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All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t

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There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.

Well, now the court filings have incorporated the Willard, yet Honig seems not to have noticed (but then, he has never exhibited much awareness of what’s actually in court filings).

More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.

That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.

Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.

He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.

The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.

9-85.500 Actions that May Have an Impact on an Election

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.

But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.

Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.

The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.

First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.

Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?

It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.

The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.

A still more obvious thing missing from the immunity filing is the Proud Boys.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Unless you were holding them in reserve.

The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.

In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]

Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.

The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.

[seven lines redacted]

The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]

As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.

They’re both just “persons.”

At least in substitutions used in this filing.

Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.

Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.

  1. October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
  2. November 13: “Trump just fired.”
  3. December 13: Bannon resumes daily contact.
  4. December 14: Alternate electors. J6C
  5. January 2: “The Vice President’s role is not “ministerial.” J6C
  6. January 2: Trump wanted Pence briefed by Eastman immediately.
  7. January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
  8. January 4: Post-Pence Willard Hotel meeting.
  9. January 5: “Fuck his lawyer.”
  10. January 5: Call with Trump before “All hell is going to break loose.” J6C

Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).

One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.

The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.

Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.

Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.

[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”

So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).

But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.

The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376

That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.

The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.

Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.

But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.

Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.

Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.

These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.

Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.

If we get that far.

The Missing Detail about Encryption in the Pavel Durov Investigation

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Yesterday, France charged Pavel Durov and set €5 million bail for the Telegram founder. The public release regarding the charges provides scant new detail from what prosecutors released when he was first arrested.

For example, the new release confirms that a preliminary inquiry started in February, before the formal investigation was started on July 8. That’s consistent with a Politico report that France first issued arrest warrants for Pavel and his brother, Nikolai, subsequent to an investigation into someone using Telegram to engage in child sexual abuse, including rape.

Warrants for Pavel and his brother Nikolai, the platform’s co-founder, were issued on March 25 over charges including “complicity in possessing, distributing, offering or making available pornographic images of minors, in an organized group.” French media had previously reported the probe was opened in July.

The warrants were issued after an undercover investigation into Telegram led by the cybercrime branch of the Paris prosecutor’s office, during which a suspect discussed luring underaged girls into sending “self-produced child pornography,” and then threatening to release it on social media.

The suspect also told the investigators he had raped a young child, according to the document. Telegram did not respond to the French authorities’ request to identify the suspect.

The list of charges in the release yesterday does not exactly match those released last week. The lead charge, “web-mastering an online platform in order to enable an illegal transaction in organized group,” is further described as a crime that carries a 10-year sentence and/or a €500,000 fine. Given how particular French code is about punishment, one might be able to hone in what lead crime that language is pursuing (it seems more common for five year sentences to match a €150,000 fine).

In addition to listing Telegram’s refusal to cooperate with law enforcement requests second among suspected crimes, as the original release did, yesterday’s release has that bolded below, with a description of how other authorities, including Belgium, are having the same problem. This investigation seems to primarily stem from the way Telegram has allowed crimes to flourish on the platform, and as such, most of the rest of the charges may reflect efforts to further criminalize Durov’s choice to do nothing about crimes that rely on Telegram.

There are other changes between the initial release and yesterday’s, which may be of little or no import or may reflect what prosecutors have learned since they arrested Durov. For example, possessing (as distinct from disseminating) CSAM images has been dropped; that’s the kind of change that might reflect the server configuration Telegram uses, and whether any Telegram server hosts CSAM material within France.

Criminal association has now been included in the general list, rather than as a separate bullet point. Money laundering, however, has not. One unanswered question is whether Durov was more directly involved in money laundering than the other crimes, in which case prosecutors might show that he had a personal pecuniary incentive to let all the other crime flourish on Telegram.

In that same general list, the dissemination of hacking tools was moved up to first, from fourth.

But one of three encryption-related crimes, “Importing a cryptology tool ensuring authentication or integrity monitoring without prior declaration,” was dropped. Again, that could reflect new information about server locations.

It’s the commentary regarding the (now two) encryption-related crimes that most befuddles me. The American press, at least, continues to discuss this as if this is a crime about using encryption.

Some online speech experts and privacy advocates agreed that France’s indictment of Durov raises concerns for online freedoms, pointing in particular to charges relating to Telegram’s use of cryptography, which is also employed by Apple’s iMessage, Meta’s WhatsApp and Signal.

“French law enforcement has long hated encryption,” said David Kaye, a professor at University of California, Irvine School of Law and former U.N. special rapporteur on freedom of expression. “This seems like a potential avenue for them to blame what happens on Telegram at least in part on encryption, when the truth is that the other counts suggest that Telegram’s noncooperation with judicial orders is the real problem.”

Stamos agreed the charges related to cryptography are “concerning,” because “that seems to apply even to platforms that are actively working to prevent the spread of child sexual abuse material.” He said that while Telegram has at times banned groups and taken down content in response to law enforcement, its refusal to share data with investigators sets it apart from most other major tech companies.

As far as I understand it, the law in question is one passed in 2004 that required affirmative registration of encryption. Signal, easily the most protective encrypted messaging app, did register under this law when it first applied to offer Signal in French app stores. So, no, they’re not going to be prosecuted under that law, because they’re following the law.

And therein lies the question I keep asking but people are ignoring: whether this law works like the affirmative registration requirements in the US for acting as a foreign agent. The US uses 18 USC 951, for example, to prosecute people who are secretly doing things for a foreign government — such as the targeting for which Maria Butina was prosecuted — without having to prove they were affirmatively spying. DOJ didn’t have to prove that Butina (speaking purely hypothetically here) honey trapped Patrick Byrne as part of a Russian effort to recruit nutballs with an investment in cryptocurrency; they could instead prove merely that she was taking orders from a government official (in this case, Alexandr Torshin), without alerting DOJ to that fact. The obligation to register provides a law enforcement tool that can be used when an underlying crime — like spying — is far more difficult to prove, or would harm counterintelligence if one tried.

For example, 18 USC 951 was used in the failed prosecution of Mike Flynn and his business partner, Bijan Kian. it wasn’t until the eve of the Kian’s trial that DOJ revealed the existence of, but not the details about, far more extensive communications pertaining to Flynn and the Turks (that revelation did not explain whether these were communications between Flynn and the Turks, and/or communications the Turks had about Flynn) than had previously been revealed.

I don’t know if this is how France uses this law, or if they may be doing here. What I’m saying is that the crime is failing an affirmative obligation to register, a law that has not prevented Telegram’s counterparts from operating lawfully in France.

Let me extend the analogy to a case where we know Telegram was used to facilitate crime (though not one of the crimes in which Durov has been charged with complicity).

As I laid out here, we know that after January 6, the FBI discovered that the Proud Boys were using unencrypted Telegram group chats to organize in advance of the insurrection. But once it obtained and exploited Enrique Tarrio’s phone, which took over a year to do, the FBI also discovered that Tarrio was using Telegram (in addition to Google Voice chat and iMessage) to communicate with a DC intelligence cop, Shane Lamond. Those encrypted communications will be key evidence in Lamond’s trial in October, but the use of Telegram, whether encrypted or not, was not a crime and not charged as one.

Those Telegram communications include:

  • The message where Lamond was added to an unencrypted Proud Boys chat (meaning, of course, that a cop with close ties to the FBI did know how the Proud Boys were using Telegram long before January 6, and indeed Tarrio tried to use his comms with Lamond as an affirmative defense to the sedition charges against him).
  • Private unencrypted Telegram messages that at least started as Lamond’s effort to learn what the Proud Boys were doing ahead of time, and so fell squarely within Lamond’s job as an intelligence officer, but which — after the election — started to include advice about how to avoid law enforcement scrutiny.
  • Starting after the December 12, 2020 burning of a DC Church’s BLM flag, secret, encrypted Telegram messages about Tarrio’s role in that act and the investigation into him for it; those encrypted communications would later include discussion of the planning and aftermath of January 6.
  • Telegram calls about the investigation that could not be reconstructed (though some conducted with his replacement phone may have been).
  • Starting on December 22, encrypted Telegram messages with the auto-delete set; the FBI was able to reconstruct some, but not all, of these. Among those they weren’t able to reconstruct, a January 4, 2021 encrypted text successfully destroyed must have alerted Tarrio that DC had obtained a warrant for his arrest, because Tarrio immediately told some girlfriends and Jacob Engels via unencrypted Telegram texts, as well as some Proud Boy Telegram group chats, that about the arrest warrant. The men appear not to have tried to delete Tarrio’s self-exonerating encrypted Telegram text, “I could have stopped this thing.” But they did resume destroying encrypted Telegram messages as the investigation into the Proud Boys progressed.

That use of Telegram, whether unencrypted, encrypted, and/or self-deleting, is not illegal in the US. Rather than busting Lamond for that, prosecutors charged him for lying about the earlier communications, for obstructing the investigation into burning the BLM flag. There’s no charge related to Lamond’s warnings about January 6, and indeed, the reconstruction or not of later texts between the men is not included in the trial exhibit. But more of the January 6 texts were successfully destroyed.

Now consider the significance of a case where cops knew a militia group were using Telegram’s unencrypted features, ones the FBI could have hacked, but that collusion between the militia and law enforcement was hidden via the use of Telegram’s encryption. The FBI wasn’t looking in any case, but even if they had been, it is at least conceivable where a seditionist like Tarrio used better operational security and didn’t immediately undercut the value of using encryption by blabbing to others, but that the encryption prevented the FBI from understanding the extent that the cops were helping the seditionists.

The use of Telegram is not illegal in the US. As I understand it, the use of it is not being charged in France.

But in France, the requirement to pre-register provides a tool prosecutors might choose to use if the use of encryption ends up playing a detrimental role in crimes in the country, as Telegram notoriously has.

I have no idea whether that’s how it’s being used here.

But it is at least possible that Durov is being charged under these two encryption crimes because criminal (or intelligence) investigations in France discovered, via exploiting suspects’ phones or possibly even with the help of a cooperating witness, that Telegram encrypted chats played a key role in one or another particular plot. That could have been nothing more than the child sexual abuse whence this investigation started. Or it could be something that raised the stakes for France, such as sabotage attempted by a foreign power.

Pavel Durov is being charged because communications to which Telegram had ready access were used to commit a number of crimes (but not, notably, hate crimes). Far too many outlets are describing these crimes as pertaining to encryption; it may not be. It pertains to the commission of crimes, using Telegram, including a great number that Telegram allegedly had means to learn about but, by refusing law enforcement process, sustained deniability.

It appears that he is also being charged because he made it possible to further protect communications, including from Telegram engineers, without following French registration laws before he did that. That is, France appears to be charging Durov not because he knows what the encryption is serving to hide, but by dint of his failure to adhere to French registration requirements, his plausible deniability regarding encryption doesn’t help him dodge criminal liability.

I may be misunderstand the law — I’m still looking for French sources to explain this, because American ones are not citing French lawyers — but if people are writing about the role of encryption in this case, the difference between “providing” encryption and “providing it without registration” is key.

Update: Since we’re focused on Telegram’s non-cooperation with law enforcement, this exhibit list for Lamond’s trial shows how they have to authenticate those comms instead: Through a variety of forensic reports, and then via summary chart.

The Proud Boys’ Reliance on Telegram Didn’t Save Them, But It Thwarted Preventing the Attack

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At 8:06PM on January 4, 2021, shortly after the arrest of Enrique Tarrio, a Proud Boy named Travis instructed everyone on the Proud Boys’ Ministry of Self Defense Telegram list to “nuke everything.”

Because of the way Telegram persists on individual phones, it didn’t work. Two years later, that text was introduced as evidence against the Proud Boys to show that already on January 4, they knew they had something to hide.

Four days later, on the Ministry of Self Defense list that had replaced the first one, Aaron of the Bloody East — a senior Proud Boy in Philadelphia — announced the arrest of Proud Boy Nicholas Ochs as he landed in Hawaii (the avatars for the Proud Boys were added for the trial exhibit; only the monikers and user numbers came from Telegram itself). The conversation immediately turned to deleting two channels used to organize the Proud Boys during January 6. But because Jeremy Bertino, who had set up the chat, had already left it, the men once again struggled to cover their tracks.

Organizing on Telegram did not prevent the government from prosecuting the Proud Boys for their roles in January 6. On the contrary, those chats — complete with their boisterous efforts to delete them after every arrest — were a central part of the evidence used to prosecute Enrique Tarrio, Joe Biggs, and Ethan Nordean on sedition charges, with help from Bertino, who had flipped and who continues to cooperate in the investigation.

It started no later than Nordean’s own arrest on February 3, 2021, when Nordean’s spouse provided the FBI with the passcode to his phone, where many of these texts were still available. It continued as the FBI acquired one after another of the Proud Boys’ phones (one of the only known exceptions was Joe Biggs, whose phone the FBI never got).

A letter to Zach Rehl’s attorney from 2022 gives a sense of how the FBI had to exploit as many phones as they could, one after another, because the set of texts still available on any individual’s phone varied. Some people, like Nordean, were successful at deleting their voice notes and other attachments. Others didn’t even try.

Altogether, DOJ relied on at least 11 separate lists, as well as a slew of individual Telegram texts (as well as a number of Parler texts), at trial. In that sense, the investigation of the Proud Boys was little different than that of the Oath Keepers, who used Signal rather than Telegram for that kind of organization.

That’s important background to news of the French arrest of Pavel Durov on charges implicating (at least) child sexual exploitation, terrorism, cybersecurity, fraud, and organized crime. Authorities can still prosecute people who use Telegram to plan and organize their crimes.

But there are impediments. The cops took Tarrio’s phone when they arrested him — with those damning Telegram threads still on it — two days before the Proud Boys would lead a mob that attacked the Capitol. But it took over a year before they cracked the encryption on his phone, exploited it, and did a privilege review. Even after seizing Tarrio’s phone, then, prosecutors couldn’t prevent January 6 having decided that Tarrio posed a risk to the certification of the vote only days before the attack.

It might have been different if the Proud Boys had been considered a terrorist group (which it still is not, in significant part because of an asymmetry in US law regarding domestic and foreign extremist groups). Contrary to what a lot of coverage is reporting, the vast majority of Telegram usage is not encrypted. As far as I’m aware, none of the texts introduced at the Proud Boy trials were protected by Telegram’s hard to use encryption, not even the private texts in which Tarrio told one after another of his girlfriends of his imminent arrest.

But the encryption itself would not have saved him. On December 18, 2020 DC cop Shane Lamond did turn on Telegram’s encryption in texts he was exchanging with Tarrio, warning him about both the investigation into his role in burning a BLM flag (the crime for which Tarrio would be arrested on January 4), as well as observations about public Proud Boys statements in advance of January 6.

To contact Tarrio, the Defendant used a chat on Telegram with the highest level of encryption available. The Defendant then asked Tarrio if he had called in the anonymous tip. Tarrio responded “I did more than that. It’s on my social media.” The Defendant told Tarrio “I’m curious to see what happens too. I will check with our CID [Criminal Investigations Division] people if they have you on video.”

But those were still available on the phones after the fact.

Even after Lamond and Tarrio set Telegram to auto-delete messages, Telegram’s functionality didn’t entirely save them.

On December 22, 2020, approximately two minutes after Tarrio sent the Defendant a screenshot of a message he received from an MPD detective assigned to the BLM Banner Burning Investigation through Telegram, the Defendant changed the settings of his encrypted chat with Tarrio on Telegram so that future messages would delete 5 seconds after the recipient opened them.

Some of their auto-delete texts were reconstructed, especially those sent after Tarrio’s pre-trial release on the DC case.

And after Lamond called Tarrio using Telegram to warn him about the warrant for his arrest, Tarrio went to the Ministry of Self Defense thread — the same one the Proud Boys failed to delete after his arrest — and told them that his contact had just warned him of the arrest. There are texts between Lamond and Tarrio, especially from January 1 and 4, which were lost to law enforcement. But enough of their texts were preserved to substantiate obstruction charges on which Lamond will go to trial in October.

The encryption didn’t save Shane Lamond. It would probably do little for intelligence targets either — in part because the encryption may not be all that great, but also because a determined spook is going to get texts via the phones, just like the FBI did with Lamond. France certainly has the intelligence capabilities to defeat Telegram’s encryption, as does the US, both of which would be happy to share with Ukraine.

Rather, one of France’s reported complaints is that Telegram won’t cooperate with law enforcement requests. Even though all these threads via which the Proud Boys planned January 6 and the texts sent between the allegedly corrupt cop Lamond and Tarrio before December 18 were likely readily available on Telegram’s servers, even if the FBI had asked after Tarrio’s arrest, Telegram wouldn’t have provided them, at least not without a whole bunch of squawking. That also means that Telegram wouldn’t provide a whole bunch of other information that proves useful to solving crimes. In the Proud Boys case, because prosecutors couldn’t get metadata directly from Telegram, it likely required cooperating witnesses like Bertino to attribute the handles used by some of the Proud Boys to specific users (at the time, Signal did not yet have this capability, so investigators could more easily match phone numbers to users).

By comparison, prosecutors could and did serve preservation orders on Google and Facebook, which preserved a lot but by no means all relevant content, even as individual users were trying to cover their tracks just like the Proud Boys were. In response to legal process, those platforms, as well as Twitter and others (but not Signal, which doesn’t keep most of this data), provided user data, address, credit card data, and access times.

But it’s the issue of prevention for which Telegram poses the biggest concern. Telegram is the platform of choice for extremists of all ideologies, both for broadcast messaging and for more discreet threads like the ones the Proud Boys used. And in quick moving situations, like the extremist mobilization in the wake of the Southport stabbing in the UK, Telegram channels can grow to include tens of thousands before they’re even discovered. While Telegram took the rare step, in that case, of shutting down the most violent channels tied to British riots, it left many of them up.

It’s still too early to know the scope of the French investigation, beyond that it implicates both non-cooperation and slow moderation. It’s a complaint both that Telegram won’t provide information to solve crimes already committed and won’t take steps to prevent them from happening.

Two of the most important questions are whether Durov derives a material benefit from letting crime and extremism flourish on Telegram. Another is whether Durov gives the Russian government preferential access to all the channels that are otherwise difficult to access. This post provides a sense of the degree to which Durov’s likely cooperative relationship with Russia conflicts with his public claims of animosity.

There are a lot of people claiming that France is targeting Durov because Telegram is an encrypted messaging platform. While that may be a factor, the far more important one is that Telegram allows crime to flourish on its platform, and until he arrived in France, where his French citizenship will actually help France thwart any Russian attempts to help him, he was protected by regimes that similarly preferred to let certain kinds of noxious content to thrive.

Update: The French have released the possible charges. There is one charge of refusing to cooperation in criminal investigations.

They include six charges of “complicité,” what I guess is the US equivalent to aid and abetting:

  • Illegal transactions for organized crime
  • Child sexual abuse material
  • Organized dissemination of CSAM
  • Narcotics sales
  • Hacking tools
  • Organized fraud

Then there are three crimes pertaining to the provision of encryption and importation of encryption without declaration.

The most interesting — and the ones that might make this prosecution akin to those of people like Ross Ulbricht — are:

  • Association with criminals with the intent to commit crimes punishable by 5 years
  • Money laundering

I noted above that one of the big questions is whether Durov derives a material benefit from letting crime flourish on Telegram. If he’s personally involved in money laundering, he may.

Note, none of the crimes suggest an unlawful relationship with Russia (though some of those encryption crimes may originally have been targeted towards spooks).

Media Organizations Omit Mention of Trump’s Allegedly Criminal Exploitation of 2020 Debates

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Twelve media organizations are clamoring for another set of debates between Donald Trump and Joe Biden. In their naive call for debates, they claim that because the stakes on this election are so high, “there is simply no substitute” for the candidates “debating” each other, presenting, “their visions for the future of our nation.”

With the contours of the 2024 general election now coming into clear focus, we – the undersigned national news organizations – urge the presumptive presidential nominees to publicly commit to participating in general election debates before November’s election.

General election debates have a rich tradition in our American democracy, having played a vital role in every presidential election of the past 50 years, dating to 1976. In each of those elections, tens of millions have tuned in to watch the candidates debating side by side, in a competition of ideas for the votes of American citizens.

Since 1988, the nonpartisan Commission on Presidential Debates has sponsored all presidential general election debates. The Commission has previously announced dates, times, and eligibility criteria for 2024 debates. Though it is too early for invitations to be extended to any candidates, it is not too early for candidates who expect to meet the eligibility criteria to publicly state their support for – and their intention to participate in – the Commission’s debates planned for this fall.

If there is one thing Americans can agree on during this polarized time, it is that the stakes of this election are exceptionally high. Amidst that backdrop, there is simply no substitute for the candidates debating with each other, and before the American people, their visions for the future of our nation. [my emphasis]

I mean, they’re not wrong that debates provide an opportunity to display a candidate’s vision for America.

In the first debate in 2020, for example, Biden asked Trump to disavow right wing violence, and instead, Trump told the Proud Boys to “Stand Back and Stand By.”

Stoking political violence certainly is part of Trump’s “vision for the future of our nation.”

Because of the way Trump’s comment drove recruiting for the Proud Boys, it made the opening arguments of the Proud Boy leaders’ sedition trial.

If we’re lucky enough to get a Trump trial for January 6 (one that would likely create scheduling difficulties for a debate in any case and as such Trump would use as another attempt to stall accountability), Trump’s call out to the violent militia that kicked off the attack on the Capitol will feature prominently again. Prosecutors have already informed Judge Tanya Chutkan they plan to use both Trump’s call out and his later coddling of Enrique Tarrio to show how, both before and after the attack, Trump encouraged that assault on democracy.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6.

Effectively, this will make the Proud Boys quasi co-conspirators with Donald Trump at trial.

This is the kind of overt act in a criminal conspiracy to attack democracy itself that media outlets say is vital to our democracy.

But Trump’s exploitation of debates does not stop there.

Consider the allegations surrounding Tony Bobulinski, Fox News’ favorite source — at least, the favorite source who has not yet been indicted — for scandal-mongering about Hunter Biden.

For the third debate in 2020, after top Trump aides pitched Bobulinski tales to the WSJ based on laptop content that Hunter claims was stolen, Trump hosted Bobulinski as his guest. The very next day, Bobulinski marched into the FBI and is recorded as telling them a bunch of things that Bobulinski now claims he didn’t say — including that he saw Joe Biden get an enormous diamond from China. Weeks later, according to Cassidy Hutchinson, he had a secret meeting with Mark Meadows. Bobulinski doesn’t (now that Hutchinson released video evidence) deny the meeting; he denies he was handed something that might or might not be an envelope.

I guess framing your opponent’s son, like attacking democracy itself, is part of Trump’s vision for America. But actual journalists should not need — or want — a debate to serve as vehicle for that.

And while the circumstances around the third such instance of potentially criminal activity tied to a 2020 debate are less clear, one thing is not. As part of the Jeffrey Jensen effort to reverse the conviction of Mike Flynn, dates got added to the notes of Peter Strzok and Andrew McCabe — inaccurate dates in at least one case.

Based on that inaccurate date, first Sidney Powell (who was in contact with Jenna Ellis at the time) and then Trump himself falsely claimed that Joe Biden — and not Bob Litt, as other evidence makes clear — first raised concerns that Mike Flynn may have violated the Logan Act by undermining foreign policy before he became National Security Advisor.

Trump gleefully used that fraudulent claim in the first debate against Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

It was another instance of an attempt to falsely frame his opponent.

So let’s grant the media outlets that Trump has gleefully displayed his vision of America at the 2020 debates with Joe Biden by serially attempting to frame his competitor and inciting violence.

But what I don’t understand — what makes me genuinely embarrassed for the group of good journalists who work at some of these media outlets — is why they believe there is “no substitute” for debates to tell such a story.

Are you telling me the only way you can convey to voters that Trump’s vision for America is violence, fraud, and revenge is by giving him a platform to engage in such activities? Why wouldn’t you instead pursue aggressive journalism to tell more of these stories?

Twelve media outlets claim that the only way they can display Trump’s dystopian vision for America is by being complicit in it.

Update: Many people, in comments and on social media, reminded me that Trump willfully exposed Biden and others to COVID.

emptywheel Takes to MSNBC to Explain the January 6 Investigation

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MSNBC was kind enough to invite me to make the case, again, that those blaming Merrick Garland for delays in the January 6 investigation simply aren’t familiar with the investigation. Readers will be familiar with much of this, but two details are new.

First, I describe what investigative steps prosecutors had to take to prepare the most obvious piece of evidence, Trump’s 2:24 tweet targeting Mike Pence.

Take the tweet Trump sent at 2:24 p.m. Jan. 6: “Mike Pence didn’t have the courage.” It was right there in public! But to present that in court first required the exploitation of at least two phones, nine months of fights over executive privilege, a 23-day stall from Twitter and two sets of interviews with at least eight different top aides.

And something that’s long overdue: Holding the January 6 Committee responsible for their unnecessary delays, which almost bolloxed the Proud Boys trial.

One delay that was unnecessary was caused by some of the people who most loudly blamed Garland: the Jan. 6 Committee. DOJ first asked the committee for witness transcripts in April 2022. That June, prosecutors in the trial of leaders of the Proud Boys agreed to reschedule their trial from August until December because the committee would not release transcripts until September. The prosecutors were vindicated when those transcripts finally came out in December, after three additional months of delay and jury selection had already started. Twice during the trial, prosecutors learned that witnesses had told the committee something they hadn’t told the FBI; in one instance, a committee transcript revealed an attorney conflict that threatened prosecutors’ reliance on testimony from their most important cooperating witness. Given that court filings suggest Smith will treat the Proud Boys akin to co-conspirators when this case finally goes to trial, those are the kinds of unnecessary screw-ups that could jeopardize Trump’s trial itself.

The Non-Visible Networks behind the More Visible Networks of Fascism

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There’s an RT posted at the Guccifer 2.0 Twitter account in 2016 that has always puzzled me: a stupid meme, posted on Labor Day, about what unemployed people do on Labor Day.

Virtually all Guccifer 2.0’s other public Tweets served to sustain a cover story about the hack-and-leak operation and its tie to WikiLeaks, disseminate stolen documents, or network with those who might be used to disseminate stolen documents. This RT does not do that — at least not obviously — and it deviates from the BernieBro culture adopted by the Guccifer persona up to that point. It suggests either there was an unseen tie to far right meme culture, or that someone had access to this account who was part of it.

The RT is especially interesting given that three different GRU indictments (DNC, Anti-Doping, Macron Leaks) adopt different approaches in discussing the dissemination of the documents stolen by GRU, which I’ve addressed here and here. In 2016, the Guccifer persona cultivated ties with Roger Stone and Alex Jones and released select files (on Black Lives Matter) to then-Breitbart, future-Sputnik writer Lee Stranahan. By the time of the Macron Leaks in May 2017, Jack Posobiec played an even more central, overt role in the leak part of the operation, via still unidentified Latvian account. But this meme suggests some other tie in real time.

Keep this RT in mind as you read the following discussion, about the extent to which much of what we visibly see in the Republican slide to fascism is just the public manifestation of a far more instrumental and far uglier infrastructure that exists in chat rooms.

Some of what we know about the 2016 state of that infrastructure comes from exhibits introduced at the Douglass Mackey trial. On the very same day Guccifer 2.0 RTed that meme, for example, the trolls in the Madman Twitter DM list were pushing memes to push a narrative, one picked up from Trump, that Hillary Clinton was unwell and might not make the election — a narrative about a Democrat replicated, with far greater success, in this election.

White nationalists plotted in private about how to get minorities to turn on Democrats. They explicitly focused on ways to affect turnout in ways that could swing the election.

As I’ve written here and here, the far right efforts to set a narrative that would (and did) help Trump win the presidency started over a year before the election. Both Andrew “Weev” Auernheimer — the webmaster for Daily Stormer — and Microchip worked hard in early months to professionalize the effort. They planned campaigns that would bridge from reddit, 4Chan, and The Donald onto Twitter, including efforts that started at Daily Stormer. This effort was transnational: the trolls reached back to efforts made during Brexit and looked ahead to EU elections, and planned to build a bigger bot army. They complained about Twitter’s shoddy efforts to moderate and plotted ways to defeat any moderation.

The effort by far right trolls to hijack the virality of Twitter to get mainstream journalists to echo their far right themes had at least two direct ties to Trump’s campaign. Anthime “Baked Alaska” Gionet, whom Microchip alerted when the FBI first came calling, claimed to be part of a Trump campaign Slack, to which he invited others.

More importantly, Don Jr has confessed he was part of this network (curiously, when the Mackey took the stand at trial, he claimed to know nothing about the identities of his unindicted co-conspirators. As I have noted, there’s a troll in that channel who used the moniker P0TUSTrump and whom other trolls called Donald that was pushing hashtags pushing stolen documents on the same days Don Jr was doing so on his eponymous Twitter account. From there, trolls like Microchip made them go viral. If P0TUSTrump is Don Jr, then, it shows that he was a key channel between WikiLeaks through this far right channel to make things go viral.

Between 2016 and 2020, people associated with this far right group orchestrated PizzaGate, may have had a hand in QAnon, and helped disseminated documents stolen by GRU from Emmanuel Macron. PizzaGate and QAnon served as powerful recruiting narratives. I’ve shown how Doug Jensen, the QAnoner who chased Officer Eugene Goodman up the Senate stairs on January 6, went from a lifelong union Democrat to hating Hillary to throwing away his life in QAnon to attacking the Capitol via that process of radicalization. Early prosecutions, at least, suggested that QAnon was actually more successful at getting bodies where they could obstruct the vote certification than the militias.

But even as that cult narrative of QAnon was radicalizing people from all walks of life, the same network was replicating networks of more overtly partisan, paramilitary mobilization.

I suppose I or someone else should draw a network map of this.

But we know that Roger Stone had a Signal list call Friends of Stone, which included among its 47 members Stewart Rhodes, Enrique Tarrio, Ali Alexander, and Owen Shroyer, along with anti-vaxxers, Bundyists, Mike Flynn associate Ivan Raiklin, and longtime aides Jacobs Engels and Tyler Ziolkowski (who, along with Tarrio, were both implicated in the meme targeting Amy Berman Jackson during Stone’s prosecution).

Both Rhodes and Tarrio ran parallel sets of communication leading up to the insurrection — more public, accessible communications, and more select lists (on Signal in Rhodes’ case and on Telegram in Tarrio’s) that planned for the operation. Unlike Twitter, Signal and Telegram would only be accessible to law enforcement after exploiting the phones on which they were used, and only then if the comms hadn’t been successfully deleted.

Tarrio would also be networked into the Latinos for Trump group, along with Bianca Gracia and Oath Keeper Kellye SoRelle, with whom he visited the White House in December 2020 and both of whom were present for the parking garage meeting Tarrio had with Rhodes on January 5, 2021. One court filing submitted in advance of the trial of the cop who allegedly tipped off Tarrio to his arrest shows Tarrio also has a “Christian Nationalist” group that officer Shane Lamond joined on November 9, 2020. Another filing shows how Lamond warned Tarrio about investigations into Harry’s Bar and the Proud Boys organizing on Parler.

Ali Alexander and Brandon Straka provided the January 6 Committee (entirely unreliable) descriptions of the all-important Stop the Steal threads on which Alexander organized — first — early mob scenes at state capitols and then events around January 6 itself (though unlike Alexander, who fully attributed getting the brand from Roger Stone, Straka disclaimed knowledge of all that). Straka did acknowledge that Paul Gosar had ties to the Stop the Steal effort. The sentencing memorandum for Alan Hostetter, a key player in the SoCal anti-vax community with ties to 3Percenters, actually contacted Alexander on December 16, 2020, to suggest Stop the Steal organize a rally for January 6, though it’s not clear via what channel he knew him. While the leaders of the Stop the Steal effort were on Twitter until a late move to Signal (again, if we can believe unreliable J6C testimony), it spawned a massive viral effort on other platforms, including Facebook.

In addition to being the big draw for the donation from Publix heir Julie Fancelli, Alex Jones has his own media infrastructure. Organizers claim some percentage — a fifth or a third — of those at the Capitol were there for Jones, not Trump. Like Alexander, he also mobilized the earlier mobs in the states.

It’s not entire clear how Baked Alaska continues to fit into this network. But in order to avoid felony charges (as Straka had earlier), he reportedly agreed to share the kind of network information that would further elucidate these networks.

And that network of lists and threads maps onto this one, the list of people who, in 2020, were the most effective at spreading disinformation on Twitter.

We just don’t know via what chat rooms and threads they map, who else is in that map, and what international ties they have.

What kind of chat rooms did Don Jr inhabit, four years after he networked with Douglass Mackey, that helped him direct a broader network to make false claims go viral? Today, as Ric Grenell — Trump’s troll turned Ambassador to Germany turned Acting Director of National Intelligence — returns from supporting a coup attempt in Guatemala, what international networks was he mobilizing?

I’m always most fascinated by the role of Mike Roman on this list, punching well above his modest Twitter following of 29,610 people. Roman, a charged co-conspirator in Trump’s Georgia indictment, is claiming Fani Willis has a conflict arising from a personal relationship with one of the prosecutors she brought in for the case. He’s often thought of someone who ferried documents from fake electors around, but before that he was a kind of internal intelligence service for Trump targeting Republicans, and before that, the Kochs. Like Grenell, he has branched out to push far right policies internationally, in Canada. None of those activities, however, explain what chat rooms he was in that allowed him to help spread the Big Lie in 2020. They must exist, and yet they’re not yet visible.

Mike Roman is one of the Trump associates whose phone DOJ seized before Jack Smith was appointed. To the extent he didn’t delete them, that should disclose his networks to prosecutors.

As I noted above, increasingly, these networks have moved to platforms, especially Telegram and Signal, that are harder to investigate, particularly without advance notice. It took years (starting before January 6, with the seizure of Tarrio’s phone, which nevertheless took a full year to exploit) before the government had collected at least three sets of the Friends of Stone list.

That’s true even though some network effect — whether including anyone named here or not — likely explains a swatting campaign that has targeted:

While not all targets are seen as adversaries of Trump, or even Democrats, his top adversaries have been targeted. The swatting campaign is, at a minimum, terrorism (and could be part of a campaign to do real violence).

And there’s a non-zero chance that behind it is the same kind of non-visible infrastructure the far right has been professionalizing for a decade.

My effort to describe how Trump trained the Republican party to hate rule of law will describe the visible aspects of that effort. But behind it all, these non-visible networks form an integral part of the effort.

Update: Took out reference to Pepe.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Ratifying Sedition: The Proud Boys 404(b) Evidence

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As I noted yesterday, the government provided its 404(b) notice in Trump’s January 6 case. 404(b) notices alert the defendant to evidence that may or may not be intrinsic to the case but in any case shows the defendant’s criminal propensity.

In addition to showing how the Trump campaign tried to start a riot at the TCF Center in Detroit, DOJ also wants to show that Trump’s celebration of the Proud Boys bookends his own assault on democracy.

As the filing describes, Trump called out the militia at the first debate, and then — almost three years later — complained that convicted seditionist Enrique Tarrio faces a long sentence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6.

DOJ’s plan to show this is not surprising. After all, DOJ kicked off the Proud Boy sedition trial with Trump’s shout out to the Proud Boys.

But the significance, given the way DOJ has structured its conspiracy prosecutions from the start, is far more than damning evidence.

That’s because one of the conspiracy charges against Trump, 18 USC 1512(k), is one of the charges of which the Proud Boy leaders were convicted.

Aside from that public shout-out, which DOJ describes as, Trump speaking “publicly to them,” Donald Trump is not known to have communicated directly with any of them. But as I illustrated in January, Ethan Nordean, Joe Biggs, and Enrique Tarrio all communicated with Alex Jones and Roger Stone (and Owen Shroyer — who has two more days left in his sentence in Oakdale Correctional), even during the attack. Both of them, Jones and Stone — who have not been charged — communicated directly with Trump (and Mark Meadows). Stone’s actions leading up to January 6 were central to the guilty obstruction verdicts in Proud Boy Dan “Milkshake” Scott’s plea and Chris Worrell’s bench trial.

There may be more than that.

At the Proud Boy Leaders trial, for example, prosecutors introduced a series of Telegram chats from the day of, and immediately following, Trump’s shout-out. The men were giddy at Trump’s recognition.

In the wake of Trump’s debate recognition, there was talk of Trump inviting Proud Boys to the White House (Tarrio eventually did visit the White House, in December, as part of a Latinos for Trump event).

There was talk of mobbing election offices.

And, on November 8, Tarrio warned now-cooperating witness Jeremy Bertino not to wear colors because the campaign “asked us” not to do so.

As the campaign was ginning up mobs in swing states, Tarrio at least claimed to have some contact directly with the campaign. Stone is not the only candidate to be Tarrio’s tie to the campaign; Kellye SoRelle, who knew Tarrio from Latinos for Trump, was involved in the mob scene in Michigan.

A month ago, lead Proud Boys prosecutor Erik Kenerson dropped off one of the key pending Proud Boy prosecutions. There are many things that could explain that, but when other prosecutors — like Mary Dohrmann — moved under Jack Smith, that’s the kind of public activity that marked the move.

Several things have made clear in recent days that DOJ doesn’t consider the list of six uncharged co-conspirators in Trump’s January 6 indictment to be exclusive.

In their description of the TCF riot, for example, DOJ described the campaign employee who encouraged rioting (possibly Mike Roman) as “an agent (and unindicted co-conspirator).” Whoever it is would be a seventh co-conspirator.

More curiously, when Tanya Chutkan corrected Trump’s false representation of the indictment in her ruling that he did not have absolute immunity, she described that, “Defendant, along with at least six co-conspirators, id. ¶8, undertook efforts ‘to impair, obstruct, and defeat [that process] through dishonesty, fraud, and deceit,’ id. ¶ 10.” That comment stuck with me, as everyone else who has commented on the indictment has treated the six co-conspirators as an exclusive list. But sure enough, that paragraph she cites describes that the six co-conspirators laid out in the indictment — Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro, and probably Boris Epshteyn — were only “among” those with whom Trump conspired.

The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:

If DOJ were ever to charge someone and make it a related case, it would come before Chutkan. That’s just one way that Chutkan might know of specific additional alleged co-conspirators that we wouldn’t yet know.

Conspiracy law doesn’t require co-conspirators to get together in a room to plot together. They need only agree on the objective and take steps to achieve it. If they have networked communications between them, all the better.

At the Proud Boys trial, prosecutors made Trump’s role in their conspiracy clear. Now, leading up to the former President’s own trial, DOJ has said they will present communications that amount to an agreement in September 2020 and ratification of the Proud Boy attack on the country in September 2023.

This is not just damning evidence of fondness for the right wing militia. It’s evidence that Trump pursued the same effort to obstruct the vote certification as the Proud Boys.

“They Spoke Often:” It Took the Fash-Friendly FBI Over Two Months to Document the Lies Their Informant, Joe Biggs, Told them

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The most telling detail released in DOJ’s sentencing package for Joe Biggs is this — the first 302 from after he led an attack on the nation’s Capitol, memorializing an interview done on January 8, one day after the first Proud Boy, Nicholas Ochs, was arrested.

DOJ included it — and excerpts from a second recorded interview from January 18 — to substantiate a 2-point obstruction enhancement to his sentence.

Biggs denied being with anyone he knew while he was inside the Capitol. Id. at 19:50 et. seq. (Q: “were you with anybody?” A: “No. I was lost. Like I didn’t know where to fucking go. I was by myself and I was scared shitless.”).

Biggs was asked again later in the interview whether there was anyone else with him. Biggs again claimed that he was separated and didn’t see anyone else he knew until after he left the Capitol. Id. at 25:45 et. seq. (Q: “Was there anyone else in your group that was in the Capitol?” A: [Pause] “Um, I mean, there had to have been.” Q: “You said you got separated, right?” A: “Yeah. I got separated. I didn’t see people until afterwards. I finally found people scraggling [sic] around running, you know, looking for people like me.”)

After initially denying breaking anything, Biggs was asked again whether there was anything else that was “worth sharing.” Twenty-four minutes into the interview, Biggs acknowledged “shaking” a black metal fence, but he claimed that he was only doing it because people were getting “pinned [] against it.” Id. at 24:25 et. seq. (Biggs: “I was shaking [the fence] at one point to get it loose so people could move and wouldn’t get pinned up against it” Biggs: “There was one guy who was pinned up against the fence like literally screaming; the pole was dug into his belly, and there was so much force from all the people around him, he couldn’t even breath . . . I thought that dude was gonna get hurt bad.”)

The sentencing memo suggests that Biggs victimized the FBI with these lies.

But there’s a backstory, one Biggs himself told over two years ago, in a filing submitted on March 29, 2021, in a bid to stay out of pre-trial detention.

As Biggs told the story then — two days before this 302 was finalized — Biggs would routinely reach out to cops before the Proud Boys would stage an operation, much as Enrique Tarrio did with Shane LaMond, a DC cop now being prosecuted for giving Tarrio inside tips about the investigation into him.

The same year, 2018, after the move to Florida, Biggs became active as an organizer, event planner and thought leader in the Proud Boys. He used his platform as a radio and social media personality to promote Proud Boy events and ideas. In particular, he personally planned two major events: rallies in Portland, Oregon in both 2019 and 2020 designed as counterdemonstrations against Antifa, which had been active in and around Portland for over two decades. See generally, MARK BRAY, ANTIFA: THE ANTI-FACIST HANDBOOK (August 2017) (history of Antifa networks in the Americas and Europe by social historian and Dartmouth College lecturer); L. Magelson, “Letter from Portland: In the Streets with Anitfa,” The New Yorker (Nov. 2, 2020 issue). As part of the planning, Biggs would regularly speak with by phone and in person to both local and federal law enforcement personnel stationed in Portland, including the FBI’s Portland Field Office. These talks were intended both to inform law enforcement about Proud Boy activities in Portland on a courtesy basis but also to ask for advice on planned marches or demonstrations, i.e., what march routes to take on Portland streets, where to go, where not to go. Similar conversations were held regularly with local police and FBI personnel for less major events in other cities.

As Biggs described it, rather than cracking down on the right wing group that would go on to lead an attack on the Capitol, the cops could give him “cautionary” phone calls.

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida.

As Biggs described it, he “regularly satisfied FBI personnel” with his explanations for stoking violence.

He did so even though — as his sentencing memo describes — he was openly calling for violence and attacks on the government.

Perhaps more than any other defendant, Biggs promoted the use of force against the government. Beginning in the days after the election, Biggs declared that the country could face “civil war” because the “left” was “radicalizing people by stealing th[e] election.” Ex. 603-1 and 2. Biggs told his followers that it was “time for fucking War if they steal this shit.” Ex. 603-4. Biggs steadily escalated his calls for political violence. During an episode of the “Warboys” podcast with Tarrio and Nordean in late November, Biggs demonized the “party” that was telling the public to accept the result of the election. Biggs closed his diatribe by saying that “they are evil scum and they all deserve to die a traitor’s death.” Biggs Ex. 1. Biggs’s comment prompted Nordean to calmly lean toward his microphone and say, “the day of the rope.” Id.

Biggs’s calls for political violence escalated throughout the fall, and he consistently called for war while characterizing his enemies (which included government actors such as the police) as traitors. The critical issue to Biggs was the stolen election, and he tied his calls to violence to the election. For example, in late November, in a post on his social media, Biggs warned officers in Michigan (a state won by Biden) that if they stopped electors from casting a vote for Trump, the people would “treat your thin[] blue line like we do antifa . . . get in our way and get walked over.” Ex. 603-33. Biggs declared that the officers would be “tried for treason” and that “[w]e aren[‘]t here to play games. This is war.” Id.

In fact, as Biggs further described it back in March 2021, long after he had become a key figure staging violent confrontations, five months before leading an attack on the peaceful transfer of power, an FBI Agent in Daytona Beach recruited Biggs to be an informant targeting Antifa.

In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

So during the entire period when Biggs and his buddies were planning an attack on the nation’s Capitol, during the entire fall period when (prosecutors describe) Biggs was openly talking about attacking the government, he and this FBI agent?

“They spoke often.”

The FBI claims it had no notice of the terrorist attack on the nation’s Capitol, not even with an FBI agent “speaking often” with one of its leaders and an DC intelligence cop speaking often with the other one.

So now, DOJ wants to hold Joe Biggs accountable for the lies he told to the FBI agent who thought a key leader of the Proud Boys would make an appropriate informant targeting Antifa. But thus far, his handler has not been held accountable for missing the planning of a terrorist attack in DC when while speaking “often” with one of its key leaders.

Notably, the Daytona FBI office is the same one where, after fake whistleblower Stephen Friend refused to participate in a SWAT arrest of a Three Percenter known to own an assault rifle, his supervisor said “he wished I just ‘called in sick’ for this warrant,” before taking disciplinary action against him (though Friend didn’t start in Daytona Beach until after Biggs had already been arrested).

The second of these interviews (but not the first) interview was mentioned in Biggs’ arrest affidavit. It’s possible that investigating agents didn’t even know about what occurred in the first one.

Indeed, it’s really hard to credit the reliability of a 302 written two days after Biggs described his chummy relationship but not this interview in an attempt to stay out of jail.

This is why the FBI didn’t warn against January 6. Because these terrorists were the FBI’s people.

The Challenge of Treating the Proud Boy Leaders as Terrorists

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The omnibus sentencing memo for the Proud Boy Leaders — an 80-page document supplemented by another 15 pages for each — describes their crime this way:

The defendants organized and directed a force of nearly 200 to attack the heart of our democracy.

[snip]

None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.

For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.

[snip]

The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.

The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.

That language is a succinct statement of the terrorism committed by the Proud Boys.

But the document as a whole is a testament to how the asymmetrical treatment of terrorism in the United States makes it much harder to hold men like Enrique Tarrio and Joe Biggs accountable for attacking the Capitol that it would be if they were Islamic terrorists, rather than right wing Trump supporters.

The reason why the government had to dedicate 80 pages to justify sentences of 30 years for the core leaders of the January 6 attack is because it requires massaging the sentencing guidelines to treat white (or Afro-Cuban, as Tarrio identifies as) person terrorism like the US has long treated Islamic terrorism.

Here’s what DOJ had to in order to justify calling for these sentences:

  • Ask for consecutive sentences, effectively stacking some sentences on others
  • Adopt the treason sentencing guideline for sedition (which doesn’t otherwise have one), even while the maximum sentence for sedition is just 20 years
  • Ask that Judge Tim Kelly use the conspiracy convictions to apply the conduct of each defendant against the other, to apply the assault and property damage done by Pezzola against the others and the sedition conviction against Pezzola
  • Use enhancements for property destruction, substantial interference in the vote certification, and extensive planning on the obstruction charges
  • Use leadership or management enhancements for everyone but Pezzola
  • Ask for additional departures from the guidelines for “conduct [that] resulted in a significant disruption of a governmental function” and an “intent to frighten, intimidate, and coerce” federal lawmakers
  • Dismiss challenges (led by Nordean attorney Nick Smith over two years) to the treatment of the vote certification as an official proceeding that can be obstructed
  • Ask for a terrorism enhancement for the destruction of property (tied to the window Pezzola broke and some bicycle racks)
  • Ask for terrorism enhancement based on the clear political intent of all these crimes, including sedition, which is explicitly political
  • Add enhancements for Biggs, Tarrio, and Rehl for obstructing the investigation or trial (which is why Nordean’s proposed sentence is lower than the other guys’)
  • Describe the Oath Keeper as late-comers to sedition, by comparison
  • Laugh at any claim these men accepted responsibility for their crimes

The sentences make sense — particularly when you compare the damage these terrorists did against the aspirational Islamic terrorists who have been sentenced to even longer sentences. But in the scope of the sentencing guidelines as they exist, it all comes off as funny math.

Update: I probably should have explained in the post why this happens. Because domestic terrorism is not a crime unto itself, but instead an enhancement (which is the way it is being used with the destruction of property here), it is not finally used as a label until sentencing. Prosecutors have, in fact, been calling the Oath Keepers and Proud Boys terrorists throughout their prosecution in detention memos (relying on the same destruction of property). I addressed this in this post and this one.

Update: Here’s a post I wrote in 2015 about this asymmetry.

Note: The image accompanying this post is a challenge coin for January 6 introduced as an exhibit in Christoper Worrel (who has skipped bail as he awaits sentencing). The Proud Boys literally made the attack on the Capitol into a coin of their terrorist group. Update: Added the image to the body of the post, too, bc I confused people by referencing it w/o including it. 

Trump’s Attack on Black Votes Was There the Whole Time, We Just Didn’t Call It a Crime

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As I noted in an update to this post, NYT and the Guardian have clarified that the third charge mentioned in Trump’s target letter was 18 USC 241, Conspiracy against Rights, not — as Rolling Stone originally reported — 18 USC 242.

This piece, from November 2021, explains why 241 is such a good fit to Trump’s efforts to discount the votes of 81 million Biden voters.

The Supreme Court has stressed that Section 241 contains “sweeping general words” and directed courts to give the provision “a sweep as broad as its language.” In United States v. Classic it established that the statute protects not only the right to vote but the right to have one’s vote properly counted. Classic upheld an indictment of officials who sought to aid one candidate by refusing to count votes cast for his opponent.

The broad language of Section 241 clearly encompasses the actions of those involved in Trump’s coup attempt, and the Court’s precedents support that conclusion. Evidence currently available shows that the conspirators agreed to a common scheme to overthrow the results of the 2020 presidential election, took innumerable acts designed to accomplish that goal, and intended thereby to effectively deprive millions of voters in half a dozen states—and the rest of the 81 million Americans who voted for Joe Biden—of their right to vote and have their votes properly counted.

In Anderson v. U.S. the Court explicitly held that Section 241 reaches conspiracies designed “to dilute the value of votes of qualified voters.” It requires only an intent to prevent votes from being “given full value and effect,” an intent that includes an intent “to have false votes cast.” Evidence suggests that Trump and his supporters attempted exactly that in Georgia. They pressured local officials to somehow, some way magically “find” 11,780 additional votes to give Trump victory there and negate the votes of nearly two and a half million Georgia voters.

And it’s not just the concerted effort to eliminate the votes of 81 million Biden voters on January 6.

The recent news that Jack Smith has subpoenaed the security footage from the State Farm arena vote count location in Georgia, taken in conjunction with Trump’s efforts in places like Michigan — where his efforts focused on preventing a fair count of Detroit, where he had actually performed better than in 2016, rather than Kent County, the still predominantly white county where he lost the state — is a reminder that Trump and his mobs, many associated with overt white supremacists like Nick Fuentes, aggressively tried to thwart the counting of Black and Latino people’s votes. It was the same play Roger Stone used when he sent “election observers” to Black precincts in 2016, just on a far grander scale, and backed by the incitement of the sitting President.

As I said in the other post, we’ll see how Jack Smith charges this soon enough.

For now, I want to talk about how the press cognitively missed this — myself included. I want to talk about how the press — myself included — didn’t treat an overt effort to make it harder to count the votes of Black and Latino voters as a crime.

In its piece (including Maggie, but also a lot of people who aren’t as conflicted as she is), NYT points to both Norm Eisen (who didn’t see this, either, and whose recent prosecution memo on the charges we did expect didn’t even cite the pending decisions in the DC Circuit) and the January 6 Committee as if they are where this investigation came from.

Two of the statutes were familiar from the criminal referral by the House Jan. 6 committee and months of discussion by legal experts: conspiracy to defraud the government and obstruction of an official proceeding.

[snip]

The prospect of charging Mr. Trump under the other two statutes cited in the target letter is less novel, if not without hurdles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the Jan. 6 attack on the Capitol had recommended that the Justice Department charge the former president under both of them.

Alan Feuer (who is bylined along with Maggie) knows as well as I do, neither ConfraudUS (18 USC 371) nor obstruction (18 USC 1512(c)(2)) came from the January 6 Committee. J6C — and people like Eisen — were still looking at insurrection long after I was screaming that DOJ would use obstruction. They — and people like Eisen — still hadn’t figured out how DOJ was using obstruction even after Carl Nichols specifically raised the prospect of using it with Trump.

NYT’s discussion of the pending appeal from Thomas Robertson in the DC Circuit (in the last paragraphs of the article) is as good as you’ll see in the mainstream press. They know well the obstruction charges builds on years of work by DOJ’s prosecutors, but nevertheless point to J6C’s fairly thin referral of it, as if that, and not the charges in 300 January 6 cases already, is where it comes from.

The reason we knew DOJ would use obstruction is because DOJ has been, overtly, setting that up for years.

In its description of the unexpected mention of 241, though, NYT describes that “prosecutors have introduced a new twist.”

Federal prosecutors have introduced a new twist in the Jan. 6 investigation by suggesting in a target letter that they could charge former President Donald J. Trump with violating a civil rights statute that dates back to the post-Civil War Reconstruction era, according to three people familiar with the matter.

Again, it was a surprise to me, too. I’m not faulting the NYT for being surprised. But that doesn’t mean prosecutors “introduced a new twist,” as if this is some fucking reality show. It means journalists, myself included, either don’t know of, misinterpreted the investigative steps that DOJ has already taken, or simply didn’t see them — and I fear it’s the latter.

To be sure, in retrospect there are signs that DOJ was investigating this. In December, WaPo reported that DOJ had subpoenaed election officials in predominantly minority counties in swing states (notably, the journalists on the story were local reporters, neither Trump whisperers nor the WaPo journalists who’ve given scant coverage to the crime scene investigation).

Special counsel Jack Smith has sent grand jury subpoenas to local officials in Arizona, Michigan and Wisconsin — three states that were central to President Donald Trump’s failed plan to stay in power following the 2020 election — seeking any and all communications with Trump, his campaign, and a long list of aides and allies.

The requests for records arrived in Dane County, Wis.; Maricopa County, Ariz.; and Wayne County, Mich., late last week, and in Milwaukee on Monday, officials said. They are among the first known subpoenas issued since Smith was named last month by Attorney General Merrick Garland to oversee Trump-related aspects of the investigation of the Jan. 6, 2021, attack on the U.S. Capitol, as well as the criminal probe of Trump’s possible mishandling of classified documents at his Florida home and private club.

The subpoenas, at least three of which are dated Nov. 22, indicate that the Justice Department is extending its examination of the circumstances leading up to the Capitol attack to include local election officials and their potential interactions with the former president and his representatives related to the 2020 election.

The virtually identical requests to Arizona and Wisconsin seek communications with Trump, in addition to employees, agents and attorneys for his campaign. Details of the Michigan subpoena, confirmed by Secretary of State Jocelyn Benson, were not immediately available.

[snip]

Previous subpoenas, in Arizona and other battleground states targeted by Trump, have been issued to key Republican players seen as allies in his pressure campaign to reverse the results of the 2020 election. Maricopa County, the sprawling Arizona jurisdiction that is home to Phoenix and more than half the state’s voters, was among several localities on the receiving end of that pressure.

The Post could not confirm Tuesday whether the latest round of subpoenas went to local officials in any other states. The office of the secretary of state in Pennsylvania, another 2020 contested state, declined to comment. State and local election officials in another contested state, Georgia, said they knew of no subpoenas arriving in the past week. Officials in Clark County, Nev., the sixth contested state, declined to comment.

The Arizona subpoena was addressed to Maricopa County’s elections department, while the Wisconsin versions were addressed to the Milwaukee and Dane clerks. All seek communications from June 1, 2020, through Jan. 20, 2021. [snip]

These subpoenas asked for Trump’s contacts with local election officials, in the predominantly minority counties that Democrats need to win swing states, going back to June 2020, well before the election itself. By December 2022, DOJ was taking overt steps in an investigation that even before the election Trump had plans targeting minority cities.

And there may have been a still earlier sign of this prong of the investigation, from the NYT itself. Alan Feuer (with Mike Schmidt) reported in November that prosecutors were investigating Stone’s rent-a-mob tactics, going back to 2018 but really going back to the Brooks Brothers riot in 2000, the same fucking MO Stone has adopted for decades, using threats of violence to make it harder to count brown people’s votes.

The time was 2018, the setting was southern Florida, and the election in question was for governor and a hotly contested race that would help determine who controlled the United States Senate.

Now, four years later, the Justice Department is examining whether the tactics used then served as a model for the attack on the Capitol on Jan. 6, 2021.

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

[snip]

The 2018 demonstrations in Florida did not come close to the scale or intensity of the assault on the Capitol by a pro-Trump mob, but the overlap in tactics and in those involved was striking enough to have attracted the attention of federal investigators.

Information obtained by investigators shows that some of those on the ground in 2018 called the protests “Brooks Brothers 2.0,” a reference to the so-called “Brooks Brothers riot” during a recount of the presidential vote in Florida in 2000. During that event, supporters of George W. Bush — apparently working with Mr. Stone — stormed a local government building, stopping the vote count at a crucial moment.

As I noted at the time, the NYT story ignored Stone’s 2016 efforts, but his efforts to intimidate Black voters at the polls in that year was the origin of the Stop the Steal effort that Ali Alexander was entrusted to implement in 2020 while Stone awaited his pardon.

And we know from evidence submitted at the Proud Boys trial that their role in mobs was not limited to January 6, but was instead mobilized on a moment’s notice immediately after the election.

Tarrio even indicated that he had gotten instructions from “the campaign.”

Finally, for all my complaints about the treatment of Brandon Straka, this prong may have — should have — gone back still earlier, to the belated discovery of Straka’s grift.

This investigation has been happening. It’s just that reporters — myself included — didn’t report it as such.

It’s not just the epic mob Trump mobilized on January 6, an attempt to use violence to prevent the votes of 81 million Biden voters to be counted. It was an effort that went back before that, to use threats of violence to make it harder for election workers like Ruby Freeman to count the vote in big cities populated by minorities.

One reason TV lawyers didn’t see this is they have always treated Trump’s suspected crimes as a white collar affair, plotting in the Willard, but not tasing Michael Fanone at the Capitol.

But it is also about race and visibility.

January 6 was spectacular, there for the whole world to see.

But those earlier mobs — at the TCF center in Detroit, the State Farm arena in Atlanta, Phoenix, Milwauke — those earlier mobs were also efforts to make sure certain votes weren’t counted, or if they were, were only counted after poorly paid election workers risked threats of violence to count them, after people like Ruby Freeman were targeted by Trump’s team to have their lives ruined.

And we, the press collectively, didn’t treat those efforts to disqualify votes as the same kind of crime, as part of the same conspiracy, as Trump’s more spectacular efforts on January 6.

Update: Added the campaign texts. Thanks to Brandi, who knew exactly where to find them.

Update: Ironically, Bill Barr’s testimony may be pivotal to prove that Trump targeted Detroit because of race. That’s because Barr specifically told Trump he had done better in Detroit than he did in 2016.

Trump raised “the big vote dump, as he called it, in Detroit,” Barr said. “He said ‘people saw boxes coming into the counting station at all hours of the morning’ and so forth.”

Barr said he explained to Trump that Detroit centralized its counting process at the TCF Center downtown convention hall rather than in each precinct. For the November 2020 general election, Michigan’s largest city counted its absentee ballots at the convention center under the supervision of state Bureau of Election Director Chris Thomas. Because of the COVID-19 pandemic, most ballots cast were absentee.

“They’re moved to counting stations,” Barr said. “And so the normal process would involve boxes coming in at all different hours.”

“I said, ‘Did anyone point out to you … that you did better in Detroit than you did last time? There’s no indication of fraud in Detroit,” Barr said he told Trump.

Everyone in MI knows — and I’m sure Trump knows — he lost MI because he lost Kent County, which as more young people move into Grand Rapids has been getting more Democratic in recent years. That Trump targeted Detroit and not Kent (or Oakland, which has also been trending increasingly Democratic) is a testament that this was about race.

Update, 7/30: Both NAACP and ACLU recognized this in real time. Here’s ACLU’s suit.