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Just for Perspective: Investigations Take Longer When Presidents Don’t Wiretap Themselves

March 19, 2023/31 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

A few weeks ago, Peter Baker marked the day that the January 6 investigation has taken as long as the time between the burglary to Nixon’s resignation.

I reacted poorly to Baker’s claim to offer perspective; even on past presidential investigations, he has been overly credulous. And there’s really no comparison between Watergate and January 6, particularly if one compares — as Baker does — time-to-resignation under a still-sane Republican party with time-to-indictment in the MAGAt era. The comparison offers no perspective.

But I thought I’d take Baker up on the challenge, because the Watergate investigation offers a worthwhile way to demonstrate several of the reasons why the January 6 investigation is so much harder. (I plan to make running updates of this post because I expect feedback, particularly from people who know the Watergate investigation better than me, will help me fine tune this explanation.)

Same day arrests

In Watergate, the burglars were arrested in the act of breaking into the DNC headquarters.

On January 6, the cops tried to (and in a relative handful of cases, did) arrest people onsite. But this is the challenge they faced when they tried: Every attempted arrest required multiple officers to focus on one individual rather than the mob of thousands poised to invade the Capitol; every arrest was a diversion from the effort to defend the Capitol, Mike Pence, and members of Congress, with a woefully inadequate force.

In the case pictured above, the cops made a tactical decision to let Garret Miller go. After assuring the cops he only wanted to go home, just 33 minutes later, Miller burst through the East door with the rest of the mob.

There wasn’t a great delay in arrests of January 6 rioters, though. Nicholas Ochs, the first Proud Boy arrested, was arrested on January 7 when his flight home from DC landed in Hawaii.

Q-Shaman Jacob Chansley was arrested on January 8. The first person who would be convicted of a felony by a jury, Guy Reffitt, was arrested on January 15 (his son had tipped the FBI about him before the attack). The first person known to later enter into a cooperation agreement, Jon Schaffer, was arrested on January 17. Miller, pictured above, was rearrested January 20. VIP Stop the Steal associates Brandon Straka and Anthime “Baked Alaska” Gionet — the former of whom did provide and the latter of whom likely provided useful information on organizers to earn misdeamenor pleas — were arrested on January 25 and January 17, respectively. Joe Biggs — now on trial for sedition and an utterly critical pivot between the crime scene and those who coordinated with Trump — was arrested January 20, the same day that Joe Biden would, under tight security, be sworn in as President, the same day Steve Bannon’s last minute pardon was announced.

Kelly Meggs, the Oath keeper who facilitated cooperation among three militias who was convicted with Stewart Rhodes of sedition last November, was arrested on an already growing conspiracy indictment on February 19.

In the first month then, DOJ had already taken steps in an investigation implicating those who worked with Trump. The table below includes the arrests of some of the witnesses who will have an impact on an eventual Trump prosecution. There are others that I suspect are really important, but their role is not yet public.

Trial delays

The Watergate burglars didn’t go to trial right away. They were first indicted on September 15, 1972, 90 days after their arrest. Those who didn’t plead out went on trial January 8, 1973, 205 days after their arrest. Steps that John Sirica took during that trial — most notably, refusing to let the burglars take the fall and reading James McCord’s confession publicly — led directly to the possibility of further investigation. Nixon wouldn’t even commit his key crimes for over two months, in March.

That’s an important reminder, though: the Watergate investigation would have gone nowhere without that trial. That’s unsurprising. That’s how complex investigations in the US work.

Many people don’t understand, though, that there were two major delays before anyone could be brought to trial for January 6. First, COVID protocols had created a backlog of trials for people who were already in pretrial detention and for about 18 months, would limit the number of juries that could be seated. Efforts to keep grand jury members safe created similar backlogs, sometimes for months. In one conspiracy case I followed, prosecutors were ready to supersede several defendants into a conspiracy in April 2021, but did not get grand jury time to do so until September.

To make that bottleneck far, far worse, the nature of the attack and the sheer volume of media evidence about the event led DOJ to decide — in an effort to avoid missing exculpatory evidence that would undermine prosecutions — to make “global production” to all defendants. That required entering into several contracts, finding ways to package up media that started out in a range of different formats, getting special protective orders so one defendant wouldn’t expose personal details of another (though one defendant is or was under investigation for doing just that), then working with the public defenders’ office to effectively create a mirror of this system so prosecutors would have no access to defense filings. It was an incredibly complex process necessitated by the thing — the sheer amount of evidence from the crime scene — that has made it possible to prosecute so many of the crime scene culprits.

Here’s one of the memos DOJ issued to update the status of this process, one of the last global updates. Even at that point over a year after the attack, DOJ was just starting to move forward in a few limited cases by filling in what remained of discovery.

The first felony trial coming out of January 6 was that of Guy Reffitt, which started on March 3, 2022, a full 420 days after the event. Bringing him to trial that was made easier — possible even — because Reffitt never went into the Capitol itself, so didn’t have to wait until all global discovery was complete, and because there were several witnesses against him, including his own son.

The delays in discovery resulted in delays in plea deals too, as most defense attorneys believed they needed to wait until they had seen all of the discovery to make sure they advised their client appropriately.

Lots of people thought this process was unnecessary. But the decision to do it was utterly vindicated the other day, as DOJ started responding to defendants claiming that Tucker Carlson had found video that somehow proved their innocence. As I noted, prosecutors were able to point to the video shown by Tucker Carlson that he said vindicated Jacob Chansley and describe specifically when an unrelated defendant, Dominic Pezzola, had gotten what was effectively Chansley’s discovery.

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

You may think the thirteen month delay for discovery was a waste of time. But it just prevented Tucker Carlson from being able to upend hundreds of prosecutions.

Obviously, most of the trials that have occurred in the last year won’t directly lead to Trump. Some will. I’ve said for 22 months that I think the Proud Boy trial is critical — and that won’t go to the jury for another two or three weeks yet. There are a number of steps that, I suspect, DOJ has been holding on pending the results of that trial, because so much else rides on it.

The Stewart Rhodes trial was likely helpful. I’ve suggested DOJ may use Danny Rodriguez as a way to tie Trump and Rudy Giuliani to the near-murder of Michael Fanone on an aid-and-abet theory. And there are a few more sleeper cases that seem to have greater significance than what went on at the Capitol that day.

Update: On May 4, 2023, a jury found four of the five Proud Boy leaders guilty of sedition. This trial was an important precursor for other investigative steps.

The legal uncertainty

In the Nixon case, there were fairly well established crimes: burglary, and obstruction of a criminal investigation.

I won’t say too much on this point, because I already have. But in this case, prosecutors were (and undoubtedly still are) trying to apply existing statute to an unprecedented event. One law they’ve used with a lot of the rioters — civil disorder — was already being appealed elsewhere in the country when prosecutors started applying to the January 6. Since then its legal certainty has been all-but solidified.

Far more importantly, the way prosecutors have applied obstruction of an official proceeding, 18 USC 1512(c)(2), has been challenged (starting with Garret Miller–the guy in the aborted arrest photo above) for over a year. That’s precisely the crime with which the January 6 Committee believes Trump should be charged (I advocated the same before their investigation even started in earnest); but I’m not sure whether Jack Smith will wait until the appeals on the law get resolved.

Still, DOJ has spent a great deal of time already trying to defend the legal approach they’ve used with the investigation.

Update: On April 7, the DC Circuit reversed Carl Nichols, holding that 18 USC 1512(c)(2) does not require a documentary component. That opinion raised new questions about the meaning of “corrupt purpose” under the statute. The Circuit rejected Fischer’s request for a rehearing, clearing the possibility of an appeal to SCOTUS. On May 11, the DC Circuit heard Thomas Robertson’s challenge to the same statute. Its decision in that case will almost certainly be the first DC Circuit ruling on “corrupt purpose” under the statute.

The insider scoop

For all the delays in setting up the January 6 Committee, it (and an earlier Senate Judiciary Committee inquiry into Jeffrey Clark’s efforts to undermine the vote) got started more quickly than Sam Ervin’s committee, which first started 11 months after the burglary.

Yet it only took Ervin’s Senate investigators about two months to discover their important insider, whose testimony would provide critical to both Congressional and criminal investigators. On July 13, 1973, Alexander Butterfield first revealed the existence of the White House taping system.

For all the January 6 Committee’s great work, it wasn’t until her third interview, on May 17, 2022, before Cassidy Hutchinson began to reveal more details of Trump’s unwillingness to take steps against his supporters chanting “Hang Mike Pence.” Even Hutchinson’s remarkable public testimony on June 28, 2022, when she described Trump demanding that his supporters be allowed to enter the Ellipse rally with the weapons Secret Service knew them to be carrying, is not known to have provided the kind of Rosetta stone to the conspiracy that disclosure of Nixon’s White House taping system did. In later testimony, Hutchinson provided key details about a cover-up. And her testimony provided leverage for first J6C and then, in at least two appearances, grand jury testimony from Pat Philbin and Pat Cipollone, the latter appearance of which came with an Executive Privilege waiver on December 2, 2022, 23 months after the attack.

Cell-xploitation

This brings us to the biggest difference in the timeline. Once the Senate and prosecutors learned that Nixon had effectively wiretapped himself, it turned the investigation into a fight over access to those materials.

The parts of the draft Nixon indictment that have been released describe a fairly narrow conspiracy. The proof against Nixon would have comprised, in significant part:

The report John Dean did disclaiming a tie to the break-in
Proof of payments to Howard Hunt
White House recordings, primarily from several days in March 1973, proving that Nixon had the payments arranged

That is, in addition to the James McCord confession and John Dean’s cooperation, any charges against Nixon relied on recordings Nixon himself had made, the import of which were made all the more salient with the disclosure of the 18-minute gap.

One thing likely made the January 6 prosecution easier: The sheer amount of data available to prosecutors using subpoenas. We have yet to see any of that with regards to organizers (though we know that Denver Riggelman, with far weaker subpoena power, was able to do a detailed map of ties between Trump, organizers, and mobsters).

There will undoubtedly be a great deal of evidence obtained from cloud companies. The only hint of this process we know about yet involves the emails from Jeffrey Clark, Ken Klukowski, John Eastman, and one other person, who is not a lawyer. DOJ had obtained emails from them with a warrant by last May. They have undoubtedly done the same for dozens of other subjects (beyond those arrested from the crime scene, where they have done so as well), but we won’t know about it until we see it in indictments.

But even that is not always easy. DOJ has spent seven months so far getting Peter Navarro to turn over emails from his Proton Mail account covered by the Presidential Records Act. Judge Colleen Kollar-Kotelly just issued an order requiring him to turn the emails over, but it’s not clear whether he’ll further obstruct this effort to simply enforce his normal record-keeping obligations.

But one challenge that didn’t exist fifty years ago makes prosecutors jobs much harder: the need to obtain and exploit individual cell phones to obtain encrypted communications — things like Signal and Telegram chats — not otherwise available. In Enrique Tarrio’s case, simply breaking into the phone took most of a year. In Rudy Giuliani’s case (his phones were first obtained in the Ukraine investigation starting on Lisa Monaco’s first day on the job, but the results would be available with a separate warrant here), it took a nine month Special Master review. In Scott Perry’s case, his speech and debate claims will be appealed to SCOTUS. The table below shows whose phones we know to have been obtained, including how long it took to exploit the phones to the extent that became public (It does not show known cloud content obtained; much of that remains secret.)

The point being, even for the Proud Boys and Oath Keeper cases, you had to get one phone, use it to get probable cause on the next guy, then get his phone to use it to get probable cause on the next guy. This process is very obviously at the stage where both Alex Jones and Roger Stone would be in prosecutors’ sights, as well as much of the fake elector plot. But that’s still several steps away from people like Mark Meadows, who would necessarily be involved in any Trump prosecution.

Privilege

When DOJ subpoenaed the two Pats last summer, multiple media outlets reported that subpoenaing the White House counsels was particularly “aggressive.”

Two top lawyers who worked in the White House under former President Donald Trump have been subpoenaed to appear before a federal grand jury investigating the events leading up to the Jan. 6, 2021, attack on the Capitol, people familiar with the matter said, in the latest sign that the Justice Department’s probe is entering a more aggressive phase.

Mr. Trump’s White House counsel Pat Cipollone and his deputy Pat Philbin received subpoenas in recent days seeking documents and testimony, the people said. [my emphasis]

But as coverage of, first, Mike Pence’s two aides and, then, the two Pats being compelled to testify about topics Trump had claim was privileged noted, it’s not actually a new or particularly aggressive thing to ask White House counsels to testify. Indeed, John Dean’s cooperation — the most important part of holding Nixon accountable — arose after he had gotten himself deeper and deeper into Nixon’s cover-up.

And in spite of the Nixon precedent that said there were limits to Executive Privilege, and in spite of the DC Circuit ruling that the import of investigation January 6 overcame Trump’s Executive Privilege claims, even with Congress, Trump has used — and DOJ has been obligated to navigate — a series of privilege claims to delay the investigation.

As I’ve noted, there are close to thirty key witnesses or subjects whose attorney-client claims have to be carefully addressed to avoid blowing both that case and those of any downstream investigation.

In the case of Scott Perry, DOJ has spent six months trying to get into his phone. That delay is not a sign of lassitude. On the contrary, it’s a sign they’re including subjects who very rarely get investigated in the investigation.

Update: On April 21 and 22, seven-plus months after DOJ seized his phone (which is often how long exploitation takes), Boris Epshteyn spent two days interviewing with Jack Smith’s prosecutors though not — at least by description — appearing before the grand jury. He played a key role in both January 6 and the stolen documents case.

Cooperating witnesses

According to this timeline, John Dean started cooperating on April 6, 1973, almost ten months after the arrest of the burglars, though just a few weeks after the day of Nixon’s crimes as alleged in the draft indictment.

As noted on this table, there were people who entered into cooperation agreements more quickly than that, but it’s not clear who of them will help prosecute those closer to Trump. As I keep noting, I’m really dubious of the value of Brandon Straka’s cooperation.

There are maybe 30 to 35 known known cooperators in January 6, but most only cooperated against their buddies, and most of those prosecutions didn’t much build prosecutions related to Trump.

This table only includes a few of the cooperating witnesses — the first (Schaffer, the nature of whose cooperation is still totally obscure), the dubious cooperation of Straka and, potentially, Gionet, the most important of at least five Proud Boy cooperators, Jeremy Bertino, and the most important of at least eight Oath Keeper cooperators, Joshua James.

James, along with a few of the other Oath Keeper cooperators, might help prosecute Roger Stone. But there is no one on this list who has the goods on Trump, like John Dean did. No one even close.

That said, we wouldn’t necessarily know if someone closer to Trump were cooperating. Even some people who are secondary cooperators remain entirely obscure, both that they are cooperating, and the extent of their knowledge. I suspect several people are cooperating — I even have specific people in mind, based on other details. But we won’t know anytime soon if someone has flipped on Donald Trump.

And given the ferociousness of his supporters and the aggressiveness of Trump’s obstruction that’s a good thing.

Update, May 26: I’ve updated the table below to reflect the Oath Keeper sentences and the Proud Boy verdict.

Kellye SoRelle: Oath Keeper Capper or Potential Pivot?

September 2, 2022/22 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The government arrested Kellye SoRelle yesterday via an indictment charging three counts of obstruction and one count of trespassing. She’s best known as the lawyer for the Oath Keepers, though for a period she was acting as the President of the militia.

That she was arrested was not surprising. It has been known for some time that she’s the person who advised Rhodes to start deleting evidence of his activities on January 6, which he and others did. She even admitted it to MoJo’s Dan Friedman. Those who did delete their comms have all been charged for deleting evidence. The government even included that in Joshua James’ statement of offense, who is now cooperating with the government.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

So it’s unsurprising that she was also charged under 18 USC 1512(b)(2) for corruptly persuading and attempting to corruptly persuade others to delete evidence.

On its face, the indictment against SoRelle is all about capping off the Oath Keeper conspiracy. Her arrest warrant lists the two conspiracies, 22-cr-15 (the Rhodes seditious conspiracy) and 21-cr-28 (the lesser conspiracy now named after Donovan Crowl), as related cases, landing her case before Judge Amit Mehta. All seven of the Oath Keeper prosecutors were listed on the motion to seal her arrest warrant.

At that level, charging her seems like a way to ensure defendants in the sedition trial cannot foist all the blame for deleting those communications off on an uncharged co-conspirator. In fact, Gateway Pundit, which has invented some of the central conspiracy theories about this case (including one spun directly by SoRelle), yesterday complained that DOJ only charged SoRelle because she recently agreed to testify in Rhodes’ defense.

Gateway Pundit’s earlier conspiracy theory, based on claims made by another cooperating Oath Keeper witness, Jason Dolan, appears to be one of the ways prosecutors managed to argue that her communications were not privileged.

As such, much of this indictment is about capping off the Oath Keeper case. But there are a few details that I find interesting.

First, unlike Michael Greene (the field commander for the Oath Keepers the day of the attack), who was superseded into the Crowl (lesser) conspiracy case on June 22, SoRelle was charged via indictment with conspiracy by herself. By comparison, when DOJ spun Jonathan Walden off onto his own indictment, the conspiracy charge against him was dropped.

Perhaps DOJ treated her this way because she mostly just interacted with Rhodes on January 6, but since she didn’t do anything meriting a sedition charge, she was charged by herself?

But there are other details that make me wonder whether DOJ isn’t doing something more by charging her.

SoRelle was charged by the same grand jury that did the bulk of the investigative work against all January 6 attackers for all of 2021, but which focused especially on the Oath Keepers. Its work seemed to culminate in January with the seditious conspiracy indictment. Since then, its main public work was to supersede Greene into the lesser conspiracy, 17 months after it was convened, as well as supserseding the Rhodes indictment to tweak how sedition was charged, also in that 17th month.

But the indictment against SoRelle means that grand jury is still at work in the 19th month after it was convened. Grand juries are usually convened for 18 months, so this seems to suggest the Oath Keeper grand jury has been extended, and extended (thus far) solely to charge someone whose phone the government seized last September.

Meanwhile, SoRelle’s indictment seems to have been initialed by Jocelyn Ballantine.

Up until now, Ballantine was known only to have a (behind-the-scenes) role in managing the Proud Boys investigation, which is not only less orderly than the Oath Keepers investigation, but seems to be understaffed, particularly as compared to the consistent 7-person team that has relentlessly pursued the Oath Keepers.

One reason you might charge SoRelle, by herself, on a conspiracy indictment is to add others to it. And while she’s best known for her role with the Oath Keepers and this indictment is closely tied to the Oath Keepers prong of the investigation, she actually has a number of ties to other key players in January 6.

She was present at the January 4, 2021 parking garage meeting between Rhodes and Enrique Tarrio, for example. She would have been a key facilitator for it. At the time, she was serving as the lawyer for both the Oath Keepers and Latinos for Trump. (It was via Tarrio’s involvement in Latinos for Trump that he went on December tour of the White House, arranged by Bianca Gracia, who was also at that garage meeting.)

As Ryan Reilly noted yesterday, SoRelle was also a volunteer for Lawyers for Trump, and in that guise, Rhodes tried to get her to put him in touch with people in Trump’s orbit. SoRelle claims that she declined to do that.

In the weeks leading up to the Jan. 6 attack on the Capitol, Oath Keepers founder Stewart Rhodes tried to get the organization’s general counsel, Kellye SoRelle, to put him in touch with the White House, she told NBC News.

In addition to her work with the Oath Keepers, SoRelle was a volunteer for Lawyers for Trump during the 2020 election and was in contact with many of the people fighting a doomed legal battle to try to overturn the 2020 presidential election and keep former President Donald Trump in office. The contacts include, she said, people in Rudy Giuliani’s and Sidney Powell’s camps, as well as those inside the administration, although she added that she “wasn’t, like, communicating with Trump directly.”

Rhodes wanted her to put him in touch with the White House. “He was hitting me up for a contact,” said SoRelle, a family law lawyer who previously ran for the Texas state House. “He didn’t have any access points.”

As he prepared an open letter calling on Trump to invoke the Insurrection Act in the weeks leading up to Jan. 6, 2021, Rhodes asked SoRelle to send it to the White House. She says she declined.

SoRelle has been caught making false claims to the press before.

Finally, in the clip of SoRelle’s testimony to the January 6 Committee that has been made public, she described how Roger Stone, Alex Jones, and Ali Alexander took the lead on planning the Stop the Steal events.

JAMIE RASKIN: Kelly Sorrell, a lawyer who assists the Oath Keepers and a volunteer lawyer for the Trump campaign, explained to the committee how Roger Stone and other figures brought extremists of different stripes and views together. [Begin videotape]

UNKNOWN: You mentioned that Mr. Stone wanted to start the Stop the Steal series of rallies. Who did you consider the leader of these rallies? It sounds like from what you just said, it was Mr. Stone, Mr. Jones, and Mr. Ali Alexander. Is that correct?

KELLY SORRELL: Those are the ones that became like the — the center point for everything. [End videotape]

In other words, while SoRelle didn’t breach the Capitol in body armor like the rest of the Oath Keepers, she was (along with Roger Stone) one of the key pivots between the Oath Keepers and the rest of the organizing effort behind January 6. She was networked with other planners in a way that even Rhodes was not.

For over a year, I’ve been describing that the elegant thing about the obstruction conspiracy charges DOJ has used to charge the Oath Keepers, Proud Boys, and others, is those separate conspiracies might one day start to coalesce via the nodes between them. Kellye SoRelle has, by all appearances, been charged in a conspiracy with the Oath Keepers.But if she also conspired on other aspects of January 6 with other people and organizations, including White House lawyers, then the various existing conspiracies might network into a larger conspiracy.

The lead prosecutor on SoRelle’s case, incidentally, also happens to be the lead prosecutor on Owen Shroyer’s prosecution.

Update: Corrected that SoRelle stepped down as President when Rhodes was arrested.

The Tactics of the Louis Enrique Colon Cooperation Agreement

April 28, 2022/106 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As Capitol Police attempted to lower a barricade protecting the tunnels of the Capitol on January 6, Proud Boy Louis Enrique Colon reached out and prevented it from closing, then placed a chair to further obstruct the gate.

While inside the Capitol building, defendant observed co-defendants Chrestman, Felicia Konold, and Cory Konold at various points inside of the building, including in a downstairs area of the Capitol near where several retractable doors were being lowered by police officers in an attempt to stop rioters from proceeding further into a portion of the building. To prevent one of the doors from closing, defendant used his hands to stop the door and placed a chair in the door’s path, while co-defendant Kuehne and another individual placed a podium in the path of another door.

That’s the basis of the single charge to which Colon pled guilty as part of a cooperation agreement yesterday, 18 USC 231, Civil Disorder.

Defendant knowingly obstructed, impeded, and interfered with law enforcement officers while those officers were lawfully engaged in their official duties incident to a civil disorder that was occurring inside of the Capitol. Among other things, defendant prevented officers from closing a retractable door which was intended to prevent rioters from advancing further into a portion of the restricted Capitol building.

In my opinion, this is, by any measure, the most lenient overt plea deal a January 6 defendant has gotten (and a comment that one of the lawyers in the plea hearing yesterday made suggested that it had recently been sweetened). On top of this charge and trespassing, Colon was originally charged in a conspiracy with other members of the Kansas City Proud Boys, as well as individually with obstruction. With credit for cooperation, according to his plea deal, the former cop may avoid any prison time.

That’s all the more remarkable given that Colon’s statement of offense reveals that he went to the Capitol with a pocket knife and an axe handle.

Among other things, defendant purchased and modified an axe handle to be used as both a walking stick and an improvised weapon

[snip]

Defendant and the group ultimately made their way to the west side of the Capitol’s grounds, outside of the restricted, fenced-off perimeter which had barricades staffed by USCP officers. At the time, defendant was wearing a backpack, pocket knife, tactical vest, tactical gloves, boots, and a helmet adorned with orange tape.

While the knife may be too short to trigger enhancements, carrying an acknowledged weapon has been used to enhance the penalties of others, though it is also the kind of thing prosecutors have used to flip people.

In other words, either Colon’s cooperation is so valuable, or DOJ needed it so badly, that he got a really sweet plea deal even in spite of bringing an “improvised weapon.”

So I’d like to discuss what DOJ may be doing tactically.

First, some background. The Oath Keepers investigation has been marked by a relentless march of new cooperators, publicly unveiled: Jon Schaffer, Graydon Young, Mark Grods, Caleb Berry, Jason Dolan, Joshua James. Boom. Boom. Boom. Boom. By contrast, just two of the overt Proud Boy cooperators have the kind of plea deal that implicates the wider conspiracy, Matthew Greene and Charles Donohoe. For whatever reason — apparently thinner staffing, greater numbers of participants, difficulties created by Enrique Tarrio’s arrest and delayed phone exploitation, investigative equities, corrupt lenient treatment, or a more important role in the overall investigation — DOJ has been using different tactics to get cooperation from Proud Boys and other key far right personalities. As an example, Jeff Finley (like Brandon Straka and likely, soon, Baked Alaska) seems to have cooperated in advance to avoid a felony altogether. So did Jeremy Grace, though his statement of offense implicated his far more complicit father who, if he ever cooperated, might implicate far more important tactical players. Ricky Willden’s statement of offense barely hints at what he knew that day.

Particularly given a reference made to Colon “continu[ing]” his cooperation in the hearing yesterday, this feels more like the kind of deal Finley got, where someone works their way out of more serious charges (which in Colon’s case would be obstruction with a weapons enhancement) ahead of time. That kind of cooperation makes it less visible, but also may make testimony harder to impeach down the road.

With that in mind, I’d like to look at four aspects of his statement of offense.

First, as virtually all conspirators who flip do, Colon implicated his co-conspirators, describing how:

Ryan Ashlock, Christopher Kuehne, and another individual traveled with Colon from Kansas City
Kuehne brought two AR-15 or similar assault rifles on the trip
Kuehne, at defendant’s suggestion, purchased orange, fluorescent tape so the group would be able to identify each other in a crowd
William Chrestman, Kuehne, and Ashlock, and others met on January 5 to talk about safety
The Konold siblings joined their group on the way to the meet-up at the Washington Memorial
Colon saw Chrestman, Felicia Konold, and Cory Konold as police officers attempted to stop rioters from proceeding further into a portion of the building (though the statement of offense doesn’t describe their efforts to prevent it) [my emphasis]

That is, at one level Colon’s cooperation simply shores up the third major Proud Boy conspiracy, just like Donohoe, Greene, and Finley provided direct evidence against the Leader conspiracy.

But consider this big story from Alan Feuer from September. According to 302s that defendants have gotten, one of just two known actively-handled informants among the Proud Boys that day said he had no advance knowledge of plans to disrupt the vote certification.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

[snip]

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day. In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol. The informant’s identity was not disclosed in the records.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

As Feuer noted at the time, if you ignore that this Proud Boys showed up late, this informant’s testimony significantly undermines claims of prosecutors.

There are multiple clues in Feuer’s article and elsewhere — most notably the reference to a young woman (likely to be Felicia Konold) — that this informant was affiliated with the Kansas City cell.

He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

In other words, until such time as DOJ secures testimony to contradict that of their informant, these interviews remain a weak point in the case against the Proud Boys.

They may have gotten that testimony yesterday.

Now consider what this particular cell of the Proud Boys did — and why that may have led DOJ to be satisfied with just the less serious 231 charge against Colon.

DOJ has charged conspiracy tied to January 6 in a bunch of ways: most spectacularly with some Oath Keepers, seditious conspiracy, also with those Oath Keepers (and the alleged Brian Sicknick assailants), conspiracy to injure an officer, and for most people charged with a conspiracy, either the conspiracy charge tied to the obstruction statute (18 USC 1512k, which carries greater penalties), or conspiracy under 18 USC 371.

But for a few of the Proud Boy conspiracies, including this Kansas City cell, the 371 conspiracy had two objects: to obstruct the vote count, but also to obstruct the cops. That’s basically a conspiracy to commit 18 USC 231, the charge Colon pled guilty to.

And the particular act of obstruction that this cell engaged in — preventing the cops from closing the gates leading to tunnels via which rioters correctly believed members of Congress had fled — is one of the most important tactically. That is, this may show not just a desire to mess with the cops, but a plan to go after members of Congress.

This cell is important for the means by which the Proud Boys made things work on January 6. And Colon may be a key witness to the tactical implementation of plans that went into that day.

Finally, consider the description, from Colon’s statement of offense, of this meeting the night before.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

DOJ has been doing a lot of work unpacking the degree to which coordination happened at meetings on January 5 (I expect we’ll see it in more expected plea agreements going forward). These meetings were critically important for getting everyone on the same page, including a bunch of people who weren’t otherwise affiliated.

We have no idea what this meeting was — we’re still looking for details on a meeting that Joe Biggs and Ethan Nordean attended around 9PM the night before, though I doubt that’s what this is.

The description is important for several reasons. First, the focus on “group safety” seems to match the informant’s claim that, “On the eve of the attack … the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists.” Except if it’s that same meeting, then the informant would have also heard someone express a desire to take DC by force, in response to which Kuehne, who is a former Marine, said he was ready to go. At the very least, this description could correct the informant’s claims; it may prove them false.

But it also significantly advances the evidence that some of the Proud Boys, like some of the Oath Keepers, were thinking of using force against the government.

That’s the kind of evidence that has, with the Oath Keepers, helped persuade others to plead out and cooperate.

Update: Note that Robert Gieswein also wore orange tape to insurrection; he allegedly sprayed cops trying to close that barricade.

The Valentine’s Day Massacre: How DOJ Lost Lucas Denney and Found Enrique Tarrio

April 11, 2022/37 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The biggest publicly known fuck-up of the January 6 investigation thus far is when DOJ lost Lucas Denney. He’s the self-described President of the North Texas Patriot Boys. He was arrested in December with Donald Hazard and charged in another militia-related conspiracy.

Their conspiracy is interesting for several reasons:

Denney paid Hazard’s way to DC via fundraising that picked up after Trump announced the rally
At least as Denney told it, they coordinated with the Proud Boys
They did relatively more to arm themselves than other militias (and appeared relatively more focused on brawling with cops)
Denney was palling around with Ted Cruz during the summer

Hazard was charged for wrestling with some cops on the stairs under the scaffolding, which ended up knocking out one of them. Denney was grappling with cops for some time, and ultimately had a hand in pulling Michael Fanone into the crowd.

DENNEY then turned towards Officer M.F., swung his arm and fist at M.F., and grabbed M.F., pulling him farther down the stairs, as depicted below. DENNEY then himself fell backwards into the crowd. In the images below, DENNEY is circled in red; Officer M.F. is circled in yellow.

The FBI started investigating these guys from day one. By April, the government had obtained both men’s Facebook accounts. They were finally arrested on December 13. He was ordered detained by a magistrate judge in Texas. It took the Marshals until January 31 to get him to DC.

Just days earlier, Denney’s case had been moved from AUSA Benet Kearney to Jennifer Rozzoni. Between some confusion about when Denney’s initial appearance in DC would be, the shift of prosecutors, and the crushing schedule that both John Pierce and Rozzoni have, they simply never got his initial appearance scheduled. Around then, William Shipley, the far more competent attorney who does the actual lawyering for the Pierce boondoggle, joined the case and immediately started filing for release based on how long DOJ had left him sitting in DC.

On March 7, DOJ obtained a one count assault indictment against Denney alone based on his assault of a different cop, not Fanone, mooting some of the legal basis for his release. Then Shipley, thinking he was getting cute, advised his client to plead guilty to that charge as a way to stave off all the other conspiracy charges he was facing. As a result, Denney pled guilty right away to an assault charge that could get him 71 months. While his exposure on January 6 is probably eliminated with the guilty plea, it’s not for any plotting he did afterwards.

When he pled, Rozzoni was very careful to enter into the record how much of discovery Denney’s attorneys had seen and what they may not have when advising him to plead.

Losing Denney — a very-well connected militia member accused of assaulting cops — was a colossal mistake, though Shipley’s tactics saved the government from having to release him. It seemed, at the time, to be a symptom of just how overloaded the January 6 investigation has made DOJ.

And while that’s surely part of it, subsequent events make it clear that something else was going on at the time.

First, some details about grand juries. When the government is charging people with misdemeanors, they don’t need to get an indictment from a grand jury. But felonies require presenting the evidence to a grand jury.

When grand juries expire, DOJ can’t just tell a new grand jury about what the other grand jury did. They have to present all the evidence anew.

When people have asked whether DOJ will open a grand jury to investigate Trump, I have responded that they already had a grand jury. In fact, I noted, they had used at least five by the turn of the year. But as my lists below make clear, not all those grand juries were the same. Virtually every single important case — all the conspiracies, all the most important assault cases (both for import of victim or size), and most of the other cases — were presented to a grand jury seated on January 8, two days after the riot. (These lists are very incomplete but I will update them going forward.)

Most spectacularly, the relentless Oath Keepers conspiracy kept going back to the same grand jury superseding the initial charges, on February 19, 2021 (S1), on March 12 (S2), on March 31 (S3), on May 26 (S4). Then they started flipping people. Then they kept superseding, on August 4 (S5), on December 1 (S6), until, on January 12, 2022, just 369 days after the grand jury started investigating, the case split into several interlocked conspiracies, one of them charging Stewart Rhodes and others with seditious conspiracy. On March 2, DOJ got their first guilty plea to seditious conspiracy, from Joshua James, who not only knew what Rhodes was doing the day of the riot, but also knew (and reported back on) what Roger Stone was doing.

But even while that grand jury was marching relentlessly towards charging Rhodes with sedition, it was also charging the majority of hundreds of other January 6 defendants.

The Proud Boy march has not been that focused. While all the initial Proud Boy conspiracies were charged by the same group of anonymous private citizen who would ultimately charge Rhodes with sedition, when necessary, DOJ would use another grand jury with the Proud Boys as well. The Front Door conspiracy was first superseded by a January 11 grand jury (which might be the regularly seated one, but which picked up a lot of the flood in that period). When DOJ superseded Nick DeCarlo’s conspiracy with Nick Ochs, they used a grand jury seated on November 10.

The government seemed to use a regular May 25 and August 11 for similar necessities. But when the government wanted to charge Ronnie Sandlin and Nate DeGrave in a conspiracy, they waited for months — from April until September, a month and a half after Josiah Colt had flipped on them — to present it to that January 8 grand jury.

Oh shit, now I’ve forgotten about Lucas Denney, just like DOJ did.

The point I’m trying to make is that, for that relentless year while that grand jury was finalizing the sedition charges, it also charged almost all major January 6 felonies. That group of two dozen anonymous Americans saw all of this.

Until the Enrique Tarrio indictment. The indictment against the Proud Boy head obtained on March 7 was from a new grand jury, one seated on Valentine’s Day. The same grand jury from which DOJ got their last minute single count indictment against Denney.

I’m still testing this, but it appears that after its non-stop year of indicting insurrectionists, the last thing the January 8 grand jury may have done was charge the seditious conspiracy. Before February 14, other January 6 indictments (MacCracken, AJ Fischer, and Bilyard, for example) were handled by the August 11 grand jury. Then after February 14, new January 6 indictments (like Beddingfield, Johnson, and Bingham) were done by the November 10 grand jury.

Until March 7, when that February 14 grand jury started indicting people, starting with Enrique Tarrio.

The period when DOJ lost Lucas Denney appears to be the three-week period when DOJ was shifting from the January 8, 2021 grand jury to the February 14, 2022 grand jury.

DOJ ended their first grand jury with sedition. They opened their second grand jury with Tarrio — who may or may not have known about the riot before Trump announced it.

Update, May 6: In response to a Zach Rehl request for the exhibits the government will use in its case in chief against the Proud Boys, DOJ points to what must be how they read over the evidence from the one grand jury to the other:

In the meantime, the government has turned over information and materials that provide a clear roadmap regarding the government’s anticipated case-in-chief. Specifically, following the return of the Second Superseding indictment, the government turned over to defense counsel a 160-page grand jury transcript, with exhibits, and a detailed 96-slide PowerPoint presentation containing the evidence supporting the charges against the defendants.

January 8

All Oath Keeper
Proud Boy Leader
DeCarlo
Kuehne (KC Proud Boy)
Klein (North Door Proud Boy)
Pezzola (Front Door Proud Boy)
Hostetter (3% SoCal)
Rodriguez (SoCal Anti-Mask)
Sandlin (disorganized conspiracy)
Munchel
Khater (Sicknick)
Sibick (Fanone)
McCaughey (all)
Sabol
Horning (Jacob Hiles’ co-defendant, so tied to Riley)

January 11

Pezzola superseding

May 25

August 11

November 10

February 14

On Enrique Tarrio’s Complex Password and Other Reasons the January 6 Investigation Can Now Move to Organizer-Inciters

April 1, 2022/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

A Wednesday filing in the Proud Boy leadership conspiracy revealed that, between cracking his password and conducting a filter review, DOJ had not been able to access Enrique Tarrio’s phone — which was seized even before the riot he allegedly had a central role in planning — until mid-January.

On January 4, 2021, Tarrio was arrested in Washington, D.C., and charged with destruction of property for his December 12, 2020, burning of a #BLACKLIVESMATTER banner and possession of two large capacity magazines. At the time of his arrest, Tarrio’s phone was seized by law enforcement. The government promptly sought a search warrant for that device in this investigation. Despite diligence, the government was not able to obtain access to Tarrio’s phone until December 2021. Thereafter, a filter team was utilized to ensure that only non-privileged materials were provided to the investigative team. The investigative team did not gain access to the materials on the phone until mid-January 2022, and it has worked expeditiously since that time to review these materials.

I can think of just a few other phones that have been this difficult for FBI to access (those of Zachary Alam and Brandon Fellows are others). The delay means that the very first phone DOJ seized pertaining to the January 6 investigation was one that, to date, has taken the longest to access.

This is the kind of delay — presumably due to the physics involved in cracking a complex password and the due process of a privilege review — that is unavoidable. Yet it stalled DOJ’s efforts in the most pivotal conspiracy case as it tries to move from rioters at the Capitol through organizer-inciters to Trump himself.

The delay in accessing Tarrio’s phone is one thing to keep in mind as you read the multiple reports that DOJ has sent out subpoenas to people who organized the rallies. WaPo reported that these subpoenas first started going out two months ago — so late January, shortly after the time DOJ accessed Tarrio’s phone content. NYT reported that the subpoenas focus on the rallies and the fake electors.

One of the subpoenas, which was reviewed by The New York Times, sought information about people “classified as VIP attendees” at Mr. Trump’s Jan. 6 rally.

It also sought information about members of the executive and legislative branches who had been involved in the “planning or execution of any rally or any attempt to obstruct, influence, impede or delay” the certification of the 2020 election.

And it asked about the effort by Trump supporters to put forward alternate slates of electors as Mr. Trump and his allies were seeking to challenge the certification of the Electoral College outcome by Congress on Jan. 6.

Another person briefed on the grand jury investigation said at least one person involved in the logistics of the Jan. 6 rally had been asked to appear.

None of this is a surprise or unexpected. Dana Nessel formally referred Michigan’s fake electors to DOJ for investigation (the kind of referral that may have been important to DOJ assuming jurisdiction in state elections) on January 18, and Lisa Monaco confirmed DOJ was investigating the fake electors on January 25.

As to the organizers, on December 16, I wrote a piece describing that DOJ would need to turn to “organizer-inciters” next — people like Alex Jones, who had a central role in turning rally-goers who imagined themselves to be peaceful protestors into an occupying force. We know of several other pieces of evidence that would have been important, if not necessary, to lock down before DOJ moved to those organizer-inciters.

For example, DOJ likely first obtained direct information about tensions involving VIPs in Brandon Straka’s first and second FBI interviews in February and March of last year, information that the government claimed during his sentencing provided valuable new leads. Straka was one of those VIPs who expected to have a speaking slot on January 6 only to discover all he was getting was a seat at the front, next to Mike Flynn. Access to his phone would have provided the government comms depicting growing tensions tied to the extremism of Nick Fuentes and Ali Alexander described in this ProPublica article.

“Is Nick Fuentes now a prominent figure in Stop the Steal?” asked Brandon Straka, an openly gay conservative activist, in a November text message, obtained exclusively by ProPublica. “I find him disgusting,” Straka said, pointing to Fuentes’ vehemently anti-LGBT views.

Alexander saw more people and more power. He wrote that Fuentes was “very valuable” at “putting bodies in places,” and that both Jones and Fuentes were “willing to push bodies … where we point.”

Straka, Fuentes and Jones did not respond to requests for comment.

Straka was part of a Stop the Steal listserv on which Michael Courdrey and Alexander were on the day of the riot.

The Stop the Steal group chat shows a reckoning with these events in real time.

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

The government described learning new information about Straka as recently as December 8 followed up in a January 2022 interview. Some of this appears to have been a late discovery of his own grift and, possibly, his role in inciting a riot at the TCF center in Michigan. But at sentencing, prosecutors reaffirmed that the sealed contents of his cooperation remained valuable.

Some other existing defendants whose phone and/or cooperation could provide such insight are Simone Gold (who pled guilty in early March but who had not yet done her FBI interview) and Alan Hostetter and Russell Taylor; prosecutors described still providing primary discovery in the latter case the other day, meaning they’re still getting phone contents there, too.

Tarrio’s phone would include comms with many of the people DOJ has turned its focus to; he had known communications with Alex Jones, Ali Alexander, and Cindy Chafian, to say nothing of his close ties to Roger Stone.

In addition to Tarrio’s phone, exploiting that of Stewart Rhodes — seized in May — took some time because he had so many Signal texts that it was an extended process sorting through the inculpatory and exculpatory ones.

The hold up on Rhodes’ phone is one of the things that held up his own arrest and charges for Seditious Conspiracy. In that superseding indictment, DOJ completely hid what new information they had learned about the Oath Keeper ties with the Willard planners. But the seditious conspiracy charge (along with the cooperation of Mark Grods) appears to have persuaded Joshua James to flip. James’ cooperation would provide lots of new testimony about what Stone and other VIPs were doing on January 5 and 6, including an explanation as to why James felt he needed to call into Mike Simmons to report on what is almost certainly Stone’s anger about the sidelining of his extremist group at the main rally, something clearly at issue in these recent subpoenas.

James would have proffered before he pled guilty (meaning prosecutors would have know what he would say if he did plead), but they would hold off on using his testimony for legal process until he testified before a grand jury in conjunction with his plea on March 2.

Public reporting has revealed that both the January 6 and DOJ investigations have obtained at least some of the documentary footage implicating Tarrio and Stone from the day of the riot.

And if the January 6 committee works like the SSCI investigation into Russia, it could share transcripts from obviously problematic testimony with DOJ. Ali Alexander spent most of day telling a story to the committee that had already been debunked by DOJ.

On the anniversary of January 6, Merrick Garland explained that all of the arrests from the first year had laid the foundation for more complex cases.

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

This is the kind of thing he was talking about: working your way up through Mark Grods to Joshua James to Stewart Rhodes to Roger Stone, taking the time to crack and exploit Tarrio’s phone, exploiting early access to Straka’s comms to get to the organizers. The investigation “aperture” hasn’t changed; what has changed is DOJ has acquired information it needed before it could take the next step.

A White Board of the Sedition-Curious

March 14, 2022/82 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Contrary to what a lot of people imagine, I don’t keep visual representations — like some cork board with a bunch of strings attached — of the investigations I follow, not even the sprawling January 6 investigation. Instead, I just try to capture important developments here, where I can refer back to them. There are several such relationships unpacked in recent weeks.

Roger Stone and Stewart Rhodes bug out at the same time after insurrection

For example, a bunch of people have asked me what I make of the WaPo report based on video taken by some Danish journalists who were filming a documentary of Roger Stone on January 6.

As you read it, keep in mind that the Get Me Roger Stone video team was following Roger Stone during key periods of 2016, including at the RNC.

Mueller at least attempted — as Stone feared Mueller would in real time — to mine the video for clues about Stone’s activities. For example, in one of the same email chains where Stone told Randy Credico to “do a [Frank] Panta[n]gel[i],” he and Credico were panicking about what Get Me Roger Stone writer Morgan Pehme was saying about 2016.

So even assuming Roger Stone wasn’t engaged in his everyday type of performance when being filmed for these film-makers, he would be acutely aware of the legal hazards of having a documentary team following around while crimes were being committed.

That’s why the report is most interesting for the times when Stone made sure to ditch the camera team: at precisely the time of a key Proud Boy planning meeting, during a meeting that Joshua James may have reported in on, and as the riot unfolded at the Capitol.

For example, the videographers did not track Stone when he left the hotel at 9PM on January 5 with Sal Greco.

At about 8:50 p.m. on Jan. 5, after the Danish filmmakers had left him, Stone exited the Willard again with his bodyguard, off-duty New York City police officer Sal Greco, a live-stream video shows. Their destination was unclear, though Stone had said he had a 9 p.m. appointment to have his hair dyed.

Just minutes after that — just before 9:17 PM — Joe Biggs and Ethan Nordean were meeting with as-yet unidentified people putting together their plan for the riot.

Then there was a meeting with Bernie Kerik at 10AM at the Willard; hotel staff prevented videographers from watching that meeting.

The filmmakers told The Post that Stone appeared to change his plans after an encounter in the Willard lobby around 10 a.m. with Bernard Kerik, a former New York City police commissioner working in Giuliani’s command center at the hotel. The filmmakers began recording their conversation but were forced to leave by hotel staff. It is unclear what was said.

There’s good evidence that Joshua James checked in with Michael Simmons before and after that meeting.

Finally, Stone blew off the videographers from just before the Proud Boys kicked off a riot until almost the moment both Stone-related militias stood down.

At about 12:40 p.m., some ofStone’s guests left his suite. Stone’s team and the filmmakers agreed to separate for lunch and then reconvene two hours later. Stone planned to speak at a smaller rally near the Capitol later that afternoon.

But as the filmmakers ate in their hotel room, they saw news footage of a riot escalating at the Capitol. Around 2:30 p.m., Guldbrandsen headed out to capture the scene while Frederik Marbell, the director of photography, rushed to Stone’s room.

“Kristin Davis opened the door and said that Roger was taking a nap, so I couldn’t film,” Marbelltold The Post.

Outside the room, Marbell attempted to reach Stone by text message starting at 3:03 p.m. The messages went unanswered for 24 minutes, when Stone responded and offered to go to Marbell’s room.

By about 4 p.m., with the Capitol in chaos, Stone had still not arrived at Marbell’s room. Marbell returned to Stone’s room and began knocking. About five minutes later, room service arrived and Marbell snuck inside, he said.

“Roger was not taking a nap. He was on the phone with someone,” Marbell said.

Stone condemned the riot to the filmmakers at 4:18 p.m., saying: “I think it’s really bad for the movement. It hurts, it doesn’t help. I’m not sure what they thought they were going to achieve.

These are like Stone’s July 2016 meeting with Nigel Farage at the RNC: The stuff he knew well to and did hide from the camera. That’s where the sweet spot of Stone’s interactions are.

All that said, the report shows that key Stone actions the camera team captured exactly map the known central events of the planning for the insurrection.

For example, Stone put together a Friends of Stone Signal list, including Enrique Tarrio, once it became clear Trump had lost. That fed Flynn’s efforts.

He told them to monitor a group chat on the app Signal titled “F.O.S.” — friends of Stone. Tarrio of the Proud Boys was among the group’s members, a later shot of Stone’s phone showed.

[snip]

On Nov. 5, Stone drew up a Stop the Steal action plan that was visible on Alejandro’s laptop in footage captured by the filmmakers. As protesters were mobilized, the plan said, state lawmakers would be lobbied to reject official results. That tactic later proved central to Trump’s efforts.

Also that day, Stone had a 15-minute call with Flynn, the video shows. He told Flynn they could “document an overwhelming and compelling fraud” in each battleground state and urged him to spread the word on social media. That day, Flynn, Trump’s campaign and his sons Donald Jr. and Eric began using #StopTheSteal on Twitter.

Just after this mobilization, both Tarrio and Biggs started calling for civil war.

Later that month, Stone was coordinating with Mike Flynn and Ali Alexander.

Stone moved quickly after Trump’s defeat to help mobilize the protest movement that drew thousands to the nation’s capital on Jan. 6, 2021, The Post found. He privately strategized with former national security adviser Michael Flynn and rally organizer Ali Alexander, who visited Stone’s home in Fort Lauderdale, Fla., in late November 2020 for a dinner where Stone served pasta and martinis.

In the days and weeks leading up to Thanksgiving (when Flynn would be pardoned and Sidney Powell would, like Stone, start grifting off claims of a stolen election), Flynn and Powell were at Lin Wood’s properties in South Carolina, plotting away.

I was most struck, however, by the unsurprising news that in addition to Tarrio, Stone also used Signal messages with Stewart Rhodes.

Stone used an encrypted messaging app later in January to communicate with Oath Keepers leader Stewart Rhodes, who is also charged with seditious conspiracy, and Proud Boys leader Enrique Tarrio, the footage shows.

When I saw the description in James’ statement of offense of the way Rhodes bugged out of town immediately after the riot, I suspected that someone had instructed Rhodes that they were going to be hunted.

At Rhodes’s instruction, James, Vallejo, and others met Rhodes that evening at a restaurant in Vienna, Virginia. Rhodes discussed saving “the Republic” by stopping the transfer of presidential power and began to make plans to oppose the Inauguration on January 20, 2021, including by having people open-carry firearms at state capitols around the country.

While at the restaurant, Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol. The group immediately returned to their hotel, collected their belongings, and met at a nearby gas station. There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle. Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him. The three cars departed in separate directions.

James returned to Alabama with some of Rhodes’s gear, including firearms and other tactical equipment.

According to the videographers, Stone bugged out at about the same time and in the same frantic manner as Rhodes did.

As a mob ransacked the Capitol on Jan. 6, 2021, Roger Stone, Donald Trump’s longest-serving political adviser, hurried to pack a suitcase inside his elegant suite on the fifth floor of the Willard hotel. He wrapped his tailored suits in trash bags, reversed his black face mask so its “Free Roger Stone” logo was hidden, then slipped out of town for a hastily arranged private flight from Dulles International Airport.

“I really want to get out of here,” Stone told an aide, as they were filmed at the hotel by a Danish camera crew for a documentary on the veteran Republican operative. Stone said he feared prosecution by the incoming attorney general, Merrick Garland. “He is not a friend,” Stone said.

I would, at this point, be shocked if Rhodes and Stone hadn’t communally decided they needed to bolt. The remaining question I have, though, is whether someone in government — like Mark Meadows — alerted Stone or someone close to him that the FBI had switched immediately into investigative mode.

Sidney Powell springs for the sedition gaslight defense

In the same way that the Danish videographers confirm that Roger Stone and Mike Flynn were conspiring early in the post-election process, a recent BuzzFeed report reveals that Sidney Powell is now using her hard-won grift to pay for the defense of some Oath Keepers.

Since October, the organization, Defending the Republic, has been making monthly payments to the defense attorney for Kelly Meggs, a member of the militant group the Oath Keepers who is charged with seditious conspiracy for his role in the Jan. 6 Capitol riot. In an interview, the attorney, Jonathon Moseley, said he was aware of “at least three or four other defendants who have that arrangement” as well. The Oath Keepers’ general counsel, Kellye SoRelle, said that one of those others is the group’s founder, Stewart Rhodes. Offered the chance to deny that, his lawyers said they don’t discuss funding.

The revelation, which has not been previously reported, sheds new light on the activities of Powell’s organization, which was incorporated in December 2020 “to defend the constitutional rights of all Americans.” By last August, the group had raised nearly $15 million, according to its audited financial statements, and since then has raked in untold cash in donations and sales of merchandise, including T-shirts, drink coasters, and highball glasses adorned with the organization’s logo. Yet despite mounting legal scrutiny from federal and state investigators, Defending the Republic has disclosed almost nothing about where that money has been going.

[snip]

Powell’s involvement in the Oath Keepers case helps explain how some of the defendants, most of whom are far from wealthy, have been able to work with private attorneys who charge hundreds of dollars an hour rather than court-appointed lawyers. But it also raises questions as to who is dictating their defense strategy. In recent months, defense attorneys have raised many of the same far-flung conspiracies about COVID-19, antifa, and the deep state that appeared in lawsuits against the federal government filed by Powell herself.

As Ken Bensinger notes and I have traced, Jonathon Moseley has chosen to use court filings to engage in conspiracy theorizing rather than a more typical defense.

But on top of the futility of such an approach to actually obtain an optimal outcome, it serves to undermine rule of law more generally. Moseley’s approach is not all that different from the one that Powell herself used with Mike Flynn in attempting to blow up his prosecution by inventing false claims about the government. There was no evidence to support it, but it fed the frothers.

Tellingly, Powell’s efforts did nothing but make Flynn’s outcome worse. Thus, the defense plan, such as it existed, served to undermine rule of law and then make it all go away with a Presidential pardon. I’ve long assumed that that was the hope for Kelly Meggs and Kenneth Harrelson (who has adopted a similarly conspiratorial defense approach): that they could stall through 2025 in hopes a Republican would pardon them for their alleged sedition.

On March 4, Judge Amit Mehta appointed Andrew Wise of Miller Chevalier as conflict counsel to inquire into conflicts between Moseley’s representation of Meggs and (at least in the civil suit) Stewart Rhodes). That’s likely to bring a review of compensation arrangements, which may lead to inquiries about what Powell is paying Moseley to do.

Interestingly, BuzzFeed suggests that Juli Haller, who represents Meggs’ wife Connie, but also Ryan Samsel, may be on this dole. There was a time when Samsel looked like he might have considered flipping but that time is long gone.

Roger Stone’s pardon grift

And now, having covered Roger Stone’s Stop the Steal grift and Sidney Powell’s Defending the Republic grift, we come to Stone’s pardon-selling.

The Daily Beast adds to the earlier WaPo report (the first item here) that addressed all the pardons Roger Stone pitched Trump to make in the days between when he bolted from DC quickly and the day any such power expired. It notes that in mid-January 2021, Stone was playing all sides of the Florida scandal that engulfs Matt Gaetz.

It’s already known that Stone lobbied for pardons for both Gaetz and Greenberg in the waning days of the Trump administration. But it wasn’t known that Stone also advocated for a pardon for this third man connected to Gaetz and Greenberg: Stephen Alford, a serial fraudster from the Florida panhandle.

That development was first revealed by The Washington Post in a draft memo published earlier this month. But the Post report didn’t mention Alford—his name only appears in a document the Post obtained and uploaded online—and the link hasn’t been explored.

Two months after Stone advocated for Alford’s absolution, that allegiance dissolved when Alford became Gaetz’s scapegoat for the investigation. (Stone also eventually blasted Alford as part of the “deep state.”)

Just weeks before, however, Stone was in Alford’s corner, lobbying for a pardon.

Much of this is just scammy Florida politics. I’m interested in two details of this.

First, one of the ties TDB did find between Alford — the guy who attempted to extort Gaetz’s dad — and Stone goes through Oleg Deripaska.

According to a person with direct knowledge of the events, however, Alford had one powerful friend: A Republican lobbyist close to Stone.

Weeks after Alford’s pardon request was declined, that lobbyist shared some more information: Matt Gaetz was in trouble. And the lobbyist, this person said, had the details, including images of Gaetz with young women at a sex party.

While it’s unclear how the lobbyist—an associate of Oleg Deripaska—came into this information, Stone had by that time known about the Gaetz allegations for months; Greenberg had told Stone all about their involvement with a 17-year-old, both over text messages and in a confession he drafted at Stone’s request, as part of the pardon process.

It didn’t take long for Alford to cobble together a plan—and it was a doozy: He would secure Gaetz a presidential pardon in exchange for $25 million, which Alford would supposedly use to repatriate an FBI agent taken hostage in Iran who has long been considered dead.

TDB then describes how this plan, involving a lobbyist with ties to Deripaska, was behind the campaign against the NYT story on Gaetz’ legal woes.

When The New York Times broke the investigation in late March last year, Gaetz used Alford’s ploy as ammo. He fired off a tweetstorm, claiming the Times report was a “planted leak” designed to torpedo an investigation into “criminal extortion” plot “to smear my name.”

The central figure in Gaetz’s narrative, however, wasn’t Alford; it was Alford’s lawyer, whose role was limited to holding the money in an escrow account while Alford negotiated the release.

That lawyer had one special characteristic: Three decades ago, he served as a DOJ prosecutor. And that fact equipped the narrative with a “deep state” hook—a Roger Stone special.

Gaetz doubled down that night on Tucker Carlson’s late-night Fox News talk show, explaining the convoluted “leaking” and “smearing” plot to a befuddled Carlson, who remarked that it was “one of the weirdest interviews I’ve ever conducted.”

The next day, Stone piped up to defend Gaetz, using the same language.

And I’m interested in that because Glenn Greenwald was another key player in this anti-NYT campaign, including as recently as December.

Click through for the details on Gaetz paying Stone until he stopped paying Stone.

Update: One more note about Stone’s plan for pardons. Unsurprisingly he pushed for pardons for Assange and Stone, and unsurprisingly he did so in the same terms that Greenwald did — as the best way to get back at the Deep State.

Hell yes ,I would pardon Julian Assange and Edward Snowden- they are persecuted because they exposed the same people who attempted the Russia Collusion Hoax, the Ukraine hoax the last phony impeachment and are now pushing you’re their new phony impeachment.

The plan is a telling document of how Stone exploited Trump’s narcissism and grievances to get things done. The UK Supreme Court just rejected Assange’s bid to appeal, so the initial extradition request will go to Priti Patel for approval (though he still has several avenues of appeal).

What Sedition Looks Like: Lots of Stewart Rhodes, but Key Uncharged Others

March 3, 2022/45 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

When DOJ first unrolled the seditious conspiracy charges against Oath Keeper Stewart Rhodes and others on January 13, I noted that one goal of that indictment was to pressure those with the most important information to flip.

It worked.

Less than fifty days later, Joshua James pled guilty to seditious conspiracy and obstruction as part of a cooperation deal.

James’ statement of offense, as all statements of offense must, lays out the things DOJ would have used to prove not just the crimes charged, but the enhancements, which in James’ case includes the following for both the seditious conspiracy and obstruction charges:

Particularly because he’s the first to plead to the sedition charge, the government lays that out carefully, bookending the description of January 6 with an explanation of James’ intent both to obstruct the vote count and to attack the government.

James agreed to take part in a plan developed by Rhodes to stop the lawful transfer of presidential power by January 20, 2021, by deploying force to prevent, hinder, and delay the execution of the laws of the United States governing the transfer of presidential power. They used encrypted and private communications, equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’s call to take up arms. James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels and “quick reaction force” (“QRF”) teams—and planned, if called upon, to use them in support of the plan to halt the lawful transfer of presidential power.

[snip]

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

James intended to use force and did, in fact, use force in the Capitol and when engaging in physical altercations with law enforcement, in order to prevent, hinder, and delay the execution of the laws governing the transfer of power. James corruptly obstructed, influenced, and impeded an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.

In taking such actions, James intended to influence or affect the conduct of the United States government or to retaliate against the United States government. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding, including Members of Congress, Congressional staff, and law enforcement officers with the Capitol Police and Metropolitan Police Department.

But much of the rest of the statement implicates others, making them more likely to plead, as well.

Most of the new detail in this statement describes actions of Stewart Rhodes, many of which James would be one of, or the only, witness to. That starts with the detail that, after James came out of the Capitol and then again days later, after Rhodes reviewed video of James’ fight with a cop, Rhodes expressed his approval of James’ actions.

After exiting the Capitol, James gathered with Rhodes and other co-conspirators approximately 100 feet from the Capitol, near the northeast corner of the building. Rhodes told James he was glad James and others had gone inside the Capitol.

[snip]

On January 8, 2021, James met with Rhodes and others at a restaurant in Alabama. There, James showed Rhodes a video of James’s physical altercation with law enforcement officers inside the Capitol on January 6, 2021.

DOJ will use this as evidence that Rhodes ratified the violence that James, at least, engaged in (and is proof that James always knew there was evidence of the confrontation with the cops, even though it took some time after James’ arrest for DOJ to find it).

There are a great many details in the statement about the immediate response after the riot. Almost immediately, it seems, Rhodes came to believe they were being pursued (DOJ is coy about whether he had reason to believe, which may prove interesting later). And so almost immediately, they left town.

At Rhodes’s instruction, James, Vallejo, and others met Rhodes that evening at a restaurant in Vienna, Virginia. Rhodes discussed saving “the Republic” by stopping the transfer of presidential power and began to make plans to oppose the Inauguration on January 20, 2021, including by having people open-carry firearms at state capitols around the country.

While at the restaurant, Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol. The group immediately returned to their hotel, collected their belongings, and met at a nearby gas station. There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle. Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him. The three cars departed in separate directions.

James returned to Alabama with some of Rhodes’s gear, including firearms and other tactical equipment.

This explains the behavior of some others, such as Graydon Young’s decision to drive back to Florida from his sister’s house in North Carolina rather than flying.

Rhodes continued to provide James orders to obscure his actions.

Rhodes expressed gratitude for James’s actions and told James to alter his physical appearance to conceal his identity.

[snip]

Rhodes gave James a burner phone—a cell phone used for concealing the identity of the user through a false registration and/or temporary use before discarding it for another cell phone. Rhodes instructed James to manufacture a false identity— including a false name and address—for the phone. James subsequently wrote the false name and address, “John Smith, 201 Oak Street, Albie, NE 68001,” along with a phone number and “Signal pin” on a sticky note placed inside the back of the phone’s battery case. Rhodes did not allow James and others to have their mobile phones powered on or nearby any time they discussed the Presidential Election and next steps.

But it wasn’t just Rhodes. One paragraph describes someone James “understood to be an attorney for the Oath Keepers” instructing them all to delete their communications. After this instruction, James in turn told Mark Grods and Brian Ulrich to delete their own communications.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

Thereafter, on January 8, 2021, James forwarded to Grods the message from the attorney and instructed him to “make sure that all signal comms about the op has been deleted and burned.” James also messaged Ulrich on Signal and instructed him to delete messages with photographs that included their faces.

It’s unclear who this person is — Kelly SoRelle is one possibility. Whoever it is, DOJ has described this in such a way as to remain ambiguous about the lawyer’s actual role, which is important because, as part of the later investigation, DOJ got another Oath Keeper to disavow SoRelle’s role as an attorney (meaning they wouldn’t have to treat her communications as privileged). In any case, whoever this lawyer is, the person is now implicated in James, Grods, and Ulrich’s efforts to obstruct the investigation, and as such becomes a candidate to be charged as a co-conspirator him or herself.

The other actions implicating Rhodes serve to show that Rhodes and James (as well as Kelly Meggs, though the evidence against him is weaker), started pursuing sedition before January 6 and continued it even after the inauguration.

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

On January 8, 2021, James collected his firearms and Grods’s shotgun, and he traveled to Texas where he met and stayed with Rhodes and others to, in part, serve as Rhodes’s security and be prepared to carry out Rhodes’s next instructions. James remained with Rhodes in Texas until February 2021.

While with Rhodes in Texas, and before the Inauguration on January 20, 2021:

[snip]

b. James accompanied Rhodes on multiple trips where Rhodes purchased thousands of dollars’ worth of firearms and tactical equipment, including scopes, ammunition, magazines, bipods, duffel bags, holsters, and firearm-maintenance equipment.

c. While in a vehicle together, Rhodes gave James an AR-platform firearm and explained that Rhodes would not be taken by law enforcement without a fight. James understood Rhodes to be ordering him to help defend Rhodes against law enforcement with force in the event of an arrest.

[snip]

James departed Texas in February 2021. At Rhodes’s instruction, James took with him multiple firearms, thousands of rounds of ammunition, multiple burner phones, scopes, magazines, night-vision equipment, and other tactical gear. Rhodes told James to be prepared to transport and distribute the equipment to others upon Rhodes’s instruction and to be prepared for violence in the event of a civil war. James stored this equipment in a storage shed in Alabama and awaited Rhodes’s instructions.

In short, the first person DOJ got to flip after the sedition charges was probably the most important witness against Rhodes as the leader of a seditious conspiracy.

But it’s not just Rhodes endangered by James’ cooperation. DOJ has included new details about what happened to James’ and others’ guns (including that they remained at the Hilton Garden Inn in Vienna, rather than in the Ballston Comfort Inn) — the significance of which I laid out here.

James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels

[snip]

On January 4, 2021, James traveled with Ulrich, Grods, and others to the Washington, D.C., metropolitan area. James brought a semi-automatic handgun, and Ulrich, Grods, and others brought firearms, including a rifle, a shotgun, a semi-automatic handgun, and ammunition. James stored their firearms at the Virginia hotel where he, Rhodes, Minuta, and others had rooms.

The statement of offense makes it clear that James has told DOJ about his conversations during the riot with Mike Simmons (but not what they included).

Between 2:00 p.m. and 4:05 p.m., James exchanged multiple phone calls with the operation leader Rhodes had appointed for January 6.

The statement implicates Roberto Minuta directly in James’ violence.

At 3:16 p.m., while inside the Capitol lobby outside the Rotunda, James asked Minuta, “Want to keep pushing in?” Minuta responded, “yup.” James then pushed toward the Rotunda, yelling, “Keep fucking going!”

[snip]

Other members of the mob, including Minuta, began pushing James forward into the Rotunda while James yelled, “Keep going!” James and Minuta breached the Capitol Rotunda, and then James was expelled by at least one officer who aimed chemical spray directly at James. Multiple officers pushed James out from behind.

And in a really interesting passage, the statement describes planning that happened on November 14 and 15 in the DC area and VA.

On November 14 and 15, 2020, James met with Rhodes and others in the Washington, D.C., metropolitan area and at Caldwell’s Virginia farmhouse and learned about the start of their plans to oppose by force the lawful transfer of presidential power.

As WO noted yesterday, there may have been an earlier reference to Thomas Caldwell removed in this draft (in which his first name was used), which might have described some reconnaissance Caldwell did on or before November 9, as described in the indictment. The November 14 planning is important, however, because it suggests broader coordination with “others” at the MAGA March. It may reflect Jon Schaffer’s cooperation; his arrest affidavit is one of the few, among all January 6 defendants, that mentions that march. DOJ now has a witness to that planning.

Perhaps the most interesting detail of the statement describes a plan to report to White House grounds and secure the perimeter.

In the weeks leading up to January 6, 2021, Rhodes instructed James and other coconspirators to be prepared, if called upon, to report to the White House grounds to secure the perimeter and use lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard or other government actors who might be sent to remove President Trump as a result of the Presidential Election.

The “if called upon” language reflects some of what we’ve seen in Rhodes’ (and the Oath Keepers’) ideology generally — that they believed they would become a legal militia once the President called on them. It reflects the contingent nature of the preparedness, something Rhodes has already tried to use to undercut the charges. But it also raises questions about why James and others, after having “provided security” for Roger Stone at the Willard the morning of the riot, hung around the Mayflower Hotel until the Capitol was breached. That is, they may have remained close to the White House that day until Rhodes decided there were more immediate objectives. All of which makes me more interested in whether the Oath Keepers brought weapons into DC that day.

Finally, there are the interesting details that aren’t in this statement, but which surely are key aspects of James’ cooperation. As noted above, the statement describes James’ contacts with Mike Simmons after 2:00PM. But we know those communications started earlier, at least by 10:06AM, when James was with Roger Stone.

Then there’s a comment from the indictment that doesn’t show up in this statement, in which James shares his opinion with “another individual” that Joe Biden’s inauguration would lead to “Civil War 2.0.”

On Inauguration Day, January 20, 2021, JAMES messaged another individual, “After this .. .if nothing happens .. .its war … Civil War 2.0.”

This statement has far more details showing that James was taking steps to prepare for such a civil war. But this detail of reflecting intent doesn’t appear in it.

Which is to say, there’s a lot here for Stewart Rhodes and others to see, to entice them to follow James’ lead in pleading.

But there’s a lot left unsaid to make others worry.

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

February 21, 2022/63 Comments/in 2016 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol. In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

Stewart Rhodes’ Detention Hearing Clarifies Investigative Challenges

February 17, 2022/40 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Last April, I noted that Stewart Rhodes was on overlapping phone calls with Kelly Meggs and Person Ten (since identified as Mike Simmons AKA Greene) that suggested Rhodes had conferenced the two together.

We now know that about a month after that, the FBI interviewed both Rhodes Simmons AKA Greene and obtained their phones. Here’s what Simmons AKA Greene said about his calls during this period in his second interview.

We have yet to see Rhodes’ interview report (it must not be that helpful, or Meggs or Kenneth Harrelson would have released it). Prosecutor Kathryn Rakoczy described that there were tens of thousands of Signal texts on Rhodes phone, and it took a good deal of time to sift through that all for both exculpatory and inculpatory evidence.

Whether just those interviews or call records, the investigation has confirmed I was right. Here’s how that call appears in the sedition conspiracy indictment charging Rhodes and Meggs, but not Simmons, unsealed last month.

92. At 2:32pm., MEGGS placed a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

The call was one of the contentious issues in a detention hearing for Rhodes before Judge Amit Mehta yesterday that illustrates why even this investigation has taken so long.

Prosecutor Kathryn Rakoczy argued that the call suggested that, before the Stack busted into the Capitol, Rhodes encouraged the intrusion in some way. Rhodes’ attorney James Bright, on the other hand, noted that all three men have denied they talked about busting into the building. Mehta seemed reasonably convinced by Rakoczy’s inference — but absent more proof about what was said, wasn’t sure that was strong enough to hold Rhodes on.

Judge Mehta didn’t resolve the detention question yesterday. Rakoczy also presented evidence that the third party custodians proposed by Rhodes weren’t entirely forthright about their ties to the Oath Keepers in an earlier detention hearing. Plus, Mehta seemed unconvinced that placing Rhodes in the custody of family members who would be in a different house (he would share a building with no Internet access with older adults) would provide enough supervision. One way or another, though, Rhodes will either be under home incarceration or remain jailed.

Which made the hearing more interesting for the way it revealed certain things about the case.

Take Mike Simmons AKA Greene, currently referred to as the “operation leader” in indictments. He called into the hearing as a potential witness for Rhodes (he failed to keep his second pseudonym secret before other journalists called in), meaning he was willing to testify under oath and be cross-examined about the substance of that call. That makes it quite clear he is not cooperating with the government. Which, in turn, means that the government simply hasn’t found probable cause to charge him yet (unlike Rhodes, he hasn’t left a string of damning comments online and on his cell phone). The government believes he didn’t tell the truth in two interviews last May, but thus far they’re not prepared to charge him.

Part of the problem pertains to that phone call. The government has multiple cooperating witnesses to what Meggs did in Florida before the riot. They’ve got cooperating witnesses to what Meggs did inside the Capitol. They’ve got a cooperating witness implicating Joshua James’ actions that day. They may have a witness to James’ side of conversations with Simmons AKA Greene from the Willard Hotel, where the Oath Keepers were with Roger Stone.

But because all three men on that critical phone call — Rhodes, Simmons AKA Greene, and Meggs — remain uncooperative, the government can’t prove what happened on it. The government likely needs to flip one of them or James to get further.

Which may be why the attorney for Jonathan Walden, Thomas Spina, submitted a motion to continue yesterday, discussing a, “possible resolution of this case.” Notably, the motion was dated February 15, but it stated that a reverse proffer necessary to conduct what must be plea discussions couldn’t happen until February 11, which would have been last Friday. If Walden has key information prosecutors need to move further in its investigation into what the Oath Keepers were doing with Roger Stone, he can likely demand a pretty sweet plea deal.

There was one other really fascinating development yesterday. Rhodes’ attorney, Bright, argued that everything Rhodes did was designed to comply with the law. The Quick Reaction Force remained, all the time, in VA, even when Ed Vallejo offered to bring in arms. Bright argued that was proof that Rhodes didn’t take the opportunity to arm when he could have.

More interesting still, it’s clear Bright will argue that, under an interpretation of the Insurrection Act, the President can rely on private militias. That is, Rhodes is going to argue that an insurrection would be legal.

That’ll be an interesting legal debate!

There are factual problems with Rhodes’ story that I’ll let the prosecutors unpack at a future time.

But yesterday’s hearing confirms something I laid out some time ago: Each step prosecutors take away from those who trespassed, defendants will be able to make First Amendment challenges to their prosecution, however unbelievable, that will make prosecution more difficult. To get from Stewie to Roger Stone, I’m sure they’ll need some more cooperators.

And until then, DOJ will be able to make a persuasive inference about what happened on that phone, but not direct proof.

Update, February 19: Last night Judge Mehta detained Rhodes. Interestingly, AUSA Kathryn Rakoczy stated that she agrees Rhodes shouldn’t be housed in the DC jail with the other Jan6ers, so he may stay in Texas. The Oath Keepers investigation is run so much more smartly than the Proud Boys one.

DOJ Finally Gets around to Sharing Discovery with Oath Keepers Mark Grods and Caleb Berry

January 30, 2022/140 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As background for some other things, I’d like to lay out some of the information sharing DOJ has been doing since charging some of the the Oath Keepers with sedition on January 12.

After mistakenly asking to share information with defendants in the previously charged caption (US v. Caldwell) on January 13, on January 14, DOJ asked to share grand jury material with Jon Schaffer and also asked to share sealed material from the Schaffer case with the defendants in the Rhodes, Crowl, and Walden cases, the newly spun out captions after the sedition charges (I describe how those cases got spun out here). Judge Amit Mehta approved that sharing request on January 14.

Prosecutors got a protective order with Schaffer in April, just days before he pled guilty.

This seems to confirm that Schaffer’s cooperation was regarding some aspect of the Oath Keeper’s actions, which is consistent with a discovery letter DOJ sent in April (at that time, defendants included the Stack, plus Joshua James and Roberto Minuta) saying that defendants had been informed, “about whether Mr. Schaffer has had communications with your clients.” But there still seems to be some aspect of his cooperation that is hidden. A November status update on Schaffer’s cooperation explained that,

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

At the time, there were trial dates set for the main Oath Keepers case and several people charged in it had already flipped, suggesting Schaffer’s cooperation didn’t pertain directly to the main Oath Keeper conspiracy. One possible explanation is that the description is just inaccurate. Another is that Schaffer is directly cooperating against different Oath Keepers who were charged sometime before November 12 under seal, or someone like Jeremy Brown, not charged in the January 6 conspiracies, but potentially facing new weapons charges in Florida.

On January 21, for the first time, DOJ asked for a protective order and permission to share grand jury materials with Caleb Berry. Mehta approved those requests on January 24.

On January 25, also for the first time, DOJ asked for a protective order and permission to share grand jury materials with Mark Grods. Mehta approved those requests the next day, January 26.

(The other two known Oath Keeper cooperators, Graydon Young and Jason Dolan, would be covered by existing protective and grand jury sharing orders, so we wouldn’t know if they were newly seeing existing discovery.)

This seems to suggest that, for the entirety of the time Berry and Grods have been cooperating with DOJ, seven months, they’ve only been shown information that they themselves brought to the table. There would have been real limits on what was available, too, because both Berry and Grods admitted to deleting evidence about Oath Keeper organizing leading up to and on January 6. So for the first time since they deleted this evidence more than a year ago, they may be shown the specific comments not otherwise included in public charging documents from those organizing chats.

Perhaps prosecutors are just moving towards follow-up interviews in preparation for April and July trials.

But there are details about both men’s cooperation — notably, what Berry knew of Roger Stone’s ties with the Oath Keepers and the Oath Keepers coordination with the Proud Boys from Florida, what Berry witnessed of Kelly Meggs’ intentions as they walked down a hallway hunting Nancy Pelosi, what Grods knew of the disposition of his and Joshua James’ weapons, and what Grods witnessed at the Willard Hotel the morning of the insurrection — about which prosecutors were especially coy in the new set of indictments.

That suggests those topics — topics directly implicating Roger Stone — remain an active part of the investigation, one that cooperating Oath Keepers may get new questions about now that DOJ has obtained all the other assistance necessary to wrap up their more obvious co-conspirators in a sedition conspiracy.

In the recent round of indictments, DOJ purposely hid what they’ve learned about Roger Stone from witnesses whose testimony they needed to finalize the sedition conspiracy. And for the first time, overt cooperators may get more questions about that.