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Zip Tie Guy Eric Munchel Gets a Second Chance at Release

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The DC Circuit just remanded the case of Zip Tie Guy Eric Munchel and his mother Lisa Eisenhart for reconsideration of their bid for release. Robert Wilkins wrote the opinion, joined by Judith Rogers; Gregory Katsas dissented in some but not all of the opinion.

I wrote here and here about how this was a close case. As such, this opinion will provide important guideposts for other January 6 making similar arguments.

The opinion agreed that January 6 posed an urgent risk to our democracy, generally presenting a broad authority to detain people. But it also emphasized that only some of the participants in the insurrection pose enough of a danger to afford exceptional authority to detain people.

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)). But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.

In the case of Munchel and his mom, the opinion found that the analysis of the danger that Munchel and his mom present to the community was not forward looking, and because they had not done a number of things — actually broken through barricades, assaulted cops, planned the operation, or abetted that process — their dangerousness was not sufficient to make their unwillingness to follow release conditions a factor. In particular, without the special circumstances of the vote certification and the violent mob, the mother and son likely would not pose the same threat to our country.

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

[snip]

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand.

I suspect mom, at least, will get bail on remand. And I suspect other defendants will try to argue (some with likely success) that they fit the same categories as Munchel and his mom — willing participants in an insurrection, but not key enough players to detain awaiting trial.

Among the principles it lays out:

January 6 was a Constitutional risk, but some defendants were only a threat on that day with that mob

As noted, the Circuit agrees that January 6 presented such a risk to the country that extraordinary detention authorities may be necessary. It included a list of circumstances — similar to the ones that Beryl Howell laid out — that reach this heightened level of risk. Some defendants (particularly the far right lone actors who did not engage in violence personally) will likely be able to ask for review of their own detention. But others — including some of the Oath Keepers — will have the case for their detention reinforced because of their role aiding and abetting a concerted attack on democracy.

DC District judges can review detention remotely

While dicta, a footnote complains that it took so long — until they had been transported to DC — for the two to have a detention review in DC. It asks why a District judge could not have conducted the review remotely.

While COVID-19 issues caused a delay in the appellants’ transport to the District of Columbia, the record does not indicate why a D.C. District Judge could not have heard this matter prior to February 17, even if the appellants were in another location. Ultimately, this issue, while troubling, is not presented as a ground for reversal in this appeal.

This is something that has come up in other cases, repeatedly. This panel, at least, seems to agree that a DC District judge can review detention remotely.

DC District judges don’t have to defer to the local Magistrates’ decisions if there’s new evidence

Munchel and his mother argued that once the Magistrate in Tennessee judged them not to be a danger, the District had no authority to review that determination. The Circuit disagrees, but only with regards to the circumstances of this case, where the government provides new evidence to the District.

The statute concerning review of a Magistrate Judge’s release order says nothing about the standard of the district court’s review, see 18 U.S.C. § 3145(a), and we have not squarely decided the issue.3 We need not break new ground in this case, because as the appellants maintain in their briefing, Munchel Reply Mem. 8, n.3, the government submitted substantial additional evidence to the district judge that had not been presented to the Magistrate Judge, including the 50- minute iPhone video, a partial transcript of the video, and several videos from Capitol CCTV.4 As a result, this was not an instance where the District Court made its dangerousness finding based on the same record as was before the Magistrate Judge. Here, the situation was more akin to a new hearing, and as such, the issue before the District Court was not really whether to defer (or not) to a finding made by the Magistrate Judge on the same evidentiary record.

3 This court stated long ago, in dictum, in a case arising under the predecessor Bail Reform Act that district courts review such prior determinations with “broad discretion.” Wood v. United States, 391 F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck.”).

Before we’re done, I wouldn’t be surprised if the DC Circuit is asked to weigh in directly on the standard of review here.

DC District judges can consider whether a defendant will abide by release conditions

Munchel and his mother had tried to limit when a District judge can consider whether they will abide by release conditions, not to reconsider bail but only to revoke it.

Second, we reject the argument that the District Court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The District Court’s finding as to appellants’ potential compliance is relevant to the ultimate determination of “whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(f) and (g). Indeed, other courts have found a defendant’s potential for compliance with release conditions relevant to the detention inquiry.

[snip]

While failure to abide by release conditions is an explicit ground for revocation of release in 18 U.S.C. § 3148(b), it defies logic to suggest that a court cannot consider whether it believes the defendant will actually abide by its conditions when making the release determination in the first instance pursuant to 18 U.S.C. § 3142.

This has come up with other defendants. That said, this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone. This part of the ruling will be particularly impactful for those detained because either a belief in QAnon or Nazism suggests a general disdain for our existing government.

A taser counts as a weapon

Munchel and his mother also argued that their alleged crimes don’t merit detention because the taser Munchel brought with him is not a weapon. Not only did the Circuit disagree, but it also readily applied the analysis to Eisenhart’s abetting exposure.

Third, we reject Munchel and Eisenhart’s arguments that the charged offenses do not authorize detention. Under 18 U.S.C. § 3142(f)(1)(E), detention is permitted if the case involves “any felony . . . that involves the possession or use of a . . . dangerous weapon.” (emphasis added). Two of the charges in the indictment meet this description: Count Two— entering a restricted building “with intent to impede and disrupt the orderly conduct of Government business . . . while armed with a dangerous weapon,” in violation of 18 U.S.C. § 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting charge for Eisenhart); and Count Three—violent entry or disorderly conduct, again “while armed with a dangerous weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform Act thus explicitly authorizes detention when a defendant is charged with committing certain felonies while possessing a dangerous weapon, as is alleged in this indictment.5

5 Eisenhart’s argument that a taser is not a dangerous weapon— which Eisenhart raises for the first time in reply, and which Munchel seeks to adopt in his reply—is without merit. The relevant statute, 40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to include “a device designed to expel or hurl a projectile capable of causing injury to individuals or property. . . .” While the record contains no evidence or proffer as to how Munchel’s taser operates, a taser is commonly understood as a device designed to expel a projectile capable of causing injury to individuals. See Cantu v. City of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the taser by insulated wires—toward the target at a rate of over 160 feet per second. Upon striking a person, the taser delivers a 1200 volt, low ampere electrical charge. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” (internal alterations and quotation marks omitted)). Thus, at this stage, the evidence sufficiently demonstrates that Munchel’s taser is a dangerous weapon under the statute.

This ruling matters specifically for Richard “Bigo” Barnett (who also brought a taser with him), but also holds that the weapons enhancement on the 1752 and 5104 charges that other defendants face will merit detention. The Circuit also readily approved Eisenhart’s exposure on account of Munchel’s taser. That matters because many defendants are charged with abetting certain conduct that merits detention.

Detention analysis remains individualized

Munchel and his mom, like virtually all defendants arguing for release, have compared their own case to that of others who got released. Because Munchel only raised this in his reply, the Circuit didn’t address the comparison per se. But said that the District Court is in better position to review such claims.

Finally, Munchel and Eisenhart argue that the government’s proffer of dangerousness should be weighed against the fact that the government did not seek detention of defendants who admitted they pushed through the police barricades and defendants charged with punching officers, breaking windows, discharging tasers at officers, and with planning and fundraising for the riot. See Munchel Reply Mem. at 9–12. Appellants did not raise this claim before the District Court and the government did not substantively respond to it on appeal because Appellants raised it for the first time in Munchel’s reply. Whatever potential persuasiveness the government’s failure to seek detention in another case carries in the abstract, every such decision by the government is highly dependent on the specific facts and circumstances of each case, which are not fully before us. In addition, those facts and circumstances are best evaluated by the District Court in the first instance, and it should do so should appellants raise the issue upon remand.

As several people watching the hearing for Connie Meggs’ attempt to get release, every detention fight going forward will have to account for this one. With its broad support for holding conspirators accountable for the violence of others, it may not help Meggs all that much. But it will crystalize these ongoing detention disputes.

Update: I’m wrong. Judge Amit Mehta just released Meggs.

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The Three Key Details the Proud Boy Unindicted Co-Conspirator Likely Revealed to Prosecutors

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By March 1, the government had three pieces of evidence that form a key part of a conspiracy indictment accusing Ethan Nordean, Joe Biggs, Zachary Rehl, and Charles Donohoe of conspiring to breach the Capitol and by doing so, delaying the certification of the vote:

  • The Proud Boys used Baofeng radios set to a specific channel (which channel prosecutors knew)
  • After Enrique Tarrio’s arrest, Ethan Nordean got put in charge of the January 6 operation
  • The gang had a plan to split up to optimize the chances of success

A detention motion for Nordean submitted on that day included all three of these details. It described how the Proud Boys distributed Baofeng radios to use in the operation.

Arrangements were made to program and distribute multiple Baofeng radios5 for use by Proud Boys members to communicate during the event. Baofeng is a Chinese communications equipment manufacturer. Baofeng radios can be programmed to communicate on more than 1,000 different frequencies, making them far more difficult to monitor or overhear than common “walkie talkie” type radios. Specific radio frequencies were communicated to the Proud Boys.

5 Law enforcement recovered a Baofeng radio from Defendant’s home during the execution of a search warrant—the Baofeng radio recovered from Defendant’s home was still tuned to frequency that had been communicated to the group.

[snip]

The group led by Defendant arrived at the east side of the Capitol before noon. Several of the men in the group were holding Baofeng radios. Others had them clipped to their belts or jackets.

It described how Nordean was put in charge after Tarrio’s arrest.

Moreover, following the arrest of the Proud Boys’ Chairman on January 4, 2021, Defendant was nominated from within to have “war powers” and to take ultimate leadership of the Proud Boys’ activities on January 6, 2021.

[snip]

On January 4, 2021, Henry “Enrique” Tarrio, the self-proclaimed “Chairman” of the Proud Boys was arrested shortly after arriving in Washington, D.C., pursuant to a warrant issued by D.C. Superior Court. In communications between Proud Boys members following Tarrio’s arrest, it was acknowledged that Defendant would be among those that led the Proud Boys on the ground on January 6, 2021.

And it described a decision to split people up in an effort to increase the likelihood of actually shutting down the certification of the vote.

As noted more fully below, Defendant—dressed all in black, wearing a tactical vest—led the Proud Boys through the use of encrypted communications and military-style equipment, and he led them with the specific plans to: split up into groups, attempt to break into the Capitol building from as many different points as possible, and prevent the Joint Session of Congress from Certifying the Electoral College results.

[snip]

In order to increase the odds that their plan would succeed, Defendant and those Proud Boys following him dressed “incognito” and spread out to many different locations from which they could force entry into the Capitol. Defendant and others responsible for the January 6 Proud Boys event likely knew from experience that their typical tactic of marching in “uniform,” and in unison, would draw a concentrated law enforcement response to their location. By blending in and spreading out, Defendant and those following him on January 6 made it more likely that either a Proud Boy—or a suitably-inspired “normie”—would be able to storm the Capitol and its ground in such a way that would interrupt the Certification of the Electoral College vote

Even after prosecutors shared these damning claims, their bid to keep Nordean in jail failed. Nordean’s wife filed a declaration stating in part that Nordean obtained the radio on January 7 and, to her knowledge, he did not possess such a radio before that date.

An indictment against Nordean obtained on March 3 to comply with the Speedy Trial Act (but not released publicly until after the detention hearing) mentioned none of that.

And at the March 3 detention hearing before Beryl Howell, according to Zoe Tillman, the government withdrew the claim that Nordean had the Proud Boys split into groups as a factor for that detention hearing. In what the WaPo described as, “a remarkable stumble for prosecutors,”Judge Howell released Nordean to home detention, saying there was little evidence that Nordean played that leadership role.

Nordean “was a leader of a march to the Capitol. But once he got there it is not clear what leadership role this individual took at all for the people who went inside,” Howell said. “Evidence that he directed other defendants to break into or enter the Capitol is weak, to say the least.”

Nordean’s release marked a stumble for prosecutors, who have cast him as a key figure based on what Howell agreed were “ominous” communications before Jan. 6 that they said indicated he and other Proud Boys were planning “violent action” to overwhelm police and force entry to the Capitol. The judge’s decision sets back for now the government’s efforts to establish that there was a wider plot to that end.

[snip]

“The government has backed down from saying that he directly told them to split into groups and that they had this strategic plan,” Howell remarked.

Howell said that although Nordean’s release was a “close call,” she agreed with the defense that “there’s no allegation that the defendant caused injury to any person, or that he even personally caused damage to any particular property.”

Prosecutors claimed they had this evidence on March 1. But after failing to present it at that March 3 hearing, Nordean got released.

On March 15, the judge assigned to the case after Nordean got indicted, Timothy Kelly, issued an order delaying the arraignment scheduled for the next day. He offered no explanation.

What didn’t become clear until this week is that, on March 10, the government obtained the superseding indictment against Nordean and others. And then, on March 12, the government asked Judge Kelly to delay Nordean’s arraignment on his original indictment because of the superseding indictment. Prosecutors explained that revealing the indictment ahead of time would risk alerting Rehl and Donohoe before they could be arrested and their houses searched.

On March 10, 2021, a federal grand jury sitting in the District of Columbia returned a Superseding Indictment charging Defendant, and three co-defendants (two of whom were not previously charged), with Conspiracy, in violation of 18 U.S.C. § 371; Obstruction of an Agency Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), and 2; Obstructing Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3), and 2; 18 U.S.C. §§ 1361, and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2).

The Superseding Indictment is under seal, pending the arrest of newly charged defendants and the execution of search warrants. Law Enforcement anticipates executing the arrests and search warrants of the new defendants in a coordinated operation on Wednesday, March 17, 2021. Once the arrests are executed, the Superseding Indictment will be unsealed.

The evidence the superseding indictment provides to substantiate claims first made on March 1 may explain an even bigger reason why prosecutors didn’t provide their evidence for those three claims in time to keep Nordean in custody: They had an unindicted co-conspirator (presumably someone cooperating with prosecutors) who was, along with the four conspiracy defendants, on an encrypted channel created after Enrique Tarrio’s arrest on January 4 that Proud Boy leaders used to continue planning for January 6. That unindicted co-conspirator was personally involved in all three details included in that detention memo against Nordean. He helped divvy up the Proud Boys to be spread out during the January 6 operation.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Note: If “New MOSD” was a channel of State leaders of the Proud Boys, it would likely have included Nicholas Ochs, who heads the Hawaii chapter of the Proud Boys. Ochs was the first senior Proud Boy to be arrested, on January 7, at the airport when he arrived back in Hawaii (and therefore carrying anything he had with him at the insurrection, potentially including his cell phone and any radios he kept). Kathryn Rakoczy, who has since moved onto the team prosecuting the Oath Keepers, was the original prosecutor on Ochs’ case. But now Christopher Berridge, who is on all the other Proud Boy cases but not the Nordean and Biggs one, is prosecuting Ochs. Ochs is charged in a parallel conspiracy indictment, with the very same goal and many of the same means as the Nordean and Biggs one, but which for some reason was not identified as a related case to the other three Proud Boy ones and so was not assigned to Judge Kelly; Judge Howell is presiding over Ochs’ case. Ochs has a superb defense attorney, Edward McMahon. Many of these details, which make the curious treatment of the Ochs-DeCarlo conspiracy indictment clear, are in this post or this expanded table.

Whoever the unindicted co-conspirator is, he’s the one who set the channel of the Baofeng radios the night before the insurrection. And he’s the one who stated that Nordean was in charge.

46. At 9:03 p.m., REHL notified NORDEAN, BIGGS, DONOHOE and others that he had arrived in Washington, D.C. DONOHOE responded by requesting one of the radios that REHL had brought.

47.  At 9:09 p.m., UCC-1 broadcast a message to MOSD and Boots on the Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

It is highly likely that prosecutors learned the three details included in that detention motion — that Nordean had been put in charge, that the Proud Boys were using Baofeng radios set to frequency 477.985, and that part of the plan was to disperse the men to increase chances of success — from the unindicted co-conspirator and or devices seized from him when he was first arrested.

And it took them less than two months to learn those details of the plot.

Update: The government has moved to detain both Nordean and Biggs now. Those motions cite from the Telegram chats the Proud Boys used to organize the day before the attack, including (I’ve combined them from both motions):

On January 5, between 9:30 – 9:32am [Biggs] stated “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

On January 5, at 9:32am, a member of a Proud Boys Telegram group stated “It seems like our plan has totally broken down and rufio has taken control as a singke [sic] point of contact.”

On January 5, between 5:22 – 5:25pm, [Biggs] stated “Woth [sic] [coconspirator Ethan Nordean] trying to get numbers so we can make a plan.” Defendant then stated “Just trying to get our numbers. So we can plan accordingly for tonight and go over tomorrow’s plan.”

On January 5, at 5:52pm, [Biggs] stated “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and “I’m here with [co-conspirator Nordean] and a good group[.]”

On January 5, at 9:07pm, co-conspirator Charles Donohoe asked “Hey who’s boots on ground with a plan RN [ … ] Guys are asking.” A participant in the encrypted chat stated “Supposed to be Rufio.”

Within minutes, an unindicted co-conspirator broadcast a message to those in the group chat, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.”

On January 5, between 9:17 and 9:20pm, [Biggs] stated “We just had a meeting woth [sic] a lot of guys. Info should be coming out” and then “I was able to rally everyone here together who came where I said” and then, “We have a plan. I’m with [co-conspirator Nordean].”

On January 5, at 9:34pm [Biggs] told co-conspirator Charles Donohoe to communicate to Proud Boys members a message stating that the group in Washington, D.C. would meet at the Washington Monument at 10am on January 6.

On the morning of January 6, Donohoe stated that he was on his way to the Washington Monument, and “I have the keys until Rufio and [co-conspirator Zachary Rehl] show up.”

Update: As I note in a footnote to this post, Nicholas Ochs can’t be the unindicted co-conspirator. That’s true for two reasons. First, because DOJ does not believe UCC-1 was at the Capitol on January 6 (though doesn’t say where he was). DOJ knows Ochs was inside the Capitol. Also, DOJ has now started treating all the Proud Boy conspiracies as the same conspiracy. So Ochs could not, then, be considered un-indicted in that conspiracy.

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Beryl Howell Takes an Early Swipe at the Trump Made-Me-Do-It Defense and Other Detention Standards

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When DC Chief Judge Beryl Howell ordered Richard Barnett detained pending trial, the only record of her judgement — beyond her strong language at the detention hearing — was the order itself, including a paragraph about Barnett’s, “brazen conduct.” When she ordered Rachel Powell released to home detention, she released no opinion.

But when she ordered Proud Boy William Chrestman detained until trial, she wrote a 32-page opinion explaining her thinking. With regards to Chrestman — who threatened a cop, carried an axe-handle as weapon, and organized a cell of people who worked together to prevent police from expelling insurrectionists — Howell judged that his pre-trial detention wasn’t a close call: he poses a danger to the nation.

Defendant’s conduct on January 6 and blatant disregard for the law clearly show that he is a serious danger to the community and the nation, and that no condition or combination of conditions can be imposed that will ensure his compliance with the law pending trial in this matter.

But as one after another DC District judge struggles with the difficult pre-trial detention questions and just days after Judge Amit Mehta noted that some of these legal questions will pertain to a significant number of January 6 decisions, Howell used her decision on Chrestman to address three issues that have been and will continue to be litigated by insurrectionists:

  • Standards for review of magistrate decisions from other districts
  • The distinctions between different roles in the insurrection
  • The claim that Trump ordered or sanctioned insurrection

Magistrate decisions from other districts

As she did with a number of other defendants, after a magistrate in Kansas granted Chrestman pre-trial release, Judge Howell granted an emergency request from prosecutors staying that order for another review. And in at least one case where DC judges reviewed a magistrate’s decision (Dominic Pezzola), the defendant has tried to limit the scope of the review.

In most cases, January 6 defendants will have their cases initially reviewed by a magistrate local to their homes, only to be prosecuted in the DC District.

Perhaps to establish both the primacy and the scope of these District Court orders, in her opinion Howell reviews the requirements for granting a hearing on detention (both Jessica Watkins’ and Thomas Caldwell’s attorneys had argued their charged crimes did not merit a review).

As generally pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, a detention hearing must be held on the government’s motion when the charged offense involves:

1. “[A] crime of violence,” id. § 3142(f)(1)(A), which is defined broadly as an offense having as an element the attempted, threatened, or actual use of physical force against a person or property of another, or a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, id. § 3156(a)(4)(A)–(B);

2. “[A]n offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed,” id. § 3142(f)(1)(A), which “list” includes “a violation of . . . [18 U.S.C. §] 1361 (relating to government property or contracts),” id. § 2332b(g)(5)(B)(i);4

3. “[A]ny felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon[,]” id. § 3142(f)(1)(E);

4. “[A] serious risk that such person will flee,” id. § 3142(f)(2)(A); or

5. “[A] serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror,” id. § 3142(f)(2)(B).

A subset of the types of offenses requiring a detention hearing triggers a rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed” that subset of offenses. Id. § 3142(e)(3). As pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, that subset of offenses includes “an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(e)(3)(C).

4 18 U.S.C. § 2332b(g)(5) provides a definition for “the term ‘Federal crime of terrorism,’” when the offense is “a violation of” an enumerated list of Federal offenses set out in § 2332b(g)(5)(i)–(iv) and the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” id. § 2332b(g)(5)(A). While individuals involved in the January 6, 2021 assault on the Capitol expressed publicly the intent to disrupt a government function in certifying the results of the 2020 Presidential Election and to coerce such disruption by breaching the Capitol, to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,” under chapter 113B of title 18, United States Code, but only with separate, predicate enumerated offenses, such as violation of 18 U.S.C. § 1361 (relating to government property or contracts).

Howell then reaffirms that when conducting such reviews, District Court judges conduct a de novo review (Dominic Pezzola’s attorney, for example, asked the District judge for a more limited review).

[B]oth the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge’s release or detention order de novo.

[snip]

First, the BRA vests the authority to review and ultimately to “determine[]” a motion for review of a pretrial release or detention order in a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145. Even when reviewing an order issued under § 3142, then, the district court exercises its original jurisdiction over the case as a whole, not appellate jurisdiction over the magistrate judge’s release or detention order.

Thus in the Chrestman case and in the hundred or so detention motions that will come, Howell lays out, the DC District judge will — if the government requests a review under the available offenses — decide the detention question.

Distinctions between different roles in the insurrection

Howell then turns to the difficult question of presiding over the detention reviews for hundreds of defendants involved in an unprecedented crime. Before assessing the question with respect to Chrestman, she addresses the question more generally:

The BRA, of course, requires a reviewing court to assess the specific conduct of each defendant, but the varying results in these cases raise the natural question, given the undeniably traumatic events of January 6, of the standard against which a particular defendant’s actions on that day should be evaluated. Before evaluating the nature and circumstances of defendant’s specific conduct, then, consideration of the differentiating factors that warrant pretrial detention of certain defendants facing criminal liability for their participation in the mob and pretrial release of others is helpful.

She lays out the kind of things judges might consider (all but one of which happen to work against Chrestman, but which provide useful guidelines for others). This analysis covers three pages, but the questions she asks (I’ve changed the order slightly) are:

  • Was the defendant charged with misdemeanor or felony offenses?
  • Did the defendant remain on the Capitol grounds or breach the building?
  • Did the defendant engage in planning before arriving at the Capitol, for example by obtaining weapons or gear?
  • Did the defendant carry or use a dangerous weapon?
  • Did the defendant coordinate with other participants before, during, or after the riot?
  • Did the defendant assume a formal or de facto leadership role?
  • Did the defendant injure or attempt to injure others?
  • Did the defendant damage or attempt to damage federal property?
  • Did the defendant threaten federal officers or law enforcement?
  • Did the defendant specifically promote the disruption of the electoral vote?

These questions aren’t surprising. Similar questions (excepting the first) seem to guide the government’s charging decisions. Still, as Howell says explicitly, they offer a “useful framework” to help contextualize each defendant’s actions.

Using these guidelines, she assesses that Chrestman’s actions pose a particularly grave threat to the country.

The nature and circumstances of defendant’s offenses evince a clear disregard for the law, concerted and deliberate efforts to undermine law enforcement, and an apparent willingness to take coordinated, pre-planned, and egregious actions to achieve his unlawful aims, all of which indicate that he poses a danger to the community. This first factor weighs heavily in favor of detention.

Without relying on the framework of terrorism (though she describes Chrestman as “terrorizing elected officials”), Howell places the danger in Chrestman’s pre-planning and coordination to undermine government.

Defenses claiming to be following Trump’s orders

As I noted, in his bid for pre-trial release, Chrestman suggested that he believed he was operating with Trump’s approval.

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

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

In the guise of addressing Chrestman’s claim that he has a viable defense, even in spite of the overwhelming evidence against him, Howell takes an early swipe at a defense many, if not most, defendants are offering: Trump invited or ordered the insurrectionists to take the illegal actions.

Howell admits she’s reviewing the particular form of the argument Chrestman presented before it has been sufficiently briefed (without also noting that one after another defendant is already trying some version of it).

This theory has not been fully briefed by the parties, and the question of former President Trump’s responsibility, legal, moral, or otherwise, for the events of January 6, 2021 is not before this Court.

Defendant presents this defense only for the limited purpose of counterbalancing the overwhelming weight of the evidence against him.

Nevertheless, Howell reviews the precedents Chrestman invokes to suggest that he might be excused for following Trump’s directions by distinguishing — first of all — between believing that a government official was describing the law accurately and, as happened here, believing that a government official could bless a “waiver of law.”

Nonetheless, in order to measure properly defendant’s potential privilege against liability against the government’s proffer, some exploration of the proposed due process defense is necessary.

Defendant invokes a novel iteration of a complete defense to criminal liability that arises when an individual criminally prosecuted for an offense reasonably relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense” and those statements actively misled the individual to believe that his or her conduct was legal. United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018) (internal quotation marks and citations omitted) (outlining the elements of the defense). “The defense . . . is based on fundamental fairness concerns of the Due Process Clause,” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996), and thus relies on an assessment of whether the challenged prosecution “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal quotation marks and citation omitted), because of the lack of notice and fairness to the charged defendant. The Supreme Court recognized this defense, sometimes called “entrapment by estoppel,” in three cases, Raley v. Ohio, 360 U.S. 423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), and United States v. Pennsylvania Industrial Chemical Corp. (“PICCO”), 411 U.S. 655 (1973). Examination of these decisions shows first, that entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.

[snip]

[T]his trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob. [my emphasis]

Moreover, the instructions Trump purportedly gave cannot be deemed part of his job. Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.

No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.”

[snip]

[A] President cannot, within the confines of his constitutional authority, prevent the constitutionally mandated certification of the results of a Presidential Election or encourage others to do so on his behalf, nor can he direct an assault on the coequal Legislative branch of government. Were a President to attempt to condone such conduct, he would act ultra vires and thus without the force of his constitutional authority.

This gets close to the argument I keep making, that a key step Trump took that day (and riled up the mob when it didn’t work) was to give another Constitutional officer, Mike Pence, an unconstitutional order. And I was surprised that Howell didn’t mention pardons, a means by which Trump, at least, has forgiven the illegal obstruction of justice done for his behalf. Similarly, I would expect more focus on the separation of powers.

Still, it’s a framework for responding to what already is a sea of defendants claiming they can’t be held accountable for their crimes because Donald Trump invited or ordered them to commit the crimes. And does so within a broader framework that may provide DC District judges some way to approach the detention challenges with some measure of consistency.

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A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

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There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

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Zip-Tie Guy’s Release on Bail Is Why Donald Trump Must Be Prosecuted

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Yesterday, a magistrate judge in Nashville, Chip Frensley, gave Eric Munchel bail. He’s the guy who has become known as “Zip-Tie Guy” because of a picture of him taken in the Senate during the January 6 coup attempt, showing him dressed in tactical gear and holding zip ties.

The government will appeal the decision to DC Chief District Judge Judge Beryl Howell over the weekend, and thus far she has granted such requests from the government, so it’s certainly possible he will ultimately be held.

The bail hearing demonstrates one of the problems with the government’s investigation and prosecution going forward, one which demonstrates the necessity of prosecuting former President Donald Trump (see also this live tweet of the hearing and Politico’s account).

Munchel got charged, along with his mom, Lisa Marie Eisenhart, with the two trespassing charges used for most defendants, conspiracy among themselves, along with obstructing law enforcement during civil disorder.

The filing supporting detention described that Munchel must be found guilty of attempting to impede law enforcement during civil disorder.

To prove a violation of 18 U.S.C. § 231(a)(3), the government must show (1) that a civil disorder existed at the time of any alleged violation; (2) that such civil disorder was resulting in interference with a federally protected function; (3) that one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder; (4) that the defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers; and (5) that such attempt to act was done willfully and knowingly. United States v. Casper, 541 F.2d 1275, 1276 (8th Cir. 1976).

The evidence doesn’t show Munchel doing that — though shows his mom yelling at the cops. Indeed, the judge in the hearing described video showing him being deferential to cops inside the Capitol. The fact he grabbed the zip ties and said he wanted to seize the Senate gavel suggests he targeted Congress, not the cops.

What the evidence does show is Munchel is a gun nut who wanted to terrorize lawmakers. His mom spoke more explicitly of violent revolution.

“It was a kind of flexing of muscles,” said Munchel, who wore a bulletproof vest and complained that police confiscated his Taser during the riot. “The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.”

Preparing for their 10-hour drive home, the 30-year-old clamoured for greater organisation in the next steps to fight against Biden’s America. He worried that many pro-Trump warriors were individualists and lamented that potential leaders in the Make America Great Again (Maga) movement faced difficulty in rallying troops due to banishment from mainstream social media sites. “Our biggest struggle is getting together, knowing where to go, what to do and who to go to,” said Munchel despondently.

His mother agreed: “The left has everything: the media, organisations, the government. We have to organise if we’re going to fight back and be heard.” Eisenhart, a nurse, added that a violent revolution has long been on the cards thanks to last year’s racial justice protests, anti-police riots and “unnecessary” coronavirus lockdowns.

“This country was founded on revolution. If they’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” said a teary-eyed Eisenhart, biting into a hotdog. “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.”

The most compelling piece of evidence that Munchel could have coordinated with a more organized plot involves an exchange he had with the Oath Keepers as he headed into the building.

As MUNCHEL and Eisenhart make their way to the Capitol, they encounter several members of the “Oathkeepers,” a militia group that is distrustful of government authority. One of the Oathkeepers says, “There’s 65 more of us coming.” MUNCHEL, when he recognizes them, says in affirmation, “Oathkeepers,” and bumps fists with one of the men.

But that does’t show pre-planning nor does it tie his possession of the zip ties to any plan the Oath Keepers had.

The government clearly either fears that Munchel will engage in violence or it wants to make sure it keeps its showy zip-tie guy on ice to include kidnapping among the parts of the plot they’ll eventually lay out. But the judge is right that, thus far, the government hasn’t shown evidence that he coordinated with anyone except his mom.

Silent in all this (because, unlike the other kitted-out guy in the Senate that day, Munchel was not shown to have told a reporter that he responded to the call of the then-President to come to DC to engage in that show of force) is the framework of Trump’s calls to overturn an election. The evidence even suggests that Eisenhart claims to have believed Trump’s Big Lie of a stolen election (and it may well be true that she does believe it). But that’s the single factor that makes Zip-Tie Guy’s actions, with his mom, dangerous. He wanted to scare lawmakers, and he wanted to do it in the context of a plea to illegally retain power. A plea from Donald Trump.

Until such time as prosecutors are ready to argue that this show of terrorism was intended to support false claims of election theft mobilized in an attempt to overthrow the Constitutional government of the United Staes, judges are going to find that guys like Munchel owned their arsenals legally and — while violating specific laws protecting the Capitol and the counting of the votes — do not pose a grave threat to our country.

I’m not saying I believe that. I’m not even sure Frensley does.

But absent closer ties to the Oath Keepers (who did clearly pre-plan), the thing that makes the raid on the Capitol especially dangerous, the thing that makes Munchel’s grab for the gavel and the zip-ties criminal, is Trump’s illegal plan. And so, until prosecutors start naming Trump as a co-conspirator, start naming the Big Lie of a stolen election as the motivating cause of the violence, guys like Munchel are going to continue to get bail.

Update: Mirriam Seddiq did a video talking about how conspiracy works in US law, as applied to Trump’s incitement of an insurrection that lays out how this should be presented to judges.

Update: Over the weekend, Beryl Howell granted the government’s emergency motion for detention. The motion included an additional allegation against Munchel, that he had assaulted Bloomberg journalist William Turton.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

It also more aggressively described what Munchel had done as insurrection.

Finally, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. Make no mistake: the fear the defendant helped spread on January 6 persists—the imprint on this country’s history of a militia clad insurrectionist standing over an occupied Senate chamber is indelible. Only detention mitigates such grave danger.

It makes it clear Munchel may be facing additional charges.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses. These offenses carry substantial penalties, which incentivizes flight and evading law enforcement—a thought that the defendant already appears to have contemplated by virtue of avoiding his residence and workplace, terminating his Facebook account, and leaving his cell phone with an associate.

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Bill Barr Hid Evidence of a Bribery for Pardon Investigation During the Election

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Beryl Howell just partially unsealed an opinion she wrote on August 28, permitting DOJ to access some attorney’s communications in a bribery-for-pardon scheme. It’s unclear who the targets of the investigation are — though their names are too short to be Rudy Giuliani.

But one thing is clear: Judge Howell asked DOJ to tell her whether the opinion could be unsealed.

The order associated with that opinion directed the government to submit a “report advising whether any portions of the accompanying Memorandum Opinion may be unsealed to the public in whole or in part and, if so, proposing any redactions.”

DOJ did not respond until November 25, and in their response, they asked her to keep the entire thing under seal.

On November 25, 2020, the government submitted a status report requesting that the Court “maintain the Memorandum Opinion under seal” because it “identifies both individuals and conduct that have not been charged by the grand jury” and declining to suggest any redactions for a publicly available version.

She made them go line by line to get the redactions issued with this opinion.

So basically Barr hid that someone tried to bribe Trump for a pardon through the entire election.

Update: Howell gave them 90 days so Barr didn’t intentionally hold it.

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Roger Stone Assistant Andrew Miller Fought His Subpoena Far More Aggressively than His Former Boss

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I want to look at a notable asymmetry in the way Roger Stone and his former assistant Andrew Miller responded to being subpoenaed by Robert Mueller’s team.

As I noted in an update to this post, in November 2018, Mueller’s team subpoenaed Stone after Chuck Ross published texts Stone gave the journalist so he would publish a bullshit claim that Randy Credico was Stone’s back channel.

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Ross published five sets of texts, four of which he clearly attributed to Stone.

The text showing Credico reminding Stone that he had an earlier source by itself actually undermined Stone’s claim to HPSCI that Credico was his source. Emails FBI already had in possession showed Credico’s comms with Stone post-dated Stone’s public claims to have had an intermediary to Julian Assange.

By providing texts to Ross Stone had told HPSCI he didn’t have, he provided all the evidence needed to be found guilty of one charge in his eventual indictment. In addition, unbeknownst to Stone, Credico didn’t have some of his own texts, including some of the ones that Stone had retained. So by providing them to Ross, Stone made it clear he had texts that were otherwise unavailable.

The fact that Stone had those texts, from a phone he stopped using in 2016, also contributed to the probable cause that the phone would be in one of Stone’s homes when the FBI searched them.

The affidavit supporting the search of Stone’s homes makes it clear that Stone did comply when the FBI subpoenaed him for texts he was freely willing to share with Chuck Ross, though the description of it as “recent[]” may suggest that Stone stalled a bit.

The government has only recently obtained text messages between Stone and Credico during some period of the campaign in 2016 from Stone’s subpoena production, issued after media reports in November 2018 stated that Stone’s attorneys were able to extract text messages between Stone and Credico from a phone Stone stopped using in 2016.

Still, Stone complied with a Mueller subpoena with nary a public squawk.

Compare that with a new detail the files released last week make clear about Andrew Miller’s year long fight of a Mueller subpoena. We knew that, after Miller agreed to an FBI interview with no counsel on May 9, 2018, he then commenced a year-long subpoena fight to avoid testifying before the grand jury, with an inordinate amount of legal fuckery. We knew that the very last thing that occurred under Mueller’s authority was the final negotiation for Miller’s testimony — though the grand jury Miller appeared before was actually not Mueller’s, suggesting Miller’s testimony was needed for the ongoing investigations still hidden in court filings released last week. (Prosecutors subpoenaed Miller to be available for Stone’s trial but never called him, so his testimony did pertain in some way to the lies Stone told HPSCI.)

What we didn’t know before last week is how much Stone communicated with Miller while the former assistant launched this subpoena challenge. After he met with the FBI, an August 2018 warrant makes clear, Stone and Miller spoke by phone. They did the next day too, when Mueller subpoenaed Miller. Miller stalled in a variety of ways for a month. Then, on June 14, after Mueller moved to force Miller to testify, Stone and Miller emailed five times. That’s the period when Miller got a new lawyer, Paul Kamenar, who led Miller’s subpoena challenge to the Supreme Court, all the while claiming Miller was challenging the subpoena it for libertarian reasons. Between May 23, 2018 and August 3, 2018, as that challenge was proceeding, Stone and Miller exchanged over 100 emails. (Chief DC Judge Beryl Howell, who authorized the August 3 warrant, had just ordered Miller to testify as soon as possible, which led directly to his appeal.)

The difference in response to the subpoena may simply reflect that Miller launched the challenge to Mueller’s authority that Stone otherwise might have made. Or it may reflect that there’s no defense to a subpoena if you’re selectively feeding the subpoenaed materials to the press.

But it also might suggest that Stone viewed whatever testimony Miller provided to be more damning to Stone than turning over texts that would prove that Stone’s claim that Credico was his back-channel to Assange was bullshit.

On April 24, Kamenar filed a notice of appearance as Stone’s lawyer in his prosecution and will represent Stone for the appeal.

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The COVID Delay Should Give Reggie Walton First Pass at the Roger Stone Unsealing

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Back when Reggie Walton ordered DOJ to give him a copy of the Mueller Report to review the exemption claims, I suggested that Judge Walton was unlikely to make much more public, except that his review might speed the process of liberating the material on Roger Stone that had been withheld under Amy Berman Jackson’s gag.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

But because of the COVID-related delay in Walton’s review, it’s likely he’ll make a first pass on the Roger Stone declassification, making it far harder for Bill Barr to politicize the release like he has the 302s.

Walton issued his order commanding DOJ to give him an unredacted version of the Mueller Report on March 5. DOJ complied with that order and delivered the report (and two other pages at issue in the lawsuit) on March 30. However, that same day, Walton issued a minute order stating that, because of Chief Judge Beryl Howell’s order suspending operations at the courthouse, he would be unable to start the review until April 20.

However, in light of the Chief Judge Howell’s March 16, 2020 Order Regarding Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 (BAH), the Court’s review of the unredacted version of the Mueller Report is unable to occur until the Court resumes its normal operations on April 20, 2020, unless the Court’s normal operations are further suspended due to the COVID-19 pandemic. Signed by Judge Reggie B. Walton on March 30, 2020.

He even suggested that if operations were further suspended (as they have been), the review might be further delayed — though EPIC made a case that the review is an essential function and should start on April 20 (that is, yesterday).

EPIC respectfully submits that in camera review of the Mueller Report is an essential function warranting the Court’s prompt attention.

[snip]

Time is of the essence in this case. It is vital that the American citizenry know the full extent of Russian interference in the 2016 presidential election before casting their votes in the 2020 presidential election, now just 200 days away. And it is vital that there be judicial review of the DOJ’s asserted exemptions that prevent public release of relevant information contained within the Mueller Report.

Walton has not indicated in the docket whether he started the review yesterday or not.

That said, once he does get around to the review, it will be far more substantive than it otherwise might. That’s because, days before Walton said he would conduct this review, ABJ issued her opinion denying Stone’s bid for a new trial. In her order, she released Stone from her gag.

Also, as of the date of this order, the defendant and his attorneys are hereby released from the media communication order of February 15, 2019 [Dkt. # 36], the minute order of February 21, 2019, and the order of July 17, 2019, [Dkt. # 149], although all other Court orders, including those related to the confidentiality of materials, and all other conditions of the defendant’s release, remain in place.

That means several of the exemptions invoked to hide Roger Stone’s efforts to optimize the WikiLeaks releases — everything under a b7A or b7B exemption starting on page 52 and in some other places — no longer apply. And given the way the timing has worked out, Reggie Walton will have first dibs on deciding whether President Trump’s personal involvement in Stone’s effort is entitled to any privacy consideration.

It may take Walton a while to get through this stuff (particularly if the 71-year old judge decides COVID threats prevent him from starting). But he should be able to get first review of what gets unsealed now.

Meanwhile, there’s another imminent source of more transparency coming.

Back in February 2019, a bunch of media outlets moved to get the warrants,

associated with the application for, issuance of, and returns regarding warrants related to the Russia Investigation generally and the Stone prosecution in particular.

The government interpreted that request this way:

It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

Back in January, the government said it could release the materials most closely related to Stone.

MR. KRAVIS: Yes, Your Honor. We believe that there are some materials in the warrant affidavits that can now be unsealed — in the affidavits that are responsive to the access request that can now be unsealed in light of the conclusion of the Roger Stone trial.

THE COURT: All right.

MR. KRAVIS: However, there are other materials in those warrant affidavits that the government believes should remain under seal either because those materials relate to other pending investigations — that is, investigations other than the one that culminated in the Roger Stone trial — and materials that implicate the privacy and reputational interests of uncharged third parties. And so the government’s request at this point is for the Court to set a deadline — the government would propose 60 days — for the government to go back and review the search warrant affidavits that are responsive to the movant’s access requests and make a recommendation to the Court as to which materials can be unsealed and which materials should remain under seal. And then the Court would have an opportunity to hear from Mr. Stone on that point, and then the Court could decide how to handle the matter from there.

Based on that schedule, the government submitted 33 exhibits — each of them, presumably, a warrant application — under seal for the court’s review.  After Judge Christopher Cooper ordered the government to give Stone a copy of the warrants so he could argue to redact more of the affidavits, the government asked that the protective order from the trial extend to these warrants because, “not all of them were previously provided to counsel for Mr. Stone in criminal discovery.”

After getting a COVID-related extension, Stone and his lawyers have until Friday to object to the privacy and grand jury related redactions in the warrants in question.

The upcoming release of warrants targeting Stone is interesting not least because we may see why he was investigated for hacking and wire fraud (though those are the kind of affidavit filings Stone once said they would fight to keep sealed). But filings in his case (this ABJ opinion is the most detailed) described that he received just 18 warrants in discovery. Which means there are 16 warrant applications that Stone had not seen before a few weeks ago, which either targeted people like Jerome Corsi and Randy Credico (and maybe even Steven Bannon and Ted Malloch), or of a scope previously unknown.

In the pandemic era, things have a way of getting delayed. And Stone has made it clear he’ll try to hide details explaining why the FBI thought he might have liability under the CFAA.

But as we’ve been focused on COVID, the release of Stone-related materials in the wake of his trial has inched closer.

Update: Judge Walton scheduled a status conference for June 18, which will likely be the earliest that we might learn what else he’ll release. And Stone submitted their response on the 33 warrants this morning, under seal.

Update: Stone did not object to the government’s redactions, so Judge Cooper ordered the government to release the warrants (there are actually 33, not 34 as I initially wrote) on Tuesday. The redactions include non-public information on pending investigations.

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The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

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The 900 Pages of George Nader Testimony the Government Wants to Keep Hidden

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Brad Heath spotted this Beryl Howell opinion granting George Nader’s request to get a copy of his own grand jury transcript.

We can be sure it’s Nader because of the details she includes: Someone currently jailed for crime with significant mandatory minimums charged using evidence from a phone seized in the Mueller investigation, awaiting trial early next year. The person provided testimony with immunity on four occasions in February and March 2018.

That all fits Nader and only Nader.

In my continuing interest in tracking the dregs of the Mueller investigation, several details are of interest. Howell describes that his transcript is 900 pages long. Several of the redactions suggest Nader may need the transcripts to craft a defense in potential additional charges, which would more obviously raise a need to consult the transcript and the limits of his immunized testimony. And, the government claims that Nader was asked “questions regarding ongoing investigations.”

That’s not surprising in the least. Nader’s testimony touched on so many crimes it is unsurprising some of them remain active investigations (note the attached picture, which shows Nader with Jared Kushner and Mohammed bin Salman.

The question is how he wants to use this transcript. It’s possible he needs it to argue that potentially pending charges against him are improperly based on immunized testimony (and as such wants to eliminate criminal exposure before making the best plea deal he can).  Or it’s possible he wants the transcript to be able to explain the risks any cooperation he’d offer would pose to powerful people.

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