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Discovery Delays at the East Door: What Key January 6 Plea Negotiations Look Like

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Lots of people have lost patience with the January 6 investigation based on misunderstandings about what it has discovered so far and where it may be heading. So I’d like to explain a delay that might tangibly hold up the investigation for two months: plea negotiations that might provide more information on the coordinated effort between the Proud Boys, Oath Keepers, Alex Jones, and an alarming number of Marines to breach the East front of the Capitol.

(Although who am I kidding? The people complaining don’t understand the investigation in this level of detail.)

When DOJ filed the existing superseding indictment charging the Proud Boy leaders last March, it made clear that the crowd of people assembled on the East steps before those doors were opened from the inside was of some interest, not least because we knew even then that Biggs and two other Proud Boys entered with the stack of Oath Keepers, which was led by Floridian Kelly Meggs, who had forged an alliance between Florida militia members in December 2020.

BIGGS subsequently exited the Capitol, and BIGGS and several Proud Boys posed for a picture at the top of the steps on the east side of the Capitol.

Thirty minutes after first entering the Capitol on the west side, BIGGS and two other members of the Proud boys, among others, forcibly re-entered the Capitol through the Columbus Doors on the east side of the Capitol, pushing past at least one law enforcement officer and entering the Capitol directly in front of a group of individuals affiliated with the Oath Keepers.

That is, this reference and others suggested there was coordination between two of the main militia groups involved in the attack.

I noted in April that the arrest of  Florida Proud Boys Paul Rae and Arthur Jackman, two guys who followed Biggs everywhere he went that day, was likely an attempt to clarify how that assembly worked — an attempt that probably posed a risk for the two others included in a selfie Biggs and his co-travelers took from the top of the East steps.

The government arrested Rae on March 24. They arrested Jackman on March 30. Again, I’d be pretty nervous if I were one of the other two guys.

Those other two guys (actually there were three), Edward George and now-former Florida cops Kevin and Nathaniel Tuck, were arrested in July.

We’ve subsequently learned the inquiry into the East door is far vaster than that. The inquiry into how the East door got opened from the inside started at least by February; it figures prominently in Philip Grillo’s arrest affidavit. In May, DOJ arrested active duty Marine Chris Warnagiris for ensuring the East door stayed open once it had been breached. At the end of June, DOJ arrested Proud Boy Ricky Willden for his role in breaching the East side, without telling us what they knew about it. Also at the end of June, DOJ arrested Darrell Youngers and George Tenney; the former is a Marine, the latter is the guy who first opened the East door, before others like Grillo joined in. Leading up to Josiah Colt’s plea in July, DOJ likely learned more about how his co-conspirators, Nate DeGrave and Ronnie Sandlin, knew to head to the East door to fight with cops to keep it open. In September, the government revealed that Jerod and Joshua Hughes, brothers who were instrumental in helping to open the West door, who then occupied the Senate floor, had — like Biggs — exited the building and reentered via the East door breach along with the Oath Keepers.

Key arrests — those of Proud Boys Jimmy Haffner and Ron Loerhke — came in early December. Loerhke — another former Marine — played a significant role in focusing the mob on the West side of the building before he, along with Haffner, joined the others on the top of the East steps and allegedly helped break the police line to get in that East door. Just before Christmas, based on information discovered as late as October, DOJ added charges against the Johnson men, father Daryl and son Daniel, for their role in fighting to keep the East door open. Over the course of the year, then, DOJ has been charging many of those involved in the breach of the East door with felonies.

In August, DOJ started going after the Pied Pipers who brought extra bodies to the top of the stairs to fill the breach by arresting Alex Jones’ side-kick, Owen Shroyer. The judge presiding over the most important Proud Boys cases, Tim Kelly, is also currently considering Shroyer’s cover story for how he and Jones led mobs to the steps.

Along the way, DOJ also arrested MAGA tourists like the Getsingers, who attested that they followed Alex Jones’ lies all the way to the top of the East stairs only to push into the Capitol right along with the organized militias. They also arrested a bunch of people who took video footage that likely helps to clarify what happened there.

Over the course of a year, then, DOJ has slowly built up evidence of a coordinated assault, involving both major militia conspiracies and Trump’s designated Pied Piper, Alex Jones, largely orchestrated by former and one Active Duty Marines and one car salesman (Meggs), to open a second breach the Capitol.

We now know that it happened. What we’re waiting for is to learn how it happened: what kind of communications — and when — brought everyone to the East steps at the same time. Who knew about it, at the Capitol, or even down Pennsylvania Avenue?

In the wake of key decisions upholding DOJ’s application of obstruction to January 6, people from this crowd who might be able to offer more insight are reportedly considering pleading. For example, in a status hearing with the Hughes brothers on Friday, after Judge Tim Kelly orally rejected their challenge to DOJ’s obstruction application like he had done Ethan Nordean’s in December, both their attorneys talked like they were strongly considering a plea but just needed time to do their due diligence. If the Hughes were able to explain how they, with no discernible militia ties (though Jerod received travel funds from someone affiliated with a “Patriot” group), happened to be in all the most important places in the insurrection, it might be really useful for DOJ.

But it’s going to take two months for any kind of plea, cooperative or otherwise, to be negotiated, per the status hearing.

Similarly, at least some of Joe Biggs’ co-travelers are discussing a plea deal. In a joint status report for the men who posed with Joe Biggs on the East steps — Arthur Jackman and Paul Rae, who trailed Biggs all day on January 6, and Edward George, Kevin Tuck, and Nathaniel Tuck, the guys in the group arrested later — the parties asked for a two month continuance, citing discovery delays.

Second, since the last status conference in this case, the government has also produced six global productions, involving tens of thousands of files, to all Capitol Breach defendants. These productions have included, among many other things, thousands of files of U.S. Capitol Police Closed Circuit Video footage; over 1,000 files of body-worn camera footage; maps of the Capitol; reports of interviews and other information; and government work product aimed at assisting defense counsel in understanding the discovery in this investigation. Third, in this case in particular, the government produced on December 22, 2021 a significant quantity of cross-discovery that had been previously produced to defendants in the case of United States v. Ethan Nordean et al., No. 21-CR-175 (TJK).

The discovery process and negotiations with respect to a potential resolution of these cases are expected to continue past the first week of March.

Finally, the government and counsel for defendant Paul Rae note that a pretrial violation report was filed as to Mr. Rae on October 6, 2021. See Dkt. 68. This violation report stated that Mr. Rae was arrested for boating under the influence. Id. Mr. Rae’s BUI case is ongoing. Pretrial services is not recommending action at this point. Counsel for Mr. Rae notes that Mr. Rae was admonished for this incident, and states that there have been no further issues since that arrest. The government defers to the Court in terms of how it wishes to handle the violation report relating to Mr. Rae’s arrest. The government may affirmatively seek a change in Mr. Rae’s bond status or conditions if his ongoing BUI case results in a conviction.

Now, I’m skeptical that all five of these guys would plead guilty. I’m skeptical the three of them represented — with no conflict waver requested from DOJ — by John Pierce (Rae and the Tucks) would plead, because Pierce’s twin goals in representing an unsustainable number of January 6 defendants appears to be turning them into fundraising pawns and firewalling Joe Biggs. But obviously, the three prosecutors on this case believe two months might lead to plea deals where a hard deadline on any plea offer might not.

Generally, DOJ has required that militia defendants agree to cooperate with any plea. And while these five are not charged with conspiracy — they’re known mostly to have tagged along behind Biggs — they might be valuable witnesses to things DOJ might not otherwise have access to, such as Biggs’ side of phone conversations he had that day (there’s reason to believe, for example, he had calls with his former boss, Alex Jones).

Perhaps DOJ knows of some more cross-discovery that may make it worth their while to plead that will be coming in the days ahead.

Whatever it is, this selfie on the top of the East stairs is one small but seemingly significant detail in one of the tactically most important events of they day. And because of the very real delays in finalizing discovery in this case, this one won’t be resolved (if it is) before March. There’s no reason to believe DOJ could have done anything different to accelerate the process. The slow process is, in large part, due process overwhelmed by the difficulties of collecting all the evidence in this case.

I expect DOJ will continue to roll out new details about the breach at the East door in days ahead. Whether these men plead or not may not hold anything else up. They may be just five more bodies alleged to have worked to obstruct the peaceful transfer of power (two, George and Nathaniel Tuck are also accused of Civil Disorder; George is also accused of assault), along with two (the Hughes brothers) facing the possibility of terrorist enhancements for their role in obstructing the peaceful transfer of power.

But this is an example, however obscure, of the ways that the very due process we’re trying to uphold in preserving  our democracy slows down the quick resolution that everyone is demanding.

Update: On Wednesday, lawyers for Youngers and Tenney indicated that they’d probably take a plea offer from the government. That case, too, has been continued two months.

Also yesterday, DOJ finally moved for a conflict review, almost six months after John Pierce filed his appearance for both the Tucks in that case.

The Johnsons — Daryl and Daniel — Plead Up to Civil Disorder

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There was a plea hearing yesterday that deserves more notice: father and son pair, Daryl and Daniel Johnson, pled guilty to civil disorder.

I believe it was the first straight civil disorder (18 USC 231) plea, though that’s only the beginning of my interest in the case. What’s more interesting is that, contrary to pleading down, from more serious charge to less serious, as normally happens, these men willingly pled up to the felony charge that can carry up to a five year sentence.

They were originally IDed by people they knew in the days after the riot and then, in March, it seems someone provided a more fulsome tip. Before they were arrested in June, the FBI had gotten Facebook warrants first for Daryl (in April) and Daniel (in May), which showed they adopted the Antifa cover story in the days after the riot.

Still, when they were arrested in June, they appeared to be nothing more than MAGA tourists — and that’s how they were charged via Information just days after their arrest. Aside from Daniel’s boasts that he was “one of the first” inside the building, there was nothing in their arrest materials that suggested their voyage through the Capitol was any more notable than hundreds of others.

In September, prosecutor Laura Hill got the standard discovery overload continuance. In October, Daryl’s attorney Thomas Abbenante was the one to ask for one. He cited “newly discovered” evidence that required further review.

The government has produced through discovery newly discovered evidence in this case that needs to be reviewed and evaluated by all parties.

Then shortly before Christmas, a superseding Information, this one a felony, was filed, indicating they would be pleading guilty but providing no explanation for how their case had become a felony. That’s pretty quick work on a plea agreement, though.

The explanation became apparent in yesterday’s plea colloquy, before Judge Dabney Friedrich. Then men were among the mob who pushed open the East Door from inside.

While inside the building, JOHNSON walked near the Memorial Door, climbed a flight of stairs to the second floor, and walked into the Rotunda. At 2:37 p.m., JOHNSON walked out of the Rotunda toward the East Rotunda doors, where he encountered a line of law enforcement officers. The officers were standing in front of the East Rotunda doors to prevent rioters outside of the building from entering. Along with a group of other rioters, JOHNSON and his son, Daniel Johnson, rushed the line of law enforcement officers and helped push through the officers and push open the East Rotunda doors, allowing rioters outside of the building to enter. JOHNSON was at or near the front of the group of rioters on the interior of the Capitol when the doors were opened. JOHNSON and his son, Daniel Johnson, remained inside the Capitol and climbed another flight of stairs to the third floor before exiting on the first floor at approximately 2:46 p.m.

That is, the Johnsons were players in one of the tactically most important events of the riot, the opening of a second front. And given the description of their actions that day, they seemed to be fairly intent on opening that second front. Only after that did they try to go to the Senate chamber. Their path appears not that different from George Tenney and Darrell Youngers, the guys who were the first to breach that second door, or Philip Grillo, one of the first to be charged with it.

It’s likely, though, that something more than newly discovered surveillance footage led to the Johnsons’ added charges. Their pleas have a deviation from the boilerplate. While the agreements include a requirement that the men cooperate before sentencing …

Your client agrees to allow law enforcement agents to conduct an interview of your client regarding the events in and around January 6, 2021, prior to sentencing.

That language doesn’t include the standard requirement that they also share their phone and social media. Obviously, the FBI had already gotten both their Facebook accounts before arrest. The FBI seems to have seen one or both men’s phones, which is standard for guys who took as much video as they did, but they still want to interview these guys before they’re sentenced in April.

(I wonder whether they found Signal texts of interest that changed their path as MAGA tourists.)

Whatever happened, their quick plea seems to have saved them further trouble; given their comments on social media, they might otherwise have been exposed to obstruction charges, which carries a 20 year sentence.

As I’ve said before, the government is very close to rolling out a description of what it took to — and the kinds of premeditation that went into — opening that second door. Daryl and Daniel’s quick plea appears to have helped them avoid being a bigger part of that story.

Darrell Youngers, Christopher Warnagiris, and Jason Dolan: Marines at the East Door

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Among the many January 6 insurrectionists whose arrests became public yesterday were George Tenney, from Anderson, SC, and Darrell Youngers, who lives in Cleveland, TX. Tenney is involved with a right wing website, The PowerHouse Patriot. It’s not clear what Youngers does for a living, but according to a witness who IDed him, he has been involved with leadership courses. Ostensibly, they were charged via the same epic 30-page arrest affidavit because they traveled through the Capitol together on the day of the insurrection. They appear to have met that day.

In the weeks leading up to the insurrection, Tenney tried to figure out how to join an armed militia group.

Even prior to the January 6 riot, TENNEY discussed “armed militia patriots” and stated that “we” may siege the U.S. Capitol Building. On December 14, 2020, TENNEY wrote to Person1, “Where and how do I get involved or a part of one of these patriot revolution groups? Like proud boys, or any of the other American Patriot militias??” Person-1 responded that Person-1 would “ask around.”

By December 28, Tenney appeared to know that there was a plan to siege the Capitol.

On December 27, 2020, TENNEY wrote, “I heard over 500k armed militia patriots will be in DC by the 4th. And will start early waiting for the rest of us on the 6th. They already predict over [a] million people will be in DC the 6th.” The next day, he wrote, “We need to talk about the trip to D.C…It’s starting to look like we may siege the capital building and congress if the electoral votes don’t go right….we are forming plans for every scenario.” On December 29, TENNEY wrote a message that included the following: “I’ve been watching these pod cast things from this guy. He says Pence is a traitor and will betray the US on the 6th.”

Even before they entered the Capitol, Tenney and Youngers were moving together.

They entered the Senate Wing door at 2:19PM — the door first breached by former Marine Dominic Pezzola. The camera catches Youngers’ Marines jacket shortly after the two enter.

They went from there through the Rotunda into the East Foyer, with Tenney in the lead. Which means he was the first to get to the East Door to open it, letting the assembled rioters outside in as Youngers looks on.

Youngers, who’s involved in leadership training, lets Tenney do the hard work of wrestling with a cop and getting charged with civil disorder. They retreat for a bit, but then return to pushing cops again just as Marine Major Christopher Warnargiris is among the first to enter, as if he was just waiting for the door to open (I believe Youngers is standing to the right of the door).

Here’s Youngers and Warnargiris at that East door, standing within a few feet of each other, as both help to ensure rioters will succeed in keeping this door open.

Just outside that door, of course, is former Marine and Oath Keeper Jason Dolan, also standing at the top of the stairs as if he knew the door was going to open, waiting for a Stack of militia members to help force the door open.

This is believed to be a picture Kenneth Harrelson took of Dolan filming just after the doors opened.

At a time Dolan probably suspected he might be arrested, the government suspects, he went on Gateway Pundit to claim that he and everyone else couldn’t have been trespassing, because the magnetic doors couldn’t have opened unless someone unlocked it.

As part of this story, the anonymous source believed to be Dolan claimed that the Marine who opened the doors first went inside and then opened the doors from the inside.

Retired Marine: We’re on the top level now – about 15 feet from the doors just before they opened up. People are yelling and screaming. Everyone’s cheering, all kind of stuff. It’s chaotic. But we’re just kind of there. And then all of the sudden the doors open up from the inside. I have a picture taken about two seconds before the doors opened. And then I have a picture taken about six seconds later and the doors were open.

Jim Hoft: And they were not opened from the outside?

Retired Marine: They were opened from the inside. Now one of the stories I read recently was that some Marine, some Marine Major, went inside and managed to run around and open up the doors. And I think that was on your website, as well. But here’s what I can tell you about magnetic locks. If a door is locked by a mag lock it cannot be opened from the outside or the inside unless the person controlling that door opens that door by turning off the magnetic lock which those doors according to the photos I took are equipped with. [my emphasis]

The story doesn’t make sense if Dolan was talking about Warnargiris. But the government accuses Youngers, also a former Marine, of being one of the people who entered the West side only to go within minutes to the East side to open a second front.

That’s a lot of Marines who seemed to know that door was going to open.