackey, starting in 2018 (about eight months after Mackey was first IDed). That’s when he first offered to cooperate with the FBI.

A No. I talked to the FBI about being useful to them when they came and actually talked to me the first time. I discussed with the FBI in the car at my residence at the time. We actually sat in the car outside of my home, and I talked to them about my use of technology and how it could possibly be useful to whatever they might be working on.

They seem to have paid him a visit, as well, as they prepared to charge Mackey in December 2020. But even in spite of the fact that his key role in preparing anti-Hillary memes would have been readily obvious in warrants served on Twitter in advance of charging Mackey, the FBI didn’t charge Microchip along with Mackey in January 2021.

And only as they looked closer after he reached out did they decide they needed him to plead guilty.

Timeline

July 2015: Microchip joins Twitter

November 2015: Microchip starts to create his persona

April 5, 2017: Buzzfeed article quoting Microchip claiming, “it’s all us, not Russians” describing he turned to Twitter in response to November 2015 terror attacks in Paris

August 9, 2017: Politico article describing Microchip as an “early player” in hard-right Twitter chatrooms starting in November 2015

December 17, 2018: FBI questions Microchip about July 2018 online threat

December 15, 2020: Second contacts with FBI, including Megan Rees (about which Microchip tells Baked Alaska), Microchip lawyers up

January 27, 2021: Mackey arrest

February 4, 2021: Microchip’s lawyer reaches out to FBI, broaches cooperation

April 22, 2021: Formal proffer with government

June 2021: First of several agreements to toll statutes of limitation

April 14, 2022: Guilty plea

Enrique Tarrio has already been investigated by a grand jury in Prettyman Courthouse for any role he had in threats to undermine a criminal prosecution.

That’s important background to Brandi’s report, at the end of her update on the Proud Boys trial, of how much of last week the trial was halted for a series of sealed hearings.

Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing.

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record.

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.

As CNN reported, a juror had become worried that someone was following her.

A juror told the court an individual came up to her outside of a Washington, DC, metro station and asked if she was a juror, multiple sources told CNN. The juror told court staff she had seen the same individual on several occasions and thought they might be following her.

Some jurors appear to be split on their views of the incidents, people familiar said. One juror told the judge he thought it was possible the interactions were random and it might have been someone experiencing homelessness in the area.

[snip]

When other jurors found out about the incident, they also began to look out for the individual and had taken at least one picture of the person, according to someone familiar with the matter.

Other jurors also told the court in sealed hearings this week that they had been “accosted,” one source told CNN, though it’s unclear to what extent.

But that report and some of the discussions I’ve seen elsewhere didn’t describe the list of reasons why such threats should be taken seriously.

First, there’s the fact that defendant Enrique Tarrio has already been investigated in this courthouse for his potential role in a threat against a judge. In 2019, Amy Berman Jackson put Roger Stone under oath and asked how he came to post an Instagram post of her with crosshairs on it. He blamed the “volunteers” who had made the meme — one of whom, he named, was Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

[AUSA] Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

As CNN itself later reported, those whom Stone named were subpoenaed to testify about whether Stone had paid them to make threatening memes targeting his judge.

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

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

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

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

So four years ago, in this very courthouse, Tarrio or his associates were questioned about the circumstances of any participation they had in threatening a judge.

That wasn’t the only role the Proud Boys had in Stone’s witness tampering in that case. The first contact that Randy Credico had with FBI agents investigating 2016 was not the highly publicized grand jury testimony to which he brought his comfort dog Bianca. It was a Duty to Warn contact earlier that summer after the FBI had identified credible threats against him. Those credible threats came from the gangs, including the Proud Boys, that Stone hung out with.

In entirely unrelated news, Credico posted pictures showing him in Moscow last week.

It didn’t end with Stone’s guilty verdict, either. After the verdict, Stone associates got leaked copies of the jury questionnaires. Mike Cernovich started hunting down details on the jurors to retroactively cast doubt on the judgment, and Trump joined in the effort to create a mob. In the wake of those efforts, the jurors expressed fear and some regret at having served.

ALL 12 OF the jurors in the Roger Stone case have expressed fear in court filings on Wednesday. They worry they will continue to be harassed and they fear for the safety of themselves and their families if their identities are revealed.

According to The National Law Journal, jurors cited tweets from President Trump and remarks from conspiracy theorist Alex Jones as the reason “the threats to the jurors’ safety and privacy persist” after the trial ended in November.

One juror wrote, “I try to stay away from danger, but now it seems like the danger is coming to me.”

The jurors are looking to thwart the legal efforts of right-wing conspiracy theorist Mike Cernovich, who is attempting to make public the pretrial questionnaires the jurors filled out. Those questionnaires include jurors’ private information and employment history. The supposed aim of the petition to release the questionnaires is to vet them for bias in hopes of getting a new trial for Stone.

Another juror wrote, “Given the current climate of polarization and harassment, I do not want to draw any attention to myself, my family, or my employer in any way, shape, or form. It is intimidating when the president of the United States attacks the foreperson of a jury by name.”

“I am frightened that someone could harm my family simply because I was summoned and then chosen to serve on the jury,” another juror wrote.

The efforts to intimidate have continued to this case. During a period when Zach Rehl was reportedly considering a plea, Tarrio sent messages to other Proud Boys about remaining loyal.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

Asked about the audio message, Tarrio told Reuters he was simply trying to stop members from speculating that anyone had decided to help prosecutors who are examining the deadly insurrection. “What I was trying to avoid is them turning against each other because of media stories,” he said.

Trial testimony showed that witnesses for the defense — in this case Fernando Alonzo — made threatening comments about Eddie Block for posting the video of the Proud Boys he shot on January 6. [Warning: he used an ableist slur against Block, who relies on a mobility scooter.]

Witnesses for other January 6 defendant have been harassed, as when one January 6 participant confronted Sergeant Aquilino Gonell during the trial of Kyle Fitzsimons on assault charges.

[January 6 participant Tommy] Tatum also tried to confront another officer, this one with the Capitol Police, in a courthouse elevator on Wednesday. He recorded and posted clips of both exchanges with the officers and identified himself outside the courthouse.

U.S. Capitol Police Sgt. Aquilino Gonell, who is also testifying in the trial, said that Tatum told him that he should be ashamed of himself in an exchange near the bathroom inside the courthouse on Wednesday. Shortly after, Tatum got into an expletive-laden confrontation with David Laufman, an attorney for Gonell, after he tried to get into an elevator with Gonell, Laufman and an NBC News reporter.

NBC News separately heard Tatum make negative comments inside the courthouse about how he believed Gonell was acting. Outside the courthouse, Tatum recorded himself accusing Gonell of committing perjury.

The confrontations with Gonell came before the conclusion of his testimony in the case against Fitzsimons, who is accused of assaulting Gonell inside the tunnel. Gonell’s cross-examination by Fitzsimons’ federal public defender will continue on Thursday morning.

“For Sgt. Gonell to be accosted like that, within the courthouse and while he remains a live witness at trial, was outrageous and amounts to witness intimidation that promptly should be addressed by the court as well as the FBI and the Department of Justice,” Laufman, who is representing Gonell pro bono, told NBC News on Wednesday night.

Finally, there are other key players in January 6 — most notably former Green Beret, Ivan Raiklin, who played a key role in Operation Pence Card, the effort to pressure Pence to overturn the election — who lurk around all events associated with January 6. Fellow Proud Boy Gabriel Garcia, in a recent bid to avoid pre-trial release sanctions for going to CPAC after he told Judge Amy Berman Jackson he was coming to DC to observe — among other things — the Proud Boys trial, claimed that he hung out with Raiklin at CPAC to formulate his defense.

While at CPAC, Mr. Garcia was working on his defense to these charges. Indeed, he asked Congressman M. Gaetz, who is from Mr. Garcia’s home state, how and when could his defense team access the 40,000 hours of unreleased video Capitol Police have. Also, he and his counsel met, and conferred extensively with, attorney Ivan Raiklin, whom they may retain for assistance and trial preparation. Mr. Raiklin had spoken to Mr. Garcia on March 2 at CPAC, and he told Mr. Garcia to return the next day with his counsel to discuss at length defense strategies, which they did.

Former Army Captain Garcia is one of the Proud Boys who, in exhibits submitted at trial (here, Gabriel PB), was issuing the most chilling threats in advance of January 6.

None of this makes things easier for Tim Kelly, as he tries to sustain this jury long enough to get through deliberations. It’s not yet clear whether the jurors, watching testimony about the extent to which Proud Boys using intimidation to protect their organization, are seeing shadows, or whether there’s a real attempt to intimidate jurors before they start deliberating.

But given the history of individuals directly associated with the defendants, the threat is not an idle one.

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.

The Proud Boys seditious conspiracy trial, after three arduous months, is on the verge of its conclusion. Closing arguments in the historic case unfolding just steps away from the U.S. Capitol could come as early as this week though not before at least one of the defendants may testify. 

On Tuesday, when U.S. District Judge Timothy Kelly takes the bench for the 53rd time in the trial’s proceedings, the final contours of the Proud Boys defense are expected to be outlined and any final attempts by the defendants to undercut what has been a massive presentation of damning evidence by the Justice Department will be made. 

If this trial has been a marathon, this is now the final leg, and as the defendants arrive at the finish line, they only have so much time left support their argument that they were not part of a conspiracy to forcibly stop the transfer of power on Jan. 6, 2021, nor were their efforts aimed at obstructing Congress from certifying the results of the 2020 election. 

Last week, Norm Pattis, a defense attorney for Proud Boy Joseph Biggs, said the former Infowars contributor wouldn’t take the witness stand. To what may end up being his benefit, Biggs has been a largely quiet figure at trial, sitting mostly silently for weeks in a series of gray suits and dark-framed glasses as he occupies a corner of the defense table positioned furthest away from the jury. 

Pattis and his co-counsel Dan Hull have mostly managed to keep Biggs and questions about his specific conduct on Jan. 6, alleged or otherwise, limited. 

When it has come to the cross-examination of government witnesses who suggested Biggs was integral to the breaching of initial barriers on Jan. 6 alongside defendant Ethan Nordean or when it has come to claims that he played a central role in whipping people into a frenzy, Pattis has often worked to refocus the jury’s attention to matters tangentially-related, like philosophical or ideological points around protest, speech or assembly. 

Where that has failed outright or faced disruption through a series of sustained objections from prosecutors, Biggs’ legal team has invoked the suggestion that the violence of Jan. 6 was the byproduct of FBI interference or incitement or just pure herd mentality. 

In court this week, the only evidence Biggs presented was a roughly 90-minute video of a Proud Boys video teleconference meeting held on Dec. 29, 2020. The video, according to the defense, goes toward the claim that Proud Boys had only planned to engage in a peaceful protest and respond to antifa or leftist interlopers accordingly. 

The force of that video’s effect, however, may have been mitigated since Biggs said little in it to start and on top of that, it featured unsavory moments steeped in anti-Semitism and misogyny. 

For example, jurors heard Tarrio and fellow Proud Boys in the meeting laugh as Tarrio discussed wearing a “six-pointed star” on Jan. 6 and making their official colors white and blue, like the Israeli flag. 

As the men laugh in the clip, Tarrio is heard assuring them that Proud Boys would never elect a “small hat” to their elders’ council. A small hat is a presumed reference to a yarmulke. Then, at another unsympathetic moment in the meeting, one Proud Boy is heard recalling how at the Dec. 12 rally in D.C., a woman tried to walk past him in the crowd. 

She told him to “make a hole” so she could squeeze by. In the clip, the Proud Boy recounted what he thought in the moment to Tarrio and crew: “I’m about to make a hole and put you in it you fucking whore,”

The jurors, as such, have mainly been left to acquaint themselves with Biggs through footage of him on Jan. 6 where he is regularly seen exuberantly clutching a bullhorn or shouting angrily about antifa or marching past police barriers with fellow Proud Boys as the melee around them comes to a crashing head. 

The leader of the neofascist network, Henry “Enrique” Tarrio, is very unlikely to testify barring any last-minute changes of heart. Though he was absent from the Capitol on Jan. 6, prosecutors argue the Miami, Florida-based Proud Boy oversaw and coordinated the group’s efforts from afar and had intended to stop the certification for weeks. 

During the trial this February, jurors saw evidence to suggest that Tarrio had by Dec. 30, 2020, possessed and shared a key document entitled “1776 Returns” that contained a detailed proposal to occupy federal buildings in Washington, D.C.

It didn’t mention the U.S. Capitol building specifically and Tarrio has vehemently denied authoring the proposal or knowing the document’s origins. Nonetheless, in text messages shown to jurors last month where “1776 Returns” was discussed, Tarrio is seen vowing that his “every waking moment” consisted of thinking about a “revolution.”

This poked a large hole in the defense’s already-thin theory that Proud Boys only concerned themselves on Jan. 6 with the task of protecting innocent Trump supporters who wanted to rally unmolested by rabid leftists hiding in plain sight.

During trial last week, Tarrio’s attorney Sabino Jauregui entered text messages into the record between the Proud Boys leader and Shane Lamond, a D.C. police lieutenant. The messages, according to Jauregi, support Tarrio’s assertion that he informed police of Proud Boys activities and whereabouts regularly and that he didn’t obscure his intent with officers for Jan. 6. 

Almost all of the texts shown in court last week (there were 46) were from points long before Jan. 6. And while Tarrio has painted the relationship he had with Lamond as one of equal input, some of the texts suggest the relationship may have been lopsided and most of his messages to Lamond were short and sweet. 

Lamond is currently under investigation for his communications with Tarrio. He has not been charged with any crime and he has denied any wrongdoing. Lamond has, however, invoked his Fifth Amendment right against self-incrimination and has opted against testifying at the trial.  

The texts were varied; mostly showing Lamond asking Tarrio where Proud Boys would be during a rally or other high-profile event. The men were friendly, with Lamond calling Tarrio “brother” and Tarrio calling Lamond “bruv.” They discussed getting drinks. He told Tarrio in November 2020 just a few days before the Million MAGA March in Washington, D.C., that he didn’t want the ringleader of the extremist group to think cops were keeping “tabs” on him or the Proud Boys when they were in town. 

But, Lamond told him,  knowing their movements could help police keep counterprotesters away from them. 

Jurors also saw texts where Lamond warned Tarrio in the days before the Capitol assault, that alerts were going out to police that Proud Boys were on Parler talking about “mobilizing and ‘taking back the country.’” 

And in at least one eyebrow-raising message displayed in court last week, Lamond told Tarrio to text him on an encrypted channel. 

By the time Dec. 19 rolled around, Tarrio told Lamond if Proud Boys came to D.C. at all, it would be in “extremely small” numbers and without their traditional black and yellow colors. 

Ultimately, prosecutors say Tarrio instructed members to hide or delete communications about Jan. 6, and by assuming the role of the group’s “marketing” leader, Tarrio developed a means to control the flow of information about the alleged conspiracy internally and externally. 

Though prosecutors have seemed to concede that Proud Boys were, at least for a time, focused on groups like “antifa” when they prepared for political rallies, they argue that purpose shifted dramatically once Proud Boy Jeremy Bertino was stabbed following the Dec. 12, 2020 “Stop the Steal’ rally. Text messages and witness testimony offered in court have shown Proud Boys airing frustrations about police routinely after that episode. 

Once Tarrio was arrested on Jan. 4, 2021, for burning a Black Lives Matter banner in Washington, D.C. a few weeks prior, the animosity had ratcheted up. In video footage from Jan. 5 and Jan. 6, Tarrio’s familiar and a fellow member of the group’s so-called “Ministry of Self Defense,” Florida Proud Boy Gilbert Fonticoba, is seen wearing a shirt proclaiming Tarrio’s innocence in the face of his arrest. 

His shirt read: “Enrique Tarrio Did Nothing Wrong.” 

Meanwhile, in court on March 30, while appearing as a witness for defendant Zachary Rehl, former West Virginia Proud Boys chapter president Jeff Finley flatly denied that the organization held animosity toward the police. His testimony lost some credibility though once prosecutors presented him with a text he sent to the Proud Boys “Boots on the Ground” channel on the morning of Jan. 6. In the message, Finley urged: “fuck the blue.”

He told the jury with little remorse if that’s what the record showed, that’s what it showed. Finley struck a plea agreement with the Justice Department and is in the process of serving out a 75-day prison sentence now. 

As for Fonticoba, he is one of several Proud Boys who falls under the prosecution’s “tools” theory. That theory suggests the defendants relied on each other as well as other members of the network to be their foot soldiers on Jan. 6 so they could forcibly stop the certification. Among the “tools” of the conspiracy activated by the defendants, according to the Justice Department, are Proud Boys like Paul Rae, John Stewart, Gabriel Garcia, AJ Fisher, Nicholas Ochs, Arthur Jackman, James Haffner, Ronald Loehrke, Nate and Kevin Tuck, Eddie Geroge, Dion Rajewski, Briele Boele, James Brett, Zach Johnson, and others. 

Proud Boy leader Ethan Nordean of Washington State isn’t expected to testify before all is said and done. Nordean has had far greater exposure to jurors over the course of the trial in comparison to Biggs and this despite the fact that both of the men are alleged to have led dozens of Proud Boys and other people past police barricades in equal measure. 

Footage of a hard-drinking Nordean has been depicted in court alongside other evidence, including communications where the Proud Boy expresses an intense and unwavering outrage at a “stolen” election. Testifying for Nordean would be particularly risky given his proximity to several “tools” in the conspiracy, like Ronald Loehrke, who prosecutors say he recruited to be on the front lines of the breach. If Nordean were to come under cross, it likely wouldn’t take prosecutors long before they would open a door to questions about his efforts recruiting fellow Proud Boys to the alleged cause. 

Only defendants Dominic Pezzola and Zachary Rehl have indicated they would testify but it is less clear if Rehl will take the risk. 

On top of seditious conspiracy and other charges, Pezzola is alleged to have stolen a police riot shield on Jan. 6 as well. Video footage, prosecutors contend, plainly shows Pezzola using that shield to smash apart a window at the Capitol that would allow rioters to stream rapidly inside. Pezzola’s attorney Steven Metcalf last week said he was confident the Rochester, New York Proud Boy would testify on his own behalf. 

Pezzola’s wife, Lisa Magee, testified on his behalf last week. She was often a sympathetic figure. Pezzola may not have gone to D.C. at all, she recalled, if he had listened to sage advice from her father. 

She told jurors how her father had warned her husband on Jan. 5 to stay home and not go to D.C. And at the time, she recalled as she sighed in court last week, Pezzola agreed to stay home and out of trouble. Less than a month before, she testified, she called her reaction to seeing Pezzola’s face after it was splashed across the Washington Post following the Stop the Steal rally in December. 

She told jurors she recalled telling her husband plainly that he was “a fucking idiot.” 

But on the eve of the insurrection, she went out for a girls-night and Pezzola left for D.C. When she testified, she was convincing when she suggested that Pezzola’s activities with the Proud Boys were mostly kept away from her view. She expressed frustration with her husband. He had changed, she said, after inundating himself with politics and Fox News. He started drinking heavily. The Covid-19 pandemic hit his business hard. He was angered, she said, when protests sparked by the police killing of George Floyd bubbled over and turned violent. She told the jury she didn’t know that her husband believed a civil war was imminent or if he was in the throes of a battle against good vs. evil, capitalism vs. communism, or freedom vs. tyranny. 

As a former U.S. Marine, her husband was a man who once devoted to a principle, would go to great lengths to uphold it, she said. 

But this quality can cut both ways. 

For the defense, Pezzola’s purported moral fortitude and ritualistic devotion to American ideals meant he would never dream of conspiring against the United States. For prosecutors, the trait meant Pezzola would act unflinchingly if he felt his version of America was under attack. 

And, prosecutors elicited, once Pezzola returned home from Washington, he got rid of his cell phone and was unable to be reached by his wife until Jan. 9. 

At trial last week, a witness for Pezzola, Steven Kay Hill, tried to give the Rochester Proud Boy and former Marine cover with his testimony. In short, Hill was set to argue that Pezzola did not steal the riot shield by the looks of it, but rather, that he was reacting to an overzealous police force that deviated from a policy that would have kept the mob calm on Jan. 6. It was essentially police who were to blame for the use of chemical irritants and less than lethal munitions, Metcalf argued. 

Metcalf walked Hill, a former police officer and law enforcement training instructor from New Mexico, through a series of video clips from the moments before and after Pezzola got ahold of the riot shield. On direct, Hill testified that the mob became incensed only after police fired a less-than-lethal munition into the crowd and hit a rioter, Joshua Black, in his cheek. 

Jurors saw a gruesome photo of Black moments after he was struck, a hole bored into the side of his face and blood at his feet. 

“They were angry. They were upset. They were pissed because one of their own has just been shot in the face,” Hill testified on April 6. 

Jurors saw footage of Black being approached by a police officer in riot gear after he is hit in the cheek. The officer appears to rest his hand on Black’s shoulder as both of the men are crouched down looking at each other. Hill conceded that while he couldn’t tell what was being said, it did appear the officer was extending aid. 

In video footage, the officer is nodding briefly while speaking to Black and they are flanked on either side by protesters and police. Prosecutors say it was at this moment that the officer was offering to help Black before attempting to take him behind police lines to treat his injuries. 

Hill told jurors this was “a mistake.” 

When the crowd saw the officer try to take Black, they only thought: ‘You’re not taking him. He’s one of ours,” Hill said. 

Black, injury be damned, would fall back in with the crowd and eventually make it all the way to the floor of the Senate. 

This moment played out almost simultaneously to the moment Pezzola “fell” to the ground, Metcalf argued, and incidentally grabbed a riot shield in the fracas. Metcalf stopped short of calling Pezzola’s possession of the shield self-defense but his client’s actions, he argued, could be chalked up to panic, not an intent to steal. 

On cross-examination however, prosecutor Conor Mulroe elicited that long before Black was hit in the face with a munition, the crowd was already at a fever pitch and clashing with police. 

Long before Pezzola got the shield, Hill testified, there was a lot of fighting and yelling directed at officers. For every 50 to 60 police officers on duty, Hill estimated, there were at least 500 to 600 protesters. 

Where the defense said Pezzola acted reflexively, prosecutors say Pezzola was opportunistic. 

Hill also testified that police didn’t fire indiscriminately into the crowd, as Metcalf had insinuated and he agreed that footage from Jan. 6 appeared to show police only targeting those rioters in the crowd who had visibly attacked officers. 

To support this, jurors heard police radio transmissions where officers are heard describing active police assaults in progress as they identify specific assailants in a hectic scene.

In court last Thursday, Hill said he couldn’t tell if Pezzola was being shoved from behind or not as he finally entered the fray. 

As for Rehl, should he testify, he runs the risk of unwinding whatever good favor his attorney Carmen Hernandez may have raised for him over the course of the trial. Hernandez, at the risk of being repetitive, takes every chance she can to remind jurors that Rehl had no weapons on him when he entered the Capitol. Rehl was a servicemember, a graduate, a husband, and a father, Hernandez has said. 

Rehl didn’t celebrate violence, Hernandez insists and he didn’t give anyone any orders on Jan. 6. But prosecutors have showed the jury a less favorable view of Rehl. They have shown the jury a Rehl who deeply lamented Trump’s election loss and worked hard at recruitment efforts. They have shown the jury a Rehl who, instead of retreating as officers were clearly overrun on the 6th, sent updates to Proud Boys in group chats. 

To that end, as a horde of rioters breached the building that afternoon, Rehl wrote, “Civil war started.” 

He pushed past barricades and broke into Senator Jeff Merkley’s office with other rioters and Proud Boys, including some members who prosecutors have said are “tools” of the conspiracy. 

Not one week in the Proud Boys seditious conspiracy trial has passed by smoothly and last week was no different. Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing. 

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record. 

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.