Posts

On January 6, Look to the Continuances

/22 Comments/in /by

Riley June Williams — the woman with ties to the far right who was shown on video directing people around the Capitol and is accused of abetting the theft of Nancy Pelosi’s laptop — has not yet been indicted. Normally, the Speedy Trial Act gives prosecutors a limit of time — roughly 30 days — to formally charge you after you’re arrested. But with Williams, the government has been using a series of motions to extend this timeline. They currently have until July 21 to indict Williams.

That, by itself, isn’t all that unusual. But amid an ongoing conversation about whether the January 6 investigation will hold the most powerful accountable for the insurrection, I want to point to the existing long unindicted defendants to suggest, again, we don’t really know where this investigation is going.

Tracking which January 6 defendants haven’t been indicted is one way to identify cases that might be more interesting than others. Jon Schaffer’s case got continued for months leading up to his entry into a cooperation agreement on April 16. And Christopher Kelly’s case got continued for months before the government moved to dismiss it on June 1. At least some of these weren’t the boilerplate unopposed motions for a continuance, citing the unprecedented challenge of assembling all the evidence in this case, that have been used in most defendants cases; they were more specific requests for more time to conduct the investigation. As the disparate fate of these two men suggests, you can’t really tell what is interesting about a case if the formal charging is delayed.

But such non-boilerplate continuances are one thing I track (and I know other journalists do too) for potentially interesting cases. They happen in formally charged cases, too (for example, QAnoner Doug Jensen’s case got continued until tomorrow in such a fashion after prosecutors enhanced his own legal exposure). But it is easier to track the especially interesting delays in cases, like Williams’, where the defendant hasn’t been indicted yet.

To be sure, such continuances don’t guarantee a case will be interesting. A number of these cases end up in delayed felony charges (though that’s true of the boilerplate continuances as well). Sometimes these delays are attributable to delays in attorneys getting approved to represent defendants in the DC District. In several cases, such continuances were used when either the defendant or their lawyer got COVID. Sometimes, it even seems like the system has lost defendants (with just a handful of exceptions, thankfully not those being detained). There are a couple of defense attorneys and a couple of prosecutors who just seem to like doing it this way.

Often, lawyers attribute the delay to plea discussions (though that’s generally the reason for the unopposed continuances, as well as the consent ones).

Sometimes something else seems to be going on. For example, Prosecutor Brandi Harden has twice gotten continuances in the case of Emanuel Jackson, the developmentally challenged homeless man who walked into the middle of the insurrection off the street and was handed a baseball bat which he used to assault cops, with the explanation, “There are outstanding issues related to Mr. Jackson’s case, that the parties are continuing to address.”

In several cases, such continuances seem to tie to a defendant’s other existing legal problems. For example, Bryan Betancur violated probation by lying about his purposes for going to DC on January 6, and so has been thrown back in jail because of it (though Betancur’s friend, Britney Dillon, was recently charged in the riot). In another example, when the FBI searched Adam Honeycutt’s home in association with this January 6 arrest warrant, they found guns and marijuana that exposed him to charges in Florida; DC prosecutors are delaying his January 6 prosecution until after a trial this week on the possession charges in Florida. But in at least one of those cases — that of Kash Kelly, charged with just misdemeanor trespassing — the delay comes with a defendant who was discussed in a conversation involving Rudy Giuliani and who cooperated against his fellow gang members in his drug-related prosecution in Illinois. The fact that Ryan Samsel’s then girlfriend, Raechel Genco, has had her own trespassing case continued, makes his more intriguing, though there’s a long list of reasons that readily explain why Samsel’s prosecution has been delayed, not least that he was brutally beaten by someone yet to be determined while he in the DC jail.

All that said, I wanted to point to some clusters that may suggest future developments. An easy one are the cases of Emily Hernandez, her uncle William Merry, and their friend Paul Westover all of which have been delayed with continuances. They traveled to insurrection together and show up in pictures showing off the piece of a sign from Nancy Pelosi’s office they stole.

It would be unsurprising to see these cases get combined into a conspiracy, possibly with others from St. Louis.

That said, a goodly number of defendants awaiting formal charges were in Pelosi’s office, including Williams.

Along with Williams, there are others, like Anthime Gionet, who have known ties with America First or were in the vicinity of others self-identifying as America First who are also awaiting their charges.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet. On May 24, the parties asked for a continuance and excludable delay until August, but Magistrate Judge Robin Meriweather hasn’t yet issued an order approving that. (There’s one other person that engaged in higher level organizing, but I suspect it’s the choice of her attorney.)

Update: This morning Judge Meriweather signed the Straka continuance.

Update: Doug Jensen wants to go work while he awaits resolution of his case (specifically mentioning self-surrender) so he settle his affairs and take care of his family.

January 6: A Change of Pace

/21 Comments/in , /by

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.

Anatomy of a Potential January 6 Cooperation Agreement

/169 Comments/in /by

I’ve written in passing about Jon Ryan Schaffer, the front man for the heavy metal band Iced Earth who was arrested for involvement with spraying bear spray during the January 6 insurrection, several times. In this post I noted that there must be something more to his case because Schaffer had been sitting, uncharged, in jail for months.

Jon Ryan Schaffer: The front man for the heavy metal band Iced Earth and an Oath Keeper lifetime member, Schaffer was arrested for spraying some police with bear spray. But two months after his arrest and detention, he has not been (publicly) indicted and only arrived in DC on March 17. The government has not publicly responded to his motion to dismiss his case on Speedy Trial grounds. All of which suggests there’s something more there that we can’t see.

Yesterday I included Schaffer among those likely to get cooperation agreements (rather than straight guilty pleas), then updated the post with yet another data point suggesting I was correct.

[A]t least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

[snip]

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

So the signs suggesting the government was pursuing a cooperation agreement in this case have been pretty clear.

But yesterday, DOJ made that even more clear by posting a filing to PACER — which was supposed to be sealed — making such negotiations explicit.

As stated in the Consent Motion to Continue, the government and counsel for the defendant have conferred and are continuing to communicate about this matter. This has entailed a series of debrief interviews with the defendant that began on March 2, 2021. Based on these debrief interviews, the parties are currently engaged in good-faith plea negotiations, including discussions about the possibility of entering into a cooperation plea agreement aimed at resolving the matter short of indictment. Among the contemplated plea terms upon acceptance of a plea are the defendant’s release pending sentencing.

[snip]

[T]he parties request that this filing be docketed under seal. Such an order is appropriate because the filing relates to sensitive information about the defendant’s cooperation with the government and ongoing plea negotiations that are not public. Accordingly, disclosure may reveal the existence, scope, and direction of the ongoing and confidential investigation. If alerted to this information, investigation targets against whom the defendant may be providing information about could be immediately prompted to flee from prosecution, destroy or conceal incriminating evidence, alter their operational tactics to avoid future detection, attempt to influence or intimidate potential witnesses, and otherwise take steps to undermine the investigation and avoid future prosecution. Accordingly, these facts present an extraordinary situation and a compelling governmental interest which justify sealing of this filing pertaining to this investigation that is being submitted at this time. [my emphasis]

You’ll recall that PACER was one of the targets of the Solar Winds hack, which raised concerns that sensitive documents detailing things like cooperation agreements and investigative targets might have been compromised. The Courts’ efforts to respond have bolloxed up PACER ever since, which has contributed to an unacceptable delay in postings of non-sensitive documents as the flood of January 6 filings hit.

One of the few things that DOJ has managed to post in timely fashion is this filing, which was supposed to be sealed.

This disclosure may make it harder to negotiate a cooperation agreement (or who knows? it might make it easier!). Certainly, it may present security concerns for Schaffer when he is released, whether or not he cops a plea, because he would get such a plea deal in exchange for testimony against a highly skilled armed militia, and they’ll assume he got a deal if he is released pre-trial.

Aside from the very real concerns about how this might affect the investigation into the Oath Keepers, however, the release of the filing is useful for the details it provides.

First, this cooperation deal, if it happens, will be the first of all 350+ defendants.

The government’s ongoing plea negotiations with this defendant are the first and most advanced plea negotiations involving any of the over 300 Capitol Riot defendants.

That would mean that others — like the cooperating witness with damning information on Dominic Pezzola and the un-indicted co-conspirator in the Proud Boys conspiracy — have not been charged at all (as descriptions of them in filings imply). It also suggests that for all the reporting about imminent deals, the cooperation agreements, at least, are two weeks or more away. Every other potential cooperation deal I named in this post follows the same pattern of filings that Schaffer’s does, but they have later deadlines for their continuance, though Ryan Samsel is the only other one who is in custody for January 6 (as opposed to other things), which adds urgency to any plea deal:

  • Bryan Betancur (in MD state custody): April 27
  • Ryan Samsel (in federal custody): May 7 (after being extended from April 1, moving to swap his attorney, then unmoving to do so, though currently he is represented by both)
  • Christopher Kelly (not in custody): May 10
  • Riley June Williams (not in custody): May 28
  • Kash Kelly (in Federal prison for gang-related drug crimes which he also cooperated on): indefinite

It looks like Samsel might have been the first plea deal, but an aborted swap of lawyers suggests he may have gotten cold feet. (Recall that Rick Gates did something similar before he flipped in the Mueller investigation; because of his criminal record, Samsel faces a stiffer prison sentence than Schaffer regardless of what happens).

Schaffer’s filing explains why cooperation agreements will be weeks away, too: First, plea deals are being reviewed “at various levels of government.”

Plea terms have thus required extensive review and approval at various levels of government necessitating more time than usual to approve and negotiate.

Given that Biden doesn’t have a confirmed US Attorney in DC, this likely means that at least Acting Deputy Attorney General and former National Security Division head under Obama John Carlin is reviewing these deals, if not Merrick Garland himself. Lisa Monaco should be confirmed as Deputy Attorney General imminently, and she’s likely to be interested in all this, too. That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.

Perhaps one of the most damaging disclosures by the release of this document is that Schaffer’s attorneys have admitted, non-publicly, things they’ve argued against publicly. In a filing asking for pre-trial release, Schaffer’s lawyers argued that merely possessing bear spray did not make Schaffer enough of a threat to require pre-trial detention.

The Government sought “detention based on [Mr. Schaffer] carrying a dangerous weapon inside a restricted ground.” Reporter’s Transcript of Detention Hearing, p. 7: 8- 10.2 Magistrate Judge Faruqui detained Mr. Schaffer “Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1).” (Doc. 12, p. 1)

Mr. Schaffer cannot be detained pursuant to 18 U.S.C. § 3142 (f)(1)(E) because the Government’s allegation Mr. Schaffer simply possessed bear spray does not support a finding his case involved a dangerous weapon. The Government cannot establish a can of bear spray is dangerous weapon when it is simply possessed.

Schaffer’s arrest warrant affidavit described him to be “among” a group of “rioters who sprayed” USCP with bear spray, but didn’t say he personally had used the bear spray to assault the cops, nor did it charge him with doing so.

SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves.

According to this filing, however, Schaffer’s lawyers conceded during a closed session that he could be charged, presumably including assault for spraying the bear spray, right away.

The parties agree that maintaining the current detention posture, as well as the government forestalling return of a grand jury indictment against the defendant1 , are necessary at this stage to facilitate good-faith plea negotiations.

1 As acknowledged by the defense during the sealed portion of the April 2, 2021 status hearing, the government is in a position to rapidly obtain an indictment against the defendant should plea negotiations fail.

But the filing also suggests that the grand jury may be posing another bottleneck to this process.

Additional time may also be necessary in the event plea conditions require completion of certain requirements before entering into a formal agreement before the court, such as the defendant testifying before the grand jury.

That is, if and when a plea deal is agreed, they still may require Schaffer to provide any testimony to the grand jury before they finalize the plea and release him.

As noted, the unintentional release of this filing may undermine that process from the start. But it least it provides some clarity on how this process is working for Schaffer and others.

Update: Baked Alaska (real name Anthime Gionet) is another person in whose case the government got a consent motion to delay further proceedings. I’m less confident this would involve a cooperation agreement — it may be a way to forestall questions about whether he is media.

Politico Claims It Embarrasses Joe Biden that Non-Violent Civil Disobedience Merits Little or No Jail Time

/75 Comments/in /by

Last week, Politico reported as news that non-violent January 6 trespassers might get little to no jail time which — it further claimed — might embarrass the Biden Administration.

Many Capitol rioters unlikely to serve jail time

The cases could embarrass the Biden administration, which has portrayed the Jan. 6 siege as a dire threat to democracy.

I have tremendous respect for the reporters involved, Josh Gerstein and Kyle Cheney. Yet the fact that experienced DOJ beat reporters could claim, as news, that non-violent civil disobedience might get no jail time made me really rethink the reporting on January 6, including my own. It’s crazier still that reporters might claim — generally, or in this situation — that a Democratic President might be embarrassed by DOJ treating civil disobedience as a misdemeanor offense.

In fact, Gerstein and Cheney are reporting on a subset of all the January 6 defendants, fewer than 60 of the 230 who had been formally charged by the time they wrote this, which they nevertheless describe as “many” of them.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.

Then, four paragraphs later, Politico explains why (they say) this might embarrass the Biden Administration: because both Biden himself and Merrick Garland called the larger event — in which 1,000 people, including 200 for assault and 100 for roles in a militia conspiracy, many still at large, must now be suspects — as a heinous attack.

The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”

Nowhere in the article do they provide any evidence that the assault on the Capitol wasn’t a heinous attack.

They base their claim that Biden might be embarrassed on expectations that DOJ prosecutors set, without noting that the first charges were filed before Biden was inaugurated and long before Garland was confirmed.

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Jacob “QAnon Shaman” Chansley was arrested on January 8 and indicted on January 11. Eric “Zip Tie Guy” Munchel was arrested on January 10 and indicted, with his mother, on February 12. Thomas Caldwell was arrested on January 19 and indicted along with Oath Keepers Jessica Watkins and Donovan Crowl on January 27. They (including Caldwell but not Watkins and Crowl) are the main defendants, of more than 350, about whom prosecutors can fairly be said to have tempered “sky-high” expectations. Their arrests and that expectation-setting happened under Jeffrey Rosen and Michael Sherwin, not under Biden and definitely not under Merrick Garland (under whom DOJ referred Sherwin to OPR for investigation after he did some expectation-setting on 60 Minutes). Even still, for all four (as well as other edge cases about whom the press set high expectations, like Riley June Williams), the investigation remains ongoing and there are reasons, including ties to the militia conspiracies, to believe there was some basis for the original suspicions about these people.

Likewise, the decision to arrest first and investigate later, a decision that led to the flood of arrests before prosecutors really knew who had done the most egregious things during the attack, also occurred under the prior Administration.

Indeed, under Garland (though not necessarily because of Garland or the departure of Sherwin), DOJ seems to have focused more of their ongoing misdemeanor arrests on suspects who might have video footage of interest to prosecutors or defense attorneys, with far more of a focus in recent weeks on arresting assault and militia suspects. And one of the reasons for the delays described in the story is that after Garland came in, DOJ asked for 60 days to catch up on discovery. We may yet learn that he and his subordinates decided to change the “arrest first, investigate later” approach adopted before he came in.

Sure, the press has claimed that the government has backed off some of its claims in the militia conspiracies. They did so, for example, when prosecutors backed off certain claims solely for the purpose of an Ethan Nordean detention hearing that, filings submitted weeks later suggested, may have been an effort to protect a pending conspiracy indictment and, probably, a cooperating witness. They’ve done so with the Oath Keepers, even though recent developments suggest even Jessica Watkins’ lawyer may now understand her role in what appears to be a larger conspiracy coordinated in Signal leadership chats is more damning than Watkins originally claimed. If anything, the Oath Keeper and Proud Boy conspiracies may be more sophisticated tactically than originally claimed, and that’s before any explanation about things like who paid for vans of Proud Boys to travel from FL and what happened at twin events in DC and Florida in December, in which conspirators (and key Trump figures) played central roles. That’s also while the person who laid a pipe bomb the night before the the attack remains at large.

To further back its claim that Biden might be embarrassed, Politico implies that all the plea deals expected in weeks ahead will be misdemeanor pleas without jail time, which will be “awkward” for DOJ to defend.

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.

“I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away. [my emphasis]

Politico makes this claim even though at least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

In other places, Politico conflates the discussions about the fate of misdemeanor defendants with discussions about detention (which prosecutors have only requested with a few accused trespassers), discussions about discovery, and Speedy Trial, all different things, many more urgent issues for misdemeanor defendants not included among those the story is purportedly about.

After I went on a rant about this story on Twitter, Gerstein defended the story by saying that people (none of whom were quoted in the story) seem to be surprised.

I agree with Gerstein that people have certain expectations. But that was clear before the end end of January. The record laid out here shows that such expectations did not come from Garland or Biden. Even Sherwin, with his totally inappropriate 60 Minutes interview, also explained from the start that DOJ was arresting the low hanging fruit at first while further investigating more serious suspects.

The fault, instead, lies with journalists, myself and these Politico journalists included, for not consistently and repeatedly explaining the various different roles people played on January 6, including that there were a number — though currently a shrinking fraction of the total set of defendants — who neither pre-meditated any effort to stop the vote count nor assaulted cops. I have tried to engage in this nuance (I included a list of such posts below), but given the sheer amount of court filings, much of the focus is currently on the militia conspiracies, suggesting a gravity that the MAGA tourists don’t merit. But in this article, rather than simply laying out the full range of defendants, describing how the MAGA Tourists played a key role in the success of the more serious conspirators (explicitly so for the Proud Boys, who talked about getting “normies” to do stuff they otherwise wouldn’t have done), describing how violence spread among participants and often as not among people who aren’t militia members, this Politico piece further distorts the record, not least by using this subset of “MAGA Tourists” — calling them “many” even though they represent just a quarter of defendants who have been formally charged — to stand in for the larger investigation, while minimizing the import of those charged with obstruction (likening that role to a CodePink interruption of a congressional hearing) because, evidence shows, they premeditated an attempt to undermine the election outcome.

So even while the piece describes how both judges and prosecutors understand that the mob as a whole posed a grave threat while some individual defendants did no more than provide cover for the more dangerous defendants (and many of the DC judges presiding over these cases have made such comments), Politico claims that there’s some embarrassment to this, including some kind of political risk for Biden.

Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.

That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.

If the MAGA tourists provided cover and helped overwhelm cops, thereby serving a useful role in the plans of those who had a more nefarious and organized purpose, then that’s the story that should be told, not some kind of both-sides political spin, particularly one that pits Biden’s claims about the seriousness of this on the footing as Trump’s outright lies about it. In spite of the overwhelming number of defendants, the record shows, DOJ is still assessing each one on the merits, which is what should happen. Declaring that politically embarrassing is an abdication of fair reporting on the legal system.

I believe DOJ has gotten it wrong, in both directions, in some cases. In addition to those listed above, I think DOJ has gone too harshly on some people who have openly supported far right, even Nazi views. But I also think DOJ has only considered whether militia members were members of premeditated conspiracies, focusing less on localized activist networks that have been implicated in violent (often anti-mask) pro-Trump actions in the past, taken on leadership roles at the riot, and engaged in ongoing communications about plans to shut down the vote, just like militias did. I think DOJ hasn’t come to grips with the organizational import of QAnon even while arguing that individual adherents of the cult must be jailed because they are delusional. And until DOJ decides how it will treat Trump’s actions and those of some close associates — something they likely cannot do without more investigation and cooperation deals from key participants — parts of this investigation will remain unsettled.

There are definitely things DOJ has reason to be embarrassed about: Gerstein has written more than any journalist about the unforgivable delays in moving defendants around the country and getting them arraigned. This piece also focuses on one of the handful of misdemeanor defendants who has been detained since being charged. While I understand the complexity of an investigation in which so much of the evidence — both exculpatory and inculpatory — remains in the hands of participants, defendants have a right to complain about the delay, especially those in detention. Defendants — particularly those in detention — are entitled to a Speedy Trial, even if DOJ moved too quickly to arrest them. While many of these things were exacerbated by COVID, they also largely arise from a decision to arrest first on those trespassing charges, and investigate later (which also has led to more defendants being charged with obstruction after the fact).

But none of those things have to do with Biden or Garland’s views about the investigation, or even the prosecutors who made decisions that created some of these problems in the first place (in part, probably, to avoid their own embarrassment at missing all warning signs, in part because they hadn’t investigated these threats aggressively enough and so had to make mass arrests to mitigate any immediate follow-on threats).

In short, this piece is an (uncharacteristic) mess, shoehorning complexity into a simplistic claim of political conflict, one inventing embarrassment out of thin air for Biden. If Politico has evidence that this wasn’t an unprecedented disruption to Congress, one that could have had a far worse outcome, including a threat to our democracy, or that this right wing violence is less of a threat than FBI says it is, by all means they should present that. At the same time, they can reveal the identity of the pipe bomber and the role (if any) that person played in the plot, without which no one can claim to actually know how serious this was.

Until then, they and all experienced DOJ beat reporters would be far better off by simply laying out a description of the different kinds of defendants we’re seeing, the different roles they played in disrupting the vote count and assaulting or undermining law enforcement, and explaining how those defendants are the same or different from defendants that have gone before them, on a spectrum of severity that stretches from CodePink to ISIS terrorists.

If people are going to be surprised when the subset of participants in January 6 who engaged in non-violent civil disobedience are treated as misdemeanor offenders, it’s not Joe Biden’s fault. It is a failure of journalism, my own included, for not making that more clear starting in January and reiterating it since then.

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

Update: Corrected Munchel’s arrest date, which was January 10.

Update: Christopher Kelly (no relation to Kash) is another person with a consent continuance to discuss what would almost certainly be a cooperation agreement. He drove to and from the insurrection with some Proud Boys.

Posts attempting to contextualize the investigation

Here are some past attempts I’ve made at explaining how the parts of the January 6 investigation fit together:

FBI Had an Open Investigation into a QAnon Cultist Predicting World War 3 before January 6

/47 Comments/in , /by

As I noted in this post, partly due to the way Krysten Sinema restated Assistant FBI Director Jill Sanborn’s response, the woman in charge of FBI’s counterterrorism efforts mistakenly claimed that the Bureau cannot monitor public social media communications. The reality — as confirmed by NBC — is that they can’t persistently target a person’s communications, but they can monitor open source postings.

In a statement to NBC News, the FBI acknowledged that it can and does look at public social media information. An FBI official said Sanborn understood Sinema’s question to be referring to “whether the FBI persistently and passively examines internet traffic and social media conversations, to include direct messages between two users.” In fact, her question referred to comments made on public-facing social media services.

“The FBI may observe and collect information from open sources as long as the FBI activities are done for a valid law enforcement or national security purpose and in a manner that does not unduly infringe upon the speaker or author’s ability to deliver his or her message,” an FBI official said. “The authorized purpose must specifically be tied to federal criminal or national security purposes, usually to further an FBI assessment or … investigation.”

Given that the FBI can monitor open source communications, it makes this earlier exchange, between Sanborn and Maggie Hassan, more significant. Senator Hassan asked Sanborn how many of the people already arrested in the January 6 insurrection had been under investigation before it.

Maggie Hassan: Of the individuals charged to day in relation to the attacks of January 6, how many were already under investigation by the Bureau.

Jill Sanborn: Ma’am, I’d have to get you the specific number, but I can only recall, from my memory, one, of the individuals that was under investigation prior.

While Sanborn was speaking from memory and promised to get an exact number, Sanborn could only remember one open investigation among the people arrested so far.

FBI appears to have done an assessment on at least three people arrested so far (assuming that the MPD arrest of Enrique Tarrio for targeting a Black Church in December is not the one Sanborn was thinking of).

For example, in December, an associate of Kevin Strong contacted the FBI to alert them that the FAA employee had started stock-piling goods, warned someone else that World War 3 was going to start on January 6, and was pushing Parler as a legitimate source of information. That led the FBI to open an investigation on Strong on December 30.

On December 30, 2020, the FBI initiated an investigation of STRONG based on reporting from Witness #1 (“W-1”). W-1 is familiar with STRONG and his previous residence. W-1 told the FBI that STRONG had been showing signs of behavioral changes over the last few months including stock-piling items and telling others to get ready for Marshal Law, rioting, and protesting. Specifically, W-1 was aware that STRONG had sent messages to another individual claiming World War 3 is going to occur on January 6, 2021, and that the military was coming in and getting involved. W-1 was aware that STRONG hung a flag with the logo “WW1WGA” on his house. W-1 told the FBI that he/she looked it up on the Internet and found that that “WWG1WGA” was a QAnon slogan standing for “Where We Go One, We Go All.” STRONG was known to declare that he had “Q clearance” and believed he was part of a “movement” that was greater than himself. He had recently purchased a new truck and believed that QAnon would cover the debt. STRONG had also been promoting the “Parler” application as a place to get information.

STRONG is currently employed by the Federal Aviation Administration (FAA) in San Bernardino, California. On January 7, 2021, an employee in the Internal Investigations Branch of the FAA contacted the FBI and reported STRONG was observed at the United States Capitol building during the unlawful entry that took place on January 6, 2021. According to the FAA employee, STRONG was seen on a news broadcast.1 The employee provided a screengrab from the news broadcast to law enforcement.

Strong was charged with the two misdemeanor trespassing crimes virtually everyone who entered the Capitol was charged with but not, as those who posted conspiracies about the election in advance of January 6 generally were, with obstruction of the vote count.

Even though they had an investigation into Strong, it still took a tip from the FAA to alert the FBI that Strong had entered the Capitol on January 6, to which he readily confessed when he was interviewed on January 16.

Then there’s Bryan Betancur. While out on probation after serving time for burglary, Betancur was explicitly talking about following the lead of James Field, the Neo-Nazi who murdered Heather Heyer.

BETANCUR is a self-professed white supremacist who has made statements to law enforcement officers that he is a member of several white supremacy organizations. BETANCUR has voiced homicidal ideations, made comments about conducting a school shooting, and has researched mass shootings. BETANCUR voiced support for James Fields, the individual convicted for killing an individual with his car during protests in Charlottesville, Virginia. BETANCUR has stated he wanted to run people over with a vehicle and kill people in a church. BETANCUR subsequently stated that he had changed his mind about hurting people.

After being released following a conviction for fourth degree burglary, BETANCUR continued to engage racially motivated violent extremist groups on the internet. BETANCUR also made increased verbalizations about his desire to be a “lone wolf killer.” BETANCUR has repeatedly violated the terms of his parole and probation.

Betancur’s arrest affidavit describes a Task Force officer interviewing Betancur repeatedly during what it calls an investigation of him.

A FBI Task Force Officer who has interviewed BETANCUR multiple times throughout the FBI’s investigation of BETANCUR also believes the individual on the left side of the image to be BETANCUR.

Betancur lied to his probation officer — claiming he was going to hand out Bibles in DC — to get permission to go to DC that day. And he showed up wearing a Proud Boys shirt and flashing white supremacist symbols and (in another picture) waving a Confederate flag.

In spite of the fact that this guy was aspiring to replicate Field’s attack and the apparent fact he was under investigation, the FBI affidavit suggests they needed a cooperating witness to ID Betancourt’s social media accounts.

Your affiant has also reviewed screenshots of accounts believed to belong to BETANCUR, provided by a cooperating witness (hereafter “CW1”). CW1 submitted an image to the tip-line established in the aftermath of the events of January 6, 2021. CW1 provided comments with this image stating that the individual in the screenshot had participated in the events at the U.S. Capitol on January 6, 2021 and posted numerous images using social media accounts with the names Bryan Clooney and Maximo Clooney. In the image CW1 submitted to the tip-line, a social media user with the user name “bryan_patriot_1776” appears to stand on scaffolding erected on the western side of the U.S. Capitol Building holding the corner of a confederate battle flag.

Like Strong, Betancur was charged with just misdemeanor trespassing charges, though he’s back in trouble in Maryland for violating probation.

A third defendant the FBI investigated before the insurrection is perhaps the most damning for what it says about the social media activity the FBI will notice.

The FBI is coy about two details in the arrest affidavit for Rasha Abual-Ragheb: One is when the Newark Office obtained Abual-Ragheb’s Facebook data, before or after January 6.

In addition, FBI Newark Division (FBI Newark) recently obtained, through legal process, records associated with the Facebook account with the display name Rasha Abu. The Facebook records link the Rasha Abu account to the same phone number that Rasha Abual-Ragheb provided the interviewing agents in November of 2020. FBI Newark also recently obtained, through legal process, records associated with the phone number provided by Rasha Abual-Ragheb, which confirmed Rasha Abual-Ragheb was in fact the subscriber.

And given that so many people have written affidavits in this investigation, it’s unclear whether the two people identified as “Confidential Human Sources” reporting back to the Philadelphia FBI Office in Abual-Ragheb’s arrest warrant are, as the name would normally suggest, FBI informants, or whether they’re just concerned citizens calling in tips as happened with the vast majority of tips on January 6 defendants.

On January 7, 2021, CHS 1 reported to the FBI Philadelphia Division (FBI Philadelphia) that he/she observed Rasha Abual-Ragheb’s Facebook page (display name Rasha Abu) showing Rasha Abual-Ragheb at the protest in Washington, DC on January 6, 2021 (attachment 1). A post made by Rasha Abual-Ragheb on the Facebook page revealed she checked into the Kimpton George Hotel (attachment 2). In another Facebook post (attachment 3), Rasha Abual-Ragheb posted the following: “Just left Dc… I got tear gas, paper spray!!! But I was part of the history. We the people won’t take it anymore. Antifa were between us, i and other MAGA people told Dc police, get that Antifa they didn’t do anything. He had black metal chair… The police would order to use full force on us from the beginning when we start marching to the capital, the use teargas and pepper spray and rubber bullet, they shot the woman that was standing peacefully without a a weapon, they hit women’s kids. They hit people with the pat metal one.”

On January 6, 2021, Confidential Human Source #2 (CHS 2) advised the FBI Philadelphia that on the night of January 6, 2021, CHS 2 encountered a woman on the sidewalk of the Kimpton George Hotel in Washington D.C. dressed in distinct clothing and making a scene (attachment 4, which was photo taken by CHS). The woman on the sidewalk identified herself as “Rasha,” admitted to being in the U.S. Capitol, and showed CHS 2 a picture of herself in the building (attachment 5). CHS 2 further reported Rasha Abual-Ragheb said she was in the U.S. Capitol and saw a woman get shot.

Still, what is clear is that, back in November, the FBI responded to Abual-Ragheb making inflammatory comments and repeating Donald Trump’s “Stand By” comment on social media by conducting — at a minimum — an Assessment against her, including an FBI interview.

In November 2020, a Facebook account with display name Rasha Abu participated in Facebook and Telegram group chats involving the New Jersey chapter of the American Patriot 3%. In the Facebook chat, user Rasha Abu advised the revolution will start not by standing by but by standing up. In addition, she advised civil war is coming and they need to show support, and rise up and fight for our Constitution. Open Source research identified an individual named Rasha Abual-Ragheb, residing at a specific address in New Jersey, as the possible user of the Facebook account. As part of the FBI’s assessment of Rasha Abual-Ragheb, she was interviewed. During the interview, she advised she was a Trump supporter, attended Trump rallies, and was blocked from making posts on Facebook and Twitter for pro-Trump postings. Additionally, Rasha AbualRagheb advised she was born in Lebanon and fled to Jordan when she was a child due to the civil war there. She further advised that she has lived in the United States for 21 years and she provided the interviewing agents with her telephone number.

Like Strong and Betancur, Abual-Ragheb was charged with just the two misdemeanor charges.

While her attorney, Elia Amato, could provide no clarity on whether the investigation into Abual-Ragheb continued from November through January 6 — possibly up to and including arranging for informants to track her movements on the day of the attack — Amato did emphasize that, “What ever prior investigative concerns law enforcement may have had appear to have been quashed.”

Still, it’s clear that, almost alone among 300 people charged so far, the FBI had noticed Abual-Ragheb’s public comments on social media and taken further investigative steps.

Jill Sanborn excused FBI’s failure to see the insurrection in advance based off obfuscation about the Bureau’s ability to observe and react to comments in public. But the Bureau did identify a potential threat and conduct an assessment in Abual-Ragheb’s case.

That also means they did that — almost uniquely — with an immigrant who has a Middle Eastern name, while ignoring others, many with criminal records, who made far more substantive or inflammatory comments.

The FBI didn’t respond to Proud Boy Enrique Tarrio’s plans for January 6 in plain sight, even though he had committed a racially motivated attack the last time he had been in DC.

They didn’t see and respond to Facebook posts from Three Percenter Michael Lopatic, the former Marine who spent the months after the election naming his hunting kill after Joe Biden, Kamala Harris, Chuck Schumer, Nancy Pelosi, Jerry Nadler, and Adam Schiff, posted a “Call to Arms,” in advance of January 6, and is accused of assaulting at least two cops at the insurrection.

They did see the woman on Three Percenter sites with an Arab name.

Meanwhile, by dint of opening an investigation into Kevin Strong, the FBI had evidence that delusional QAnon followers believed there would be Martial law and World War 3 on January 6, a description of January 6 as “war” in the FBI’s hands a week before the January 5 Norfolk report.

But that didn’t raise a wider alarm, either.

Now that the FBI has conceded that it had the authority to look at any of the social media discussions that led others to anticipate that January 6 would be something different, it has more some explaining to do — not least why one of the only January 6 participants it discovered in advance was virtually the only one with an Arab name.