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January 6 Is Unknowable

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Dunbar’s number is a term that describes a presumed cognitive limit to the number of people with whom an individual can maintain social relationships. It’s a way of thinking about limits to our ability to understand a network. People argue about what the actual number is, though 150 is a good standard.

Using that figure, the number of people arrested in the January 6 attack is, thus far, 4 2/3 Dunbar numbers, with two more Dunbar numbers of assault suspects identified in FBI wanted photos. By my count, one Dunbar number of suspects are charged with assault. There were one Dunbar number of police victims from that day. There have been, Attorney General Garland revealed last night, one Dunbar number of prosecutors working on the investigation. One Dunbar number of Congresspeople backed challenges to the vote certification last year, and a significant subset of those people further enabled the insurrectionists in more substantive ways. The January 6 Select Committee has interviewed two Dunbar number of witnesses about the event, a group that barely overlaps with the suspects already charged.

I think about Dunbar’s number a lot, particularly as I review the DC court calendar each morning to review which court hearings I should call into on a given day. I can rattle off the names of the January 6 defendants in all the major conspiracy cases and some less obvious key defendants about whom I’ve got real questions. But for other hearings with a 2021 docket number (the January 6 defendants make up the majority of defendants in DC last year), I need to refer back to my master list to see whether those are January 6 defendants, and if so, whether the hearing might be of import. There are five January 6 defendants with the last name Brown, five with some version of the last name Kelly (all quite interesting), three Martins, and seven Williamses, so it’s not just recognizing the name, but trying to remember whether a particular Brown is one of the really interesting ones.

Court filings are the way I go about understanding January 6. Sedition Hunters, by contrast, have worked via faces in photos, from which they effectively create dossiers on suspects of interest.

From their home offices, couches, kitchen tables, bedrooms and garages, these independent investigators have played a remarkable role in archiving and preserving digital evidence. Often operating under the “Sedition Hunters” moniker, they’ve archived more than 2,000 Facebook accounts, over 1,125 YouTube channels, 500-plus Instagram accounts, nearly 1,000 Twitter feeds, more than 100 Rumble profiles and over 250 TikTok accounts. They’ve gathered more than 4.1 terabytes ― 4,100 gigabytes ― of data, enough to fill dozens of new iPhones with standard-issue storage.

Both approaches have come to a similar understanding of the attack: that the Proud Boys led a multi-pronged assault on the building, one that is most easily seen on the coordinated assault from the Proud Boys, Oath Keepers, America Firsters, and Alex Jones on the East door. That assault on the East door appears after 22:30 on NYT’s Day of Rage on the riot, which remains the most accessible way for people to try to understand the riot. That assault on the East door, because of Pied Piper Alex Jones’ role in providing bodies, leads directly back to Trump’s request that Jones lead rally attendees from the Ellipse to the Capitol. And there are militia and localized networks that are also critical to understanding how all those bodies worked in concert on January 6. Here’s a summary of the Sedition Hunters’ understanding, which is well worth reviewing in depth.

But even though what we’re seeing is quite similar, there are gaps. Because I’m working from dockets, I’m aware of only the most important people who have yet to be arrested, whereas the Sedition Hunters have a long list, including assault suspects, prominent participants, and militia members, who remain at large. Meanwhile, I’ve identified a handful of defendants whose accomplices on January 6 are obviously of great interest to DOJ, but the Sedition Hunters aren’t always able to reverse engineer who those accomplices are based off their work.

And dockets are only useful for certain kinds of information. I track each arrest affidavit and statement of offense closely. I try to keep a close eye on changes in legal teams and developments (like continuances) that deviate from the norm, which are often the first sign that a case is getting interesting. You learn the most from detention hearings and sentencing memos. But for defendants charged by indictment and released pre-trial, the government can hide most of what it knows. And that’s assuming DOJ makes an arrest or unseals it, which it might not do if someone cooperates from the start.

The government has announced nine cooperation deals (one four months after it happened), and the subject of cooperation for two of them — Jon Schaffer and Klete Keller (whom I often get confused with the five Kellys) — is not known. It wasn’t clear that Jacob Hiles was the defendant who had gotten Capitol Police cop Michael Riley indicted until Hiles’ sentencing memo. And Hiles is not the only one being charged with a misdemeanor who cooperated to end up that way. It’s often not clear whether a delayed misdemeanor charge reflects really good lawyering or cooperation (and in the case of Brandon Straka, it seems to have been really good lawyer that nevertheless resulted in some key disclosures to DOJ).

There is a growing list of Person Ones described in court filings, Stewart Rhodes, Enrique Tarrio, Aaron Whallon-Wolkind, Alex Jones, and Morton Irvine Smith, all of whom were clearly involved in January 6 but haven’t been charged yet. Roger Stone never got referred to as Person One, but he is all over the Oath Keepers’ court filings. DOJ hasn’t named people like Mo Brooks and Rudy Giuliani when they include them in Statements of Offense, but they’re in there. So are other people who spoke on January 5.

It turns out that one means of accessing the January 6 is my forté, documents, and that of citizen researchers, collaborative research. But partly because Merrick Garland referred Michael Sherwin for an Office of Professional Responsibility investigation for publicly commenting on the investigation improperly, the normal way things get reported — by quoting sources — largely isn’t yet accessible for the criminal side of the investigation. That leads to misleading reporting like the famous Reuters article that didn’t understand the role of crimes of terrorism or a WaPo piece yesterday that unbelievably quoted Jonathan Turley claiming, “There’s no grand conspiracy that the FBI found, despite arresting hundreds of people, investigating thousands,” without labeling him as the former President’s impeachment lawyer, which is the only way Turley would be marginally competent to make such a claim. There are defense attorneys talking to the press — but the chattiest defense lawyers are the ones setting new standards for bullshit claims. The ones I’ve heard from are themselves drowning in their attempts to understand the larger investigation, both because of the sheer amount of discovery and because that discovery doesn’t tell them what is going on legally with one of the other Dunbar numbers of defendants. But in general, the ordinary sources for typical reporting aren’t talking, leading to a lot more mystery about the event.

One thing I find most striking from those who were present is their blindness. I’m haunted by something Daniel Hodges said in his testimony to the January 6 Committee: that the men and women who fought insurrectionists for hours in the Tunnel through which Joe Biden would walk to take the Oath of Office two weeks later had no idea, during that fight, that the Capitol had already been breached, and then cleared, as they continued to fight a battle of inches.

It was a battle of inches, with one side pushing the other a few and then the other side regaining their ground. At the time I (and I suspect many others in the hallway) did not know that the terrorists had gained entry to the building by breaking in doors and windows elsewhere, so we believed ours to be the last line of defense before the terrorists had true access to the building, and potentially our elected representatives.

There are similar accounts from other direct witnesses — like this chilling piece from Matt Fuller — who huddled feet away from where Ashli Babbitt was killed without knowing what was happening. Grace Segers, in her second telling of surviving that day, describes how there was no way to tell maintenance workers (there must be ten Dunbar numbers of support staff who were there that day) to take cover from the mobsters.

I have spent the better part of the year working full time, with few days off, trying to understand (and help others understand) January 6. I’ve got a clear (though undoubtedly partial) vision of how it all works — how the tactical developments in the assault on the Capitol connect directly back to actions Donald Trump took. Zoe Tillman, one of a handful of other journalists who is attempting to track all these cases (while parenting a toddler and covering other major judicial developments) has a piece attempting to do so with a summary of the numbers. But both those methods are inadequate to the task.

But thus far, that clear vision remains largely unknowable via the normal ways the general public learns. That’s why, I think, people like Lawrence Tribe are so panicked: because even beginning to understand this thing is, quite literally, a full time job, even for those of us with the luxury of living an ocean away. In Tribe’s case, he has manufactured neglect out of what he hasn’t done the work to know. To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

I know a whole lot about what is knowable about the January 6 investigation. But one thing I keep realizing is that it remains unknowable.

Mike Flynn Forgets He Was Shit-Canned by Presidents of Both Parties

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In a lawsuit attempting to kill an existing subpoena from the January 6 Committee and an as-yet unidentified subpoena to Verizon, Mike Flynn accuses Bennie Thompson of opposing Barack Obama. That’s the only logical conclusion one can draw from Flynn’s claim that the people behind the subpoena of him, “belong to the political party that opposed the President under whom General Flynn served.”

The body that issued the Subpoena is composed of 9 members, 7 of whom belong to the political party that opposed the President under whom General Flynn served. The remaining two members were Republicans hand-picked by Speaker Pelosi because they were vocal opponents of former President Trump from within the Republican Party.

As Flynn himself points out in his lawsuit, he served Barack Obama as Defense Intelligence Agency head for over two years, a total of 744 days. He served Donald Trump as National Security Advisor for around 24 days, a laughably short tenure even by the standards of the Trump Administration.

Plaintiff Lieutenant General Michael Flynn is a retired Lieutenant General in the United States Army, served as the Director of the Defense Intelligence Agency from July 2012 to August 2014, and was the National Security Advisor at the start of the Trump Administration.

Mike Flynn was shit-canned by both Presidents.

Nevertheless, a man fired by Presidents of both parties wants to claim a mere subpoena is a witch hunt against him.

Flynn, predictably, gets a lot else wrong in this lawsuit. His depiction of how Billy Barr attempted, but — even after appointing a team that altered DOJ documents as part of their attempt — failed to blow up the prosecution of him gets details big and small wrong.

He was famously led into a perjury trap by the Federal Bureau of Investigation, pled guilty to making a false statement after the government threatened his son and then agreed not to prosecute his son if he pled guilty. He later sought to withdraw that plea under the guidance of new counsel after the discovery of exculpatory evidence that was withheld from him prior to his guilty plea. When the Department of Justice decided to drop the charges against him, a court stayed his sentencing while the Court considered whether to force the Department of Justice to prosecute him. Ultimately, General Flynn received a Presidential pardon.

There was no perjury trap, his very good Covington lawyers were especially worried about Flynn’s exposure as a secret agent of Turkey, none of the evidence was deemed to be exculpatory, and he had already been prosecuted.

It is true that after Sidney Powell did more harm then good, Trump pardoned the man he shit-canned. It’s also true that Flynn remained equivocal about whether Donald Trump knew about his efforts to undermine sanctions during the Transition — though transcripts of his calls with Sergey Kislyak show that he told Russia’s Ambassador, at least, that Trump did know.

But there are several details in this lawsuit — like all of these lawsuits challenging the January 6 Committee, which appear to be at least partly an attempt to coordinate cover stories — of interest.

As Josh Gerstein observed, the lawsuit is full of dated information.

On January 6, 2021, a large group of people in Washington, D.C., entered the U.S. Capitol, breached security, and disrupted the counting of Electoral College votes until order was restored. The U.S. Department of Justice has arrested more than 500 individuals in connection with those activities on January 6th. General Flynn was not part of, nor was he present, at the Capitol grounds during any of those activities at the Capitol that day. Like most Americans, he saw those troubling events unfold on television.

[snip]

Former President Trump appealed the district court’s order, and the D.C. Circuit Court of Appeals enjoined NARA from releasing the disputed Presidential records pending its ruling. See Mem. Op. 17, Trump v. Thompson, No. 1:21-cv-2769 (D.D.C. Nov. 9, 2021).

On November 30, 2021, the D.C. Circuit held oral argument on the merits of former President Trump’s appeal. This case is still pending.

While I’m not surprised the Dhillon Law Group cited details about the January 6 investigation that are four months out of date, you’d think they — or Flynn, via Jesse Binall, who was part of the Sidney Powell team that represented him — would have heard of the legal thumping that the DC Circuit gave Jesse Binall on December 9.

As Katelyn Polantz observed, by filing this in his home district in Florida (albeit in the wrong district at first), Flynn sets up the possibility of a circuit split with the DC Circuit decision that Dhillon Law Group hasn’t heard about yet.

So this may be part of a concerted plan, but one that being implemented with the legal incompetence characteristic of Trump (and Flynn) lawyers.

Particularly given how dated this lawsuit is, I’m particularly interested in Flynn’s reliance on the investigation into Sidney Powell’s grift to explain his hesitations about cooperating with the Committee.

Flynn bases his knowledge about the investigation into Sidney Powell on a November 30 WaPo story (though he credits NYT with the scoop), not personal knowledge of the investigation.

In 2021, General Flynn was briefly a board member of a nonprofit founded and led by his defense counsel, Ms. Powell, called Defending the Republic. In September 2021, a federal prosecutor handling the January 6 Capitol attack as well as the criminal contempt of Congress proceedings against individuals referred by the Select Committee also subpoenaed the records of Defending the Republic in connection with a criminal investigation into its activities.

[snip]

In September 2021, the Department of Justice obtained a grand jury subpoena for records of a nonprofit General Flynn briefly served as a director, which was founded and led by his criminal defense counsel, Sidney Powell. The subpoena was signed by an Assistant U.S. Attorney prosecuting matters related to the January 6 Capitol attack as well as contempt of Congress charges against Stephen K. Bannon for not complying with the Committee’s subpoena. Isaac Stanley-Becker, Emma Brown, and Rosalind Helderman, Prosecutors Demanded Records of Sidney Powell’s Fundraising Groups As Part of Criminal Probe, NEW YORK TIMES, Nov. 30, 2021.

Here’s a December 1 Daily Beast story with other details of the investigation (which may come from Lin Wood or Patrick Byrne). Here’s my post noting that the virgin birth of the grift times awkwardly with Flynn’s own pardon.

In language immediately preceding one of those descriptions, Flynn misleadingly claims that the Committee subpoena against him starts “just before” DOJ “sought to dismiss the charges against him in May of 2020.”

(The Subpoena curiously seeks documents from General Flynn starting just before the Department of Justice sought to dismiss the charges against him in May of 2020, and long before the 2020 election or the January 2021 attack on the Capitol.) In late 2020, General Flynn publicly stated his concerns about the integrity of the 2020 elections, as did many other citizens. General Flynn did not organize or speak at any events on January 6 in Washington D.C.

The start date for the subpoena actually starts on April 1.

Still, I find it interesting that Flynn is so worried about what happened during Billy Barr’s failed attempt to blow up his prosecution. And I find it interesting that Flynn claims to have no firsthand knowledge of the investigation Molly Gaston is leading into Sidney Powell’s grift.

Incidentally, Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

Anyway, back to Mike Flynn.

Unlike the other people suing, Flynn appears to be uncertain about whether Verizon received a January 6 Committee subpoena targeting him. John Eastman returned the subpoena targeting him with his lawsuit. Alexander included the notice of the subpoena — dated December 2 — he received from Verizon. Meadows also included the notice of the subpoena.

But Flynn doesn’t include documentation like that to substantiate his basis for believing that Verizon got a subpoena targeting him. Rather, he says that he thinks Verizon got a subpoena targeting him — from the January 6 Committee — because they got one for Mark Meadows.

Upon information and belief, the Select Committee is not only targeting a wide variety of individuals with sweeping subpoenas, but also is obtaining extensive private records about various individuals—including cooperating witnesses—by issuing subpoenas to their telecommunications providers.

For example, the Select Committee issued a subpoena to Verizon Wireless seeking subscriber information and cell phone data associated with former White House Chief of Staff, Mark Meadows (the “Verizon Subpoena”). The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon Subpoena requested all of Mr. Meadows’ personal cell phone data for four months: from October 1, 2020, and January 31, 2021.

That is, unless Verizon has lost track of whom to bill for his cell service (or unless the General is confused about who is service provider is), it appears that Flynn — who was, for a period, on the board of the Powell nonprofit already being investigated by a grand jury in September — didn’t get a letter on December 2 alerting him that January 6 had subpoenaed his phone records.

Don’t get me wrong: particularly given his propensity to lie, Mike Flynn is not wrong to invoke the Fifth Amendment to avoid answering questions from the January 6 Committee (though he still is on the hook for the document request). That would be true even if Molly Gaston weren’t investigating Sidney Powell, but with the investigation, he’s quite right to invoke the Fifth (again — he did so with the SSCI Russian investigation too).

But if there’s a reason why the House Committee didn’t feel the need to ask for his phone records, that may be the least of his worries.

The most interesting aspect of the January 6 investigation that no one is covering — not even in a NYT story on criminal referrals — is the means by and extent to which the Committee is deconflicting with DOJ. There must be a legislative affairs person doing this near full time, unless Thompson and Liz Cheney — the daughter of someone who played a key role in screwing up Iran-Contra by refusing to do this — are doing this at a higher level. But the story about whom the Committee hasn’t subpoenaed — which includes both Sidney Powell and Rudy Giuliani, both known to be under investigation by DOJ — is as interesting as who they have.

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation

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In preparation for a post about how DOJ might or might not make the move beyond prosecuting pawns who breached the Capitol to those who incited them to come to the Capitol, I want to describe a taxonomy of the January 6 “crime scene” investigation — which I mean to encompass the investigation as it has worked up from the people who actually stormed the Capitol. This is my understanding of how the many already-charged defendants fit together.

DOJ has arrested close to 700 people (probably more than that once you consider cases that haven’t been unsealed). Those defendants generally fit into the following categories, all of which are non-exclusive, meaning lots of people fall into more than one category:

  • Militia conspirators and militia associates
  • Assault defendants
  • Mobilized local networks
  • Other felony defendants
  • Misdemeanants
  • Organizer inciters

In my discussion below, these are all allegations, most of the felony defendants have pled not guilty, and are presumed innocent.

Militia conspirators and militia associates

The most newsworthy prosecutions, thus far, are the militia conspiracies, though not all militia members have been charged as part of a conspiracy.

There are 17 people facing charges in the Oath Keeper conspiracy, plus four cooperators, as well as another cooperator and two more Oath Keepers not charged in the conspiracy.

There are 17 Proud Boys currently charged in various conspiracies, including four, thus far, charged in what I call the Leader conspiracy. I suspect in the near future there will be consolidation of the core Proud Boy cases. In addition, there are a significant number of Proud Boys charged either in group indictments (such as the five men who followed Joe Biggs around that day), or individually, some with assault (such as Christopher Worrell, David Dempsey, and Dan “Milkshake” Scott), and some with just trespassing (such as Lisa Homer or Micajah Jackson).

There is one conspiracy indictment against mostly 3%ers, along with Guy Reffitt, who was individually charged, and a few others whose 3% ties are less well-established in charging papers.

All of which is to say that a small but significant minority of the January 6 defendants have some tie to an organized militia group.

That’s important, because the government is very close to showing that there was a plan — led at the Capitol by the Proud Boys, but seemingly coordinated closely with some members of the Oath Keepers. The plan entailed initiating a breach, surrounding the Capitol, opening up multiple additional fronts (of which the East appears to be the most important), and inciting the “normies” to do some of the worst violence and destruction, making the Capitol uninhabitable during the hours when Congress was supposed to be making Joe Biden President. Until about 4PM — when cops began to secure the Capitol and DOD moved closer to sending in the National Guard — the plan met with enormous success (though I wouldn’t be surprised if the conspirators hoped that a normie might attack a member of Congress, giving Trump cause to invoke harsher measures).

People complain that DOJ has been doing nothing in the 11 months since the riot. But this has been a central focus of DOJ’s effort: understanding how this plan worked, and then assembling enough evidence and cooperating witnesses to be able to lay out several intersecting conspiracies that will show not just that these groups wanted to prevent the certification of the vote (what they’re currently charged with), but pursued a plan to lead a mob attack on the Capitol to ensure that happened.

Proving these interlocking conspiracies would be vital to moving up from the militias, because it shows the premeditation involved in the assault on the Capitol. DOJ hasn’t rolled this out yet, but they seem to be very very close.

Assault defendants

Close to 150 people have been charged with assault (DOJ has a higher number but they’re tracking two different crimes, 18 USC 111, assault, and 18 USC 231, whereas I’m tracking just the former). The assaults charged against these defendants range from pushing a cop once to tasing someone and nearly killing him. Much of this amounted to mob violence, albeit at times the mob violence was pretty finely coordinated.

That said, there are a handful of defendants charged with assaults that were tactically critical to the plan implemented by the Proud Boys (again, these are just allegations and all have pled not guilty and are presumed innocent):

  • After speaking with Proud Boy Joe Biggs, Ryan Samsel kicked off the riot by storming over the first barricade, knocking over a female cop
  • Ronnie Sandlin and Nate DeGrave helped open both the East Door and Senate gallery doors
  • Jimmy Haffner allegedly sprayed something at the cops trying to stave off the crowd on the East side
  • George Tenney pushed cops away from the East door and opened it (he is charged with civil disorder, not assault)
  • Active duty Marine Chris Warnagiris kept cops from closing the East door after Tenney had opened it

It’s important to understand whether those defendants who committed tactically critical assaults were operating with knowledge of the larger plan.

For most of the rest of the assault defendants, though, it’s a matter of identifying them, assembling the video and other evidence to prove the case, and finding them to arrest them.

The FBI has posted close to 500 total assault suspect BOLOs (Be On the Lookout posters, basically a request for help identifying someone), which means there may be up to 350 assault suspects still at large.

I expect assault arrests to continue at a steady pace, perhaps even accelerate as the government completes the investigations required with people who either used better operational security or fled.

Mobilized local networks

Something DOJ appears to be investigating are key localized networks through which people were radicalized.

This is most obvious for Southern California. The 3%er indictment is geographically based (and as I’ll argue in a follow-up, is investigatively important for that geographic tie.) In addition, after months of contemplating what seemed like it might be a larger conspiracy indictment, DOJ recently charged Ed Badalian and a guy nicknamed Swedish Scarf, in a conspiracy with one of the people accused of tasering Michael Fanone, Danny Rodriguez.

Recent arrest affidavits, most notably that of Danean MacAndrews, also show that FBI shared identifiers from the various geofence warrants obtained targeting the Capitol on January 6 and shared them with regional intelligence centers to identify local participants in the mob.

There have been recent case developments, too, which suggest DOJ is letting people from Southern Californian plead down in an effort to obtain their testimony (which I’ll explain more in my discussion of misdemeanants).

Some of this localized investigation feeds back into the larger investigation, as evidenced by the two conspiracy indictments coming out of Southern California. But it also shows how these various radicalized networks fit together.

While it is less visible (and perhaps because there’s not always the same terrorist and drug war intelligence infrastructure as LA has, potentially less formalized), I assume similar localized investigations are going on in key organizing hotspots as well, including at least PA and FL, and probably also the Mountain West.

Other felony defendants

There are other defendants charged with a felony for their actions on January 6, most often for obstruction of the vote count (under 18 USC 1512c2) and/or civil disorder. As of November 6, DOJ said 265 people had been charged with obstruction. A number of those obstruction defendants have been permitted to plead down to a trespassing charge, usually the more serious 18 USC 1752.

It’s hard to generalize about this group, in part because some of the mobilizing networks that got these people to the Capitol would not be visible (if at all) until sentencing, particularly given that few of them are being detained.

But the group includes a lot of QAnoners — which, I have argued, actually had more success at getting bodies into place to obstruct the vote count than the militias (which were busy opening multiple fronts). The PodCast Finding Q revealed that the FBI started more actively investigating QAnon as a mobilizing force in the days after the insurrection. So the FBI may well be investigating QAnon from the top down. But it’s not as easy to understand as — for example — investigative steps targeting QAnoners as it is the militia networks, in part because QAnon doesn’t require the same kind of network ties to radicalize people.

These defendants also include people mobilized in other networks — some anti-mask, some military, some more directly tied to institutional right wing organizations, and some who simply responded to the advertising for the event. Understanding how and why these people ended up at the Capitol is a critical step to understanding how the event worked. But it is harder to discern that from the court filings available.

Aside from better known right wing personalities, it’s also harder to identify potentially significant defendants from this group.

In the days ahead, a number of DC judges will be ruling on DOJ’s application of obstruction. Unless all rule for the government (which I find unlikely), it means DOJ will face a scramble of what to do with these defendants, especially those not otherwise charged with a felony like civil disorder. And until judges rule, there will be a significant number of felony defendants who are deferring decisions on plea offers, to see whether the felony charge against them will really survive.

The fact that most of the least serious felony defendants are delaying plea decisions creates an artificial appearance that the vast majority of those charged in January 6 were charged with trespassing. It’s not that there aren’t a huge number of felony defendants; it’s just that they’re not making the news because they’re not pleading guilty, yet.

Misdemeanants

The most common complaint about the January 6 investigation — from both those following from afar and the judges facing an unprecedented flood of trespassing defendants in their already crowded court rooms — the sheer number of trespassing defendants.

It is true that, in the days after the riot, DOJ arrested the people who most obviously mugged for the cameras.

But in the last six months or so, it seems that DOJ has been more selective about which of the 2,000 – 2,500 people who entered the Capitol they choose to arrest, based off investigative necessities. After all, in addition to being defendants, these “MAGA Tourists” are also witnesses to more serious crimes. Now that DOJ has set up a steady flow of plea deals for misdemeanors, people are pleading guilty more quickly. With just a few exceptions, the vast majority of those charged or who have pled down to trespassing charges have agreed to a cooperation component (entailing an FBI interview and sharing social media content) as part of their plea deal. And DOJ seems to be arresting the trespassers who, for whatever reason, may be useful “cooperating” witnesses for the larger investigation. I started collecting some of what misdemeanant’ cooperation will yield, but it includes:

Video or photographic evidence

Hard as it may be to understand, there were parts of the riot that were not, for a variety of reasons, well captured by government surveillance footage. And a significant number of misdemeanor defendants seem to be arrested because they can be seen filming with their phones on what surveillance footage does exist, and are known to have traveled to places where such surveillance footage appears to be unavailable or less useful. The government has or seems to be using evidence from other defendants to understand what happened:

  • Under the scaffolding set up for the inauguration
  • At the scene of Ashli Babbitt’s killing (though this appears to be as much to get audio capturing certain defendants as video)
  • In the offices of the Parliamentarian, Jeff Merkley, and Nancy Pelosi
  • As Kelly Meggs and other Oath Keepers walked down a hallway hunting for Nancy Pelosi
  • Some of what happened in the Senate, perhaps after Leo Bozell and others rendered the CSPAN cameras ineffective

In other words, these misdemeanor arrests are necessary building blocks for more serious cases, because they are in possession of evidence against others.

Witness testimony

TV lawyers seem certain that Trump could be charged with incitement, without considering that to charge that, DOJ would first have to collect evidence that people responded to his words by invading the Capitol or even engaging in violence.

That’s some of what misdemeanor defendants would be available to testify to given their social media claims and statements of offense. For example, trespasser defendants have described:

  • What went on at events on January 5
  • The multiple signs that they were not permitted to enter whatever entrance they did enter, including police lines, broken windows and doors, loud alarms, and tear gas
  • Directions that people in tactical gear were giving
  • Their response to Rudy Giuliani and Mo Brooks’ calls for violence
  • Their response to Trump’s complaint that Mike Pence had let him down
  • The actions they took (including breaching the Capitol) after Alex Jones promised they’d get to hear Trump again if they moved to the East front of the Capitol

Securing the testimony of those purportedly incited by Trump or Rudy or Mo Brooks or Alex Jones is a necessary step in holding them accountable for incitement.

Network information

Some misdemeanor defendants are being arrested because their buddies already were arrested (and sometimes these pleas are “wired,” requiring everyone to plead guilty together). Other misdemeanor defendants are part of an interesting network (including the militias). By arresting them (and often obtaining and exploiting their devices), the government is able to learn more about those with more criminal exposure on January 6.

Misdemeanor plea deals

In its sentencing memo for Jacob Hiles, the guy who otherwise would probably be fighting an obstruction charged if he hadn’t helped prosecute Capitol Police Officer Michael Riley, the government stated that, “no previously sentenced defendant has provided assistance of the degree provided by the defendant in this case.” The comment strongly suggests there are other misdemeanor defendants who have provided such assistance, but they haven’t been sentenced yet.

This category is harder to track, because, unless and until such cooperation-driven misdemeanor pleas are publicly discussed in future sentencing memos, we may never learn of them. But there are people — Baked Alaska is one, but by no means the only one, of them — who suggested he might be able to avoid obstruction charges by cooperating with prosecutors (there’s no sign, yet, that he has cooperated). We should assume that some of the defendants who’ve been deferring charges for months on end, only to end up with a misdemeanor plea, cooperated along the way to get that charge. That is, some of the misdemeanor pleas that everyone is complaining about likely reflect significant, completed cooperation with prosecutors, the kind of cooperation without which this prosecution will never move beyond the crime scene.

Organizer inciters

In this post, I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

In fact, DOJ has made moves towards doing this for months — though at the moment, they seem woefully inadequate. For example DOJ charged Brandon Straka, who had a key role in inciting violence both before and at the event, in January; he pled guilty to a misdemeanor in October (his sentencing just got moved from December 17 to December 22). DOJ charged Owen Shroyer, Jones’ sidekick as the Pied Piper of insurrection, but just for trespassing, not for the obvious incitement he and Jones did. The one case where DOJ has already moved to hold someone accountable for his role in inciting violence is Russell Taylor, who was charged in the 3%er conspiracy, but that conspiracy indictment will test DOJ’s ability to hold those who incited violence accountable.

Back in August, when these three developments were clear, I noted that DOJ had only barely begun to unpack what happened on January 5 (to say nothing of events in DC in December), which played a key role in the success of January 6. It has provided scant new detail of having done so (though there are signs they are collecting such information).

The investigation at the crime scene is not the only investigation into January 6 going on. Merrick Garland made it clear DOJ was following the money. The FBI conducted investigative steps targeting QAnon just days after the riot. Daily Beast broke the news of a grand jury investigation into Sidney Powell’s grifting, an investigation that may be assisted by recriminations between her, Mike Flynn, and Patrick Byrne.

But the investigation building off of the crime scene will proceed, or not, based on DOJ’s ability to build cases against the organizer inciters.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

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I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

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

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

237 Days: Cooperation in Criminal Investigations Takes a Long Time

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

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

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

Jon Schaffer’s still unresolved cooperation

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

He hasn’t been.

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

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

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

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

Swedish Scarf still at large?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indicting a cop for fun and probation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hiles is due to be sentenced on Monday.

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

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

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

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

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