Posts

The Six Trump Associates Whom DOJ Is Investigating

/116 Comments/in , , /by

Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

According to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

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.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

Update, 2/8/22: NYT just named the sixth person under investigation: Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

/95 Comments/in , /by

Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

  • Nordean (4 defendants)
  • Pezzola (2 remaining defendants after Greene’s change of plea)
  • Chrestman (6 defendants)
  • Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
  • Hughes (2 defendants)
  • Pruitt
  • Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.

Chekhov’s Riot Shield: How Proud Boy Matthew Greene’s Cooperation Helps Prove the Conspiracy

/32 Comments/in , /by

In a chat among the Central New York chapter of the Proud Boys on January 17, according to a June detention motion, Matthew Greene stated that, “we must stand together now or end up in the gulag separately.” Yesterday, Greene entered into a cooperation plea deal that may accelerate his transfer into a Federal prison and even contemplates witness protection.

The press has made much of Greene’s cooperation deal — and I agree that the first public cooperation agreement from a Proud Boy is newsworthy. But I think the press is overstating the singular importance of Greene’s plea deal, for two reasons.

Greene is the first (public) cooperator but there are probably more senior Proud Boys close to flipping

First, there is very good reason to believe there are other non-public Proud Boy cooperators (or people, like Greene, who have been discussing a plea deal for months but who have not yet publicly pled guilty). Tim Kelly, the Judge presiding over the most Proud Boy cases, only just revealed that he will uphold DOJ’s application of the obstruction charge (though he has yet to issue his opinion), which is likely to accelerate the public entry of plea deals from other Proud Boys close to flipping. In other words, Greene is the only cooperator we can point to docketed proof of, but there are others, almost certainly others who are better situated to expose the full contours of the senior Proud Boys’ plans for the Capitol.

The other reason Greene’s welcome cooperation is being overstated is because — as Greene’s statement of offense makes clear — the Proud Boys used a cell organization on January 6 and Greene was, by his own telling, just a “first-degree member of the Central New York chapter of the Proud Boys,” making him one of the “least senior members.” But as I show below, that also means his cooperation is a good way of showing that a low level Proud Boy was aware of and following the instructions of the most senior Proud Boys.

To be clear: Greene’s statement of offense states that it “is not intended to constitute a complete statement of all facts known by Greene.” But the things that he does and appears not to know illustrates how DOJ is either going to need to flip one of the most senior Proud Boys and/or get cooperators from multiple different parts of the network to get a full understanding (and proof beyond a reasonable doubt) to describe all that the Proud Boys did on January 6.

That said, even given what is public, Greene’s cooperation will be useful in the following ways:

  • Confirming intent to obstruct the vote count by intimidating Mike Pence and others
  • Providing first-hand evidence on the “Front Door” conspiracy
  • Tying the Front Door cell to the Leader conspiracy
  • Describing the lead-up to January 6

Confirming intent to obstruct the vote count by intimidating Mike Pence and others

As this post explains, Greene’s intent statement confirms that:

  • The goal that day was to intimidate Mike Pence and members of Congress to get them to help Trump’s cause
  • Trespassing was one way to serve that goal of obstruction because it was more intimidating
  • The damage to the Capitol was a foreseeable consequence of the plan to obstruct the vote count

These three intent statements will be important in prosecuting other Proud Boys — and indeed, other rioters in January 6. They show that even low level Proud Boy participants understood this — and not some bullshit cover story about Antifa — to be the goal.

Providing first-hand evidence on the “Front Door” conspiracy

As a reminder, Greene was indicted, along with Dominic Pezzola and William Pepe, in what I’ve dubbed the “Front Door” conspiracy. The three were indicted together, it appears, because they’re all from NY (though Pepe is from a different chapter of the Proud Boys) and DOJ has a witness who spent time with them after the riot on January 6 who shared that they had said they would have gone after Pelosi or Pence had they found them.

The FBI also spoke to a witness, referred to as W-1 for purposes of this memorandum. W1 stated that Greene was one of a group of individuals who told W-1 about what they did on January 6. According to W-1, members of this group said that anyone they got their hands on they would have killed, including Nancy Pelosi.5 W-1 further stated that members of this group, which included Greene, said that they would have killed [Vice President] Mike Pence if given the chance.

The Front Door conspiracy is utterly critical because the terrorism enhancement hanging over all the other Proud Boys charged with conspiracy goes through the stolen shield with which Pezzola broke a window in the first breach of the Capitol.

While I expect some consolidation among the Proud Boy cases in the near future, DOJ needs this prosecution to succeed because it gives them leverage over the other Proud Boys they’re using to get other conspirators to cooperate.

And Greene’s statement of offense does provide evidence that he and Pezzola and Pepe entered into an agreement to obstruct the vote count and took overt steps, in concert, to make that happen. It describes that Greene:

  • Made hotel reservations with his chapter of the Proud Boys and drove from Syracuse with them — including Pezzola — to DC.
  • Allowed Pepe, who showed up overnight, to sleep on his floor.
  • Programmed the Baofeng radios used by the Central New York Proud Boys (which also means Greene shared a channel with Pezzola and therefore heard what Pezzola was hearing).
  • Eschewed Proud Boys colors.
  • Traveled with Pezzola throughout the day, including through the first toppled barricade to a line of fences, away from there (in what researchers believe was a regrouping effort to wait for more numbers), then up the stairs.
  • Stayed at the same hotel as Pezzola and Pepe after the riot (as demonstrated by security footage from the hotel).

Tying the Front Door cell to the Leader conspiracy

As noted above, in the Proud Boys hierarchy, Greene was just a schlub, a first level Proud Boy just weeks into joining the organization.

But that makes him useful for showing that orders issued by Enrique Tarrio, Joe Biggs, and Ethan Nordean trickled down to him. The order not to wear Proud Boy colors, for example, is one Tarrio and Biggs issued publicly. Greene followed that order.

Similarly, around 9:30PM on January 5, the Leader co-conspirators agreed to set the meetup point on the side of the Washington Monument facing the White House at 10AM. This agreement is part of the proof they had entered into a conspiracy with each other.

The next day, Greene, this schlub from Syracuse, followed these instructions.

On the morning of January 6, 2021, Greene, along with Pezzola, Pepe, and the others he had traveled with from Syracuse, met up at the Washington Monument with members of the Proud Boys from across the country, as instructed by Proud Boys leadership. As also instructed by leadership, neither Greene, Pezzola, Pepe, nor any of the other individuals in their group wore the Proud Boys’ traditional colors of black and yellow.

Greene, Pezzola, and the others they traveled with from Syracuse, then followed the Proud Boys leadership in departing from the Washington Monument and marching on the National Mall towards the U.S. Capitol.

In other words, precisely because someone so low level was obviously following instructions developed in private by the Proud Boys’ top leadership, it ties the Syracuse cell with the Leadership cell in the same conspiracy.

And one remarkable moment of Greene’s testimony demonstrates this particularly well. His statement of offense describes that,

After Pezzola had stolen a riot shield belonging to the U.S. Capitol Police, Greene followed him away from the scene of the robbery, through the crowd, away from the Capitol, and to the back of the West Plaza. During this journey, Pezzola met up and traveled with at least two other individuals, one of whom jointly carried the riot shield with Pezzola.

It appears that Greene did not know — perhaps still does not know — who the person carrying the shield with Pezzola was. It was Charles Donohoe, one of the four people currently charged in the Leader Conspiracy.

This moment is like the Chekhov’s Riot Shield of the entire January 6, the moment where the crucial weapon (in this case, that would inflict the damage to the Capitol window that puts all the co-conspirators on the hook for terrorism enhancements) shows up early in the story as if foretelling where the story will (and in this case, did) go. Greene is a witness to this moment. But by witnessing it this way, with no idea of Donohoe’s seniority, Greene again demonstrates how the actions of low level Proud Boys tie directly up with its top leadership.

And Greene’s experience in DC tied to the most senior Proud Boy, Tarrio. His statement of offense notes that as Greene was setting the Baofeng’s, Pezzola told Greene that Tarrio would stop by to have his own radio programmed as well.

Pezzola told Greene that the National Chairman of the Proud Boys would stop by to have his radio programmed, but the National Chairman did not in fact stop by, nor did Greene program his radio.

This seems to prove that Pezzola was in touch, personally, with Tarrio on that confusing day as the Proud Boys attempted to regroup after Tarrio’s arrest, but not in such close touch that Pezzola knew immediately that Tarrio had moved to Baltimore after his release and stay-away order. It might suggest that Tarrio was on the Baofeng’s that day, in addition to participating in the Telegram chat. If DOJ can prove that, then it makes it a lot easier to charge Tarrio personally.

Describing the lead-up to January 6

As Greene’s statement of offense describes it, he only joined the Proud Boys after the December 12, 2020 MAGA March.

As of January 6, 2021, Greene was a first-degree member of the Central New York chapter of the Proud Boys. He had officially joined the group following a rally that took place in Washington D.C. in December 2020.

A detention filing for Pezzola suggests this was his first Proud Boy event as well.

[D]efendant’s only other “action” as a Proud Boy was that on December 12, 2020, he attended a “Make America Great Again” (MAGA) rally in support of then President Trump. There is no alleged criminal activity by defendant in relation to that event. This occurred shortly after defendant’s introduction to the Proud Boys. Upon information and belief, his only other activity as a Proud Boy was discussing politics over drinks at bars on occasion.

As Greene’s detention memo made clear, Greene met Pezzola in the early days of joining the group, possibly in DC.

The FBI also recovered a photograph of a group of Proud Boys, apparently taken inside a bar, which metadata indicates was taken in December 2020, that includes both Greene and Pezzola.

Greene’s statement of offense describes that he decided to attend January 6 in response to Trump’s call on December 19.

On December 19, 2021, when Greene saw then-President Donald Trump’s tweet referencing a “wild” protest to take place on January 6, 2021, he decided that he would attend the event, and he booked a hotel in Washington, D.C. for January 5-7, 2021.

On December 20, Greene ordered some AR-15 magazines that may cause legal trouble in NY (and was one of the key reasons why Greene was held in pre-trial detention). 

The FBI also located a camouflage tactical vest filled with eight detachable magazines for an AR-15 (Hr’g Ex. 2-4). Each of the eight magazines with loaded with 30 rounds of AR-15 ammunition. Although undersigned counsel does not practice law in the state of New York, I have been informed by a New York State Police officer, who is cross-designated to the FBI’s Joint Terrorism Task Force and participated in the search, that Greene’s possession of the AR-15 and the detachable magazines was illegal under New York state law

FBI’s review of the defendant’s Gmail account as contained on his personal phone that was seized in connection with the January 18 search warrant, revealed that the defendant placed the following orders, among others: (1) six AR-15 magazines, ordered on December 20

Over the following weeks, Greene planned with the other NY State Proud Boys (presumably including Pezzola and, given that this appears to have been state-wide, Pepe).

In advance of January 6, 2021, Greene coordinated with Pezzola and other members of the Proud Boys to make plans to come to Washington, D.C. for the events surrounding January 6. Greene used an encrypted messaging application and was part of planning channel among Proud Boy chapters from New York State whose members planned to come to Washington, D.C.

As this was happening, Pezzola appears to have deepened ties to the national organization. A government response to a Pezzola detention motion shows that Tarrio used an image of Pezzola — labeled “Lords of War” — to advertise for J6 and J20.

I have repeatedly noted that DOJ has remained coy about the role that the December MAGA March and the January 5 events had as crucial networking and planning events to prepare for January 6. But Greene was obviously part of that. Greene, in part because he shows how someone could join up and then play a role that intersected with top leaders of the group, encapsulates that process personally.

And, importantly, he shows how Trump and Tarrio were key motivators in that process.

As a cooperator, Matthew Greene won’t be able to tell prosecutors what top Proud Boys were planning. Nor will he be able to reveal how top Proud Boys networked with Trump’s associates and coordinated a plan for January 6. But he does offer proof that low level Proud Boys were in a conspiracy with the group’s top leadership. And his testimony will make it more likely that others will also cooperate.

On January 17, Greene called for the Proud Boys to stand together. His cooperation with prosecutors will make it more likely that others will “end up in the gulag,” together.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters

/128 Comments/in , , /by

In a post laying out what I called my “taxonomy” of the DOJ investigation of the January 6 crime scene, I noted that the next step in holding those who orchestrated January 6 responsible was to start holding the “organizer-inciters” responsible.

 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.

Though you might not know it from the coverage, DOJ has charged several people who played a key role in creating and mobilizing the mob that seized the Capitol. This is where, however, the obscurity of the investigation and First Amendment protections raise real questions about whether DOJ will be able to move up the chain of responsibility.

I’d like to look at the prospects of accountability at three nodes of organizer inciters:

  • Walkaway founder Brandon Straka
  • SoCal anti-maskers Russell Taylor and Alan Hostetter
  • Alex Jones, Owen Shroyer, and Ali Alexander

The import of January 5 in January 6

Before I do so, though, a word about January 5. Though the general outline of the January 6 attack kicked off in November 2020 and was fine-tuned in December (the MAGA events in both months were critical both as dry runs and for networking among participants), the final outline of plans took place in the days before the riot. There seems to have been an intra-militia meeting planned on January 3 in Quarrysville, Pennsylvania where groups, “[got] our comms on point with multiple other patriot groups.”

After Proud Boy Enrique Tarrio got arrested on January 4, the Proud Boys frantically tried to regroup. As late as 9PM on January 5, Joe Biggs and Ethan Nordean were meeting with some unnamed group, out of which came their plan for the 6th.

There were rallies organized for January 5 at which a number of leaders gave incendiary speeches. There’s some reason to believe that members of what I’ve called a “disorganized militia” conspiracy, Ronnie Sandlin, Nate DeGrave, and Josiah Colt, learned key details of the plan for the next day at that event, which allowed them to be tactically important in the breach. Other disorganized attendees, like Jenny Cudd, came away from those Janaury 5 speeches persuaded a revolution was inevitable.

On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”

As Robert Costa and Bob Woodward have described, Trump ratcheted up the pressure as the mobs formed the night of January 5 by falsely claiming that Mike Pence agreed he could ignore the true vote counts.

Yet, even in spite of the import of January 5 to what happened on January 6, DOJ has included remarkably few details about what January 6 defendants did that day.

The organizer-inciters called for revolution on January 5

The three organizer-inciters are a notable exception. As I noted in this post, DOJ focused on the January 5 speeches of Straka, Shroyer, and Taylor in their arrest affidavits. Straka’s described how he called for revolution on January 5.

STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

The SoCal 3%er conspiracy described how Russell Taylor called for violence.

[T]hese anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

And Owen Shroyer’s arrest affidavit described him calling for revolution, too.

Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!

But the treatment of these three organizer-inciters, both in their charges, and the development of their prosecution so far, has been very different.

Brandon Straka

Originally, Brandon Straka was charged with trespassing and 18 USC 231, civil disorder, for egging on rioters as they stripped a cop of his shield.

At around the 3:45 mark of the video, an officer from the United States Capitol Police holding a protective shield could be seen in the crowd. As individuals pushed past the officer toward the entrance of the U.S. Capitol, the officer held his shield up in the air. At around the 3:59 mark of the video, STRAKA stated, “Take it away from him.” STRAKA and others in the crowd then yelled, “Take the shield!”

As several people in the crowd grabbed the officer’s shield, STRAKA yelled, “Take it! Take it!” The crowd successfully pulled the shield away from the officer as the officer appeared to be trying to move back toward the entrance of the building.

After his early arrest, his case was continued without indictment several times, first in February, then in May, then in August, each time invoking fairly standard boilerplate about a plea. “The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.” In September, Straka was finally charged, with just the less serious of the two trespassing misdemeanors. After a tweak in October reflecting that he never entered the Capitol itself, he pled guilty on October 6. His statement of offense says only this about January 5:

Brandon Straka flew to Washington D.C. to speak at a rally protesting the election results on January 5 and January 6, 2021.

It focuses entirely on his role in egging on rioters at the Capitol.

This plea could be one of the ones in which someone cooperating was able to plead to a misdemeanor (the only confirmed one of which, so far, was Jacob Hiles, who cooperated in the prosecution of Michael Riley). After all, he could provide valuable information not just on the plans for January 5, but also explain what he learned about why the scheduled rally on January 6, at which he was also supposed to speak, got canceled. And in fact, he posted the kind of self-justification in advance of pleading that might reflect cooperation.

[O]n Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

“Hang on tight,” Straka wrote on the site, where he has asked for financial support and plugged a forthcoming “grand relaunch” of his campaign. “Let it come, and let it go. It means nothing. It’s just pointless noise. The best is yet to come. We’re almost there.”

But his plea agreement includes the boilerplate cooperation language that generally gets taken out when someone has already cooperated, which is one reason to believe his plea may just reflect good lawyering.

We may find out whether his plea included a cooperation component when we see the filings regarding his sentencing. He was originally supposed to be sentenced on Friday December 17, but that got bumped back (as many things are, these days) to December 22. His sentencing memos were due on December 15. But unless something happened with PACER overnight, they’re not there (PACER was particularly unreliable yesterday on account of the AWS outage, but the filings could also be sealed).

Update: The two sides have asked for 30 more days to make sense of some stuff that has recently come up.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final Pre- Sentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

The government is currently ordered to file its sentencing memorandum and any video evidence in support of its memorandum on December 17, 2021. The government respectfully requests that this deadline be extended based upon the reasons stated.

3%er SoCal Conspiracy

Calling the indictment against Alan Hostetter et al the “3%er SoCal conspiracy” is actually a misnomer, because it has more to do with how two men calling for violence helped organize Southern Californians largely mobilized around anti-mask politics.

The indictment provides evidence that some of the men charged–Erik Warner, Tony Martinez, Derek Kinnison, and possibly Ronald Mele– are 3%ers. Though the indictment shows Hostetter invoking the language of 3%ers in one place, he is the head of the American Phoenix anti-mask group and his anti-mask activism is one of the places Hostetter met Russell Taylor (the other is the QAnon conference in Arizona in October 2020). Hostetter and Taylor repurporsed a Telegram chat Hostetter was already using to sow violence to organize Southern Californians to travel to DC for the rally, then created a new one on January 1 called “The California Patriots-DC Brigade.”

Much of the conspiracy involves the planning of alleged conspirators for the trip, including discussions of how to bring weapons to DC.

Just one of these men, Warner, entered the Capitol; the rest skirmished around the West Terrace. Not all of the January 6 defendants whose arrest documents show them to be members of the California Patriots-DC Brigade Telegram chat are included as part of this conspiracy; Jeffrey Scott Brown and Ben Martin, who were each charged individually, are described to have been part of the chat, and it’s likely that Gina Bisignano and Danny Rodriguez and his co-conspirators were also part of that chat (among others). In addition, there’s a Person One described in the indictment, whom Hostetter has identified as big GOP donor Morton Irvine Smith, who wasn’t charged, though Irvine Smith’s actions appear distinguishable from Hostetter’s only in that he didn’t climb onto the West Terrace on January 6. So it’s not entirely clear why DOJ included the six people they did in this conspiracy.

As I laid out before, in addition to being charged individually with obstructing the vote count, the men were charged with conspiracy under the obstruction statute rather than the conspiracy statute, as most other January 6 conspiracies were charged (though a Patriot-3%er two person conspiracy unsealed the other day uses 1512(k) as well). Taylor was charged for civil disorder for an interaction with cops and his trespassing charges were enhanced because he was armed with a knife. Warner and Kinnison are separately charged for efforts to hide the Telegram chat.

In other words, this conspiracy ties together two guys publicly calling for violence with members of a militia who discussed arming themselves.

Hostetter says he wants no part of it, though. After getting permission to represent himself in October, earlier this month the former cop filed a motion to dismiss the entire indictment because of alleged government misconduct. The entire thing is the kind of batshit conspiracy theory you’d expect from Tucker Carlson or Glenn Greenwald, spinning what appears to have been inappropriate coddling of him by an Orange County Sheriff’s Sergeant into an FBI plot (that started in spring 2020) to get him, involving Yale’s Secret Society Skull and Bones, the Freemasons, Scientologists, Mormons, and a talented artist named Bandit who likes to mock him. (Read this thread if you want to laugh along.) In the wild yarn Hostetter spins, he argues both Irvine Smith and Taylor must be FBI informants and therefore he can’t be held accountable for any of the actions they induced him to take.

He asks to be severed from the other defendants and/or have his case thrown out because, he claims, he “has never knowingly met, nor has he ever knowingly communicated with, four of the co-defendants,” the 3%ers, and according to his feverish conspiracy theory, Taylor is an FBI informant who set him up (Taylor is Mormon, which is where that part of Hostetter’s conspiracy theory stems from). In a filing asserting as fact that, “the election of 2020 was actually stolen from a duly elected President whom was elected in one of the biggest landslide victories in the history of our country,” Hostetter complains that his actions to prevent the vote count of the actual winner do not amount to a crime.

On January 6, 2021 defendant did not commit one act of violence. Defendant did not commit one act of vandalism. Defendant never entered the U.S. Capitol Building. Defendant never conspired with anyone to do anything illegal, immoral or unethical. The government has not provided anything, that defendant has yet seen in discovery, that contradicts these claims by defendant. Yet, defendant is charged with federal felonies that could result in his imprisonment for up to twenty years.

Particularly given the scope of Dabney Friedrich’s ruling on the application of obstruction, with its caveats regarding whether legal activities can be deemed part of an effort to obstruct the vote count, Hostetter’s claims may have some success (Royce Lamberth is presiding over the case).

His motion to dismiss doesn’t, however, mention a number of overt acts described in the conspiracy to obstruct the vote count:

  • His participation in the November 14, 2020 MAGA event in DC
  • His own November 27, 2020 call to execute “traitors”
  • A December 12, 2020 Stop the Steal rally in Huntington Beach
  • His own calls for people to travel to DC starting on December 19, 2020

Rather than addressing most of the overt acts alleged against him, Hostetter provides what appear to be cover stories for two key December 2020 events in this timeline.

After Taylor and Hostetter spoke at an Orange County event on December 15, they met with Irvine Smith the next day, and Taylor gave both axes.

On December 15, 2020, defendant and co-defendant Russell Taylor both spoke at an Orange County Board of Supervisor’s Meeting. This was only three weeks prior to January 6th. As usual at the Board Meeting, the topics to be discussed related to Orange County issues to include Covid-19 related issues, which is what we typically spoke out about. For some reason, while Taylor was speaking during this particular board meeting, he made the following comment to the Board which was completely unrelated to any of the topics on the agenda: “Week after week, I and others are with thousands in the street all up and down the state of California. You know what they are saying? Revolution. Storm the Capitol.”

[snip]

On December 16th, the day following Taylor’s comments to the Orange County Board of Supervisors, co-defendant Russell Taylor met defendant and “Person One” Morton Irvine Smith at a Mexican restaurant in San Clemente, CA called “El Ranchito.” Taylor was the organizer of this meeting and had requested, planned and organized it a few days prior. While at the restaurant, Taylor told defendant and Irvine Smith that he had purchased gifts for them. Taylor reached under the table and pulled out two boxes and gave them to defendant and Irvine Smith.

Inside these boxes were the axes that have been referred to in the indictment as proof of defendant’s nefarious intent to attack the Capitol using the axe as a weapon of some sort. Until receiving this “gift,” defendant had never personally owned an axe in his life. As he gifted it to us, Taylor described the axe metaphorically as a “battle axe” representing the battles we had already fought in support of freedom and the many battles yet to come.

Upon leaving the restaurant, either (informant) Taylor or (informant) Irvine Smith requested one of the restaurant employees take our photograph in front of the restaurant holding the axes. Defendant liked the photograph and thought it looked quite masculine and “tough” so he posted the photograph to Instagram with a somewhat provocative comment attached to the photograph. Defendant’s comment was, “The time has come when good people may have to act badly, but not wrongly.” Defendant continued in this post with, “Thank you @russ.taylor for the gift of the #thebattleaxe representing the many battles yet to come.”

Defendant had read this quote about good people possibly having to act “badly but not wrongly” in a meme very close in time to when Taylor gifted the axe to him. Defendant had no thought whatsoever about January 6 or the U.S. Capitol when creating this Instagram post. Defendant had been making public speeches regarding the fact that the U.S. was and had been “at war” with the Chinese Communist Party and domestic enemies for approximately 8 months prior to receiving this axe from Russell Taylor

Hostetter posted the photo not as a call for war, he claims, but because it made him look manly. And his caption to the photograph wasn’t a prospective call to war on January 6 in response to Taylor’s call for revolution, but to the prior 8 months of political unrest.

Particularly given Hostetter’s description of the December 16 meeting, which he helpfully tells us was actually planned, “a few days prior” (and so possibly the same day that Irvine Smith, but not Hostetter, returned from the DC MAGA March), I find the description Hostetter gives for his involvement in the January 5 event of interest. He learned of it from Irvine Smith at around the same time as that same December 16 meeting at El Ranchito and before — the indictment alleges but Hostetter ignores — he started recruiting people to attend the event.

January 5, 2021: Defendant’s non-profit organization, American Phoenix Project (APP), cohosted a rally with a group called Virgina Women for Trump. The VWT group was headed by Alice Butler-Short, a well-known and well-connected woman in the DC area.

This event, and APP’s ability to co-host it was brought to defendant’s attention in mid-December after informant Morton Irvine Smith returned to California after attending the December 12, 2020 Stop the Steal rally in Washington DC. Defendant did not attend this event. Irvine Smith claimed to have met Ms. Butler-Short for the first time at this 12/12/2020 event and the two of them agreed to APP becoming involved in co-hosting the event together.

Irvine Smith arranged for defendant to participate in a conference call with Ms. Butler-Short and two members of another group identified as Jericho March as they were a nationally known group also supporting election integrity. Once this conference call was completed, defendant told Irvine Smith that he was not interested in having American Phoenix Project co-host the event as it was too far away from California to be able to properly assist in putting it together and defendant had also gotten a bad vibe / feeling from some of the other participants in the conference call.

Irvine Smith was highly disappointed and notified defendant that he, Irvine Smith, would then just continue to help Butler-Short on his own time as they had developed a good relationship and he wanted to be personally helpful to her. Within a week or two, Irvine Smith notified defendant that Butler-Short had lined up some very big-name and popular conservative speakers for the event to include Roger Stone, Alex Jones, General Michael Flynn’s brother Joe Flynn, among several others. Irvine Smith notified defendant that ButlerShort was continuing to hold out the invitation for APP to co-host this event with her group, to include flying the APP banner at the event. Irvine Smith told defendant the only thing Butler-Short requested of APP was to help her with finding security staff to cordon off an area in front of the Supreme Court because it was a “first come, first served” policy as far as finding a location to set up a stage and microphone.

[snip]

After hearing from Irvine Smith about the high-quality speakers involved and the relative ease with which APP could co-host such a high-profile event, defendant agreed to co-host the event under the APP banner. Were it not for the individual efforts of Morton Irvine Smith, neither defendant nor APP would have been involved with this event at all.

Irvine Smith’s role in getting him this gig certainly raises more questions about why he wasn’t charged, but it doesn’t change Hostetter’s own exposure.

Hostetter adds to the questions about Irvine Smith’s treatment by revealing that Irvine Smith was not searched until the day before this indictment (Hostetter also makes much of what appears to be FBI’s choice to image Irvine Smith’s devices rather than seizing them).

On 1/27/2021 when Taylor and defendant had search warrants served on them, Irvine Smith did not. It wasn’t until nearly five months later, on June 9, 2021 that Irvine Smith finally had a search warrant served on him. This was one day before defendant’s indictment was unsealed. The timing of Irvine Smith’s “raid” is transparently obvious and laughable. It was intended to “clean him up” as an informant.

Hostetter’s questions about Irvine Smith, who funded much of his actions, are as justified as questions from the Oath Keepers about Stewart Rhodes not being charged yet. But I expect this crazypants motion to be dismissed and the conspiracy prosecution to continue to hang on whether all six members of the conspiracy entered into an agreement to help stop the vote count on January 6.

But Hostetter’s motion does suggest that the conspiracy indictment uses the involvement of the 3%ers as a way to raise the stakes of both Hostetter and Taylor’s own public calls for violence. That is, DOJ seems to have charged these organizer-inciters (but not the guy funding it all, yet) by exploiting their ties to an organized militia.

Alex Jones, Owen Shroyer, and Ali Alexander

The way that DOJ appears to have used militia ties to charge organizer-inciters Alan Hostetter and Russell Taylor makes their treatment of far more important organizer-inciters, Alex Jones, Owen Shroyer, and Ali Alexander, more interesting.

Ignore for a moment Ali Alexander’s crucial role in setting up explicitly violent protests.

It is a fact that the guy leading the coup, Donald Trump, asked Alex Jones (personally, as Jones tells it) to lead the mobs Trump had incited at the Ellipse down the Mall to the Capitol. As Jones was doing this, his former employee, Joe Biggs, was kicking off the entire riot. It is also a fact that Jones lured rioters like Stacie Getsinger to the East side of the building, to where Biggs and the Oath Keepers were also gathering, by promising a second speech from Trump.

There’s reason to believe that Jones and Biggs remained in contact that day, evidence of which DOJ would presumably have from Biggs’ phone, if not his phone provider (based on whether the contact was via telephony or messaging app). If it was the latter, getting it may have taken a while. While DOJ obtained Ethan Nordean’s phone when they searched his house (because his spouse provided the FBI the password), and obtained the content of Biggs’ Google account quickly (which included some videos shared with his co-travellers), it may have taken until July 14 to exploit Biggs’ phone (this Cellebrite report must pertain to Biggs because it is not designated Highly Sensitive to him). While the content of any calls Biggs had with his former boss would not be captured, some of it is also likely available from videos shot of him. If his co-travellers wanted a cooperation deal they might be able to provide Biggs’ side of any contacts with Jones too, though several of Biggs’ co-travelers are represented by John Pierce, who may be serving as a kind of firewall for Biggs or even Enrique Tarrio.

Nevertheless, if DOJ has in its possession evidence that one of the guys accused of masterminding the plan to breach the Capitol from two sides was in contact during that process with Jones, who lured unwitting rioters to the second breach by lying to them, then DOJ would appear to have far more evidence tying Jones to militia violence than they used to charge Hostetter in a conspiracy with 3%ers. And Jones got just as far inside the restricted area of the Capitol — to the top of the steps on the East side — as Hostetter did.

Of course, two things have made it harder to charge Jones: he is a media figure, one who very quickly disseminated a cover story claiming his intent for joining the Proud Boys and Oath Keepers at the site of the second breach was to de-escalate the situation, not to escalate it.

DOJ has been chipping away at both those defenses. It already arrested two of Jones’ employees, videographer Sam Montoya and on-air personality Owen Shroyer.

DOJ arrested Montoya for trespassing on April 13 and charged him with misdemeanors on April 30. The arrest warrant cited a number of things Montoya said that were captured on his own footage making it clear he viewed himself as part of the mob.

We’re gonna crawl, we’re gonna climb. We’re gonna do whatever it takes, we’re gonna do whatever it takes to MAGA. Here we go, y’all. Here we go, y’all. Look at this, look at this. I don’t even know what’s going on right now. I don’t wanna get shot, I’ll be honest, but I don’t wanna lose my country. And that’s more important to me than—than getting shot.

And DOJ noted that Montoya had no press credentials for Congress (a really shitty distinction for an event where legitimate journalists chased mobsters inside).

At times during the video, Montoya describes himself to others inside the Capitol Building as a “reporter” or “journalist” as he attempts to get through crowds. The director of the Congressional press galleries within the Senate Press office did a name check on Samuel Christopher Montoya and confirmed that no one by that name has Congressional press credentials as an individual or via any other organizations.

Montoya’s case has been continued on his own initiative since then. Given the discovery notices he has gotten — from AUSA Candice Wong — he had been treated as part of the mob most closely involved in the scene at Ashli Babbitt’s shooting. On December 10, Montoya got discovery from the Statutory Hall Connector that other defendants in that group did not get, and a different prosecutor, Alexis Loeb, took over his case. Loeb’s January 6 caseload is eclectic, but in October she started taking over the case of Proud Boys Joshua Pruitt, and Nicholas Ochs and Nicholas DeCarlo, and she has always been in charge of the prosecution of the pair that played a key role in opening the East doors from the inside, George Tenney and Darrell Youngers.

In August, Shroyer was arrested. His arrest was opportunistic, relying on the fact that he had a still-unsatisfied Deferred Prosecution Agreement arising from his attempts to disrupt Trump’s first impeachment making his loud presence inside the restricted are of the Capitol uniquely illegal. He filed a motion to dismiss his case, which was basically the cover story about de-escalation that Jones offered up immediately after the riot and Ali Alexander prepared to deliver to Congress last week. In a filing debunking that cover story, the government noted that calling for revolution — as Shroyer and Jones did from the top of the East steps — does not amount to de-escalation.

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Shroyer let the due date to reply to this debunking, November 22, pass without filing anything. A status conference that had originally been scheduled for Tuesday, December 14 has been rescheduled for Monday December 20.

As I said in my taxonomy post, the government seems to be very close to being able to demonstrate how that the breach of the second front worked, an effort on which the Proud Boys, Oath Keepers, and Alex Jones seemed to coordinate.

Doing so will be very important in demonstrating how the militia conspiracies worked. But if DOJ finds a way to charge Alex Jones for his role as the Pied Piper of insurrection, the organizer-inciter who provided the bodies needed to fill that second breach, it would bring the January 6 investigation up to an order issued directly by the former President.

The investigation of three InfoWars figures — Montoya, Shroyer, and Jones — who all have legitimate claims to be media figures happens even as DC judges are getting more insistent that DOJ adhere to Merrick Garland’s own media guidelines. In November, for example, Chief Judge Beryl Howell required prosecutors to acknowledge the media guidelines if they sought orders and warrants targeting news media.

Of course, Alexander has no such press protection, and his decision to go mouth off to Congress for seven hours last week may prove as self-destructive as the similar decision by his mentor, Roger Stone, four years ago.

The government seems to have a pretty good case about how the multi-front breach of the Capitol worked. The question is whether First Amendment protections will shield those who made that breach possible from prosecution.

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

/70 Comments/in , , /by

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.

Release the Kraken!! Two Degrees of Donald Trump at the East Doors

/54 Comments/in , , /by

It was probably happenstance that Jimmy Haffner, who was arrested the other day for assaulting the cops guarding the East door of the Capitol on January 6, met “Sidney FRICKIN’ Powell” while she was on a bus tour spreading the Big Lie. The FBI included a picture of him apparently pictured with Powell (her face is redacted because she has not been arrested) purportedly to add validation for their identification of him.

The rest of his networking, however, seems absolutely central to the evidence the government is collecting to explain how the Proud Boys, the Oath Keepers, and a mob led by Alex Jones all converged on the East steps of the Capitol just before it was breached, with the involvement of a number of Marines.

As the FBI explains, Haffner and his buddy Ron Loehrke — who lived in Washington State on January 6 but both of whom have moved since — were recruited to go to DC by then head of the Proud Boys in the Northwest, Ethan Nordean. On December 27, the complaint explains, Nordean texted Loehrke saying he wanted him “on the front line” with him. In response, Loehrke told Nordean he was bringing three “bad mother fuckers” with him.

Loehrke and Haffner’s phones were in contact 106 times between December 19 and January 7. Sometime on January 5, Nordean’s phone called Loehrke’s.

On the morning of January 6, Loehrke showed up at the Washington Monument, where Telegram chats sent the day before said the Proud Boys were meeting up. He and Haffner marched with Nordean and others towards the Capitol (though Haffner was pretty disciplined in keep his face hidden). Loehrke helped people over the initial barricades and waved people forward. He later encouraged rioters: “Don’t back down, patriots! The whole fucking world is watching. Stand the fuck up today!”

Both Loehrke and Haffner then moved to the East side of the Capitol, where Joe Biggs, the Oath Keepers, and Alex Jones would also go. The two men helped dismantle the barricades that enabled a mob to crowd the stairs in advance of the East doors being opened. “Let’s go! Get in there!” Loehrke exhorted.

The government alleges that Haffner sprayed the officers guarding the East doors with some kind of aerosol, which played a key role, they suggest, in the cops losing control of that entrance. Minutes later, the rioters breached the Capitol.

The arrest affidavit doesn’t say it, but Joe Biggs and the Oath Keepers were in the immediate vicinity as this happened; Alex Jones had been or was just yards away riling up the crowd he had lured there by falsely claiming that Trump would speak there, chanting “1776!” with his blowhorn.

The affidavit explains that Loehrke went to Merkley’s office once he breached the Capitol; it doesn’t say whether he met with Zach Rehl there.

There are lots of other details the FBI doesn’t provide either: the time on January 5 when Nordean called Loehrke, the hotel in downtown DC that Haffner checked into on January 5, the hotel at which Loehrke’s tattooed hand was videoed outside. It doesn’t reveal whether Haffner or Loehrke were at a meeting on January 5 that Nordean and Biggs — but not their alleged Proud Boy co-defendants — attended.

Even without those details, however, the arrest affidavit strongly suggests that guys Nordean personally recruited to attend the January 6 riot not only knew to converge on the East doors at the same time that Biggs, the Oath Keepers, and Jones were also doing so, but played a key role in successfully breaching that door.

Update: Here’s a video of Loehrke’s activities that day (look for his maroon hood) put together by online researchers. They also note he’s a Marine, just like many of the other key figures behind the breach of the East doors.

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

/124 Comments/in , , /by

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

/48 Comments/in , /by

In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.

FBI Searches the Home of the Guy Who Said, “I want to see thousands of normies burn that city to ash” on January 6

/99 Comments/in , , /by

I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021

According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.

As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”1

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

[snip]

47. UCC-1 the At 9:09 p.m., broadcast a message to New MOSD and Boots Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

UCC-1 also warned the others not to write their criminal plans in Telegram texts.

Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”

2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.

The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.

DONOHOE: Are you here?

…

UCC-1: No I started a new job, don’t want to fuck it up yet

DONOHOE: Well fuck man

UCC-1: There will be plenty more I’m sure lol

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors

Person-2 Fuck it let them loose

Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic

A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” UCC-1 immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.

The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.

In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”

A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.

Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.

Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.

“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”

Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”

In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.

The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.

[snip]

The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.

But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.

Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.

Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.

On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.

[snip]

In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.

The FBI took all of his computer and computer devices and phones, including an old broken phone.

However, Whallon-Wollkind was not arrested or charged.

[snip]

They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.

Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.

The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.

The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).

[snip]

The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:

a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.

* * *

d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.

* * *

f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.

* * *

h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….

Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.

Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.

It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.

Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.

Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.

Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.

Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.

If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.

Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.

Puzzling Developments in the January 6 Investigation

/91 Comments/in , , /by

As I sometimes do, I’d like to look at some curious developments in a series of January 6 cases.

Adam Honeycutt’s trips to DC

If you read just his arrest affidavit, former bail bondsman Adam Honeycutt is a guy who made the grave mistake of posting a picture of himself holding a broken furniture leg to Facebook during the January 6 riot.

Honeycutt was arrested on misdemeanor trespass charges on February 11, but since then his DC case has been continued, with no indictment, until — with the most recent continuation at a status hearing on Tuesday — January 4, almost a year after the riot.

If you look more closely, however, things get more confusing. As several earlier requests for continuances reveal, Honeycutt made the still graver mistake of having guns and non-legal marijuana in his home when the FBI came to arrest him on his January 6 charges, and then chatting about it as he was being driven to the FBI office.

During the transport, HONEYCUTT made a number of unsolicited statements to TFO Rohermel and SA Grover related to his use of marihuana. HONEYCUTT stated that all of the drugs and guns in the house belonged to him, that he knew it looked bad ot have guns layout out in the open in his residence, that he had a large quantity of ammunition of various calibers in the residence, some of which was for firearms he did not currently possess. HONEYCUTT also stated that it was lucky that agents had executed the warrants that day, because his marihuana supply was almost gone, and if the agents had executed the warrants the following day he would have had more because Fridays are his day for resupplying marihuana. HONEYCUTT stated that there were only a few “roaches” left in the garage, referring to burned marihuana cigarette butts. HONEYCUTT stated that he had been smoking marihuana since he was twelve years old and smokes daily. HONEYCUTT expressed to the agents that he was upset he was out of marihuana and there would not be any for him when he got home.

Honeycutt was as a result also charged under a bullshit draconian war on drugs law that carries a ten year maximum sentence, meaning what otherwise might have been a simple trespassing plea turned into (thus far) 8 months of detention on the Florida Federal charge. Honeycutt pled guilty to that charge in June, but is still awaiting sentencing, which is scheduled for next week.

And there’s a curious detail in his sentencing memo on that charge. He reveals that somewhere along the line, he got transferred to DC, even though by March he was formally released from custody on the DC charge.

Mr. Honeycutt has been in custody continuously since February 24, 2021 and has had the additional hardship of prolonged transports from McClenny to Washington, DC in during the pandemic. While in transit, Mr. Honeycutt was assaulted by another inmate while using the phone at the Grady County Jail in Oklahoma. The inmate struck him on the back of the head causing Mr. Honeycutt to hit his head on the ground and suffer dizziness and a black eye. While he suspected he may have had a concussion, this has never been confirmed medically. Also, while detained at the Baker County Jail, Mr. Honeycutt tested positive for Covid-19 and was placed on restrictive quarantine for 14 days while he recovered.

None of that shows up in his docket, though it may simply reflect a remarkably quick transfer after his initial arrest (and Honeycutt would not be the only January 6 defendant who got in a beat up at the Oklahoma transfer jail).

I don’t condone any of this, least of all the war on drugs treatment of marijuana possession. But it’s the kind of stuff that prosecutors use to coerce cooperation elsewhere. And while it’s not at all clear what went on with Honeycutt, his case will still be pending next year on the anniversary of the riot.

Lonnie Coffman’s Alabama Molotovs

Something similar may be going on with Lonnie Coffman’s Molotov cocktails.

Coffman, you’ll recall, is the guy who was dropped off blocks away from the Capitol on January 6, trying to pick up his GMC pick-up full of Molotov cocktails.

After addressing the explosive devices found in the vicinity of the National Republican Club and the Democratic National Committee Headquarters, the Bomb Squad responded to the location of the Red GMC Sierra Pickup truck. One black handgun was recovered from the right front passenger seat of the vehicle. After locating the black handgun, officers proceeded to search the rest of the pickup truck, including the bed of the truck, which was secured under a fabric top. During the search of the cab of the truck, officers recovered, among other things, one M4 Carbine assault rifle along with rifle magazines loaded with ammunition.

In addition, officers recovered the following items in the bed of the pickup truck in close proximity to one another: (i) eleven mason jars containing an unknown liquid with a golf tee in the top of each jar, (ii) cloth rags, and (iii) lighters. Upon finding these materials, bomb technicians observed that the items appeared to be consistent with components for an explosive or incendiary device known as a “Molotov Cocktail.” Based on this discovery, additional personnel were called to the scene, including the United States Capitol Police Hazardous Materials Team. A preliminary test by the United States Capitol Police Hazardous Material Team determined that the liquid in the mason jars was an igniting substance and that it had a spectrograph profile consistent with gasoline.

[snip]

At approximately 6:30 p.m., a blue sedan with a female driver and a male front passenger, approached law enforcement officers in the 400 block of First Street, Southeast. Officers made contact with the vehicle, and the male passenger stated that he was trying to get to his vehicle that was parked in the 300 block of First Street, Southeast, which is the location that the Red GMC Sierra 1500 pickup truck had been located and searched. When the officers asked the man to provide a description of the vehicle, the male passenger stated that it was a red pickup truck. The officers then asked what the male passenger’s name was, and he stated that his name was “Lonnie.”

Coffman also has been detained (more justifiably than Honeycutt) since he was arrested. For much of that time, he has been working on a plea agreement, and on September 1, his lawyer reported they were close to one. On September 8, AUSA Michael Friedman said they would be ready for a plea by September 29.

But one day before that happened, the plea hearing was inexplicably vacated until October 26.

Unnoticed until yesterday, it turns out that on September 27 (that is, the day before his plea hearing was vacated), Coffman was charged in Alabama for possessing those Molotov cocktails the week before he drove them to DC. With Coffman’s consent, that case got transferred to DC in an entirely different docket than his January 6 one.

As with Honeycutt, it’s entirely unclear how his Alabama Federal charges are intersecting with his DC ones. Perhaps Coffman got cold feet on his plea last month, so DOJ added the Alabama charges to convince him to plead. But its another reminder that not every part of the January 6 investigation will be visible in the DC docket.

Brandon Straka gets to walk away

Meanwhile, a case that never left the DC docket, that of Brandon Straka, is just as curious.

Straka was first arrested on January 25 on civil disorder, as well as trespass, charges. Since that time, AUSA April Russo has gotten a series of continuances (February, May, August), each one citing efforts to resolve the matter, which is usually code for a plea agreement. A week after the last continuance, DOJ made a plea offer that had to be accepted by September 14. The day after the plea agreement would have expired, Straka was ultimately charged with the less serious of the two trespass charges, and after a tweak, that’s what he pled guilty to on Wednesday.

Straka’s Statement of Offense includes (and Russo made a point of entering it into the record) the incitement of attacks on cops that originally got him charged for civil disorder.

While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling “go, go, go” to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer’s shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying “take it, take it.” He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.

But the Statement of Offense doesn’t include any description of his speech from January 5, where he spoke about “revolution.”

My review of STRAKA’s Twitter account on January 11, also found a video he had posted of himself speaking at a “Stop the Steal” rally held at Freedom Plaza in Washington, D.C. on January 5, 2021. As of January 13, STRAKA had removed this video from his Twitter account, but a video of the entire event had been posted to YouTube. The video showed that STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

Nor does his Statement of Offense include this language from Straka’s arrest affidavit describing a video in which he admitted that, “The plan was always to go to the Capitol.”

About one minute into the video, STRAKA stated, “I literally just got home…minutes ago from Washington, D.C.” Later in the video, STRAKA stated, “Yesterday, a lot of us got up very, very early. We went to this event in which Donald Trump spoke. The plan was always to go to the Capitol. We were going to march from that event…to the Capitol, and there was going to be another rally. I was one of the speakers slated to speak at the Capitol.” STRAKA later stated that, while riding the metro to the Capitol, he received alerts on his phone stating that Vice President Pence was “not going to object to certifying Joe Biden.” STRAKA stated that he learned on his walk from the metro to the Capitol that people had “breached” the Capitol and that “patriots had entered the Capitol.” STRAKA said that he thought to himself, “Wow, so they’re going to basically storm and try to get into the chamber so that they can demand that we get the investigation that we want.”

Not only was Straka permitted to a plea that may help him avoid all jail time, but DOJ assented to letting him rush the sentencing so he could be done by Christmas, coincidentally on the same day all the status reports for Oath Keeper cooperators are next due.

Baked Alaska — someone as wired into the organizers of this riot as Straka — claimed early on that prosecutors were threatening to charge him with obstruction if he didn’t cooperate.

This plea looks like it could be the flip (heh) side of such an offer, someone who worked his way out of an existing felony charge and any further exposure on obstruction. That said, his plea includes the standard boilerplate language about minimal cooperation (basically, requiring the defendant share the contents of his phone).

If this does reflect cooperation, then it suggests a number of other people exposed to felony prosecution may similarly be cooperating under the guise of misdemeanor plea agreements.

Ryan Samsel’s aborted cooperation

For about the first four months after Ryan Samsel kicked off the entire riot on January 6 by allegedly knocking over a cop, it looked like he might be considering a cooperation agreement. The same prosecutor who filed continuances in Straka’s case, April Russo, was filing continuances in his case (March, May), also citing efforts to resolve the case.

But on March 21, Samsel was brutally assaulted in jail; his attorney claimed at the time that a guard did it, though that has never been officially confirmed. Samsel’s assault set off a feeding frenzy as one after another attorney — first Martin Tankleff, then John Pierce (whose clients include a significant bunch who could incriminate Joe Biggs), and now Stanley Woodward and former Trump vote fraudster Juli Haller — tried to capitalize off a client who might have basis for a big lawsuit against DOJ (Elisabeth Pasqualini did very competent work as Samsel’s first attorney before all this started). The events that transpired after that assault seems to have ended up changing prosecutors’ approach with his case, and in June, DOJ added another prosecutor, Danielle Rosborough, and in August, DOJ finally indicted Samsel on two counts of civil disorder, two counts of assault, obstruction, and trespassing. (Russo remains the sole prosecutor on the case against the woman who was (and may still be) Samsel’s girlfriend on the day of the riot, Raechel Genco.)

All that’s important background to a big scoop from NYT’s Alan Feuer, describing that, when Samsel was originally arrested, he told the FBI that he kicked off that assault after a threat from Joe Biggs.

For months, however, according to three people familiar with the matter, the government has known Mr. Samsel’s account of the exchange: He has told investigators that Mr. Biggs encouraged him to push at the barricades and that when he hesitated, the Proud Boys leader flashed a gun, questioned his manhood and repeated his demand to move upfront and challenge the police.

Mr. Samsel’s version of events was provided to the government in late January, when he was interviewed by the F.B.I., without a lawyer present, shortly after his arrest in Pennsylvania, according to the people familiar with the matter. He has since been charged with several crimes, including assaulting an officer and obstructing Congress’s efforts to certify the election results.

[snip]

[I]f Mr. Samsel’s account is true, it could serve to bolster arguments that some Proud Boys leaders intentionally incited ordinary people in the crowd — or what they refer to as “normies” — to commit violence during the attack. The government has offered other evidence, drawn from the group’s internal messaging chats, that two Proud Boys leaders from Philadelphia were excited by the prospect of “riling up the normies” on Jan. 6.

As Feuer notes, Biggs’ lawyer Daniel Hull categorically denies this claim. As he also notes, there has been no hint of a weapons charge against Biggs. So it’s quite possible that this allegation was entirely made up out of thin air–or exaggerated in a bid for lenient treatment for Samsel’s own central role in the riot.

But there’s also no sign that DOJ is charging Samsel with lying about these claims.

That is, from the public filings, we can’t discern whether Samsel’s allegation is true or not.

That said, if it’s true, it might explain both the apparent attempt to woo Samsel’s cooperation, but also the urgency surrounding efforts to make sure he doesn’t do so.

The government has flamboyantly obtained cooperation from five different Oath Keepers. But precisely what the government is doing in a slew of other cases remains obscure.

Update: There were three people involved in the assault on the first barricade: Samsel, Paul Johnson, and Stephen Chase Randolph. The latter two are charged together, though Johnson is moving to sever his case from Randolph’s. Here’s the government opposition. Never addressed in it are why Samsel is not only not charged with them, but is before an entirely different judge, who just happens to be the Proud Boy judge.