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“Let’s Go Brandon!” Straka’s Cow Manure

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Update: Judge Friedrich sentenced Straka to 3 months home confinement and 36 months of probation. She repeatedly described his offense as worse than that of trespassers given that he encouraged them to breach the Capitol and defended the attack after the fact.

Brandon Straka did not start fundraising for the cops whose assault he cheered …

… Until a week after his second batch of leniency letters started coming in, and over 45 days after he pled guilty.

In fact, there’s no evidence in the public record that Straka ever gave any of that money to cops, not even the 75% he claimed to plan to donate, much less the 25% he was skimming from the top. There’s just a dated claim that it would be donated “at the conclusion” of a year that ended 20 days before the filing claiming it would be donated.

Since January 6, Brandon has spent a lot of hard time reflecting on his role in the events that took place that tragic day. He has offered strong condemnation for any violence used that day, especially the violence perpetrated against police. Additionally, Brandon has been actively using his platform to support law enforcement officers. Upon visiting the #WalkAway Foundation website, the first option presented is to donate to the “Refund the Police” initiative: “#WalkAway will donate 75% of the funds raised to pro-police organizations in [the fourteen (14) cities most affected by defunding initiatives]. The other 25% will be used for the cost of overhead for this campaign.”2 This initiative will close at the conclusion of this year; and is close to having raised over $18,000.00 at this time.

2 See #WalkAway Foundation Homepage last accessed Dec. 14, 2021, available at https://www.walkawayfoundation.org/.

That’s important because Brandon Straka really wants to continue doing such grifting as a public service in lieu of having Probation monitor his social media and finances, much less serve jail time for his role in inciting an insurrection. He even asks to pay $5,000 as a fine to be allowed to dodge further scrutiny of his grift.

The Defendant respectfully requests that he be sentenced to either a terminal disposition of time served for the two days he has already spent in custody, or in the alternate, a term of home confinement and community service. Defendant requests that he not be placed on probation. Defendant also requests that the Court impose the maximum fine permitted for this offense, which is $5,000.

[snip]

If the Court would allow Brandon to have included in his sentence a stronger portion of community service rather than a sentence of Probation, the country at large will be better served. The nature of Brandon’s job requires that he often travels, making supervision more difficult and costly—and to what end? Brandon has already been on Pretrial Release for nearly a year with no violations. He clearly has the capability to contribute to the greater good through fundraising and leading others into service with him. While the Probation Office’s Recommendation sees Brandon’s following as a reason for concern3, it is the Defendant’s belief, and Counsel for the Defendant’s belief, that his talents can be put to better use than verifying that he is in compliance with certain conditions of Probation—that if he is given true freedom, that he will use that freedom in service of his country.

[snip]

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

3 The government has never alleged, and there is no evidence, that Brandon used his following to commit any criminal activity. Brandon is charged for conduct he committed at the Capitol in his personal capacity.

Whether or not there is evidence that Straka used his online presence to prevent the peaceful transfer of power (and there is, though DOJ may have discovered it after entering into this dud plea agreement), Straka’s own story materially conflicts regarding what he did on January 6, 2021.

Straka’s own letter to Judge Dabney Friedrich implies that he went directly from Trump’s speech to the Metro and because he did so he had no way of knowing there was a violent riot going on.

I sat in the front row at the Ellipse and listened to the President of the United States speak. He concluded by telling the crowd that we were all now going to march “peacefully” to the Capitol. Everything felt perfectly normal and exactly in accordance with the schedule of events for that day. I then walked to the DC Metro On the way to the Capitol, I began getting text messages from people I knew who were at home watching the news on television indicating that people were going inside the Capitol building. Shortly after, I started getting numerous messages from the other scheduled speakers, some asking if our event was still happening, if it was now cancelled- it was total confusion. I was of 2 minds at this point. Either,

#1) The event is still happening and I’m still speaking, and that’s what I came all the way to DC to do. Or

#2) The event may no longer be happening, but SOMETHING is going on at the Capitol right now, and I want to be there to capture footage of whatever it is that’s going on. [my emphasis]

His sentencing memo describes that he came to DC to speak on January 5, and only stayed over because he was one of the very inflammatory people who were offered speaking slots on January 6 but who got canceled (!!!) at the last moment.

Prior to the January 6, 2021 rally at which then-President Donald Trump was set to speak, Brandon was set to speak at a rally held at Freedom Plaza on January 5, 2021 and travelled to Washington, D.C. for that purpose. Brandon remained in Washington, D.C. after the rally on January 5, 2021, as he was a potential slated speaker at a rally the next day. On the morning of January 6, 2021, Brandon arrived at the Ellipse at 5:00 a.m. in anticipation of then-President Trumps’ rally to start. Up until the time Brandon arrived at the event, he believed that he might speak at that event.

More problematic still, Straka’s sentencing memo describes that in-between Trump’s rally and the riot, Straka went to the Willard Hotel, where a bunch of his associates were plotting to steal the election (he doesn’t mention that fact), and where his “security guards” alerted him that it was too dangerous to walk the 28 minutes to the Capitol, which is why he instead took the Metro to the far side of the Capitol, spending perhaps 38 minutes in transit.

When President Trump concluded his remarks around 1:00 p.m., a wave of protestors left the Ellipse and headed toward the Capitol. At this time, Brandon left the Ellipse and traveled to the Willard Hotel to meet with two of his employees who were designated as security guards. Upon the advice of his security guards, Brandon did not participate in the march to the Capitol and instead took the Metro to the Capitol. While riding on the Metro, Brandon began receiving push notifications on his phone about what was happening at the Capitol. The Metro did not stop at the Capitol, and Brandon got off at the next stop—which was roughly an 18-minute walk from the Capitol.

By the time Brandon arrived, at around 2:40 p.m. (a full twenty minutes after the Capitol had been cleared), the outer barriers and fencing that had previously surrounded the Capitol were largely displaced. Brandon arrived and approached the East side of the Capitol, where things were calmer; and Brandon did not notice anything out of the ordinary during most of his walk to the Capitol.

And that version is off by at least two and possibly 22 minutes off from Straka’s sworn statement of offense.

Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m. He then knowingly entered the restricted area at the U.S. Capitol Grounds.

The revised story would have him arriving to the Capitol seven minutes after (prosecutors noted in their own sentencing memo) he was informed his speech was delayed because “they stormed the Capitol.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].”

And that’s important, because Straka claims that when he said some inflammatory things on social media, he didn’t know about the violence.

Brandon made statements on social media that were in retrospect irresponsible and potentially inflammatory. Any statements Brandon made must be considered in context with the fact that Brandon had not witnessed the violence committed on the west side of the Capitol and he had not seen what was broadcasted on television. Once understanding the full context of the events, Brandon retracted and removed his prior statements.

Finally, it’s curious that DOJ is relying on a ProPublica story for the notice from Coudry (to say nothing of Ali Alexander’s warning, “Everyone get out of there … The FBI is coming hunting”). That’s because Straka claims to have provided prosecutors passwords to whatever phones he still had in his possession when the FBI searched his apartment.

Brandon cooperated fully with law enforcement, including providing two proffers and turning over the password to all devices seized as part of the search warrant executed on his apartment. Brandon provided information on individuals the government was investigating in separate cases and answered all questions posed by the government.

There’s abundant evidence that Straka is bullshitting prosecutors, and was bullshitting them when he got a sweet plea deal.

Indeed, with the inconsistencies between his letter to Dabney Friedrich and his own sentencing memo, the evidence shows he’s bullshitting Judge Friedrich.

I don’t know what excuses Probation scrutinizing Brandon Straka’s grift more closely than the FBI. I don’t know what targets DOJ was so desperate to implicate that they missed the target sitting in front of them.

But even his own sentencing package makes it clear he’s shoveling cow shit.

“HOLD. THE. LINE!!!” DOJ’s Late Research into Brandon Straka’s Grift

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It’s difficult to tell what really went down with the Brandon Straka plea.

That’s because — as laid out here — the government seems to have realized that Straka had been less than forthright in interviews, in which he was deemed cooperative last year, that got him a sweet plea deal. In their sentencing memo, the government seems to be at pains to argue that Straka’s cooperation was worth minimizing his overt incitement of the obstruction attempts.

Straka, meanwhile, is desperate to dismiss claims he “snitched” out others. So it’s unclear what to make of the claim — in a memo signed by Bilal Essayli, a California politician who only just filed his notice of appearance in the case — that the government was pressuring Straka to implicate Trump directly.

During the interviews the government was focused on establishing an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6. Defendant answered all questions truthfully and denied the existence of any such plot. In August 2021, the FBI arrived at the same conclusion and found no evidence that violence was centrally coordinated by any individual or group.2 Despite these findings, the government persists with a false narrative that defendant’s actions were premeditated and orchestrated in concert with the greater mob that stormed the Capitol. The Court should reject this improper attempt to expand the scope of the appropriate sentencing factors, and consider only defendant’s relevant conduct with respect to the charged offense: misdemeanor disorderly conduct.

2 See Mark Hosenball, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, Reuters, August 20, 2021, https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/

In an attempt to disclaim any organized conspiracy, Essayli cites the problematic Reuters article based on former officials who would have been in charge during the period when Straka’s initial interviews were deemed cooperative, but whose knowledge by August 2021 would have been out of date and whose claims would be utterly irrelevant to what DOJ understood by December, when Straka’s sentencing took a weird turn.

Even crazier, the Straka sentencing memo reveals that, on December 10 (so two days after Straka revealed new information that roiled the sentencing), his team shared a sentencing position with DOJ asking not just for no jail time, but to have the entire case dismissed.

Defendant feels compelled to respond on the record to the government’s sentencing memorandum, which was filed one week prior to the sentencing hearing. The government had the benefit of reading and considering defendant’s sentencing position, which was timely filed on December 10, 2021, when drafting its position. The government missed this deadline and informed defendant the following day that it was seeking to continue the sentencing hearing. The government sought a stipulation to continue, which defendant agreed to join, based on the government’s representation that it would consider a request from defendant to dismiss this case. The government informed defendant on January 13, 2022, that his request was denied and proceeded to file its sentencing position containing highly inflammatory characterizations of defendant. [my emphasis]

Since December, it seems Straka has given up that plan, because his attorneys now argue for “a modest non-custodial sentence.”

That said, much of the rest of the memo focuses on making a First Amendment argument claiming that Straka’s earlier posts (it is silent about his January 5 speech) don’t amount to incitement.

The first and second tweet sent in early December 2020 were a pair of strongly worded messages opposing the transition to President Biden without an audit of contested election results. Gov. Figure A and B. Defendant states, “If we don’t get a thorough audit we must not allow a transfer.” The references in the tweet to a “civil war” was not a call to violence, as the government suggests, it was a figure of speech referencing a political struggle. The government concedes that defendant’s “messages contain rhetorical flourishes that are common in political speech,” but then suggests, without evidence, that defendant’s statements could “have been interpreted by some readers as a call for more than just a figurative struggle.” ECF 36, p. 5. The government does not cite one example of defendant’s tweets influencing a single person to engage in criminal conduct.

Similarly, Gov. Figure C contains a tweet from December 19, 2020, with a call to “rise up” (figuratively) and be recognized by the government. The full statement reads, “Our government no longer listens & takes instructions from the People. They’ve decided to become dictators to the People. It’s time to rise up!” This is precisely the category of speech the First Amendment protects. It is not incitement, and barely registers above heated political rhetoric. See generally Cohen v. California, 403 U.S. 15, 24–26 (1971). It was also not imminent—being issued almost a month prior to January 6. See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (First Amendment prohibits punishment of advocacy except when it incites imminent unlawful action).

The government’s sentencing memorandum is devoid of any mention of the First Amendment, let alone any analysis of whether defendant’s statements meet the Brandenburg standard required for punishing speech. The government may only punish protest-related speech that includes a direct “call to violence” or advocacy that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg, 395 U.S. at 447; Noto v. U.S., 367 U.S. 290, 297–300 (1961). At the same time, the Supreme Court has consistently protected the statement of an idea that “may prompt its hearers to take unlawful action. . . .” Noto, 367 U.S. at 297 (quoting Dennis v. U.S., 341 U.S. 494, 545 (1951) (Frankfurter, J., concurring)). Indeed, even a protestor screaming, “We’ll take the f***ing street again” amidst an agitated crowd resisting police authority could not be punished for his speech. Hess v. Indiana, 414 U.S. 105, 107 (1973). The government fails to distinguish this important constitutional divide and, by so doing, seeks to penalize protected advocacy.

None of defendant’s statements meet the test for a “call to violence” as the government suggests. They lack any specific call to violence (hypothetically, “People, find a police officer and bash his head in!” or “Attack Senator John Doe now!”). They are not particular in that they do not ask protestors to take unambiguous actions or engage in detailed criminal acts. They are not imminent—the quoted material occurred a month before the January 6 event. And whatever the government believes defendant communicated to his supporters remains an inkblot in a constitutional Rorschach test. The speech that the government finds objectionable remains protected advocacy, and should not be considered for purposes of sentencing.

There are four attorneys who have filed notices of appearance for Straka. Not a single one has dealt with a prior January 6 defendant. So they may genuinely not know that DOJ has routinely turned to a defendant’s earlier speech to get not to incitement (militia defendants are an exception), but to motive.

And many of the other explanations Straka offers for his inflammatory language on January 6 don’t make sense (and has already been admitted at sentencing for dozens of other defendants). Straka’s team suggests that his incitement — as he was watching and cheering rioters strip a cop of a riot shield — couldn’t have encouraged the violence he was watching because his “social media posts were similarly written before defendant saw television footage of the west side of the Capitol,” as if there weren’t tons of things to alert him to the danger (even assuming he didn’t know of the collaboration between his associates and the organized militias) without seeing the West side.

Straka’s team seems to have gone from thinking they could get this entire case dismissed to being really worried about incitement that, through their good lawyering and possibly a lack of candor, hasn’t been charged against Straka.

Which brings me to a final detail of this exchange made visible by the timeline laid out in Straka’s filing.

As laid out below, after Straka’s presentence report came in, DOJ swapped prosecutors, April Russo for Brittany Reed (who wrote the sentencing memo). That presentence report, which is one of two things that changed DOJ’s response to sentencing, is referred to at least nine times in the government sentencing memo, though not at all in Straka’s.

The presentence report, for example, is what the government cites for Straka’s self-serving concern about how the prosecution affected his grifting.

During a presentence interview with U.S. Probation, the defendant expressed remorse for his actions. During his interview, the defendant stated that “if he could go back in time, he would never have gone to Washington D.C.” Straka described his conduct on January 6 as “one of the stupidest and tragic decisions of his life.” Straka lamented about how this incident has impacted his life and his business. He also informed U.S. Probation that he “feels the consequences for his actions have been quite extreme and disproportionate given his involvement in the offense is a misdemeanor.”

[snip]

Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

The presentence report is also, alarmingly, the only place DOJ cites to explain Straka’s unique grift or that he flew to DC for the insurrection directly from doing similar incitement in Georgia.

It was in this context that Straka traveled to Washington D.C. on January 4, 2021, from where he had been working on the special election in Atlanta, Georgia to attend several “Stop the Steal” events where he would be a featured speaker. See ECF 28 at ¶ 17.

His role in the TCF mob in Michigan is not mentioned at all.

After that presentence report, the swapping of prosecutors, and the new information Straka provided on December 8, Straka’s team told DOJ they were going to ask to have the prosecution dismissed. That’s when the government told Straka they wanted a delay. Straka’s description of the timing of this is not entirely consistent with what shows in the docket (for example Judge Friedrich, with no public explanation, extended the deadline for the sentencing memo to December 15 on December 8, the day Straka provided new information), but there also seem to be several sealed entries. And while Straka claims DOJ told them they wanted a delay on December 11, the motion to continue describing the new information on December 8 and the presentence report is formally filed on December 17.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

That makes what DOJ spent December 16 doing all the more interesting.

DOJ describes accessing the following materials on December 16, the day before they asked for a continuance:

The government cites the latter article — and not communications obtained directly by the FBI — to explain how Straka learned that his speech would be “delayed.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article/new-details-suggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id.

The government didn’t cite Straka’s November text messages (cited directly in the article) expressing disgust with close Ali Alexander ally Nick Fuentes.

Nor do they describe that Ali Alexander was on the group chat via which Straka learned his event would be delayed, or that shortly after Straka reveled in getting tear gassed, Alexander instructed everyone on the list to “get out of there” because “the FBI is coming hunting.”

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

Both the fact that Straka remained on organizing lists with Alexander months after he expressed distaste for Fuentes’ homophobia and that Alexander warned that the FBI were on their way change the import of everything else Straka did. Of particular note, it would dramatically change the connotation of Straka calling, from the safety of some distance from the crime scene, on others to “HOLD. THE. LINE!!!!”

And if DOJ really didn’t understand Straka’s grift until this point, that would suggest they made a plea deal without understanding that Straka was closely tied to those it is now investigating for coordinating with the militias who attacked the Capitol.

Brandon Straka claims he was asked, but denied, that there was, “an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6.” But it appears that one thing leading to the month-long delay in his sentencing was newfound understanding both of Straka’s grift, but also of his close ties to those who coordinated with organized militias to end up precisely where Straka did: inciting violence from the top of the East steps of the Capitol.

Given that, his worries about whether his language counts as incitement seem misplaced. While he is legally in the clear for anything pertaining to January 6 (unless he lied to FBI), he should be more worried about inclusion in charges tied to the conspiracy he claims he denied.

Update: This language, from the Jan 6 Committee subpoena letter to Nick Fuentes, is of interest for the way it overlaps with Straka’s trajectory.

On November 14, 2020, you rallied with America First/Groyper followers at the Million MAGA March in Washington, D.C., urging your followers to “storm every state capitol until January 20, 2021, until President Trump is inaugurated for four more years.”5 You were also a prominent figure at “Stop the Steal” rallies in Atlanta, Georgia, on and around November 19, 2020,6 alongside featured speakers such as Alex Jones and Ali Alexander inside and outside the State Capitol, 7 where you discussed potential actions including showing up outside the homes of politicians. 8 On December 12, 2020, you spoke to a crowd of supporters at the “Stop the Steal” events in Washington, D.C., calling for the destruction of the Republican Party for failing to overturn the election.9

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

One Man’s Flourish Is Another Man’s Seditious Conspiracy: DOJ’s Typo and the Brandon Straka Plea Deal

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The government released their sentencing memo for Brandon Straka yesterday. It confirms that the propagandist got a ridiculously light plea deal because he “cooperated” with the government. But, particularly because of what must be a typo in the government filing, it raises more questions about the fairness of the prosecution for the first purveyor of the Big Lie to be sentenced in January 6 than it provides answers.

As I’ve laid out repeatedly, Straka was a speaker on January 5 and was slated to speak again on January 6 at one of the rallies that provided the excuse to bring more bodies to the Capitol. He also played a central role in riling up a mob at Michigan’s vote count at TCF Center in November 2020. In other words, he was instrumental in the effort to sow violence by leading people to believe false claims about the election.

As described in the sentencing memo, that’s precisely what Straka did at the East side of the Capitol, too.

Straka pleaded guilty to one count of 40 U.S.C. § 5104(e)(2)(D), Disorderly Conduct in the Capitol Grounds. As explained herein, a four-month home detention sentence is appropriate in this case because: (1) the defendant has a significant public profile, which he utilized to promote his activity on January 6, (2) the defendant learned of the breach of the U.S. Capitol Building and went to join the rioters; (3) upon arriving at the U.S. Capitol, the defendant encouraged others to  storm the U.S. Capitol; (4) the defendant recorded video of the rioters entering the U.S. Capitol; (5) the defendant encouraged rioters to take an officer’s protective shield from the officer’s possession, and (6) the defendant took to social media and encouraged rioters who remained at the U.S. Capitol to “hold the line” even after he had left Capitol grounds on January 6.

[snip]

Here, Straka’s participation in a riot that actually succeeded in halting the Congressional certification combined with his celebration and endorsement of the unauthorized entry of the U.S. Capitol and violent conduct of the rioters to his hundreds of thousands of followers, his act of encouraging rioters to take a U.S. Capitol Police officer’s shield, and the need for deterrence renders a four-month home detention sentence both necessary and appropriate in this case.

Straka was originally charged with civil disorder and trespassing, but not the obstruction of the vote count that he was clearly part of. In October, he got a plea deal to plead only to the lesser of the two trespassing statutes, eliminating a felony civil disorder charge. As I previously noted, his plea agreement included the standard cooperation paragraph that usually suggests someone has not yet cooperated.

But DOJ, in their sentencing memo, claims he did, and even included a sealed filing describing the substance of the cooperation, as they would in support of a 5.1K letter that more formalized cooperators get.

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

But even the memo’s description of Straka’s initial “cooperative” interviews, the ones he did before getting that sweet plea deal, make it clear that, at least at the beginning, he was bullshitting them.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6. After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

Indeed, later parts of the memorandum debunk claims Straka made in that interview, completely undermining the description of these as cooperative interviews.

Straka stood at the entrance of the East Rotunda Doors as rioters attempted to enter despite the presence of officers near the door. Alarms from inside the U.S. Capitol can be heard in the background as Straka approaches the doorway’s entrance: a loud, high-pitched, continuous beeping, similar to a smoke alarm. If Straka was unaware that his and the rioters’ presence was not authorized, he should have known it when he heard the sound of the alarms. Additionally, as Straka approached the doorway, he was met by the smell of tear gas that had been deployed by officers inside of the U.S. Capitol.

The memorandum also clearly shows that any remorse Straka has expressed was self-serving.

Straka has indicated that his decision to attend the U.S. Capitol breach was “stupid and a tragic decision.” In his interview with FBI, Straka stated that he did not know that violence and death would occur that day. He then expressed shame for participating in the event. Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

And the memorandum obscures the chronology of Straka’s actions from the day and relies on his word for at least one key detail which the FBI could have (and did, for other insurrectionists) confirmed via more investigation. Straka went to Trump’s speech at the Ellipse. Videos show that he left the speech with Mike Flynn just as the speech was ending, walking unimpeded through the VIP section. Straka claims he took the Metro to the Capitol and arrived between 2 and 2:20, which given that everybody else was walking, is likely only possible if he killed a half hour somewhere before hopping the Metro, presumably getting on at Metro Center or Federal Triangle and getting off at Capitol South. That detail is critical, because it’s how Straka sustains a claim that:

  • He only learned of the assault on the Capitol as he was already traveling over there and not before
  • He arrived at the Capitol between the time he learned of the assault and when his speech was canceled (2:00 to 2:20)
  • He learned his speech was canceled at 2:33

Here’s how it looks in the sentencing memorandum, separated by several pages.

The next day, January 6, 2021, Straka attended the “Rally to Save America” on the White House Ellipse and then planned to travel to an area near the U.S. Capitol Building where he was going to give another speech. See ECF 1, p. 2 at ¶ 3 Straka used the Metro to travel to the U.S. Capitol. Id. While traveling to the U.S. Capitol, he received alerts on his telephone stating that former Vice President Mike Pence was “not going to object to certifying Joe Biden.” Id. Straka continued to make his way to the U.S. Capitol. Id. While walking, Straka learned that the U.S. Capitol had been breached. Id. Straka estimated that he got off of the Metro sometime between 2:00 p.m. and 2:20 p.m. before making his way to the U.S. Capitol grounds. See ECF 28, at ¶ 18.

[snip]

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article
/new-detailssuggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id. Later, as law enforcement was still working to clear rioters from Capitol grounds, Straka encouraged them to continue fighting:

It’s still totally inexplicable. Even if Straka didn’t have knowledge he was traveling into an active riot in advance (a really sketchy claim), he still marched right up the steps of the East side of the Capitol encouraging violent entry, and then stuck around for hours encouraging rioters to keep going. DOJ could have checked the timing of his story by — as they did with other Jan 6 defendants — checking for Metro card purchases, swipes, or surveillance video in the Metro. Instead, they seem to have taken his word for the chronology.

Thus far, then, it looks like Straka successfully bullshitted DOJ for a sweet plea deal.

That treatment is all the more problematic given the discomfort regarding Straka’s incitement in different places in the sentencing memo. In describing his January 5 speech at the Stop the Steal rally, DOJ dismissed his call to “revolution” as “flourishes.”

During his five-minute long speech, Straka again used common rhetorical flourishes, referring to the rally attendees as “patriots,” and referenced a “revolution” multiple times. Id. at 32:27-37:18 Straka directed the attendees to “fight back.” Id.

But in the sentencing memo, DOJ called the same kind of speech on social media before that, often on key days in the developing conspiracy, speech that “could reasonably have been interpreted by some readers as a call for more than just a figurative struggle.”

Following the election, Straka stoked the passions of his followers, frequently telling the “Patriots” that it was time to “rise up” as part of a “civil war.” Many of these messages contain rhetorical flourishes that are common in political speech. However, some of Straka’s references to concrete planning and action could reasonably have been interpreted by some readers as a call for more than just a figurative struggle. In early December 2020, Straka sent out messages informing them that they “could not allow” a presidential transition and encouraging his followers to prepare for a civil war

That is, DOJ admits in its sentencing memo that Straka was stoking violence during the entire transition period.

Thus it happened that, on the very same day DOJ rolled out a seditious conspiracy indictment against Stewart Rhodes for, in part, warning on November 5, “we aren’t getting through this without a civil war,” and then warning on December 11 that if Joe Biden were to assume the Presidency, “it will be a bloody and desperate fight,” DOJ made a case that a guy who, in the same weeks, was also calling for civil war, should get just home confinement.

To be sure, there’s no evidence Straka engaged in military training or purchased weapons. But if Stewie’s incitement counts as sedition, then surely Straka’s counts as obstruction of the peaceful transfer of power.

Which brings us back to DOJ’s claims about Straka’s cooperation and that sealed addendum. According to the memo, as written, Straka had three interviews: one on February 17, 2021, another on March 25, 2021, and a third on — it claims — January 5, 2022.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka follo-up [sic] questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

Except that makes no sense. He signed his statement of offense on September 14, 2021 and pled guilty in October. A January 5, 2022 interview couldn’t have “anticipat[ed] the plea agreement” he entered three months earlier. [Update: I’ve gotten clarification that the reference “the interviews” was meant to refer to the series of interviews. It still doesn’t make sense, but may reflect a late-date addition without correction of the antecedent.]

Moreover, DOJ offers no public explanation for details in this motion for a continuance, which the government attempted to seal after the fact, an attempt Judge Dabney Friedrich refused. It reveals that Straka told the government something new in December, and also that something unexpected came up in the Presentence report.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

Given the timing of that continuance, it might explain a third meeting with Straka on January 5 — nine days ago. But that would suggest that the information wasn’t provided before Straka got this sweet plea deal.

There are any of a number of things going on. Perhaps it’s true that Straka provided useful information early in the investigation and in consideration for that got a sweet plea deal, as happened with Jacob Riles. Perhaps it’s true that Straka was more honest in those early interviews than portrayed in this memorandum.

Or, as seems more likely given the record and the rhetorical contortions AUSA Brittany Reed made in this sentencing memo, FBI let Straka bullshit them and based on that, he scored a ridiculous plea deal, and only after that, his presentence report disclosed things that FBI should have found last spring.

It may be that the belated discovery in December, in the end, makes the plea deal worth it. If Straka is willing to share honest details of how months of incitement led up to that attempted breach on the East steps; if Straka has provided details of what Mike Flynn was up to after Trump’s speech; if Straka belatedly confessed that there was a concerted plan to converge on the top of the East steps, then Straka’s preferential treatment may be worth it.

But DOJ really needs to provide more transparency on what went down, one that doesn’t include an obvious typo obscuring the timeline. If Paul Hodgkins has to serve eight months for obstruction because he wandered onto the Senate of floor and Jenny Cudd only got to plead from obstruction down to the more serious trespassing charge because she repeated the calls for civil war that people like Straka were making on January 5, then equity demands a far better explanation for Straka’s preferential treatment here.

As noted, Straka’s is the first sentencing for one of the organizer-inciters who will need to be held to account if DOJ wants to really pursue the people who master-minded this insurrection. If FBI screwed up (or tried to protect Straka), then DOJ needs to come clean on that and make it clear how they’ll avoid such problems in the future.

Presenting two inexplicable timelines is not the way to do that.

Update: Fixed reference to presentence report. And included clarification regarding “typo.”

The Rebellion Rorschach: The Many Faces of the January 6 Investigation

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Four different things happened yesterday to demonstrate how differently judges presiding over the January 6 trial view it, and how little they seem to understand the intersecting nature of this investigation.

DC Circuit ignores its own language about co-conspirators and abettors

The final event was the reversal, by a per curiam panel including Karen Henderson, Judith Rogers, and Justin Walker, of Thomas Hogan’s decision to hold George Tanios pretrial.

As a reminder, Tanios is accused of both conspiring and abetting in Julian Khater’s attack on three cops, including Brian Sicknick, with some toxic substance.

I’m not going to complain about Tanios’ release. By way of comparison, Josiah Colt has never been detained, and he pled out of a conspiracy with Ronnie Sandlin and Nate DeGrave in which they, like Tanios and Khater, planned to arm themselves before traveling to DC together, and in which Sandlin and DeGrave, like Khater, are accused of assaulting cops that played a key role in successfully breaching the Capitol. The main difference is that Khater’s attack injured the three officers he targeted using a toxic spray purchased by Tanios.

It’s how the DC Circuit got there that’s of interest. Tanios had argued that Hogan had used the same language from the Munchel decision everyone else does, distinguishing those who assault or abet in assaulting police which the DC Circuit has returned to in upholding detention decisions since, and in so doing had applied a presumption of detention for those accused of assault and abetting assault.

In assessing Tanios’s risk of danger, the District Court placed too much emphasis on this sentence from Munchel: “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.” Id. at 1284.

This is only one line in a ten-page opinion written by Judge Wilkins. It is dicta. It was not quoted or adopted by Judge Katsas’s separate opinion. This line does not create a new approach for evaluating detention issues in this Circuit. It does not mandate that defendants be placed in two separate categories. It does not require a separate, harsher treatment for defendants accused of specific violent offenses. Critically, it does not create a presumption of future dangerousness and should not create a presumption of detention. Rather, it seems that the line is merely intended to remind district court judges that violence is one factor to consider in making a determination about dangerousness. [my emphasis]

The DC Circuit specifically ruled against Tanios on his claim that Hogan had misapplied Munchel.

[A]ppellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, see United States v. Khater, No. 21-3033, Judgment at *2 (D.C. Cir. July 27, 2021)

They had to! As their citation makes clear, just two weeks ago, a per curiam panel of Patricia Millet, Robert Wilkins, and Ketanji Brown Jackson upheld the very same detention order (which covered both defendants), holding that the same line of the Hogan statement that Tanios pointed to did not do what both Tanios and Khater claimed it had, presume that assault defendants must be detained.

Appellant contends that the district court misapplied our decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), by making a categorical finding, based solely on the nature of the offense charged (assaultive conduct on January 6), that no conditions of release could ever mitigate the per se prospective threat that such a defendant poses. If the district court had proceeded in that fashion and applied some sort of non-rebuttable presumption of future dangerousness in favor of detention, it would have been legal error. See id. at 1283 (“Detention determinations must be made individually and, in the final analysis, must be based on the evidence which is before the court regarding the particular defendant. The inquiry is factbound.”) (quoting United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). However, while the district court stated, “Munchel delineates an elevated category of dangerousness applied [to] those that fall into the category that necessarily impose a concrete prospective threat,” the district court also explained, “I think Munchel does not set a hard-line rule. I don’t think that the categories are solely determinative, but it creates something like a guideline for the Court to follow . . . .” Detention Hr’g Tr. at 42:21-24; 43:11-13, ECF No. 26 (emphasis added). In making its ruling, the district court discussed at length the facts of this case, and expressly noted that “we have to decide whether the defendant is too dangerous based upon that conduct to be released or is not,” “every circumstance is different in every case, and you have to look at individual cases,” and that “the government may well not overcome the concrete and clear and convincing evidence requirement.” Id. at 43:8-10, 43:16-18, 43:20-21. Based on our careful review of the record, we find that the district court made an individualized assessment of future dangerousness as required by the Bail Reform Act and that appellant has not shown that the district court applied an irrefutable presumption of mandatory detention in contravention of the statute and our precedent.

Yesterday’s panel cited the earlier affirmation of the very same opinion that detained Tanios.

It’s in distinguishing Tanios where the panel got crazy. The panel could have argued that the evidence that Tanios conspired with or abetted Khater’s assault was too weak to hold him — Tanios made a non-frivolous argument that in refusing to give Khater one of the two canisters of bear spray he carried, he specifically refused to join in Khater’s attack on the cops. But they don’t mention conspiracy or abetting charges.

Instead, the DC Circuit argued that Hogan clearly erred in finding Khater’s accused co-conspirator to be dangerous.

[T]he district court clearly erred in its individualized assessment of appellant’s dangerousness. The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84 (remanding pretrial detention orders where the district court did not demonstrate it adequately considered whether the defendants present an articulable threat to the community in light of the absence of record evidence that defendants committed violence or were involved in planning or coordinating the events of January 6).

Munchel isn’t actually a precedent here, because that decision remanded for further consideration. The DC Circuit ordered Hogan to release Tanios. Crazier still, in citing the same passage from Munchel everyone else does, the DC Circuit edited out the language referring to those who abetted or conspired with those who assaulted cops, the language used to hold Tanios. It simply ignores the basis Hogan used to hold Tanios entirely, his liability in a premeditated attack he allegedly helped to make possible, and in so doing argues the very same attack presents a danger to the community for one but not the other of the guys charged in it.

If this were a published opinion, it would do all kinds of havoc to precedent on conspiracy and abetting liability. But with two short paragraphs that don’t, at all, address the basis for Tanios’ detention, the DC Circuit dodges those issues.

Beryl Howell has no reasonable doubt about January 6

Earlier in the day, DC Chief Judge Beryl Howell grew exasperated with another plea hearing.

This time, it was Glenn Wes Lee Croy, another guy pleading guilty to a misdemeanor “parading” charge. The plea colloquy stumbled on whether Croy should have known he wasn’t permitted on the Capitol steps — he claimed, in part, that because this was his first trip to DC, he didn’t know he shouldn’t have been on the steps, even in spite of the barricades. Croy was fine admitting he shouldn’t have been in the building, though.

Things really heated up when Howell started asking Croy why he was parading (Josh Gerstein has a more detailed description of this colloquy here).

Under oath, pleading to a misdemeanor as part of a deal that prohibits DOJ from charging Croy with anything further for his actions on January 6, he made some kind of admission that Howell took to mean he was there to support Trump’s challenge to the election, an admission that his intent was the same as the intent required to charge obstruction of the vote count.

When she quizzed AUSA Clayton O’Connor why Croy hadn’t been charged with felony obstruction for his efforts to obstruct the vote certification, the prosecutor explained that while the government agreed that contextually that’s what Croy had been doing, the government didn’t find direct evidence that would allow him to prove obstruction beyond a reasonable doubt, a sound prosecutorial decision.

O’Connor is what (with no disrespect intended) might be deemed a journeyman prosecutor on the January 6 cases. He has seven cases, five of which charge two buddies or family members. Of those, just Kevin Cordon was charged with the obstruction charge Howell seems to think most defendants should face, in Cordon’s case for explicitly laying out his intent in an interview the day of the riot.

We’re here to take back our democratic republic. It’s clear that this election is stolen, there’s just so much overwhelming evidence and the establishment, the media, big tech are just completely ignoring all of it. And we’re here to show them we’re not having it. We’re not- we’re not just gonna take this laying down. We’re standing up and we’re taking our country back. This is just the beginning.

O’Connor is prosecuting Clifford Mackrell and Jamie Buteau for assault and civil disorder. But otherwise, all his cases are trespass cases like Croy’s (including that of Croy’s codefendant Terry Lindsey).

This was the guy who, with no warning, had the task of explaining to the Chief Judge DOJ’s logic in distinguishing misdemeanor cases from felonies. Unsurprisingly, it’s all about what the government thinks they can prove beyond a reasonable doubt, based on evidence like that which Cordon shared with a journalist or, just as often, what people write in their social media accounts. This process has made sense to the few of us who have covered all these cases, but like O’Connor, Howell is dealing primarily with the misdemeanor cases and my not see how DOJ appears to be making the distinction.

Howell also demanded an explanation from O’Connor in Croy’s sentencing memo why DOJ is not including the cost of the National Guard deployment in the restitution payments required of January 6 defendants.

Both according to its own prosecutorial guidelines and the practical limitations of prosecuting 560 defendants, DOJ can’t use a novel application of the obstruction statute to charge everyone arrested in conjunction with January 6 with a felony. It’s a reality that deserves a better, more formal explanation than the one O’Connor offered the Chief Judge extemporaneously.

Trevor McFadden believes a conspiracy to overthrow democracy is not a complex case

Meanwhile, the Discovery Coordinator for the entire investigation, Emily Miller, missed an opportunity to explain to Trevor McFadden the logic behind ongoing January 6 arrests.

In advance of a hearing for Cowboys for Trump founder Couy Griffin, prosecutor Janani Iyengar submitted a motion for a 60-day continuance to allow for the government to work through discovery. She brought Miller along to a status hearing to explain those discovery challenges to McFadden, who had complained about them in the past and refused to toll the Speedy Trial Act in this case. Because Iyengar recently offered Griffin a plea deal, his attorney Nick Smith was fairly amenable to whatever McFadden decided.

Not so the judge. He expressed a sentiment he has in this and other cases, that the government made a decision to start arresting immediately after the attack and continues to do so. “There seems to be no end in sight,” McFadden complained, suggesting that if DOJ arrested someone in three months who offered up exculpatory evidence that affected hundreds of cases, those would have to be delayed again. In spite of the fact that several prosecutors have explained that the bulk of the evidence was created on January 6, McFadden persists in the belief that the trouble with discovery is the ingestion of new evidence with each new arrest.

Miller noted that the government could start trials based on the Brady obligation of turning over all exculpatory evidence in their possession, so future arrests wouldn’t prohibit trials. The problem is in making the universe of video evidence available to all defense attorneys so they have the opportunity of finding evidence to support theories of defense (such as that the cops actually welcomed the rioters) that would require such broad review of the video.

McFadden then suggested that because Griffin is one of the rare January 6 defendants who never entered the Capitol, Miller’s team ought to be able to segregate out an imagined smaller body of evidence collected outside. “Were that it were so, your honor,” Miller responded, pointing out that there were thousands of hours of surveillance cameras collected from outside, the police moved in and outside as they took breaks or cleaned the bear spray from their eyes so their Body Worn Cameras couldn’t be segregated, and the Geofence warrant includes the perimeter of the Capitol where Griffin stood.

McFadden then said two things that suggested he doesn’t understand this investigation, and certainly doesn’t regard the attack as a threat to democracy (he has, in other hearings, noted that the government hasn’t charged insurrection so it must not have been one). First, he complained that, “In other cases,” the government had dealt with a large number of defendants by giving many deferred prosecutions or focusing just on the worst of the worst, a clear comparison to Portland that right wingers like to make. But that’s an inapt comparison. After noting the data somersaults one has to do to even make this comparison, a filing submitted to Judge Carl Nichols in response to a selective prosecution claim from Garret Miller explained the real differences between Portland and January 6: There was far less evidence in the Portland cases, meaning prosecutions often came down to the word of a cop against that of a defendant and so resulted in a deferred prosecution.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted).

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment. [my emphasis]

McFadden ended with one of his most alarming comments. He said something to the effect of, he doesn’t feel that the January 6 investigation was a complex type of case akin to those (often white collar cases) where a year delay before trial was not that unusual.

This was a fairly breathtaking comment, because it suggests that McFadden sees this event as the magical convergence of thousands of criminals at the Capitol rather than the result of a sustained conspiracy to get a mass of bodies to the building, a conspiracy that started at least as early as the days after the election. While McFadden’s highest profile January 6 case is a sprawling assault case against Patrick McCaughey and others (the one that trapped Officer Daniel Hodges in the Capitol door), this view seems not to appreciate some larger investigative questions pertinent to some of his other defendants. For example, what happened to the laptops stolen from various offices, including the theft that Brandon Fellows may have witnessed in Jeff Merkley’s office. Did America First engaged in a conspiracy to gets its members, including Christian Secor, to the Capitol (and did a huge foreign windfall that Nick Fuentes got days before the insurrection have anything to do with that). What kind of coordination, if any, led a bunch of Marines to successfully open a second front to the attack by opening the East Doors also implicates Secor’s case. One of the delays in Griffin’s own case probably pertained to whether he was among the Trump speakers, as members of the 3-Percenter conspiracy allegedly were, who tied their public speaking role to the recruitment of violent, armed rioters (given that he has been given a plea offer, I assume the government has answered that in the negative).

It has become increasingly clear that one of the visible ways that DOJ is attempting to answer these and other, even bigger questions, is to collect selected pieces of evidence from identifiable trespassers with their arrest. For example, Anthony Puma likely got arrested when he did because he captured images of the Golf Cart Conspiracy with his GoPro. He has since been charged with obstruction — unsurprisingly, since he spoke in detailed terms about preventing the vote certification in advance. But his prosecution will be an important step in validating and prosecuting the larger conspiracy, one that may implicate the former President’s closest associates.

This is white collar and complex conspiracy investigation floating on top of a riot prosecution, one on which the fate of our democracy rests.

Melody Steele-Smith evaded the surveillance cameras

A report filed yesterday helps to explain the import of all this. Melody Steele-Smith was arrested within weeks of the riot on trespass charges, then indicted on trespass and obstruction charges. She’s of particular interest in the larger investigation because — per photos she posted on Facebook — she was in Nancy Pelosi’s office and might be a witness to things that happened there, including the theft of Pelosi’s laptop.

At a hearing last week, the second attorney who has represented her in this case, Elizabeth Mullin, said she had received no discovery, particularly as compared to other January 6 defendants. So the judge in that case, Randolph Moss, ordered a status report and disclosure of discovery by this Friday.

That status report admits that there hasn’t been much discovery, in particular because, aside from the surveillance photos used in her arrest warrant, the government hasn’t found many images of Steele-Smith in surveillance footage.

The United States files this memorandum for the purpose of describing the status of discovery. As an initial matter, the government has provided preliminary discovery in this case. On or about June 4, 2021, the government provided counsel for defendant preliminary discovery in this matter. This production had been made previously to the defendant’s initial counsel of record. Counsel for defendant received the preliminary production that had been provided to previous counsel. This preliminary production included the FBI 302 of defendant’s sole interview, the recorded interview of defendant which formed the basis of the aforementioned FBI 302, over one thousand pages of content extracted from defendant’s Facebook account, and thirty-nine photographs confiscated from defendant’s telephone.

The government is prepared to produce an additional discovery production no later than August 13, 2021. The production will include additional items that have been obtained by the government from the FBI. These items include, additional FBI investigative reports and the Facebook search warrant dated January 21, 2021. The FBI has provided the government with the full extent of the materials in its possession. While these items are few in number, the government is continuing to review body worn camera footage in an attempt to locate the defendant. Camera footage will be provided if it is located. The government has been diligent in its efforts to obtain all discoverable items in possession of the FBI.

That still leaves a thousand Facebook pages and 39 photos, some of them taken at a key scene in the Capitol a scene that — given the evidence against Steele-Smith and in other cases — is a relative blind spot in the surveillance of the Capitol. The interview described here is not reflected in her arrest warrant, and so may include non-public information used to support the obstruction case.

Beryl Howell might argue this is sufficient evidence to prove the government’s obstruction case. Trevor McFadden might argue that this case can’t wait for more video evidence obtained from future arrestees of what Steele-Smith did while “storm[ing] the castle” (in her own words), including the office of the Speaker of the House. But the theft of the Pelosi laptop — including whether Groypers like Riley Williams were involved — remains unsolved.

If a single terrorist with suspect ties to foreign entities broke into the office of the Speaker of the House and stole one of her laptops, no one would even think twice if DOJ were still investigating seven months later. But here, because the specific means of investigation include prosecuting the 1,000 people who made that break-in possible, there’s a push to curtail the investigation.

I don’t know what the answer is because the Speedy Trial issues are very real, particularly for people who are detained. But I do know it’s very hard for anyone to get their mind around this investigation.