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Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

December 13, 2021/112 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Back in June, I noted that Ethan Nordean’s lawyers were staking his defense on getting all the crimes charged against him thrown out — from the obstruction charge applied in an unprecedented manner, to the civil disorder tainted by its racist past, all the way to trespassing.

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

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

[snip]

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

[snip]

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

As I noted, on Friday Dabney Friedrich became the first DC District judge to uphold the obstruction application. The decision comes as — predictably — DOJ seems to be closing in on a much more substantive description of the Proud Boy-led plan to assault Congress. All the while, Nordean has been sitting in SeaTac jail, and even got thrown into SHU (solitary) last week for as yet undisclosed reasons.

To be clear: Friedrich’s is in no way the last word. Judges Randolph Moss, Amit Mehta, and the judge presiding over Nordean’s case, Tim Kelly, are all due to rule on the issue as well, with a number of the other judges facing such challenges as well. I’d be surprised if all the judges ruled for DOJ.

And because these judges are likely to rule differently, as all the parallel challenges have been briefed, some of the lawyers in the key cases have kept the judges apprised of what was going on in other challenges. For example, after getting leave first, the government submitted filings they made in Nordean and Guy Reffitt’s challenges to obstruction in the Brady Knowlton docket. Defendants have occasionally used that opportunity to respond.

Yesterday, without first asking for leave to file it, Nordean submitted what was billed as a “notice of new authority” in the case, but which was, in fact, a 23-page point by point rebuttal of and which didn’t actually include Friedrich’s opinion. As part of that, purportedly to take issue with the grammatical claims that Judge Friedrich made but actually in an effort to attack an example Friedrich used rather than the law itself, Nordean lawyers David and Nick Smith use an Emily Dickinson poem to — they claim — make a point about line breaks and semicolons.

And the Court did not explain how a semicolon and line break somehow altered the meaning of (c)(2)’s “otherwise” phrase which, as the Court correctly noted, “links” it to the meaning of (c)(1). As Nordean has previously explained, the question of meaning involves grammar, not page format. Subsection (c)(2) is a clause dependent on (c)(1) for its meaning because the predicate “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to. . . .” is not a complete sentence.

[snip]

As the Court will see, each of the provisions in the case relied on by the Sandlin Court is a complete sentence, unlike subsections (c)(1) and (c)(2) of § 1512. Thus, they are grammatically independent in a way that (c)(1) and (c)(2) are not. The same grammatical point distinguishes Justice Scalia’s finding in United States v. Aguilar, on which the Sandlin Court relies, that the ejusdem generis canon did not apply to § 1503’s “omnibus clause.” 515 U.S. at 615-16 (finding that the omnibus clause is “independent” of the rest of § 1503 in a grammatical sense: it stands alone as a complete sentence).

Contrary to the Sandlin Court’s understanding, line breaks and semicolons do not necessarily alter the meaning of the clauses that follow in a sentence. One simple example would seem to suffice:

The reticent volcano keeps
His never slumbering plan;
Confided are his projects pink
To no precarious man.

In the sentence above, the line break between “The reticent volcano keeps/His never slumbering plan” does not indicate that the second line’s meaning is “independent” of the first line’s. To the contrary, the phrase containing the pronoun “his” cannot be understood without reference to its antecedent in the first line. Similarly, the same pronoun following the semicolon cannot be understood without reference to the first line. Just so with (c)(2)’s “; or otherwise obstructs . . .” We are concerned with meaning, not the surface of the page.

This is poetry!! It is fairly insane to liken poetry, much of the power of which stems from breaking the rules of grammar and which often strives to obscure meaning, to US Code, which aspires to use grammar in ways that clarify meaning.

There’s one more problem, too.

There’s some dispute, because there is no final manuscript for this poem, about whether Dickinson used a semicolon or a dash after “slumbering plan.” And Dickinson’s dashes — literary experts say with all the certitude that drove me from literary academics — put great stake in the ambiguity introduced by such punctuation.

“The dash is an invitation to the reader to make meaning,” Dr. Smith said. “It can also be a leap of faith.”

Moreover, these were handwritten works, and so dashes would not even be regular lines. The variation in such lines has been interpreted with various meanings as an immediate expression of Dickinson’s intent. [Note: I owe this observation to several people on Twitter but have lost those Tweets; h/t to them]

That is, Dickinson’s poem is not so much an apt comment on Friedrich’s examples. Rather, it’s an example of the uncertainty embodied by the artistic expression of another individual, almost the opposite of laws codified by Congress.

Bizarrely, the citation of Dickinson is among the parts of Smith’s brief that Brady Knowlton’s attorneys lifted and replicated in their own unsolicited notice and reply. Carmen Hernandez, who is Donovan Crowl’s attorney, not only remembered to include Friedrich’s opinion, but she didn’t include the Dickinson poem.

There have been many aspects of my own literary training that I’ve used in my coverage of the January 6 investigation. Reading Emily Dickinson (about which I have no expertise) is not one I’d expect to need.

Update: In a hearing today, Judge Kelly joined Friedrich in rejecting the challenge to the obstruction application.

Networks of Insurrection: “Trump is literally calling people to DC in a show of force”

September 15, 2021/71 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

This will be another of those posts where I catalog a few of the developments in the January 6 investigation that show how — Jocelyn Ballantine’s involvement notwithstanding — the many parts of the investigation are crystalizing around associations between rioters.

Michael Rusyn witnesses the initial East door break

First, in my continuing focus on the statements that DOJ obtains from those pleading guilty to trespassing charges, I’d like to look at the statement of offense from Michael Rusyn, who pled guilty Monday.

Rusyn was first IDed to FBI the day after the riot, interviewed by the FBI on February 17, and then arrested back in April, probably because he showed up in two key locations, obviously recording what happened on his phone. But after they arrested him and started pulling surveillance footage and exploiting his cell phone, they realized he was always accompanied by the same woman, about whom they had gotten a separate tip on January 7.

At least per Deborah Lee’s arrest affidavit, that’s how the FBI determined that Rusyn was the “Michael Joseph” she had tagged in her own Facebook posts from the riot, and that — as described in his statement of offense — he had lied when he told the FBI he didn’t know anyone on the bus he took to the riot.

On February 17, 2021, the defendant was interviewed by a Task Force Officer and an FBI Special Agent. During that interview, the defendant said the he traveled to Washington, D.C. by boarding a bus in Jessup, Pennsylvania at approximately 5:00 a.m., and that he did not personally know anyone on the bus. This was untrue: the defendant and Deborah Lynn Lee rode to Washington, D.C. together on the same bus. And, indeed, the defendant’s phone contained numerous photographs and video fo Lee outside the Capitol building, which it appeared had been recorded by the defendant, as well as numerous text messages between the defendant and Lee.

The rest of his statement of offense liberally implicates Lee in his actions, including by noting that she entered via the East doors first, and then reached out her hand and pulled him into the building (which also contradicts his initial claims).

At approximately 2:27 p.m., Deborah Lynn Lee entered the Capitol building through the breached door. She turned back across the threshold and extended her hand to the defendant, who took her hand and pulled himself through the crowd, across the threshold and into the Capitol. The two were among the first thirty to forty people to enter the Capitol after the breach of this door.

DOJ could have wired Rusyn’s plea, requiring that he wait until Lee pled guilty before they’d let him plea. Instead, though, they’ve acquired evidence against someone who made false claims about Antifa in the days after the riot.

Lee is also one of the John Pierce clients who has decided to stick with him — and so, presumably, with her false claims — after his bout with COVID.

In addition to making it much harder for his friend to sustain her lies about Antifa, though, Rusyn also provided witness testimony describing how the East doors got broken.

By approximately 2:10 p.m., the defendant stood on the East Side of the Capitol building, near the eastern, double doors at the top of the Capitol steps, leading to the rotunda. He was in a crowd of people, close enough to the crowd to see the front of the doors. A video that the defendant uploaded to Facebook at 2:10 p.m, and a photo that the defendant uploaded to Facebook at 2:16 p.m.,, capture these doors, including the windowpanes that would–shortly thereafter–be smashed in by members of the crowd.

Beginning at approximately 2:20 p.m., and continuing through at least approximately 2:24 p.m., members of the crowd began smashing several of the windowpanes of these doors. At approximately 2:25 p.m., another rioter opened one of the double doors from the inside; thereafter, that person and several other rioters opened this door widely enough to allow members of the crowd to breach the door and enter the Capitol.

This is straight witness testimony and validation of Rusyn’s own video, but it also debunks claims that a bunch of other rioters have tried to make in their own defense.

Rusyn’s statement of offense includes similar language describing the mob that tried to push their way into the House shortly thereafter.

Rusyn was allowed to plead to the less serious of the two trespassing charges. But his testimony and validated video will be quite useful for prosecutors to go after more serious defendants, including the details of how rioters opened a second front at the East doors.

Gary Wilson makes Brady Knowlton’s obstruction more obvious

In a similar case where DOJ arrested someone’s co-rioter months later, the government arrested a guy from Salt Lake City named Gary Wilson. Wilson is the guy who showed up in the photos used to arrest Brady Knowlton on April 7, who himself was arrested long after his buddy Patrick Montgomery was arrested on January 17.

The FBI used Wilson’s arrest warrant as an opportunity to fill in the details behind the earlier indictment of Montgomery and Knowlton, which added an assault charge against Montgomery and obstruction charges against both.

For example, it shows an exchange captured in Daniel Hodges’ Body Worn Camera just before Montgomery allegedly assaulted Hodges, as described in Wilson’s arrest affidavit.

At around 2:00 p.m. co-defendant Brady Knowlton confronted MPD officers who were making their way through the crowd and yelled at them saying, “You took an oath! You took an oath!” and “Are you our brothers?” Co-defendant Patrick Montgomery came up from behind Knowlton and said something to the officers, but it was hard to tell what he said. Officer Hodges then moved forward a few steps through the crowd. Wilson can be seen on Hodges’ video standing in the crowd (see screenshot above)—not far from where Montgomery and Knowlton were standing. In fact, Officer Hodges and Wilson collided as Officer Hodges tried to make his way through the crowd.

At approximately 2:02 p.m., Montgomery assaulted MPD Officer Hodges. An FBI special agent interviewed Officer Hodges on February 24, 2021. Officer Hodges told the FBI agent that at about 2:00 p.m. on January 6, 2021, he was making his way toward the west side of the Capitol to assist other officers. He was part of a platoon of about 35-40 officers. Officer Hodges said that right before 2:02 p.m., a very agitated crowd cut-off the platoon’s progress and split the group of 35-40 officers into smaller groups. Officer Hodges and a small group of officers ended up encircled by the crowd and the crowd was yelling at them “remember your oaths.”

Officer Hodges said that he was at the front of the group and attempted to make a hole through the crowd for himself and the other officers to continue their movement toward the Capitol. He yelled “make way” to the crowd. While trying to get through the crowd, he looked back to see other officers being assaulted by members of the crowd, which was yelling “push” while making contact with the officers. Hodges immediately turned back and started pulling assaulting members of the crowd off the other officers by grabbing their jackets or backpacks. After pulling a few people away from the officers, a man—later identified as Patrick Montgomery—came at Officer Hodges from his side and grabbed Officers Hodges’ baton and tried to pull it away from him. Officer Hodges immediately started to fight back and the two of them went to the ground, at which time Montgomery kicked Officer Hodges in the chest.

As Officer Hodges went down to the ground, his medical mask covered his eyes, which temporarily blinded him. He was laying on the ground, could not see, and was fighting to retain his weapon while surrounded by a violent and angry crowd. In that moment, he was afraid because he was in a defenseless position because of the assault. He was able to break Montgomery’s grip on the baton and get free.

The Wilson affidavit then shows how the three of them then entered the Capitol through the Upper West Terrace door, went to the Rotunda, witnessed Nate DeGrave and Ronnie Sandlin allegedly assaulting officers outside the Senate, then entered the Senate Gallery, all movements described in earlier filings but now documented with pictures.

From there, the threesome entered another hallway and had another confrontation with some MPD officers. Here again, the Wilson affidavit provides more detail (and a picture) of a confrontation explained in sketchy form in earlier filings.

Knowlton: “All you gotta do is step aside. You’re not getting in trouble. Stand down. For the love of your country.”

Unidentified rioter: “What happens if we push? Do you back up? We’re not gonna push hard.”

Knowlton: “This is happening. Our vote doesn’t matter, so we came here for change.”

Unidentified rioter: “We want our country back. You guys should be out arresting the Vice President right now.”

Wilson: “We came all the way from our jobs to do your job and the freaking senators’ job.”

The three men had one more confrontation with officers before they left the building around 2:54.

All this is important because, even aside from the possibility that these additional conflicts expose Montgomery and Knowlton to additional civil disorder or resisting charges, it all makes Knowlton’s obstruction much easier to show.

And that’s important because, as of right now, Knowlton is mounting the most mature (and best funded) challenge to the way DOJ has used obstruction charges against January 6 defendants. In a hearing overseeing that challenge, Judge Randolph Moss expressed concern (as Judge Amit Mehta similarly did in an Oath Keeper challenge of the application) of limiting principles, what distinguishes the actions of those charged with obstruction for January 6 from protestors complaining about the nomination of Brett Kavanaugh to the Supreme Court. This arrest affidavit doesn’t change the legal issues, but it does make it a lot easier to see that Brady Knowlton was no mere protestor.

There’s probably more that will come with this arrest — at the very least an opportunity to supersede Montgomery and Knowlton to add Wilson.

But we also may learn whether there’s a tie between these three guys (there’s a fourth who posed with Montgomery and Knowlton outside the Capitol, but he’s not known to have entered the Capitol) and two other Utahns who entered the Senate Gallery at almost the exact same time as these three, Janet Buhler (pictured just behind Knowlton and Wilson) and her step-son Michael Hardin.

After all, we’re still waiting to learn the identities of the Utahns that John Sullivan’s brother, James, discussed with Rudy Giuliani shortly after the riot. These four people (just four are Utahns — Montgomery lives in Colorado) are among just eight Utahns charged to date, and they all made it to the Senate Gallery at roughly the same time.

“It’s the only time hes ever specifically asked for people to show up”

The last recent arrest involving networks of people who rioted together charged Marshall Neefe and Brad Smith with conspiracy to obstruct the vote, assault, civil disorder, and the trespassing while armed that can carry a stiff sentence. Their charges under 18 USC 1512(k) marks at least the third time January 6 defendants were charged with conspiracy under that clause (as opposed to 18 USC 371, like most militias), with the two others being Eric “Zip Tie Guy” Munchel and his mom, and the SoCal 3%er conspiracy.

If DOJ’s application of obstruction to the vote count survives judicial review, charging a conspiracy under 1512(k) offers several things that 371 doesn’t offer: notably, very steep sentencing enhancements for threats of violence.

And these men did threaten violence. As early as December 22, Neefe talked of “wanna crack some commie skulls.” That day, too, Smith described getting axe handles to which he’d nail an American flag “so we can wave the flag but also have a giant beating stick just in case.” Like most of the 3%ers, Smith didn’t enter the Capitol, and for the same reason: because he believed entering the Capitol while armed would risk arrest. “I was the people crawling up the side of the building. I wasn’t going to jail with my KA BAR,” which he had described as his “Military killin knife” when he got it in December.

It’s tempting to think this conspiracy, like that of Munchel and his mom, is mostly tactical, a way to implicate both in the acts of one.

But there are references to efforts to “encourage[] others to join him and NEED to travel to Washington,” so it’s possible we’ll see later arrests similar to those of people networked with the 3%ers (for example, the Telegram Chat that Russell Taylor started is mentioned in the arrest affidavits for Ben Martin and Jeffrey Brown).

More interesting still is that this conspiracy might work like the (still-uncharged) one promised against Nate DeGrave and Ronnie Sandlin, two random guys who took action in direct response to Trump’s directions.

Charging this as a conspiracy focuses on the lead-up to the riot. It shows how these men started planning for war on November 4, “Why shouldnt [sic] we be the ones to kick it off?” It describes how they responded to Trump’s calls for attendance.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for a while.

It emphasizes the import these men ascribed to Trump’s calls for attendance.

SMITH wrote another Facebook user on December 22, 2020, “Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesnt [sic] burn right away. It’s the only time hes [sic] ever specifically asked for people to show up. He didn’t say that’s why but it’s obviously why.”

It shows how, in advance of the riot, both men came to understand that they might join militias in storming the Capitol.

On December 31, 2020, SMITH continued to message other Facebook users, encouraging them to go to Washington, D.C., on January 6, 2021. For example, he told one user, “Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.”

That same day — the same day Smith got his military knife — Smith talked with Neefe about how easy storming the Capitol would be.

“I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.”

By January 5, that turned into Smith’s call to “Sacrifice the Senate!!!!”

All that’s important background to Smith narrating their arrival by describing their actions as, “literally storming the Capitol.” Shortly thereafter, Neefe was involved in using a Trump sign as a battering ram against MPD officers. This may be the assault currently charged against Jose Padilla and others.

Even in retrospect, these conspirators spoke in terms that tie Trump’s actions to their own violence and threats of violence, bragging about responding to Pence’s refusal to fulfill Trump’s illegal demands by literally chasing members of Congress out of their chambers.

From January 6-7, SMITH posted, “Got Gassed so many times, shit is spicy but the Adrenaline high and wanting to ‘Get’ Pelosi and those fucks, it was bearable.” He also admitted, “Oh yeah. The time will come for some of them. But today’s mission was successful! Remember how they said today was the final day & that Biden would be certified? Well we literally chased them out into hiding. No certification lol [. . .]. Pence cucked like we knew he would but it was an Unbelievable show of force and it did its job.”

As far as we can tell, Marshall Neefe and Brad Smith are just bit players in this story, two guys who went to the Capitol and joined in the violence.

But that’s what makes them so useful, for showing how two bit players, believing they were taking orders directly from the President, armed themselves and helped implement a deliberate attempt to “literally chase[]” Congress away from the task of certifying the vote.

Did Paul Gosar Take Actions on Behalf of Donald Trump that Contributed to Ashli Babbitt’s Death?

August 9, 2021/77 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In this post, I noted that just nine minutes before accused January 6 defendant Brady Knowlton entered the Capitol at 2:35, Donald Trump called Tommy Tuberville. Later in the day, Rudy Giuliani would ask Tuberville to delay the vote certification by challenging more states. If that’s what Trump asked Tuberville to do on that first call and if Tuberville complied with Trump’s request, he and the rest of his colleagues might still have been in the Senate when Knowlton and others started to swarm in.

Instead, Tuberville told the President he had to go because the Senators were being evacuated, following shortly on the evacuation of Mike Pence just minutes before Trump called.

We only know of Trump’s call to Tuberville because Trump — and later Rudy Giuliani — dialed the wrong number, calling Mike Lee’s phone instead of Tuberville’s.

We don’t know who else Trump was calling at the time, though in recent days Jim Jordan has admitted he spoke to Trump that day, while dodging wildly about when that happened and what Trump said.

What we do know is that someone on the other side of the Capitol was doing exactly what Trump later asked Tuberville to do: Paul Gosar, who coordinated closely on all aspects of the insurrection with Trump, was raising more challenges to the vote.

That’s of particular interest because the NYT, in their superb documentary on the chronology of the day (starting at 25:40), suggests that the chain of events that led to Ashli Babbitt’s death started with Jim McGovern’s decision to get through one more person’s challenge of the vote, Gosar’s.

By 2:30 PM the Senate evacuation is well underway. But, even though a lockdown was called over 15 minutes ago, the House is still in session.

Gosar: I do not accept Arizona’s electors as certified.

Representative Jim McGovern is chairing. He told us he wanted to finish hearing objections to the election results by Paul Gosar. House staff and security gave McGovern the all-clear to continue. It’s a delay that likely cost someone their life.

Suddenly, staff are now pointing at the Chamber’s doors.

Please be advised there are masks under your seats. Please grab a mask and place it in your lap and be prepared to don your mask in the event we have a breach.

Just outside, a mob of a hundred or more is baying to get into them.

Well, we came this far, what do you say?

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

These rioters pay little heed to the thin line of police.

They’re going. I would just stop.

And in moments, are pushing against doors into the House.

Stop the Steal! Stop the Steal!

On the other side, Capitol police erect a barricade and draw their guns. On the floor, lawmakers are evacuating to the rear of the chamber, where in a few minutes a rioter will be shot and killed. Part of the mob inside now peels off in that direction to find a different way in. Ashli Babbitt, an Air Force veteran and a QAnon supporter is among the first to arrive at the rear of the House.

There they are! What the fuck!

They see the lawmakers escaping. That lobby might have been clear had the House been evacuated sooner. But the rioters now become incensed. Zachary Alam, a Trump supporter punches in the glass panels with his bare fists.

Stop the Steal! Open the door. Break it down! Break it down!

Police are stretched extremely thin. Just three officers and a security officer stand guard. None are wearing riot gear and they keep their weapons holstered. When a team of heavily armed police now arrives, the three officers step aside.

Go! Let’s go! Get this thing!

This creates a crucial gap that allows rioters to smash in the glass. [A warning: what happens next is graphic.] It’s 2:44PM and behind the door a police officer draws his handgun.

There’s a gun. There’s a gun! He’s got a gun! He’s got a gun!

Babbitt vaults into the window. And the officer shoots her once. It’s a fatal wound, through the upper chest.

Gosar’s challenge delayed the evacuation of the House, meaning that rioters spied the lawmakers evacuating through the Speaker’s lobby as they arrived. NYT suggests that viewing the lawmakers in such close proximity inflamed the rioters, leading Zach Alam to punch through the door and Babbitt to leap through it in an attempt to chase after them, in turn leading to an officer’s decision to use lethal force to protect fleeing Members of Congress.

One minute after Babbitt was shot, surveillance footage caught Knowlton entering the Senate Chamber at 2:45. Had Trump convinced Tuberville to stay, the same kind of confrontation might have happened in the Senate Chamber, too (and video shows that Mitt Romney, already a target for Trump’s supporters, narrowly avoided running into the mob as well).

If a Tuberville delay might have orchestrated a similar clash on the Senate side, it raises questions whether Trump was involved in the Gosar delay.

As it happens, Gosar is among the most active purveyors of the martyr myth surrounding Ashli Babbitt, including tweeting out this image that seemes almost necrophiliac in composition, with its focus on his crotch and her name.

But the fact that Trump was actively calling Members of Congress well after rioters stormed the building, and the fact that Gosar caused what the NYT deemed the fatal delay on the House side, it’s possible that he and Trump had a bigger role in ensuring that Babbitt jumped through that window to chase Gosar and his colleagues. It’s possible Gosar created that delay because Trump asked him to.

CNN reports that the January 6 commission is weighing whether to obtain White House call logs (Trump made the call to Tuberville from the main White House line).

The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.

The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.

Liz Cheney may well be thinking of tracking Trump’s calls to Kevin McCarthy. But the import of Gosar’s delay to the shooting of Ashli Babbitt by itself presents a good reason to subpoena those records.

19 Minutes: The Tuberville Call and DOJ’s Use of Obstruction in January 6 Prosecutions

August 8, 2021/31 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Nine minutes after President Trump called Tommy Tuberville at 2:26PM on January 6 to ask him to raise more objections in an effort to delay the vote count, riot defendant Brady Knowlton entered the Capitol in what DOJ alleges was an intentional effort to delay the vote count.

Nineteen minutes after Trump placed that call, at 2:45PM, Knowlton entered the Senate Gallery, maybe fifteen minutes after Tuberville had told the President he had to hang up because the Senators were being evacuated because people like Knowlton were invading the Capitol.

A number of people have pointed me to this article on Tuesday’s hearing before Judge Randolph Moss in Knowlton’s challenge to DOJ’s use of 1512(c)(2) to charge those who, DOJ alleges, came to the insurrection with the intention of delaying or stopping the certification of the votes. Here’s my live thread of the hearing and my own post on it; I’ve linked some of my other posts on the application of obstruction below.

The article is a good summary of the legal questions around the application. But in my opinion, its emphasis does not adequately convey what went on at the hearing. For example, the headline and first three paragraphs emphasize Judge Moss’ concerns about constitutional vagueness, which Moss didn’t focus on until an hour into the hearing.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing this week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

It doesn’t mention how Moss started the hearing — by expressing skepticism about Knowlton’s argument — until the last line of the fourth paragraph.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point. [my emphasis]

At least before Moss, then, this challenge faces an uphill climb (some of the other challenges to this application of obstruction make a slightly different legal argument that may have more promise of success). And while the WaPo piece notes that Moss asked for additional briefing from both sides, it doesn’t note what I consider a fairly major strategic error from Knowlton’s team: choosing to define an “official proceeding” as one in which the ultimate decision of the proceeding is an adjudication that has real import to the life and liberty of those involved.

In effect, Knowlton lawyer Brent Mayr claimed that Joe Biden (and the 81 million Americans who voted for him) would have suffered no harm if Congress had been so intimidated by the people roaming the hallways threatening their assassination that they certified Donald Trump as the victor of the 2020 election instead of Biden, or if the insurrectionists managed to cause lasting unrest that delayed the certification indefinitely, giving Trump a chance to attempt another desperate ploy to remain in power.

By making that argument, Mayr provided DOJ the opportunity to lay out — in the additional briefing Moss ordered — the real adjudication that took place on January 6 and the import to justice and rule of law that the adjudication had, something DOJ has done, albeit in less focused fashion, in other filings in this investigation. Mayr gave DOJ an opportunity to explain that there was a very real risk that the lawfully elected President of the United States would not have his victory officially recognized, which was precisely the goal, DOJ would argue, that Brady Knowlton sought.

Mayr gave DOJ that opportunity even amid heightened coverage of how real the threat of a travesty of justice was.

The reporting on Jeffrey Rosen’s testimony about Jeffrey Bossert Clark’s attempt to force DOJ to endorse Trump’s Big Lie makes it clear how corrupt all this was (showing corrupt intent is key to proving Knowlton or anyone else guilty of the obstruction charge).

Filling in just one more detail will tie together Trump’s efforts to recruit DOJ in telling his Big Lie and Brady Knowlton’s response to that Big Lie of flying to DC, invading the Capitol, and heading to the place where the vote was supposed to be counted.

[B]ody-worn camera footage from the Metropolitan Police Department [] shows Knowlton and [Knowlton’s co-defendant Patrick] Montgomery outside the Capitol at around 2:00 p.m. In the video, Knowlton confronts officers who are making their way through the crowed and yells at them saying, “You took an oath! You took an oath!” and pointedly asking them, “Are you our brothers?” Montgomery is standing right behind Knowlton. The government also located another body-worn camera video of both defendants after they left the Senate Gallery, confronting officers inside the Capitol in a hallway near Senate Majority Leader Schumer’s office. In the video, both Knowlton and Montgomery direct officers to move out of the way. Knowlton tells the officers, “We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

That detail is that Donald Trump made an effort to ensure the Senators would still be there when Knowlton and others arrived.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

To be clear: there’s no evidence that Knowlton had direct ties to Trump (though Knowlton is one of just seven defendants thus far from Utah, and a week after the riot, Rudy Giuliani appears to have been in contact with James Sullivan, the brother of defendant John Sullivan, who told Rudy he had gotten his “agent” and three others from Utah out of trouble). There’s even less evidence that, at the moment Knowlton crossed the threshold of the Capitol, he knew Trump had just tried to convince Tuberville to delay long enough for Knowlton to arrive in the Senate.

This is not yet a conspiracy that ties the President’s actions to obstruct the vote count with Brady Knowlton’s alleged actions to achieve the same goal.

But even as Brady Knowlton’s lawyers have argued that an official proceeding is one in which the parties can suffer dire consequences if rulings don’t go in their favor, more evidence is coming out about how Knowlton’s actions fit into a larger, undeniably corrupt scheme to deprive Joe Biden (and Kamala Harris, who was present and participating on that day) of their electoral win.

If that’s the standard, then Knowlton’s lawyers have made a compelling argument against his case.

The WaPo’s not wrong about the seriousness of this larger challenge. And whether or not this argument succeeds, it’s still not clear that DOJ will be able to prove that Knowlton had the requisite corrupt intent to delay the vote.

But Knowlton’s argument may be overtaken by the new evidence proving just how corrupt this effort was.

Posts on obstruction

July 17, 2021: General thoughts on the application of obstruction in advance of the Paul Hodgkins’ sentencing

June 4, 2021: How Ethan Nordean’s challenge to the application of obstruction degrades the challenge

June 14, 2021: How the III Percenter conspiracy indictment might use the threats of violence enhancement from the obstruction statute

July 31, 2021: How DOJ blew an opportunity to explain the difference between the Brett Kavanaugh protests and the January 6 rioters

July 27, 2021: How Donald Trump might be charged with obstruction

August 3, 2021: Brady Knowlton’s lawyer falsely claimed his client’s alleged obstruction posed no harm of injustice

August 4, 2021: Trump’s Big Lie demonstrates the threat of harm from insurrectionists’ obstruction

List of all obstruction challenges

“Leave the Rest to Me and the R Congressmen:” Trump’s Big Lie and the Actual Harm of January 6 Obstruction

August 4, 2021/118 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As I noted, yesterday lawyers for January 6 defendant Brady Knowlton argued before Judge Randolph Moss that Congress’ certification of the vote count is not an official proceeding covered by the obstruction statute Knowlton was charged under. Knowlton’s argument was going as well as could be expected, in my opinion, until his attorney, Brent Mayr, argued that the vote certification was not an official proceeding because no one faced actual harm based on the outcome of the proceeding. Unbelievably, Mayr seems to have given zero consideration to the harm that the lawfully elected President, Joe Biden, might suffer if Congress failed to certify his win, to say nothing of the 81 million voters who voted for him.

The argument happened even as notes and other documents coming out of the House Oversight Committee make it how clear how real that risk was.

Before the notes that have been released start, Trump had already tweeted out an announcement for the January 6 “protest” on December 19.

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

On December 27, Acting Deputy Attorney General Richard Donoghue took notes from a call where Trump laid out the alleged fraud that merited DOJ involvement. Donoghue noted Trump saying, “You guys may not be following the Internet the way I do.” Donoghue recorded multiple times that DOJ officials told Trump his election claims were wrong, detailing the investigations that DOJ had already done into the allegations. He recorded Trump’s intimation that he might start replacing people with Jeffrey Bossert Clark if they didn’t back his claims of fraud.

At one point, Trump demanded, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”

That day, Trump tweeted about the January 6 riot again.

December 27, 2020: Trump tweets, “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow.”

The next day, Clark wrote a draft letter to Georgia instructing them to run another election. Donoghue responded, “There is no chance I would sign this letter or anything remotely like it.”

Days later, on January 1, Trump pitched the January 6 protest again, branding it an attempt to “stop the steal.”

Trump himself tweets, “The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

On January 2, Acting Attorney General Jeffrey Rosen reiterated, “I confirmed again today that I am not prepared to sign such a letter,” calling on Georgia to send alternate votes to Congress.

On January 3, Trump attempted to make good on the threat he made on December 27, to replace Rosen with someone who would help him steal the election, Clark. Because he didn’t want to distract from his efforts to overturn the election, Trump backed down.

[Clark] informed Mr. Rosen midday on [January 3] that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

Unwilling to step down without a fight, Mr. Rosen said that he needed to hear straight from Mr. Trump and worked with the White House counsel, Pat A. Cipollone, to convene a meeting for early that evening.

[snip]

Around 6 p.m., Mr. Rosen, Mr. Donoghue and Mr. Clark met at the White House with Mr. Trump, Mr. Cipollone, his deputy Patrick Philbin and other lawyers. Mr. Trump had Mr. Rosen and Mr. Clark present their arguments to him.

Mr. Cipollone advised the president not to fire Mr. Rosen and he reiterated, as he had for days, that he did not recommend sending the letter to Georgia lawmakers. Mr. Engel advised Mr. Trump that he and the department’s remaining top officials would resign if he fired Mr. Rosen, leaving Mr. Clark alone at the department.

Mr. Trump seemed somewhat swayed by the idea that firing Mr. Rosen would trigger not only chaos at the Justice Department, but also congressional investigations and possibly recriminations from other Republicans and distract attention from his efforts to overturn the election results.

After nearly three hours, Mr. Trump ultimately decided that Mr. Clark’s plan would fail, and he allowed Mr. Rosen to stay.

Mr. Rosen and his deputies concluded they had weathered the turmoil. Once Congress certified Mr. Biden’s victory, there would be little for them to do until they left along with Mr. Trump in two weeks. [my emphasis]

On the same day Trump tried to replace Rosen with Clark, January 3, he instructed his Acting Secretary of Defense to make sure the National Guard protected his supporters.

The following day, January 4, Trump made DOJ the lead agency for incident response on January 6 (Update: see comments–this happened on January 3). But the people who had almost just been replaced claim that didn’t happen. Whatever the reality, however, DOJ’s inaction is what led to DOD’s delayed response during the insurrection on January 6.

According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

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

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

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

These are the events that led up to Brady Knowlton breaching Congress with hundreds and thousands of other people. This is the back story to what led Knowlton to tell a cop that his vote — for the losing candidate of the election — didn’t count, and so he had shown up in the Senate Gallery to make his voice heard.

And according to the President who had set off this attack on another branch of government, all he needed was the claim the election was corrupt. Leave the rest to Trump and the Republican members of Congress, he instructed.

Brady Knowlton’s presence in the Senate Gallery was instrumental to that plan. Knowlton was what Trump had in mind when he said, “leave the rest to me.” And Knowlton helped to intimidate Republican members of Congress to help Trump steal the vote.

Both Brady Knowlton and the then-President seem to have understood that storming Congress was a way to inflict an egregious harm on Joe Biden. And yet Knowlton’s lawyer claims no one would face an injustice if such a harm resulted.

Brady Knowlton’s Lawyer Suggests There Were No Victims on January 6

August 3, 2021/32 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

“We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

Judge Randolph Moss just held a very thorough hearing for one of the first challenges to DOJ’s use of obstruction to charge felonies against January 6 defendants, which I live-tweeted here. Knowlton’s lawyer Ronald Sullivan started by making the argument in their brief — which is that the January 6 vote count doesn’t count as an official proceeding the obstruction of which would be a felony and even if it does, Knowlton had no way of knowing that it did. James Pearce, arguing for the government, laid out why the vote count is an official proceeding and would even qualify under the more circumscribed definition Knowlton adopted.

Along the way, Judge Moss asked a lot of questions that make it clear he understands how complex this question is — and even the possible unintended consequences. He wanted to know what distinguishes events on January 6 from protestors who interrupt a Congressional hearing. He wants a sober answer to the question, what distinguishes January 6 rioters from protests against Brett Kavanaugh (which DOJ bolloxed last week). Moss even suggested that, procedurally, the government should attempt to get the inevitable Supreme Court review before it creates double jeopardy problems with charging the most serious defendants with something like insurrection or seditious conspiracy.

For well over an hour, this was the hearing I’ve been expecting since DOJ first rolled out this unprecedented use of the obstruction statute months ago. This is a hard question, and I’m not sure DOJ has made its case.

And then Knowlton attorney Brent Mayr stood up to rebut. Eventually, he got around to arguing — in a challenge that says his client, who apparently is studying law, could not understand that interrupting the vote count would be felony obstruction — that they shouldn’t use the lay definition of “official proceeding,” but instead use a narrower legal one that treats only judicial proceedings as official proceedings. That is, he argues Knowlton couldn’t know this was a crime, even while insisting that’s true by applying a non-obvious legal definition he wants to use for what Knowlton did.

Crazier still, Mayr tried to distinguish the kinds of proceedings one can obstruct and those one cannot based on whether people risk harm based on the outcome. He explained that the hearing before Moss was obviously an official proceeding because Knowlton and co-defendant Patrick Montgomery’s liberty was at stake.

Mayr: Not abt formality. Not abt seriousness. What it’s about is consequence of proceeding. This makes it clear easy way to understand. At very core, it affects these two gentlemen we see on screen.

Effectively, Mayr argued that there were no victims on January 6 — that had the attempt to obstruct the vote count on January 6 succeeded, there would be no victim, or even that there were no victims from what happened on January 6.

An insurrectionist’s lawyer claimed there were no victims on January 6 nor could be were the attempt to prevent the certification of the 2020 Presidential election successful.

He doesn’t think that Joe Biden, the lawful winner of the 2020 Presidential election, would be harmed if he was not certified the winner after winning the Presidential election.

He doesn’t think that Kamala Harris, who was present that day, would be victimized if she never got sworn in as Vice President.

He doesn’t think that Biden’s 81 million voters would suffer any harm if their votes were nullified.

Crazier still, Mayr doesn’t think anyone was victimized by what happened that day, by the people swarming the hallways threatening to assassinate Mike Pence and Nancy Pelosi while people hid under tables. Mayr doesn’t think the four cops who have taken their own lives were victims of the events of January 6.

He doesn’t think that his client, who wanted his candidate to remain in power even after losing an election, and “came here for change,” victimized the 81 million voters who voted for the successful candidate.

DOJ has, in my opinion, not done enough to explain how the intimidation inherent to the entire event proves its corrupt intent. Whether Congress counted as the jury or the witnesses here — or both — not only were they intimidated, not only were they all chased away under threat of physical harm, but that intimidation worked so well that some number of Republicans voted against impeachment out of fear arising out of the events of January 6. These people took our democracy hostage for several hours on January 6, and Brent Mayer believes there were no victims as a result.

As it happens, though, Judge Moss has already spoken about the lasting harm of this event. In the Paul Hodgkins sentencing, Moss described how both Americans and people around the world can no longer be sure of the peaceful transfer of power. That harms all Americans, and the notion of democracy itself.

And Brady Knowlton’s lawyer doesn’t think that’s a real harm.

Update: Fixed the spelling of Pearce’s name.

Three Tea Leaves in Judge Tim Kelly’s Matthew Greene Detention Decision

August 2, 2021/4 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Judge Tim Kelly, the judge presiding over most of the Proud Boy cases, just ruled that Matthew Greene must remain detained until his trial as a threat to the community. Greene’s defense attorney Michael Kasmarek made a compelling argument that the things Greene did at the Capitol weren’t as bad as some other defendants and a witness who testified that Greene had suggested they would have killed Nancy Pelosi if they had found her is unreliable (here is his brief). Prosecutor Erik Kenerson argued that the things Greene did since January 6 — such as stocking up on ammunition and calling for war — were the things that merited detention (here’s the government brief).

It didn’t help Greene that since these filings New York State indicted him because some of the guns he possessed when the FBI showed up were not legal in NY.

But I found the hearing most interesting for how Kelly got to the decision and something he said along the way.

First, after Kenerson said that two of the defendants were at least considering pleading, Kelly said he didn’t think he’d rule on the co-defendant William Pepe’s pending motions — a motion to dismiss the obstruction count, a motion to sever Pepe from Greene and Dominic Pezzola, and a motion to transfer the case out of DC — until after defendants decided they were going to trial.

Given my focus on pending challenges to the obstruction count, it’s significant that Kelly would defer ruling on it. According to a list of all the pending 1512 challenges submitted to Judge Randolph Moss by Brady Knowlton, Kelly has similar challenges from Ethan Nordean (which I wrote about here) and Joshua Pruitt.

But two other comments Kelly made suggest it may not matter.

As he began his analysis of the detention decision for Greene, he noted that the obstruction charge he and the others face may carry a sentence of up to 20 years; he characterized the charged crime as the obstruction of the peaceful transfer of power and described it as a gravely serious crime.

That doesn’t sound like the language of a judge who finds the obstruction charge inapt.

And then from that discussion Kelly described how the damage to the window of the Capitol he is charged with as a co-conspirator of Pezzola carries a terrorism enhancement.

It does — I’ve written about it several times, and such allegations have been before Kelly since a detention dispute for Pezzola in February. But I don’t remember Kelly emphasizing it as much in the past.

To be very clear: Kelly was talking about these legal implications in terms of what the grand jury had decided to charge these Proud Boys with. He wasn’t judging that the Proud Boys are terrorists; rather, he is noting that the grand jury charged them in such a way to be treated as such.

Still, it reflected a thought process I don’t recall him expressing in the same way before. And that’s of particular interest, because Kelly ruled Greene should stay in jail almost entirely because of the risk he — and the Proud Boys — posed going forward.

On the Upcoming Sentencing for the First January 6 Felony Defendant, Paul Hodgkins

July 17, 2021/25 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

On Monday, Paul Hodgkins will become the first felony defendant to be sentenced for his role in the January 6 riot.

Before I explain what the parties have said about that sentencing, some background is in order. The government has used obstruction, 18 USC §1512(c)(2), to charge virtually every January 6 defendant who in one way or another (often on social media before and after the riot), expressed the intent to prevent the certification of the vote, as distinct from simply wandering into the Capitol to express some support for Trump. Such an approach has a lot of upsides: it (thus far) avoids the inflammatory step of charging defendants with seditious conspiracy or insurrection (though that remains a possibility, particularly for militia defendants), while accessing the same kind of steep sentences for the most serious defendants. Because of sentencing enhancements built into obstruction, including “substantial interference,” “extensive scope or planning,” and “threatening injury or violence,” using it allows DOJ to make clear distinctions even among the defendants found guilty of obstruction. Just as an example, while Hodgkins’ sentencing range treated his occupation of the Senate Chamber as substantial interference (which resulted in a sentencing range of 15-21 months), he did not get dinged with enhancements that Graydon Young did for all his pre-planning, the Oath Keepers’ threats of violence, and Young’s attempt to destroy his Facebook account (which resulted in a sentencing range, for obstruction and conspiracy, of 63-78 months).

That said, it is an unprecedented application of the obstruction statute (of course, the January 6 insurrection was an unprecedented event). And a number of defendants have active, non-frivolous challenges to that application, some of which I explained here. Hodgkins pled guilty before all that litigation plays out, giving DOJ a significant first endorsement of this charging approach (which may be why Deputy Attorney General Lisa Monaco sat in on Hodgkins’ guilty plea).

But Monday will be overdetermined because Hodgkins’ sentence, whatever it is, will be taken as setting some kind of standard that over a hundred defendants may be able to point to when it comes to their own sentencing (if DOJ’s application of 1512 is upheld through what is sure to be a number of decisions and appeals). Just as three hypotheticals, Judge Randolph Moss might explain that he finds Hodgkins’ behavior to be a grave threat to democracy and say that with any other similarly situated defendant, he would sentence him to the maximum sentence in his guideline, 21 months, but because Hodgkins went first, Moss will give him a significant downward variance; that would allow him and all other DC judges to sentence hold-outs more severely than Hodgkins. Alternately, Moss might decide that the “significant interference” enhancement shouldn’t apply to Hodgkins and on that basis sentence Hodgkins using a lower guideline (it would give Hodgkins a sentencing range of 8 to 14 months), a judgment that would likely be invoked by a wide range of similar defendants and so would be more binding to other judges and Moss himself in the future. Finally, Moss might rule that what Hodgkins did is barely distinguishable from what he is seeing in some of the trespass cases before him, and so sentence Hodgkins to what would be the max range for one of those trespass charges, six months; such a decision might or might not extend to other obstruction defendants based on factors like whether they told the truth about their actions. Again, those are all just hypotheticals intended to illustrate that why Moss sentences Hodgkins to a particular sentence will be as important going forward as what he sentences him to.

The possibility that Moss might be thinking about what distinguishes Hodgkins from misdemeanor trespass defendants or other defendants charged with obstruction would not be surprising. Because all DC judges have a bunch of January 6 cases, they often express a comparative understanding of them in hearings. So, as Moss prepares to sentence Hodgkins, he might be comparing Hodgkins’ conduct with what has been charged against other defendants over whose cases he is presiding. Moss has a wide range of defendants before him (the Klein brothers, who have ties to the Proud Boys, are his only militia defendants), but the most useful comparisons with other defendants charged with obstruction include:

Brady Knowlton and Patrick Montgomery, who were also in the Senate Chamber and who are among the defendants challenging the application of 1512; Montgomery was charged with resisting a police officer after having claimed on Facebook not to have stormed the Capitol violently
Bruno Cua, who was charged with assault and civil disorder on top of obstruction and sat in Pence’s chair in the Senate Chamber even as others there told him not to
Ryan Suleski, who is also charged with stealing some papers from a member of Congress, who hinted at more to come in an interview after the riot, and who may not have been entirely forthright when interviewed by the FBI
Melody Steele-Smith, who boasted of entering Nancy Pelosi’s office and storming the Capitol on Facebook before she deleted those posts

In other words, Judge Moss’ sentencing decision may be as influenced by what he thinks of Knowlton’s similar conduct and fully-briefed challenge to 1512 as it will be by the memoranda before him. It may be influenced by a belief that Hodgkins didn’t do what other defendants did — including misrepresenting their own behaviors either to the FBI or in his own courtroom — while getting charged for the same crime.

That comparative approach may be Hodgkins’ best argument for a lenient sentence. Hodgkins’ sentencing memo makes a sustained and not very convincing pitch for the effort to forgive sedition after the Civil War and throws in some bullshit language about “cancel” culture, then asks for probation (as most defense attorneys do for obstruction). But it then argues that, given how little separates Hodgkins from defendants charged with misdemeanor trespass (significantly, that he entered the Senate Chamber itself), he should benefit from a minimal participation variance.

We contend that when one’s role is similar to the several hundred Defendant’s found inside the same building as Mr. HODGKINS who are being offered misdemeanors, and whose conduct is the same as the totality of the misconduct that is alleged in the instant case, as noted in the PSR paragraphs 10-19, that Mr. HODGKINS’ role was only minimal and deserving of a variance. Because Mr. HODGKINS is accepting a felony, giving him the minimal role variance creates a just result for sentencing purposes. Importantly, this argument is about sentencing. The Defendant has pled to a felony offense because of his presence on the Senate floor. Those being offered misdemeanors offense for being inside the Capitol could also arguably have been compelled to plead to the same felony count as Mr. HODGKINS, but for the distinction of their location within the building. While for findings purposes, Mr. HODGKINS presence inside the Senate chambers vice the Rotunda is an important consideration, for purposes of sentencing there is zero space between Mr. HODGKINS conduct and that of the several hundred others who entered the United States Capitol who are being sentenced for a misdemeanor offense. Mr. HODGKINS should be treated likewise. One surmises that had Mr. HODGKINS simply stopped at the Senate door, he also would be facing a misdemeanor charge rather than this felony offense.

This is a fairly convincing argument, not least because of the defendants who were in the Senate Chamber (notably including Cua), Hodgkins engaged in far less obstructive behavior while there.

The government, meanwhile, seems to have taken an approach that hopes to leave itself maximal flexibility after this first January 6 obstruction sentencing, one that really doesn’t credit Hodgkins all that much for being the first to plead guilty.

The defendant, Paul Hodgkins, participated in the January 6, 2021, attack on the United States Capitol—a violent attack that forced an interruption of the certification of the 2020 Electoral College vote count, threatened the peaceful transfer of power after the 2020 Presidential election, injured more than one hundred law enforcement officers, and resulted in more than a million dollars’ worth of property damage. Hodgkins entered the Capitol wearing a backpack containing protective eye goggles, rope, and white latex gloves, among other items. He made his way to the heart of the proceeding that he has pleaded guilty to obstructing – the Senate chamber – where he took “selfie-style” photographs and saluted others who were shouting and cheering from a nearby raised platform in the well of the chamber. The government nonetheless recognizes that Hodgkins did not personally engage in or espouse violence or property destruction, he accepted responsibility early and in a fulsome manner, and he has taken significant steps toward his rehabilitation. Accordingly, the government recommends that the Court sentence Hodgkins to 18 months in custody, which is the mid-point of the Sentencing Guidelines as calculated by the U.S. Probation Office and as contemplated in the parties’ plea agreement. An 18-month, within Guidelines sentence is also supported by the U.S. Probation Office’s conclusion that neither a downward departure nor a downward variance is warranted in this case.

[snip]

The government recognizes that Hodgkins did not personally destroy property or engage in any violence against law enforcement officers. But he was surrounded by others who were doing both, and he entered the Capitol as others had paved the way with destruction and violence. Time and time again, rather than turn around and retreat, Hodgkins pressed forward until he walked all the way down to the well of the Senate chamber. Hodgkins came to D.C. preparing to encounter violence around him. He was a rioter, not a protester, and his conduct shows that he was determined to interfere with the vote count and the peaceful transition of power in the 2020 Presidential election. Hodgkins entered the Senate chamber, where he joined the chanting and ranting at the dais. This was precisely where, only 40 minutes earlier, the Vice President had been sitting at the desk on the elevated platform, surrounded by Senators who were considering a procedural issue related to the certification of the Electoral College vote.

In the end, Hodgkins, like each rioter, contributed to the collective threat to democracy, physical safety, emotional well-being, and property on January 6, 2021.

Keep in mind, the same way defense attorneys always ask for probation, prosecutors always ask for harsh sentences, knowing the judge will usually find some happy medium, and in doing so here, they’re not starting at the top of the sentencing range. But ultimately, by asking Judge Moss to apply a medium range sentence to a defendant facing a range that a large number of defendants might likewise face, they’re trying to set a standard sentence and have it start reasonably high. They’re really not fully accounting for what it took Hodgkins to decide to be the first to plead guilty; they seem to be thinking as much about the over a hundred defendants coming down the pike and so trying to frame how they’re conceiving of this obstruction crime generally as they’re thinking about Hodgkins himself.

Curiously, Judge Moss (possibly with the input of other DC District judges) afforded himself an extra range of flexibility by inviting the Sentencing Commission to review average sentences for the sentencing guidelines that Hodgkins faces. Significantly, the Sentencing Commission found that of those facing the same guidelines sentence as Hodgkins, almost a quarter — 22.6% — got a probation sentence, though it appears all but one of those probation sentences involved a defendant who provided prosecutors “substantial assistance,” and a goodly number got closer to six months after variances below range.

MINUTE ORDER as to PAUL ALLARD HODGKINS (1): In connection with the sentencing of Defendant, the Court has requested and obtained, via email, from the U.S. Sentencing Commission the following information regarding the sentencing of offenders with similar records who have been found guilty of similar conduct to Defendant in this case. The Sentencing Commission reports as follows:

“In the case before you the defendant pled guilty to obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). The guideline that applies is USSG 2J1.2. Your Probation Office has calculated the guideline range as follows: BOL 14, a 3-level increase for substantial interference with the administration of justice, and a 3-level adjustment for acceptance of responsibility, resulting in a final offense level (FOL) of 14. The offender is assigned to Criminal History Category I. The applicable guideline range is 15-21 months.

“We examined our records from fiscal year 2014 through 2020, and found 31 cases that match this guideline calculation. None of these cases were reported from the District of Columbia. In only nine cases was 18 U.S.C. § 1512(c)(2) a statute of conviction.

“For the 31 cases matching the guideline calculation under USSG § 2J1.2, in 16 cases (51.6%) the offender received a prison only sentence, in six cases (19.4%) the offender received prison with an alternative, in two cases (6.4 %) the sentences was probation with some condition of confinement, and in seven cases (22.6%) the sentence was probation only.

“Of the 31 cases, in seven (22.6%) the sentence was within the guideline range. The average sentence in those cases was 19 months (median = 21 months). Two cases (6.5%) were above range: one upward departure to 36 months and one upward variance to 48 months. The remaining 21 cases (71.0%) were below range. Thirteen cases were below range variances. The average sentence in those cases was seven months (median = six months). One case was downward departure to 14 months, another was a government departure to probation, and the remaining case was a government variance to six months. The remaining six cases were substantial assistance cases.

“In order to provide a more narrowly-tailored analysis, we then limited our analysis to the nine cases in which section 1512(c)(2) was one of the statutes (or the only statute) of conviction. Of those nine cases, in two the sentence was within the guideline range. The sentences were 15 and 21 months. There was one upward departure to 36 months. Three cases were below range variances. The average sentence in those cases was 10 months (median = 12 months). One case was a downward departure to 14 months. The remaining two cases were substantial assistance cases.” Signed by Judge Randolph D. Moss on 07/13/2021. (lcrdm3)

While this table is a rough estimation of what this language says, basically it says a group of people were sentenced to a guidelines sentence, another bigger group were sentenced to around six months, and a third group were sentenced to probation — but never without government agreement (either for a departure or for cooperation).

What Moss has done by obtaining this information and publishing it was, first, to go into Monday’s sentencing hearing with proof that whatever he does will be fair as compared to what has happened to others. Obtaining the guidelines also gives Moss some flexibility. He could, to recognize Hodgkins’ first guilty plea, give him a significant downward variance (and/or sentence him to some alternative to prison, such as weekend confinement), pointing out that the largest group of defendants similarly situated to him got around six months. Alternately, he could explain why he wasn’t giving Hodgkins the probation he requested by pointing out that almost everyone who got a probation sentence in recent history cooperated with prosecutors against others.

Whatever Judge Moss decides (I would be unsurprised by a four to six month sentence, possibly with the opportunity to serve it on weekends or something similar), Hodgkins went first because he has a legitimate argument to make that, aside from his presence on the Senate floor, his behavior really was less culpable than many of the defendants charged with the same crime. Which means — again assuming this novel application of obstruction is upheld going forward — this is just the beginning of a long series of similar horse trading over sentences going forward.

Update: Josh Gerstein reminded me that Judge Moss used a similar approach to George Papadopoulos’ sentencing and — believing that Papadopoulos felt remorse — sentenced him to fourteen days rather than the thirty days he had been considering. Papadopoulos’ guidelines were 0 to 6 months.

The Delayed Trespassing Charges against Savanah McDonald and Nolan Kidd

June 15, 2021/53 Comments/in January 6 Insurrection /by emptywheel

Two MAGA tourists from Georgia, Savanah McDonald and Nolan Kidd, were arrested last Friday on charges of trespassing into the Capitol on January 6. They were two of the last remaining people captured in a photo of Jacob Chansley to be arrested.

There’s a detail of interest that may have some bearing on other cases.

People called in tips to the FBI on the two just days after the assault. On January 11, someone sent a screen cap of Kidd’s Facebook account full of pictures from inside the Capitol. Three days later someone sent a picture of McDonald in.

The FBI interviewed both shortly after receiving the tips. They told a story that many other insurrectionists have told since: they were let in.

On January 14, 2021, FBI agents interviewed MCDONALD in Elberton, Georgia. MCDONALD agreed to speak to the agents. When MCDONALD was shown the below picture, MCDONALD confirmed that the person circled was her.

MCDONALD stated that she and KIDD marched to the U.S. Capitol, and when they reached the U.S. Capitol, there were uniformed police officers near the doors telling them to come inside and showing them where to go.

On January 15, 2021, FBI agents separately interviewed KIDD in Athens, Georgia. KIDD agreed to speak to the agents. KIDD told the agents that the doors to the U.S. Capitol were wide open.

Nothing apparently happened for a while, until, on March 8, the FBI Agent on the case viewed video from the Northwest stairs leading to the door through which the two entered showing cops first attempting to rebuff an assault with tear gas, followed by the breach of the perimeter. She found that four minutes after that breach, in the wake of the tear gas, McDonald and Kidd rushed up the stairs.

The FBI agent explained that McDonald and Kidd entered via a door slightly to the side of the one that Dominic Pezzola first broke through, just 14 seconds after it was opened, “by unauthorized individuals” she doesn’t name.

MCDONALD and KIDD entered the U.S. Capitol through a Senate Fire Door approximately 14 seconds after it was breached from the inside by unauthorized individuals. The Senate Fire Door is marked in the above photo by an arrow.

That same day, she got search warrants for Kidd’s Facebook account and McDonald’s SnapChat, the former of which — in addition to admitting that he had removed his pictures to avoid arrest — showed McDonald and Kidd posing in front of a line of cops at the site of the Chansley confrontation, the latter of which depicted McDonald bragging about making it to the Senate.

The claim that that Northwest door was not strongly defended is true. It’s a claim that many defendants have made. But what seems to have happened here is that the FBI held off on applying for a probable cause warrant until they could show that before they walked in an unattended door, McDonald and Kidd were right in the middle of a crowd where cops were taking explicit measures to hold back the crowd.

This is not the first time we’ve seen something like this. When Brady Knowlton was arrested after they discovered him entering the building with Patrick Montgomery, his lawyers immediate demanded exculpatory evidence showing them walking right in this door. [Note, this is believed to be a different door–the West central door; thanks to “Sansa Stark” for clarifying.]

Then the government indicted him along with Montgomery, charging the latter with assault along the way. Last DOJ reported, Knowlton was entertaining a plea offer.

Something happened at these doors that is both making it hard to hold people accountable for entering it, but also seems to be of investigative interest. Perhaps that’s why McDonald and Kidd got arrested — to obtain the video that Kidd, especially, shot.

But until then, prosecutors may be relying on confrontations outside the building to make it clear that defendants knew they shouldn’t have stormed the building.

January 6: A Change of Pace

May 14, 2021/21 Comments/in emptywheel, January 6 Insurrection /by emptywheel

Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.