Posts

Dabney Friedrich Rejects Challenge to January 6 Obstruction Application

/120 Comments/in , /by

I have written — a lot — about the application of obstruction (18 USC 1512(c)(2)) at the heart of the way DOJ has approached the January 6 prosecution. (July; July; August; August; September; September; December; December)

The government has, thus far, chosen not to charge January 6ers with Seditious Conspiracy (18 USC 2384), a crime which carries a sentence of 20 years but requires the government show specific intent to overthrow the government. DOJ has a history of spectacular failure when trying to charge white terrorists with sedition, in part because the bar to proving the elements of the offense is quite high, and in part because white terrorists have long known how to package their extremism in heroic terms. Sedition would be particularly hard to prove with regards to January 6, since it was an attack launched by one branch of government on another.

Instead, the government has charged those Jan6ers against whom they had solid evidence of a specific intent to stop the vote certification with obstruction of an official proceeding under 18 USC 1512(c)(2). Like sedition, that crime can carry a 20 year sentence. But the base offense carries a range closer to 18 months (or the eight months to which Paul Hodgkins was sentenced). To get to stiffer sentences, DOJ would have to demonstrate any of a number of exacerbating behaviors, most notably, the threat of violence or an attempt to assassinate someone, but also destruction of evidence. That’s how DOJ got to very different guideline ranges for five men, all of whom pled guilty to the same obstruction offense:

That is, using obstruction offers the possibility of the same sentence as sedition for the more serious perpetrators, without the same political blowback and legal risk, while giving DOJ more flexibility in punishing different kinds of actions that day as felonies.

Only, using obstruction in this fashion is without precedent, in part because no one has ever tried to prevent the vote certification by violently attacking the Capitol before.

Because of that, January 6 defense attorneys have launched a concerted legal attack on the application, variously claiming:

  • This application of obstruction can’t be applied to the vote certification because 18 USC 1512(c)(2) is limited to those proceedings for which there is some kind investigation and adjudication of evidence (like an impeachment)
  • If DOJ wanted to charge obstruction, they should have used some other part of the law (that didn’t carry a potential 20 year sentence)
  • A recent Supreme Court ruling in Yates v United States that ruled fish could not be evidence of obstruction, which pivoted largely on grammar and conjunctions, would apply to using a mob to stop a vote certification
  • January 6 rioters had no way of knowing that the vote certification counted as an official proceeding the obstruction of which would carry a felony charge
  • The same confusion about what “corruptly” means that saved John Poindexter exists here

Yesterday, Judge Dabney Friedrich denied Ronnie Sandlin and Nate DeGrave’s motion to dismiss their conspiracy to obstruct and obstruction charges. The opinion is succinct, step-by-step dismissal of each of those challenges (I’ve put the bullets above in the order she addresses them to make it easier to read along).

There are three other major efforts (by Brady Knowlton before Randolph Moss, by Proud Boy Ethan Nordean before Tim Kelly, by Thomas Caldwell before Amit Mehta in the Oath Keeper case) and a slew of other more minor efforts to overturn this application. So the viability of this application of obstruction is by no means a done deal. If any of those other judges ruled against the government, it would set off interlocutory appeals that could upend this decision.

But one judge, at least, has now sanctioned DOJ’s novel application, at least as used with these two defendants.

It’s significant that Friedrich has ruled against this motion (she’s facing a similar one from 3%er Guy Reffitt), for a number of reasons. That’s true, for one, because she’s one of four Trump appointees in the DC District. While all four are (unlike some Trump appointees on the DC Circuit or Supreme Court) quite serious judges, Friedrich is, with Trevor McFadden, one of the judges who might be more sympathetic to the Trump-supporting defendants before her.

Friedrich had also raised questions as to why DOJ hadn’t used a different clause of the obstruction statute, 1512(d)(1) that might also apply to January 6, but which carries just a three year sentence. That makes her sustained treatment of how the law works — citing a Scalia opinion that defendants have raised repeatedly — of particular interest, because it’s the question she seemed to have the most doubt about.

Indeed, § 1512(c)(2) is more akin to the omnibus clause in 18 U.S.C. § 15035 than it is to “tangible object” in § 1519. The specific provisions in § 1503 cover actions related to jurors and court officers and the omnibus clause “serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice.” As such, it is “far more general in scope.” United States v. Aguilar, 515 U.S. 593, 598 (1995). The ejusdem generus canon does not apply to limit § 1503’s omnibus clause to acts directed at jurors and court officers, because the clause “is not a general or collective term following a list of specific items.” Aguilar, 515 U.S. at 615 (Scalia, J., concurring in part and dissenting in part) (emphasis omitted). Instead, “it is one of the several distinct and independent prohibitions contained in § 1503 that share only the word ‘Whoever,’ which begins the statute, and the penalty provision that ends it.” Id. So too here.

[snip]

Nor does the plain text of § 1512(c)(2) create “intolerable” surplusage. Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). To be sure, interpreting subsection (c)(2) to include any and all obstructive, impeding, or influencing acts creates substantial overlap with the rest of § 1512, and with other provisions in Chapter 73. But the Court does not find that it creates intolerable overlap.

To start, a broad interpretation of § 1512(c)(2) does not entirely subsume numerous provisions with the chapter. For instance, § 1512(a)(1)(C), (a)(2)(C), (b)(3), and (d)(2)–(4) proscribe conduct unrelated to an “official proceeding.” Sections 1503 and 1505 prohibit obstructive acts related to the “due administration of justice” and congressional inquiries or investigations, respectively, which may have no relation to an official proceeding. Section 1513, meanwhile, prohibits retaliatory conduct that occurs after a person participates in an official proceeding. Section 1512(c)(2), on the other hand, concerns obstructive conduct that occurs either before or during such proceedings.

It is true that killing a witness to prevent his testimony at an official proceeding, see § 1512(a)(1)(A), or intimidating a person so that he withholds a record from the proceeding, see § 1512(b)(2)(A), among others, could be charged under § 1512(c)(2). But the fact that there is overlap between § 1512(c)(2) and the rest of § 1512, or other provisions in Chapter 73, is hardly remarkable; “[i]t is not unusual for a particular act to violate more than one criminal statute, and in such situations the Government may proceed under any statute that applies.” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (internal citations omitted); see also Loughrin, 573 U.S. at 358 n.4.

In the Reffitt case, Friedrich had made DOJ provide a Bill of Particulars to explain how they understand Reffitt to have obstructed the vote certification, which was a different approach than other judges have taken. Moss and Mehta, for example, seem most concerned about limiting principles that distinguish obstruction as charged here from otherwise protected political speech (which also might give them a different basis to reject this application, particularly given that Donovan Crowl attorney Carmen Hernandez has focused on the First Amendment in the Oath Keeper case).

One other factor that makes Friedrich’s quicker decision on this issue (this challenge came before her after all the others I’ve listed as major above) interesting is that her spouse, Matthew Friedrich, was an Enron prosecutor. And — as Judge Friedrich’s opinion makes clear — Congress passed this specific clause in response to lessons learned in Enron.

In 2002, following the collapse of Enron, Congress enacted a new obstruction provision in Section 1102 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 807: “Tampering with a record or otherwise impeding an official proceeding.” It was codified as subsection (c) of a pre-existing statute, 18 U.S.C. § 1512. Section 1512(c), in full, states:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c)(2).

[snip]

As noted, Congress enacted § 1512(c) as part of the Sarbanes-Oxley Act of 2002 following “Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.” Yates, 574 U.S. at 535–36. That Congress acted due to concerns about document destruction and the integrity of investigations of corporate criminality does not define the statute’s scope. Statutes often reach beyond the principal evil that animated them. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).

She has personal reason to know this history and the import of the statute well.

Friedrich looked to the Enron history to map how “corruptly” might apply in this case, too.

In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted).

[snip]

The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.

All in all, this was a no-nonsense opinion that didn’t rely on distinct aspects of this case, such as that Sandlin encouraged others in the Senate to look for and seize laptops and papers, the kind of destruction of evidence that makes the question easier.

Her opinion laid out just one limiting factor, though given how DOJ has charged conspiracy to obstruct the vote certification in all the conspiracy cases, an important one. This case was easy, Friedrich suggests, because so much of what else Sandlin and DeGrave are accused was obviously illegal (even moreso than Reffitt, who didn’t enter the building and whose resistance to cops was not charged as assault).

The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line. It alleges that the defendants obstructed and impeded the congressional proceeding to certify the election results. Superseding Indictment ¶ 37. And it further alleges that the defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber. Id. ¶¶ 15-33. This alleged conduct is both “independently criminal,” North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) and “inherently malign,” Arthur Andersen, 544 U.S. at 704. And it was allegedly done with the intent to obstruct the congressional proceeding, see Friske, 640 F.3d at 1291. Assuming that the government can meet its burden at trial, which is appropriate to assume for purposes of this motion, the defendants were sufficiently on notice that they corruptly obstructed, or attempted to obstruct, an official proceeding under § 1512(c)(2).

The Court recognizes that other cases, such as those involving lawful means, see, e.g., Arthur Andersen, 544 U.S. at 703, will present closer questions.14 But the Court need not decide here what constitutes the outer contours of a “corrupt purpose.” Because the indictment alleges that the defendants used obvious criminal means with the intent to obstruct an official proceeding, their conduct falls squarely within the core coverage of “corruptly” as used in § 1512(c)(2). See Edwards, 869 F.3d at 502 (“While the corrupt-persuasion element might raise vagueness questions at the margins, the wrongdoing alleged here falls comfortably within the ambit of the statute.”). The Court will address further refinements of the definition of “corruptly” with jury instructions.

14 As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.

Whether Sandlin and DeGrave corruptly attempted to halt the vote count is easy, Friedrich suggests, because they are accused of so much else that was clearly illegal, including both trespassing and assaulting cops. Whether this application of obstruction holds for overt acts that are not, themselves illegal, will be a much harder question, but it was not one before her in this case.

This question is already before other judges though, significantly (for DOJ’s efforts to hold what I’ve termed, “organizer inciters” accountable) in the 3%er SoCal conspiracy. And, as the AUSA dealing with the legal application of all this, James Pearce, responded in yet another challenge to this application of obstruction, it goes to the core of whether this application of obstruction could be used with the former President.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, [Carl] Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

If Trump honestly believed that Mike Pence could blow off the vote certification when he ordered him to do so on January 6, this application of obstruction would be far more problematic, as even DOJ’s expert on this application concedes. But if Trump knew the demand violated the law (or the Constitution), then it would meet the definition of “corruptly” under this application of the statute.

The entire course of the January 6 prosecution has been waiting on these decisions about DOJ’s use of obstruction. And while Friedrich’s opinion does not decide the issue, DOJ has notched one significant opinion in support for the approach they’re using. If a few other judges match her opinion, we could begin to see a wave of plea deals to felony convictions.

Update: Here’s the order Friedrich issued in Reffitt’s case, deferring the 1512 question until trial unless he gives her a good reason not to:

MINUTE ORDER. Before the Court is the defendant’s [38] Motion to Dismiss Count Two of the Indictment on multiple grounds, including that Count Two is unconstitutionally vague as applied. On a motion to dismiss, the Court “is limited to reviewing the face of the indictment,” United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009), and it must assume the truth of the indictment’s factual allegations, United States v. Bowdoin , 770 F. Supp. 2d 142, 149 (D.D.C. 2011). The question for the Court at this stage of the proceedings is “whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.” Id. at 146.

A criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489, 497 (1982). And “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy , 417 U.S. 733, 756 (1974). Numerous courts have rejected vagueness challenges the word corruptly as used in obstruction statutes. See, e.g., United States v. Shotts , 145 F.3d 1289, 1300 (11th Cir. 1998); United States v. Edwards, 869 F.3d 490, 50102 (7th Cir. 2017); see also Mem. Op. issued December 10, 2021 in United States v. Sandlin , 21-cr-88, Dkt. 63 (holding that § 1512(c)(2) is not unconstitutionally vague as applied to defendants who allegedly forcibly breached the Capitol and assaulted Capitol police officers with the intent to impede the official proceeding).

In contrast to the indictment at issue in Sandlin, the Indictment in this case does not allege any facts in support of the § 1512(c)(2) charge. Count Two merely alleges that Reffitt “attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.” [34] Second Superseding Indictment at 2. The government proffers in its brief, however, that “[w]hile at the Capitol, the defendant, armed with his handgun in a holster on his waist, confronted U.S. Capitol Police officers on the west side stairs, just north of the temporary scaffolding. The defendant charged at the officers, who unsuccessfully tried to repel him with two different types of less-than-lethal projectiles before successfully halting his advances with pepper spray. The defendant encouraged other rioters to charge forward at the officers, which they did. The officers were forced to fall back, the Capitol was invaded.” [40] Gov’t Opp’n at 1. Reffitt disputes this in his briefing. [38] Def.’s Mot. to Dismiss at 13-15.

Because it is unclear, based on the indictment alone, what actions Reffitt allegedly engaged in to obstruct and impede the official proceeding, the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him. For this reason, the Court is inclined to defer ruling on his vagueness challenge until the facts have been established at trial and the jury has had an opportunity to consider that evidence. See United States v. Kettles , No. CR 3:16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (finding that pretrial as-applied challenge to § 1591(a) was premature because “[t]he court cannot determine the nature and extent of [defendant’s] conduct in this case and, therefore, also cannot determine whether § 1591(a) is void for vagueness as applied to that conduct”); United States v. Raniere , 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019).

Accordingly, the defendant is directed to file, on or before December 15, 2021, a supplemental brief of no more than 5 pages in length explaining why the Court should not defer ruling on his motion until the evidence has been presented at trial. Upon review of the defendant’s supplemental brief, the Court will consider whether a response from the government is necessary.

Share this entry

237 Days: Cooperation in Criminal Investigations Takes a Long Time

/41 Comments/in , /by

Earlier this week, I pointed out that the complaints about Merrick Garland’s approach to the January 6 investigation simply don’t account for how long competent investigations take. On Twitter, I noted that it took almost a full year after the Russian investigation was opened for George Papadopoulos to be arrested and another two months before he pled guilty, making 14 months for a simple false statements charge in a lightning fast investigation. With a purported cooperator like Mike Flynn, it took 15 months to plead guilty and another year for the cooperation, and that, again, was considered lightning fast (and was assisted by the criminal exposure Flynn had for secretly working for Turkey).

In the January 6 investigation, prosecutors got their first public cooperating witness on April 16, when Jon Schaffer entered into a cooperation agreement. Since then, four additional Oath Keepers (Graydon Young on June 23, Mark Grods on June 30, Caleb Berry on July 20, and Jason Dolan on September 15), Josiah Colt (on July 14), and Klete Keller (on September 29; and no, I have no clue against whom he’d be cooperating) also publicly entered into cooperation agreements. That’s what DOJ has formally revealed, though there are several cases where the government clearly has gotten cooperation from other defendants, but hasn’t shared that formally.

But even with cooperators, investigations take time. There are three recent developments that provide a sense of how time-consuming that is.

Jon Schaffer’s still unresolved cooperation

As I previously noted, the four main Oath Keeper cooperators have a harmonized status deadline for December 17. I had been waiting to see whether Jon Schaffer, who has ties to the Oath Keepers and communications with whom were noticed to Oath Keeper defendants, would be put on that same reporting schedule.

He hasn’t been.

In fact, a recent status report in his case suggests the main Oath Keeper conspiracy may not be the primary focus of his cooperation. That’s because two details in it are totally inconsistent with the progress of the Oath Keeper case.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

As Judge Mehta well knows, four of the Oath Keepers already have “explor[ed] case resolutions.” And Mehta has set the first trial date for April 19, 2022.

So unless Schaffer’s attorney is entirely in error, it seems there’s some other multiple defendant case in which Schaffer is cooperating.

Swedish Scarf still at large?

Earlier this month, Gina Bisignano may have pushed the government to indict a conspiracy in which she’s a key witness earlier than they might have.

On November 4, she filed a motion to modify her release conditions, to get out of home arrest so she can try to salvage her salon business. In it, her lawyers revealed that back in July, Bisignano had entered into a sealed plea agreement.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

12. On September 16, 2021, a Zoom hearing was held before this Court, and Your Honor advised that you would entertain the Defendant’s motion in three (3) weeks to see whether the Defendant had any infractions during that time.

The only reason to seal the plea would be to hide a cooperation component.

There has long been chatter about a conspiracy indictment against members of the Southern California anti-mask community that traveled to the insurrection together. In response to Amy Berman Jackson’s questions about why Danny Rodriguez was not charged with three other defendants for assaulting Michael Fanone, prosecutors kept giving her vague answers for months, until they filed what must have been a sealed update on November 5. And a transcript of Rodriguez’ FBI interview at least suggested that the FBI had spoken to Bisignano before Rodriguez’ March 31 interview.

Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

Videos of this interview, which are engaging TV, are here.

In mid-November, the government finally rolled out the long-awaited conspiracy indictment, which was more narrowly tailored than originally expected, charging Rodriguez, his estranged friend Ed Badalian, and someone referred to in the online community as “Swedish Scarf,” but whose identity remains sealed. The indictment charges two objects of the conspiracy: to halt the vote count on January 6, but also to “mutilate or destroy photographs and videos taken by” Bisignano (who is referred to as Person One in the indictment).

But there’s still no sign of an arrest of Swedish Scarf.

That could mean several things, one of which is that he’s on the lam.

The minute order from Judge Carl Nichols granting Bisignano some but not all of the release conditions she requested revealed that the government opposition to that request, which was due on November 24 (and so after the indictment against Badalian was unsealed) remains sealed.

There’s something else going on with this case. What, it is not entirely clear.

That said, what the public record suggests is that Bisignano had at least one interview prior to March 31, she pled guilty in August, but it still took three more months to obtain the indictment against Badalian and Swedish scarf.

Indicting a cop for fun and probation

Meanwhile the sentencing memos (government, defense) for Jacob Hiles reveal that not all cooperation comes with a cooperation agreement.

As the government describes, Hiles’ actions on January 6 include a number of the factors that would normally lead them to ask for a sentence including jail time: calls for revolution in advance, mockery of police efforts to defend the Capitol, and long boasts posted to Facebook after the fact.

But those Facebook posts play a key role in a more important prosecution, that of former Capitol Police Officer Michael Riley, who friended Hiles on Facebook before the insurrection and tried to protect him afterwards. After they first initiated contact, Riley warned Hiles to delete his posts, but he did not.

On January 7, 2021, a sworn U.S. Capitol police officer, Michael Angelo Riley, sent the defendant a private direct message on Facebook—the first message between the two, who had never met but shared an avid interest in fishing. The message stated as follows:

“Hey Jake, im a capitol police officer who agrees with your political stance. Take down the part about being in the building they are currently investigating and everyone who was in the building is going to be charged. Just looking out!”

Hiles responded to this message with a shorter version of the narratives posted on his public page and detailed above. He further stated, in part, “Investigate me however youd like and thank you for the heads up. . . . If what I did needs further investigation, I will gladly testify to this. There are some people who were violent. They attacked officers. They destroyed property. They should be fully prosecuted.”2 In the course of an extended conversation that ensued between the two, Hiles also said, “I don’t think I did anything wrong at all yesterday and I am very sorry things turned out the way that they did. I dont like the way that a few bad apples in a massive crowd are making the entire crowd be portrayed as violent terrorists,” and “I think when the fbi gets to investigating, they will find that these terroristic acts were committed in false flag attacks by leftists.”

The government’s investigation revealed that these communications between Riley and the defendant had been deleted by Riley, but not by the defendant, from whose Facebook account they were recovered. The communications included further corrupt conduct by Riley, as detailed in part in the Indictment, ECF No. 1, in United States v. Michael Angelo Riley, 21-CR-628 (ABJ). Indeed, according to Hiles, and consistent with the evidence recovered in the government’s investigation of Michael Riley, Hiles deleted no information in response to Riley’s suggestion that he do so.

And when FBI Agents interviewed Hiles after they arrested him on January 19, he told them enough about his contact with Riley such that they knew to look for those communications once they exploited his phone. That led to another interview and, ultimately, to the indictment of Riley.

Hiles further indicated that following the riot he had become friends with a Capitol police officer, although he did not at that time describe the content of then-Officer Riley’s initial contact. Later, a search of Hiles’ cell phone revealed a screenshot of the Facebook message detailed in the government’s Sentencing Memorandum from Riley to Hiles on January 7, 2021. Upon discovery of the message, the government requested through counsel that Hiles participate in a debrief with prosecutors and federal agents. Through counsel, Hiles agreed to do so and appeared for the debrief (held virtually) within 24 hours, and with no promise of any benefit from or agreement of any kind with the government.3

After his initial interview, Hiles told Riley that the FBI had expressed an interest in their communications. That led Riley to delete his own Facebook communications with Hiles.

15. RILEY and Person 1 continued to exchange friendly messages until January 20, 2021. On that date, Person 1 sente RILEY Facebook direct messages regarding having turned himself in to the FBI, including telling RILEY, “The fbi was very curious that I ha been speaking to you if they havent already asked you about me they are gonna. They took my phone and downloaded everything.” RILEY responded, “Thats fine”.

16. On January 20, 2021, RILEY deleted all his Facebook direct messages to and from Person 1.

Because of this cooperation against Riley (and because he offered up that he had gone to insurrection with his cousin, James Horning, who was arrested on obstruction and trespassing charges a month later), the government recommended probation.

Indeed, without the defendant’s significant, useful assistance to the government with respect to two felony prosecutions, the factors would require the government to recommend a sentence involving incarceration. Yet, upon consideration of the defendant’s exceptional cooperation with the government, the scale tips in favor of probation.

Hiles is due to be sentenced on Monday.

Hiles’ role in the prosecution of Riley is instructive for several reasons. First, these misdemeanants are not just defendants, but they are all witnesses to a crime. And some of them are going to provide important testimony without the formal trappings of a cooperation plea those indicted with felonies would have (even assuming those cooperation pleas were made public).

But the Hiles sentencing also gives a sense of the time necessarily involved. Riley’s indictment reveals how long even simple cooperation prosecutions can take. While union protections and internal investigations probably delayed things somewhat, it still took over 235 days between when the FBI first learned of Hiles’ communications with Riley and Riley’s arrest.

That’s for a cop. You can be sure it would take longer to indict those close to Donald Trump, even assuming the FBI has identified cooperators with useful testimony directly pertaining to those in Trump’s orbit, rather than identified those once or twice removed from Trump’s closest aides.

The government is getting more cooperation from January 6 defendants and witnesses than is publicly admitted. But that doesn’t mean we’ll see the fruit of such cooperation anytime soon.

Update, December 23: Adding the cooperation agreements for Gina Bisignano (August 4) and Matthew Greene (December 22).

Share this entry

Where to Look (or Not) for Signs of Life in Rule of Law

/124 Comments/in , , /by

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

Share this entry

Gina Bisignano: If a Plea Deal Falls on the Docket and No One Hears It …

/26 Comments/in , /by

It turns out there are a lot of things that won’t show up on a January 6 docket.

According to a motion to ditch her house arrest filed last week, Gina Bisignano — the Beverly Hills salon owner who wore a Louis Vuitton sweater to the insurrection — signed a plea deal back in July.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

Normally, when people sign plea deals under seal like this, it’s a sign of a cooperation agreement.

That wouldn’t be surprising. DOJ has been trying to charge the group of LA-area anti-vax activists who traveled to DC together in a conspiracy for most of the year. And the transcript of Danny Rodriguez’ March 31 post-arrest interview showed the FBI agents interviewing Rodriguez — who went to insurrection with Gina and others and whose alleged tasering of Michael Fanone would form the center of any conspiracy — at least pretending that she was talking with investigators, possibly even claiming that Rodriguez threatened her to keep quiet at a visit to her home.

Q. Did you talk to Gina before she got arrested?

A. Um-hmm.

Q. What’d you find out from her?

A. Nothing. I mean, we just said hi. But, I mean, we didn’t talk about anything else. I don’t really know her that well.

Q. Did you go over to her house?

A. I’ve been to her house.

Q. After January 6th, have you been to her house?

A. Yeah. I went one time, yes.

Q. With Ed?

A. No.

Q. With who?

A. Gabe. The guy who turned a rat.

Q. What do you mean?

A. The guy who’s snitching on everyone. He’s a Trump supporter, but — and he had all this — he used to always pick fights with BLM and Antifa, and we always had problems with him making us look bad, and he always wanted to get violent. And now he’s turned on us — or, me.

Q. What happened when you went with Gabe to talk to Gina?

A. It was just, like, to touch base. It was just like, hey, you know, we’re — we made it. We’re back. Everything’s okay. Are you okay? Kind of thing.

Q. What is Gabe going to say happened?

A. I don’t know. I don’t know about that guy. I mean, I haven’t had contact with him and he was really quiet. He looked like he didn’t like what happened and he was just — kind of just sit — staring at the floor a little bit or something. Like, sitting on the couch quiet. And Gina and I were talking about D.C. and he was just quiet and, I mean — and then he left and I left. We were only there for, like, 30 minutes maybe.

Q. Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

A. Yeah. I mean —

Q. Is that what you guys talked about?

A. I guess. Yeah. I mean, like — yeah. We’re like, don’t talk about this and don’t tell anybody and —

Q. Did you threaten her?

A. No.

Q. But you told her not to say anything.

A. No, I didn’t tell her. I mean, I think it was — no. I don’t even think I told her not to say anything. I just think it was just assumed or implied that —

Q. Well, tell me what you said because I don’t want to put words in your mouth. Tell me how the conversation went.

A. I really didn’t talk to Gina too much. I mean, we were over there and just talking, and was smoking some weed on her patio. That’s it.

Q. And?

A. I didn’t threaten her or tell her any — tell her to do anything.

Q. But you guys did talk about not saying anything to the police about what happened in D.C.?

A. We weren’t even talking necessarily about not talking to the police. We were saying not to talk to — about this to anyone that we know.

Q. So just don’t tell anybody?

A. Just keep it quiet and don’t tell anybody anything and let’s try to live our lives normal, but not really, no.

Q. Okay.

[snip]

AGENT ELIAS: And then he said he met up with out there Kayla, Chris Almonte, somebody named Sauna, and Gina. And then we talked a little bit about Gina and he said that, after January 6th, he did go to Gina’s house with Gabe one time. And they did discuss not saying anything to anyone.

BY AGENT ARMENTA: Q. Okay. So you told Gina that?

A. Yeah. We were just not going to talk to — talk about it with anybody.

Q. Did you threaten her at all?

A. No. For sure, no.

Q. So she’s not going to say that?

A. I would hope not.

Q. What about —

A. No. She’s a sweet woman. I wouldn’t threaten her. And plus, what I did, why — how can I threaten? I mean, if I threaten her, she’s just going to turn me in, right? [my emphasis]

Revealing a cooperation plea deal without permission is a good way to ruin your chances to get a 5K1.1 letter, which is what the government submits to ask for a lesser sentence in exchange for substantial assistance. So it’s possible the plea deal has gone south.

Nevertheless, we should expect there are secret plea deals like this among the 650 defendants. And so I wanted to observe several things about Bisignano’s docket. Mostly, that there’s no sign of a plea deal in it. Or anything else of interest.

Bisignano was arrested on January 19 and indicted ten days later. She was in a limbo for an extended period amid COVID-related transfer delays and also a delay getting her attorney admitted to the case. On February 26, Judge Carl Nichols released her to the house arrest she’s now trying to get relaxed.

But aside from adoption of a protective order in April (that is, after the Rodriguez agents claimed that Bisignano may have already started talking) and a grand jury disclosure order in July, just days before the plea deal, the only things that have happened in the docket are repeated requests for relaxation of her release conditions, status conferences, and discovery. The only thing reported out from a September status hearing pertained to her request for a relaxation of her release conditions.

Days before Bisignano pled guilty, July 24, the prosecutor in this case, Kimberly Paschall provided a summary of the discovery provided to day (which was mostly the stuff that went into her arrest). There has been no other discovery described outside of the mass discovery status updates.

All of which is to say, there’s nothing in the docket.

I raise all this not just to say, we have no idea what this means, though we have no idea what Bisignano’s public claim to have entered into a sealed plea deal in July means. The expected conspiracy case has never been publicly filed.

But it is worth noting that DOJ has not visibly met two deadlines set by Judge Amy Berman Jackson in the Rodriguez case, to tell her whether his case will be joined with others accused of assaulting Fanone, and to explain why he hasn’t been offered a plea deal.

First of all, the Court will require the government to make its intentions plain, and therefore it is HEREBY ORDERED that any motion to join this case to any other for trial must be filed by November 5, 2021. Any motion to extend that date must be based on good cause shown, and vague references to ongoing investigations or extenuating circumstances will not suffice; if matters must be submitted to the Court under seal, the government is familiar with how to accomplish that.

Second, it is FURTHER ORDERED that the government must inform the Court by November 5, 2021 whether a plea offer has been extended in this case and if not, why not.

These filings were due — on the docket, or under seal — by Friday, but there’s nothing there.

The lesson of this post, then, is that for all the wailing that nothing is going on in the January 6 investigation, there’s likely to be a lot going on that we’re not seeing.

Share this entry

Don’t Ignore What Trevor McFadden Has to Say about January 6

/10 Comments/in , , /by

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

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

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

Share this entry

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

/47 Comments/in , , /by

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.

Share this entry

“Darkened Plazas with Throngs of People:” The Government Debunks the Portland – January 6 Comparisons

/40 Comments/in , /by

The government just responded to January 6 defendant Garret Miller’s claim of selective prosecution. Miller is charged with assault and civil disorder, obstruction, and — for threats against AOC and the officer who shot Ashli Babbit — interstate threats.

On January 15, 2021, MILLER admitted in a Facebook chat that he is “happy to make death threats so I been just off the rails tonight lol,” and is “happy to be banned now [from Twitter].” When asked whether the police know his name, he responded, “[I]t might be time for me to …. Be hard to locate.”

Last month, Miller filed two motions claiming selective prosecution (for discovery, to dismiss). He argued that Portland defendants were treated differently than he is being treated, because many of the Portland cases involving (some but not all of) the same crimes he was charged with are being dismissed or resulting in plea deals.

UndersignedCounsel has undertaken an extensive review of pleadingsfiled on PACER, press releases issued by the United States Attorney’s Office for the District of Oregon, and various news accounts as they relate to the Portland riots. From that review, it appearsthat approximately 74 persons were charged with criminal offenses arising out of the riots. 5 Of those 74 persons, to date, approximately 30 persons have had their cases dismissed (often with prejudice) upon motion of the government, 12 persons appear to have been offered dismissals upon completing a pre-trial diversion program, and at least 3 persons have been allowed by the government to plead guilty to significantly reduced charges.6

Most of the Portland rioters were charged with a violation of 18 U.S.C. § 231(a)(3) (civil disorder) and/or a violation of 18 U.S.C. § 111 (assault on a federal officer). These are the same charges brought against Mr. Miller in Counts One, Two and Four of the Superseding Indictment based upon his participation in the Washington, D.C. riots.

Given the right wing efforts to compare the two events, this was an inevitable legal challenge. And as such, it will be one of the few times where the government is asked to compare their prosecutorial decisions between the two events.

The government responded to the motion for discovery today. It argues, generally, that Miller hasn’t presented any similarly situated people.

Miller fails this showing. A selective-prosecution claim requires the defendant to identify “similarly situated” individuals who “have not been prosecuted,” Irish People, Inc., 684 F.2d at 946 (citation omitted), and Miller has pointed to no such individual. He instead cites 45 cases (from a sample of 74) where the government charged the defendant with federal offenses arising from riots around the federal courthouse in Portland, Oregon, and where the government subsequently dismissed the charges, entered a deferred-prosecution agreement, or acceded to the defendant’s guilty plea on reduced charges. Doc. 32, at 7.2

2 Miller’s motion further references pleadings from 31 of these cases where, in his view, the defendant’s conduct in Portland mirrored his actions on January 6, 2021. Doc. 32, at 8-16; see also Doc. 32-1 (Attachments 1-31).

This is how most selective prosecution claims die: the precedents require coming in with proof of an almost exactly similar case getting differently treated, and then proving it was differently treated for some kind of bias.

It then points out the obvious: Miller is not claiming selective prosecution, he’s claiming that the outcomes of those prosecutions are different than his is likely to be.

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.

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.

You can’t claim selective prosecution when those other defendants were also charged, especially not after you, yourself, have been offered the same “significantly reduced charges” you’re complaining Portland protestors got.

But then the government goes into specifics about what distinguishes Miller: generally, there’s far better evidence against Miller, and, specifically, he committed other crimes as well.

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)

More importantly (and a point that Trevor McFadden made when Couy Griffin tried to claim he was being picked on because he got charged with the same trespassing charge virtually everyone else got charged with), the government notes that Miller hasn’t been treated differently than any of the 500 others who’ve been charged in January 6.

[H]e is one of more than 500 defendants already charged for participating in the riot, and he does not suggest that he has been treated differently than any of those similarly situated defendants.

This is a response to a guy who, though his assault charges are not as serious as the assaults charged against others, then went on Twitter and bragged about committing crimes, and then threatened several people, including a Congressperson. Other January 6 defendants might raise more interesting selective prosecution challenges, which will likely fail for the general comments laid out about the quality of evidence involved. But this challenge was doomed from the start. Miller’s alleged crimes were so well documented — on camera and in his own words — that he was never the person to bring this challenge.

More importantly, the government raises one big reason why the January 6 defendants will be prosecuted and some Portland defendants will not (setting aside the 29 cases Miller tried to pretend didn’t exist), even assuming their alleged crimes are just as bad: because there weren’t tens of thousands of others filming their actions, because they didn’t try to occupy a building full of CCTV, and because they didn’t brag about their crimes after the fact.

This may not end the comparisons between January 6 and Portland. But it does lay out for the court very practical reasons why throwing the book at January 6 defendants is easier to do than Portland defendants: because January 6 defendants committed alleged crimes in bright spaces covered by CCTV and then went on social media and bragged about doing so, whereas many Portland defendants did so in “darkened plazas.”

Share this entry