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Graydon Young: Trading a Potential Terrorism Enhancement for Testimony against His Sister

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As of this moment, the government has obtained five misdemeanor guilty pleas, one straight up felony plea, and two cooperation pleas in the January 6 investigation. With an eye towards understanding the Graydon Young plea, I’d like to look at the stories — or lack thereof — that the government is telling with its Statements of Offense.

DOJ’s reticent Statements of Offense

Thus far, the government is using Statements of Offense for their functional purpose, to lay out how the defendant’s behavior meets the elements of the offense to which they plead guilty, and not to tell a larger story about the investigation (as, for example, in the Robert Mueller did with some of his guilty pleas).

Generally, the misdemeanor SOO are more succinct than the arrest affidavit for the same defendant. For example, in their SOO, there’s less detail of Jessica and Joshua Bustle’s social media postings or evidence from the geofence warrants than in their arrest affidavit. Instead the SOO lays out that they were in the Capitol, that they carried anti-vaccine signs (which supports their parading charge), and adds that the reason they were there was to “demonstrate against the certification of the vote count.” Similarly, Robert Reeder’s SOO doesn’t include details of the pictures he took while inside the Capitol, which were described in his arrest warrant; it focuses on the alarms ringing when Reeder entered the building, that Reeder ignored a cop’s response that “We don’t have any water in here, sir” when he walked past the cop into the building, and his second trip inside, all evidence making it clear his trespass was knowing and intentional. There is something new in Bryan Ivey’s SOO that wasn’t in his arrest affidavit: that he deleted all the photos and videos he took inside the Capitol which, if the FBI wasn’t able to restore them, would represent the loss of valuable evidence about the first rioters inside the building.

That will likely be used in sentencing to distinguish Ivey at sentencing from someone like Anna Morgan-Lloyd who was able to fully cooperate with law enforcement.

Similarly, the SOO for the one straight felony plea, that of Paul Hodgkins, adds almost nothing from his arrest affidavit, aside from a paragraph establishing his intent to obstruct the vote count, which is an element of the obstruction charge he pled guilt to.

Hodgkins knew at the time he entered the U.S. Capitol Building that that he did not have permission to enter the building, and the defendant did so with the intent to corruptly obstruct, influence, and impede 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.

There’s not even any language explaining the import of Hodgkins having helped occupy the Senate, as compared to those charged with misdemeanors.

There’s nothing at all wrong with this. Indeed, with the conveyor belt of plea deals that are about to go forward, doing this as efficiently and soundly, from a legal standpoint, as possible makes sense.

The cooperation deals also don’t tip DOJ’s hand

It’s not surprising, then, that the SOOs for the two cooperation deals provide little hint of what the men, Oath Keepers Jon Schaffer and Graydon Young, traded in hopes of working off their sentences. Admittedly, Schaffer’s SOO included two comments he made at the Million MAGA March on November 14, 2020 that were also included in his arrest affidavit. But like the arrest affidavit, the only link made between Schaffer’s actions on January 6 and the Oath Keepers is the Oath Keepers hat he wore to insurrection.

Instead, Schaffer’s SOO focuses on the elements needed to sustain Schaffer’s obstruction and trespassing with a deadly weapon (bear spray) charges.

Wearing a tactical vest and armed with bear spray, SCHAFFER unlawfully entered the building with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion.

We know that Schaffer is cooperating against other Oath Keepers. A discovery letter Kathryn Rakoczy sent on April 23 explained that,

On Wednesday, April 21, 2021, we emailed you about Jon Schaffer, who pled guilty last week, with respect to the information we have at this time about whether Mr. Schaffer has had communications with your clients.

But the SOO doesn’t reveal any of what Schaffer might say.

Similarly, Graydon Young’s SOO doesn’t reveal what he might have offered prosecutors in hopes of working away the estimated 63 to 78 months he faces on the charges to which he pled guilty. Though by examining the history of the charges against him with what did get included in his SOO, we might guess what he offered.

How Graydon Young ended up pleading out of terrorism exposure

The government was prepared to arrest Young with a January 18 arrest warrant charging him with trespassing, obstruction of the vote count, and obstruction for deleting his Facebook account. Instead, they held off until February, when they arrested Young along with his sister, Laura Steele, and Kelly and Connie Meggs as part of the First Superseding Indictment, which added conspiracy and aiding and abetting the destruction of government property (18 U.S.C. §1361) charges to Young’s legal woes. The Third Superseding Indictment added no charges against Young. But the Fourth added a civil disorder charge that also implicated his sister and Jessica Watkins (as well as civil disorder, assault, and obstruction charges for some others). As I described at the time, the government was effectively turning the screws, enhancing most defendants’ legal jeopardy — albeit with charges that were already foreshadowed in case filings — as they awaited discovery. It was utterly ruthless, and about par for the course for DOJ, particularly for a complex conspiracy case.

By pleading guilty, Young not only got 3 levels of credit for pleading guilty, but the civil disorder and damage to the building charge were dismissed. Notably, the latter charge is what can be used to add a terrorism enhancement at sentencing, so by pleading, Young basically avoided being treated, legally, as a terrorist if and when DOJ decides to go there. In addition, Young’s initial charge for deleting his Facebook account got added as a two level enhancement to his obstruction charge. Had he been convicted of everything at trial, Young probably would have been sentenced to that as a separate crime concurrently, so effectively by pleading it just made his existing obstruction exposure worse.

Here’s what all that looks like in the mumbo jumbo of sentencing levels, which gives a sense of how DOJ is treating the Oath Keepers’ obstruction of the vote count as distinct from Paul Hodgkins, whose base level calculation (which did not include the threats of violence and damage, the extensive planning, or the obstruction charged against Young himself) was 17.

U.S.S.G. § 2J1.2 Base Offense Level 14

U.S.S.G. § 2J1.2(b)(1)(B) Causing/Threatening Injury or Damage +8

U.S.S.G. § 2J1.2(b)(2) Substantial Interference With Justice +3

U.S.S.G. § 2J1.2(b)(3)(C) Extensive Scope, Planning, or Preparation +2

U.S.S.G. § 3C1.1 Obstruction (destroying documents) +2

Total 29

Apropos of nothing (except that this conspiracy is getting closer to Roger Stone), this is precisely the same guidelines calculation as DOJ used with Stone, and — except for threatening a judge rather than deleting Facebook — for the same reasons.

So Paul Hodgkins, who obstructed the vote by going alone to the Senate floor and occupying that space with people like Jacob Chansley, faces 15 to 21 months, whereas Young, by planning ahead with a militia and going into the day planning for violence, faces 63 to 78 months (though avoids the terrorism enhancement that DOJ has been hinting they may use against the conspirators).

What is and is not in Young’s Statement of Offense

With that as background, I’d like to look at what got included and excluded in Young’s SOO, and what got excluded (which I’ll argue may hint at what he’ll cooperate with DOJ on).

The core of Young’s SOO substantiates the obstruction charge in language similar to that used with Hodgkins:

16. At the time Mr. Young forcibly entered the building, Mr. Young believed that he and the co-conspirators were trying to obstruct, influence, and impede 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 the statutes listed in sections 15 through 18 of title 3 of the U.S. Code.

17. Mr. Young acted to affect the government by stopping or delaying the Congressional proceeding, and, in fact, did so. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding.

In addition, ¶¶20-21 describe Young deleting his Facebook account and some of what he deleted, and ¶¶8-15 and ¶¶18-20 describe most of the overt acts attributed to him in the Fourth Superseding, correlating this way:

¶8 of the SOO describes making plans.

¶9 describes Young and “at least some of the co-conspirators” discussing the need for operational security includes a Proton Mail exchange in which Joseph Hackett described sending pictures to discuss, “locations, identities, Ops planning … to avoid digital reads.”

¶10 describes Young traveling with “at least one of the co-conspirators” — language of his SOO that will be used as evidence against his own sister, Laura Steele — to DC.

¶11 describes the Trump rally in very oblique terms: “an event near the White House.”

¶12 describes — again, in innocuous terms, “marched with at least some of the co-conspirators towards the U.S. Capitol” — as described as The Stack “preparing for battle and marching to the Capitol” in ¶101 of the Fourth Superseding.

¶13 describes entering the restricted grounds of the Capitol (one of the trespass charges) and what gear he wore.

¶14 describes The Stack entering the Capitol, as described in ¶132 of the Fourth Superseding.

¶15 describes The Stack walking through a damaged door (substantiating the 18 USC 1361 charge Young is no longer charged with) and tussling with cops.

As noted, ¶¶16-17 allocute the obstruction of the vote count.

¶18 describes six members of The Stack specifically pushing against a line of cops guarding the hallway (substantiating the Civil Disorder charge Young is no longer charged with but his sister is).

¶19 describes Young exiting the Capitol.

¶20 describes the content of something Young tried to delete from his Facebook account: “At around 4:22 p.m., Mr. Young posted on Facebook, “We stormed and got inside.'”

Even on its face, the SOO has Young admitting to overt acts, under oath, that implicate a number of his co-conspirators, especially Jessica Watkins, Hackett, and his sister, Laura Steele. That’s part of what DOJ got from Young in this plea deal: sworn testimony and therefore more pressure to plead against other alleged conspirators. This probably won’t be the last time in the January 6 investigation — possibly even in this conspiracy — that DOJ requires family members to testify against family members to get a plea deal.

But there are other things described in the Fourth Superseding that either don’t show up in the SOO or show up in such oblique fashion that they likely point to area where Young gave prosecutors something they didn’t have.

For example, the Fourth Superseding describes Young’s own effort to join the Oath Keepers, his efforts to recruit others, and his role in rushing his sister through the process (an utterly disastrous favor that Steele’s big brother did for her). If that’s covered in his SOO, it’s only in this vague language.

In advance of January 6, 2021, Mr. Young coordinated with certain individuals and affiliates of the Oath Keepers – referred to here as “the co-conspirators” – in making plans for what Mr. Young and the co-conspirators would be doing in Washington, D.C., on January 6.

In addition, the Fourth Superseding included details of a Signal planning chat in which Young was included.

At least as early as January 3, 2021, WATKINS, KELLY MEGGS, YOUNG, HARRELSON, HACKETT, DOLAN, ISAACS, and others known and unknown joined an invitation-only encrypted Signal group message titled “OK FL DC OP Jan 6” (hereinafter the “Florida Signal Chat”).

We know nothing of what was said on this chat. The uncertainty about when it was established suggests that the government may have obtained what it has of this chat via someone whose phone took some time to exploit, someone (possibly including Young) who was a relatively late addition to it. But certainly, whatever did take place on this chat would be one of the things incorporated into the “making plans” bullet described in the indictment, and key to showing not just that the Oath Keepers had entered into a conspiracy to conduct this operation, but probably details of how they coordinated with other militias in Florida

Relatedly, there’s the firearms training session Young set up, which is not included in his SOO but is included in the larger conspiracy.

47. On December 26, 2020, YOUNG wrote an email to a Florida company that conducts training on firearms and combat. YOUNG wrote, in part, “I trained with you not long ago. Since then I have joined Oath Keepers. I recommended your training to the team. To that effect, four of us would like to train with you, specifically in your UTM10 rifle class.”

Given how obliquely the SOO refers both to Young’s activities at the Trump rally and the decision to leave before it ended to head to the Capitol, I suspect he provided new details on that, as well.

We may not learn these details for weeks if not months (we still have no idea what Schaffer has been doing since he pled in April).

All DOJ’s telling us is that Graydon Young’s plea deal will make things worse for his co-conspirators, giving them even more incentive to flip on their own right.

Update: Benny Bryant reminds me that we do know some stuff about that Florida Signal chat, because it shows up in the government’s response to Kenneth Harrelson’s bid for bail. He also argues that the weapons training Young signed up for is not the training that the Meggses set up. [Deleted reference to Stone there.]

Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

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You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.

Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.

Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

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As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

The Gateway Pundit’s East Capitol Door Oath Keeper Conspiracy

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In a motion arguing that accused Oath Keeper Jason Dolan should be held without bail, the government accuses Dolan of inventing an alternative story to explain how the East doors of the Capitol got opened on January 6.

Many of these detention motions aren’t all that convincing about the danger of the defendant; I find this one to be. The government shows the three gun cases that Dolan and fellow Floridian Kenneth Harrelson stashed at the Ballston Comfort Inn before the insurrection.

The government explains that Dolan spent a decade as a marksmanship instructor while serving as a Marine and that Dolan appears to have hidden at least two guns that his neighbor said he owned in advance of being arrested.

The motion describes that Dolan and Harrelson were “near” the Capitol on January 5, which the government suggests was, “likely to conduct surveillance for their operation the following day.”

It describes how, after busting into the Capitol, Dolan, Harrelson, and Kelly Meggs spent six minutes outside Nancy Pelosi’s office (note, I think the government misleadingly suggests this photo came from Harrelson or Meggs).

Hours later, Meggs talked about how “we” had looked for Pelosi.

The government also shows that the attorney that Dolan shares with the former President, Michael Van der Veen, was wrong when he claimed there was no ongoing contact between Dolan and the Oath Keepers; Dolan and Harrelson were in communication via Signal leading up to Harrelson’s arrest.

But that’s not the most interesting part of the detention motion.

The government argues that Dolan is the source for this Gateway Pundit story, which was set up with the involvement of the Oath Keeper’s PR attorney, Kellye Sorelle (and so would constitute another recent contact with the Oath Keepers to prove Van der Veen wrong). They point to this video seized from Harrelson’s phone, showing the person in front of him, whom other pictures identify as Dolan, taking a picture of the just-opened East door.

That’s almost exactly the picture that shows up in the Gateway Pundit article.

(Note, Gateway Pundit cropped that image, I didn’t.)

That makes the intent of the Gateway Pundit story more interesting. It claims that the existing explanation for how the East doors got opened is that a Marine Major “went inside and managed to run around and open up the doors.”

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

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

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

The point of the story is to argue — based on the source’s experience working at US Embassies overseas, which Dolan did — that it would be impossible to open doors secured by magnetic locks. That’s not true: for safety reasons it has to be possible to open such doors from the inside, which is what the government claims did happen.

It’s how Dolan inserts Marine Major Christopher Warnagiris into the story, claiming that Warnagiris opened the doors from the inside, that I find particularly interesting.

That’s not what he is alleged to have done though. Warnagiris is alleged to be the first person in the East door, as if he knew — standing there on the Capitol steps fifteen feet in front of where Dolan was standing at the same time — that they would be opened.

Then Warnagiris prevented the cops from closing the doors once they had been opened, all the while helping others (which would hypothetically include the Stack that Dolan entered with) get in.

Without the tie to Warnagiris, this story would seem like nothing more than a ham-handed attempt to claim that the Stack could not have “broken” in, because to open the magnetic doors, someone would have had to have let them in. Maybe that’s all it is.

But the story serves as much to obscure what fellow Marine Warnagiris did as what Dolan and the rest of the stack did. Given that both Marines seemed to know those doors would open, I find that an interesting story to tell.

OpSec Confusion on the Oath Keeper Conspiracy

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I write a lot about the comms the Oath Keepers used to plan insurrection. There was the post about how they figured out, too late, not to plan an insurrection on Facebook; of the five counts of obstruction on the Oath Keeper indictment released Sunday, two pertain to Facebook. Then there was the post where I cataloged how many social media platforms were described in the last iteration of the indictment against them.

  • A leadership list on Signal they appear to have obtained from either Watkins and/or Kelly Meggs
  • Open channels on Zello, possibly separate ones for each large event
  • Telephony chats and texts, including during January 6
  • MeWe accounts
  • Way too much blabbing on Facebook, followed by a foolish belief they could delete such content
  • Parler for further blabbing
  • Stripe for payment processing (possibly for dues)
  • GoToMeeting for operational planning

The remaining three obstruction charges pertain to this social media activity, one — for Joshua James — specifically describing his attempt to delete and burn the “[S]ignal comms about the op.”

Add hand-written ProtonMail attachments to the toolchest

It turns out I should have included ProtonMail in that list, because both the addresses to which Laura Steele sent her vetting application to join the Oath Keepers on January 3 were ProtonMail addresses, but the government only laid that out in their unsuccessful bid to keep her detained, in an attempt to use its encryption to ascribe to her that operational security.

On the evening of January 3, 2021, Defendant Steele emailed a membership application and vetting form to the Oath Keepers of Florida.4 She copied Defendant Young on the email, and wrote: “My brother, Graydon Young told me to submit my application this route to expedite the process.” Under the section for “CPT Skill Sets (Community Preparedness Team) Experience or Interests,” she checked “Security.” Under “Skillsets,” she wrote: “I have 13 years of experience in Law Enforcement in North Carolina. I served as a K-9 Officer and a SWAT team member. I currently work Private Armed Security for [company name redacted]. I am licensed PPS through the North Carolina Private Protective Services.”

Within 10 minutes, Defendant Steele sent another email, this one directly to Defendant Kelly Meggs’s email account at Proton Mail, again copying Defendant Young. She again attached her application and vetting form, and wrote: “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.”

The following day (January 4), Defendant Steele sent the same materials to yet another Oath Keepers email address at Proton Mail. On her email, she copied co-defendants Kelly Meggs and Graydon Young.

4 The email recipient was actually a Florida Oath Keepers account at “protonmail.com.” Proton Mail is housed overseas (in Switzerland) and offers end-to-end encryption. “Even the company hosting your emails has no way of reading them, so you can rest assured that they can’t be read by third parties either.” Mindaugas Jancis, ProtonMail review: have we found the most secure email provider in 2021?, CyberNews, Mar. 4, 2021, at https://cybernews.com/secure-email-providers/protonmail-review.

But Proton is not going to help if one side of a communication is on Gmail or some other email service on which FBI can serve a subpoena. Which may explain how the government obtained this email from the newly indicted Joseph Hackett in the latest superseding.

41. On December 19, 2020, HACKETT sent an email to YOUNG with a subject line “test.” The body of the email stated: “I believe we only need to do this when important info is at hand like locations, identities, Ops planning.” The email had a photo attached; the photo showed cursive handwriting on a lined notepad that stated: “Secure Comms Test. Good talk tonight guys! Rally Point in Northern Port Charlotte at Grays if transportation is possible. All proton mails. 7 May consider [a rally point] that won’t burn anyone. Comms – work in progress. Messages in cursive to eliminate digital reads. Plans for recruitment and meetings.”

7 Based on the investigation, “proton mails” appears to refer to the company “ProtonMail,” which offers encrypted email services.

I’ve not seen anything that suggests the government has obtained Proton Mails from the Oath Keepers conducted entirely on the platform; that may have to wait until someone involved decides to cooperate. But I’m not sure how writing the most sensitive messages on what sounds like dead tree paper before sending it adds to the security.

DOJ’s selective understanding of encryption

One of the more aggravating pieces of confusion in the new indictment, however, comes not from the alleged conspirators but from the government.

The last item in a list of Manner and Means employed in the conspiracy is the use of “secure and encrypted communications.”

Using secure and encrypted communications applications like Signal3 and Zello4 to develop plans and later communicate during the January 6 operation.

The first overt act describes Stewart Rhodes laying out what I am calling the “Antifa foil” on a GoToMeeting meeting.

At a GoToMeeting5 held on November 9, 2020, PERSON ONE told those attending the meeting, “We’re going to defend the president, the duly elected president, and we call on him to do what needs to be done to save our country. Because if you don’t guys, you’re going to be in a bloody, bloody civil war, and a bloody – you can call it an insurrection or you can call it a war or fight.”

As a result, the following footnotes appear on the bottom of the same page.

3 Signal is an encrypted messaging service.

4 Zello is an application that emulates push-to-talk walkie-talkies over cellular telephone networks. Zello can be used on electronic communication devices, like cellular telephones and two-way radios.

5 GoToMeeting is an online meeting site that allows users to host conference calls and video conferences via the Internet in real time.

Start with Zello: It can be secure. But it wasn’t, as used by the Oath Keepers, the day of the insurrection, because it was an open channel. Indeed, the reason we know about it is because journalist Micah Loewinger was following along in real time. Plus, anything saved onto a phone will be accessible once the phone is compromised, just like Signal will. (From the discovery letters shared with the Oath Keepers — the most recent of which is over a month old — the government appears to have initially relied on WNYC’s published versions of the Zello chats. But this superseding indictment includes time stamps from Watkins’ Zello exchanges, which suggests they’ve obtained a more reliable copy since then.

Signal, DOJ says, is encrypted. I have no problem with that. But they started compromising the Signal chats as soon as they exploited Jessica Watkins’ phone. And the latest indictment seems to rely on the exploitation from another of the more involved participants — it’s where the new details on the Quick Reaction Force come from (here’s my rough capture of the communications we’ve seen referenced to date).

What I find annoying is that, after treating Signal and Zello as super spooky applications, DOJ then treats GoToMeeting like a normal tool, just “an online meeting site that allows users to host conference calls and video conferences via the Internet in real time.”

But it is also end-to-end encrypted and has a number of other security features that are necessary for its use by mainstream businesses and health care providers. That said, it is centralized and probably responds eagerly to legal process, which is the distinction DOJ really intends by this. That is, it’s not encryption that makes the use of these apps a useful marker of a conspiracy, it’s decentralized security, security that the Oath Keepers didn’t use with Zello the day of the insurrection. Plus, for a conspiracy indictment, as opposed to other criminal charges, the use of G2M suggests a bureaucratization that should be more useful to prove the case.

In any case, with this fourth indictment, DOJ added content from G2M that was probably meant to be secure: Stewart Rhodes’ “Antifa foil” comments. An initial production of G2M had been provided to defendants by April 9, with a second attempt on April 23. So it may be that it has taken some time to reconstruct whatever full production they might receive from the various Oath Keeper accounts.

The money is the metadata

That said, it is amusing seeing the conspirators try to add a layer of security to the already secure ProtonMail while they’re laying a trail of travel plans that knots them all up into a network. Here are just some of the fleshed out details from the indictment:

79. On January 4, 2021, HARRELSON and DOLAN departed Florida together in a vehicle rented by DOLAN and traveled to the Washington, D.C., metropolitan area.

[snip]

82. On January 4, 2021, PERSON TEN checked into the Hilton Garden Inn in Vienna, Virginia. The room was reserved and paid for using a credit card in PERSON ONE’s name.

[snip]

85. On January 5, 2021, PERSON ONE and MINUTA separately traveled to the Washington, D.C., metropolitan area and checked into the Hilton Garden Inn in Vienna, Virginia.

[snip]

90. KELLY MEGGS paid for two rooms, each for two people, at the Comfort Inn Ballston from January 5-6, 2021. The rooms were reserved under the name of PERSON THREE.

90. KELLY MEGGS paid for two rooms, each for two people, at the Comfort Inn Ballston from January 5-6, 2021. The rooms were reserved under the name of PERSON THREE.

91. KELLY MEGGS also booked two rooms at the Hilton Garden Inn in Washington, D.C., from January 5-7, 2021. KELLY MEGGS paid for both of the rooms, using two different credit cards.

[snip]

93. HACKETT paid for a room at the Hilton Garden Inn in Washington, D.C., from January 5-7, 2021. The room was booked in the name of PERSON SIXTEEN.

[snip]

95. MINUTA, using his personal email address and his personal home address, reserved three rooms at the Mayflower Hotel in Washington, D.C., under the names of MINUTA, JAMES, and PERSON TWENTY. A debit card associated with PERSON FIFTEEN was used to pay for the room reserved under MINUTA’s name. A credit card associated with JAMES was used to pay for the room reserved under JAMES’s name.

Kelly Meggs, by paying for what appears to be the QRF room and another for Person 3 to tend the weapons, would tie the Floridians staying in the DC Hilton Garden with a group coming from at least three states at the Ballston Comfort Inn (and that’s before you consider the surveillance footage that shows others dropping off weapons). Minuta, by reserving three rooms at the Mayflower, would tie Joshua James, Person Twenty, and Person Fifteen to the group, including Minuta, staying at the Vienna Hilton Garden, which includes Rhodes and Person Ten. And there’s at least one known payment — from some unidentified person to James’ wife — that doesn’t show up here.

Post 9/11, it’s hard to hide hotel travel, especially retroactively, after engaging in a terrorist attack, but it doesn’t help that the Oath Keepers didn’t compartment their network at all. So all the encrypted messaging and meeting apps in the world could not hide that this was a network that spanned (thus far, but I’m holding out hope they’ll roll out the first Mississippi defendants any day!) at least seven states.

Update: I’ve taken out a reference to the Ohioans walking Isaacs back to a hotel in DC. They did separate early but it was not to take him back. Thanks to Benny Bryant for the correction.

Crystalizing Conspiracies: Fourth Superseding, James Breheny, Puma’s GoPro, [Redacted], and the Willard Hotel

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Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

In this post, I used the imminent guilty plea of Paul Allard Hodgkins to illustrate that we really don’t know what evidence of conspiracy prosecutors are looking at, which means that we can’t really say whether the January 6 investigation will ultimately hold those who incited the violence accountable. I explained how a PhD in Comp Lit might be useful training to see the gaps in prosecution filings that show what secrets they’re holding in abeyance. And, as I further explained, if those most responsible for January 6 are going to be held accountable, it will likely be (at least in part) via conspiracies with the Oath Keepers and Proud Boys, including the multiple ties Roger Stone has with both militias.

This post is meant to be read in tandem with that one.

This one will look at four developments in the case against the Oath Keepers in the last week or so.

The superseding indictment turns the screws

Most spectacularly, the government rolled out a fourth superseding Oath Keeper indictment yesterday. The ostensible purpose of it was to add four new defendants: Joseph Hackett, Jason Dolan, and William Isaacs, all from Florida, along with a fourth, accused of just three crimes, whose name is redacted.

The indictment broadens the kinds of communications used to communicate during the conspiracy, including Signal along with Zello, as well as orders to write key details in cursive, then send them via Proton Mail.

It adds a comment Stewart Rhodes made on November 9 laying out what I’ll call the “Antifa foil” — an affirmative plan, laid out months before the insurrection, to use the “threat” of Antifa as the excuse to come armed and a means to foment violence.

At a GoToMeeting5 held on November 9, 2020, PERSON ONE told those attending the meeting, “We’re going to defend the president, the duly elected president, and we call on him to do what needs to be done to save our country. Because if you don’t guys, you’re going to be in a bloody, bloody civil war, and a bloody – you can call it an insurrection or you can call it a war or fight.” PERSON ONE called upon his followers to go to Washington, D.C., to let the President know “that the people are behind him.” PERSON ONE told his followers they needed to be prepared to fight Antifa, which he characterized as a group of individuals with whom “if the fight comes, let the fight come. Let Antifa – if they go kinetic on us, then we’ll go kinetic back on them. I’m willing to sacrifice myself for that. Let the fight start there. That will give President Trump what he needs, frankly. If things go kinetic, good. If they throw bombs at us and shoot us, great, because that brings the president his reason and rationale for dropping the Insurrection Act.” PERSON ONE continued, “I do want some Oath Keepers to stay on the outside, and to stay fully armed and prepared to go in armed, if they have to . . . . So our posture’s gonna be that we’re posted outside of DC, um, awaiting the President’s orders. . . . We hope he will give us the orders. We want him to declare an insurrection, and to call us up as the militia.” WATKINS, KELLY MEGGS, HARRELSON, HACKETT, PERSON THREE, PERSON TEN, and others known and unknown attended this GoToMeeting. After PERSON ONE finished speaking, WATKINS and KELLY MEGGS asked questions and made comments about what types of weapons were legal in the District of Columbia.

The indictment provides more evidence of a plan to have Oath Keepers from North Carolina stationed as a Quick Reaction Force to pick up weapons from one of two locations in DC and deliver them to others already there (a recent filing arguing Thomas Caldwell needs to keep informing pretrial services of his movements included surveillance video from the Ballston Comfort Inn of the conspirators carrying around presumed guns draped in sheets).

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C., in the Leadership Signal Chat, along with the message, “1 if by land[,] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing !!” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”

[snip]

On January 4, 2021, CALDWELL emailed PERSON THREE several maps along with the message, “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

[snip]

On January 4, 2021, WATKINS wrote in the Florida Signal Chat, “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.”

On the morning of January 5, 2021, HARRELSON asked in the Florida Signal Chat for the location of the “QRF hotel,” and KELLY MEGGS responded by asking for a direct message.

It provides more details about what the Oath Keepers did in the Capitol (including descriptions of how the kitted out veterans folded — retreated — as soon as they were hit with some tear gas).

When officers responded by deploying a chemical spray, the mob—including CROWL, WATKINS, SANDRA PARKER, YOUNG, and ISAACS—retreated.

[snip]

JAMES briefly breached the Rotunda but was expelled by at least one officer who aimed chemical spray directly at JAMES, and multiple officers who pushed him out from behind.

Importantly, the superseding indictment adds civil disorder charges against six of the Oath Keepers for interactions they had with cops inside the Capitol. It adds an assault charge against Joshua James for his physical interaction with cops. It adds obstruction charges against Kelly Meggs, Kenneth Harrelson, and James for deleting comms. Some of these charges were expected; it’s just that adding four new defendants was a convenient time to add them.

As these defendants are sitting here, though, their legal jeopardy is getting worse. Which is likely part of the point. They might stave off any further charges if they decide to cooperate with prosecutors.

When the government first charged this conspiracy, they were way over their skis, with detention requests and claims of danger that they did not yet have (or were not yet willing to show) evidence to support. That’s no longer true, and I wouldn’t be surprised if the government tries to detain a few more of these defendants when they are arraigned on the new charges this week.

James Breheny’s inter-militia network

One of the interesting details of this indictment is the exclusion of Oath Keeper James Breheny from it. Unlike the Proud Boys, all the Oath Keepers have been charged on one conspiracy indictment. The sole exception is Jon Schaffer, who from very early on was cultivated to flip, which he did on April 16. Remarkably, it’s not clear that Schaffer’s cooperation shows up in the new superseding indictment.

Now Breheny joins Schaffer in being charged (at least for now) on his own, which means, as of now, he’s only on the hook for his own crimes, not those of 16 co-conspirators. Breheny is an Oath Keeper from New Jersey who self-surrendered (suggesting ongoing discussions involving a lawyer) on May 20.

Breheny’s charging documents are interesting on several points. First, the affidavit excerpts a post Stewart Rhodes published on December 14, calling on Trump to invoke the Insurrection Act, including this paragraph:

You must act NOW as a wartime President, pursuant to your oath to defend the Constitution, which is very similar to the oath all of us veterans swore. We are already in a fight. It’s better to wage it with you as Commander-in-Chief than to have you comply with a fraudulent election, leave office, and leave the White House in the hands of illegitimate usurpers and Chinese puppets. Please don’t do it. Do NOT concede, and do NOT wait until January 20, 2021. Strike now.

This Rhodes post doesn’t appear in the Oath Keeper conspiracies, though it is a continuation of the November 9 comment from Rhodes also calling for insurrection, and it provides context for a comment he made on January 6 about what he expected Trump to do.

Then, Breheny’s complaint describes him inviting Rhodes to “a leadership meeting of ‘multiple patriot groups'” in Quarryville, PA on January 3, 2021. His invite directed Rhodes not to bring a phone and explained,

This will be the day we get our comms on point with multiple other patriot groups, share rally points etc. This one is important and I believe this is our last chance to organize before the show. This meeting will be for leaders only.

Breheny’s complaint also explains that Rhodes only added Breheny to the leadership list for the Oath Keepers on January 6. In explaining that detail, a footnote explains,

numerous individuals affiliated with the Oath Keepers who have been alleged to have participated in the riots participated in this chat and have been indicted in US v. Caldwell et al, 21-cr-28-APM.

It’s a neat way of saying that Breheny conspired with those charged in the main Oath Keepers conspiracy and they conspired with him, without charging him in that conspiracy.

The rest of the complaint explains how Breheny lied to the FBI about what he did on January 6, but after the government got a warrant for his phone, they obtained pictures and texts showing he had done far more on January 6 than he admitted to cops, including fighting his way in the East Doors that all the other Oath Keepers entered.

The government has been selective about whom they’re charging with obstruction for lying and deleting evidence, but their case that Breheny deliberately attempted to obstruct the investigation is quite strong.

Anthony Puma’s GoPro is arrested

On May 27, a guy from Michigan named Anthony Puma was arrested, more than four months after the FBI interviewed him on January 14 and after, on January 17, he shared the SD card from the GoPro he wore on January 6.

On April 23, the government obtained Puma’s Facebook account, which provided video and text evidence that, in his January 14 interview, Puma dramatically downplayed his knowledge of events on January 6. Most notably, they found texts he posted on January 5, knowing that, and precisely when, “we are storming” the Capitol the next day.

Tomorrow is the big day. Rig for Red. War is coming

We are here. What time do we storm the House of Representatives?

Hopefully, we are storming the House of Representatives tomorrow at 100 pm.

There’s no hint in his charging documents that Puma has association with the Oath Keepers. Assuming he does not, it seems likely he was arrested, as I believe a number of other recent defendants were, so he can be forced to authenticate the important video evidence he shot on the day of the insurrection.

As a Comp Lit PhD who had to read a fuck-ton of postmodern theory, my favorite picture from his GoPro shows him filming himself shooting a video on his phone as he approached the Capitol.

But there are two other clips that I suspect are more important — one, showing what I believe to be a second stack of likely Oath Keepers preparing to breach the Capitol.

And another, showing presumed Oath Keepers on their golf cart race from the Willard Hotel to reinforce the Capitol, calling out, “We are inside, they need help, we’ve breached the Capitol.”

So whether or not Puma has a tie to the Oath Keepers, he now has reason to cooperate with prosecutors on making this video available for any trial.

[Redacted]

As noted, there were four people added to the Oath Keepers conspiracy indictment, but the name of one remains redacted.

It can’t be Roger Stone, as a lot of people are wishing, because Stone’s not an Oath Keeper.

But whoever [redacted] is, he almost certainly traveled with Roberto Minuta and Joshua James from the Willard Hotel where they were “guarding” Roger Stone and others to the Capitol.

I say that because of four paragraphs from the third superseding indictment describing the golf cart race to the Capitol, three are redacted in the fourth.

That doesn’t necessarily mean that [redacted] has had a child with Roger Stone or anything as exciting as that. It does mean that someone who was a likely witness to what happened on the Willard Hotel side of phone calls between Person Ten (who was the ground commander for the Oath Keepers that day) and James has been added to the conspiracy.

[redacted] appears to have entered the Capitol with Minuta and James, as what had been ¶104 describing their entrance “together with others known and unknown” in the third superseding is redacted as ¶154 in the fourth.

But the potentially more interesting actions of [redacted] appear in ¶¶76 and 77, which explain pre-insurrection communications and planning, as well as ¶99, which must explain what [redacted] did the morning of the insurrection, probably with James and Minuta. And ¶102 likely describes what the three of them were doing at the Willard Hotel while everyone else started breaching the Capitol.

As I said in this post, it takes more than four months to charge a complex conspiracy. But these four developments together add a December call for insurrection (in tandem with events that day in DC), places the Oath Keepers — including Stewart Rhodes — in a January 3 meeting coordinating with other militias, and it seemingly adds a third witness to what went on in the Willard Hotel the morning of the insurrection.

Latex Gloves Hiding Evidence of Conspiracies: On the Unknown Adequacy of the January 6 Investigation

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Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

Update, 6/2: As this post lays out, Hodgkins’ plea was indeed just a garden variety plea. During the hearing he explained the latex gloves. He carries a First Aid kit around all the time and saw Joshua Black’s plastic bullet wound (though he didn’t know Black and didn’t name him in the hearing) and put gloves on in preparation to provide medical assistance. After Black declined his help, he took the latex gloves off.

On Wednesday, June 2, insurrectionist Paul Allard Hodgkins will plead guilty, becoming just the second of around 450 defendants to publicly plead guilty (particularly given the number of people involved, there may be — and I suspect there are — secret cooperation pleas we don’t know about).

NOTICE OF HEARING as to PAUL ALLARD HODGKINS: A Plea Agreement Hearing is set for 6/2/2021, at 11:00 AM, by video, before Judge Randolph D. Moss. The parties shall use the same link for connecting to the hearing.(kt)

This could be the first of what will be a sea of plea deals, people accepting some lesser prison time while avoiding trial by pleading out. But there’s one detail that suggests it could be more, that suggests Hodgkins might have knowledge that would be sufficiently valuable that the government would give him a cooperation deal, rather than just a plea to limit his prison time.

Hodgkins is one of the people who made it to the Senate floor and started rifling through papers there, which by itself has been a locus of recent investigative interest. But he is an utterly generic rioter, wearing a Trump shirt and carrying a Trump flag. According to an uncontested claim in his arrest affidavit, he told the FBI he traveled to the insurrection from Florida alone, by bus. Because the only challenge he made to his release conditions — to his curfew — was oral, and because the prosecutor in his case hasn’t publicly filed any notice of discovery (which would disclose other kinds of evidence against him), there’s nothing more in his docket to explain who he is or what else he did that day, if anything.

But one thing sticks out about him: before he started rifling through papers in the Senate, he put on latex gloves.

It’s not surprising he had gloves. During the pandemic, after all, latex gloves have been readily available, and I’ve wandered around with gloves in my jacket pocket for weeks. But he did show the operational security to put them on, when all around him people were just digging in either bare-handed or wearing the winter or work gloves they had on because it was a pretty cold day.

There’s just one other instance I know of where someone at the insurrection showed that kind of operational security (though there is one person identified by online researchers by the blue latex gloves he wore while playing a clear organizational role outside the Capitol). When one of the guys that Riley June Williams was with started to steal Nancy Pelosi’s laptop, Williams admonished him, “dude, put on gloves” and threw black gloves (which may or may not be latex) onto the table for him to use.

There’s no reason to believe there’s a tie (as it happens, Williams had a status hearing last week where her conditions were loosened so she can look for work). There is a cybersecurity prosecutor, Mona Sedky, who is common to both cases, which sometimes indicates a tie, but she is also on cases against defendants who have no imaginable tie to Williams. But Hodgkins exhibited the kind of operational security that, otherwise, only other people who seemed to be operating from some kind of plan exhibited.

My point is not that there’s a tie, but that we don’t know whether there’s something more interesting about Hodgkins, and we might not even learn whether there is on Wednesday, in significant part because if there is one, prosecutors may not want to share that information publicly.

And I think, particularly in the wake of Republicans’ successful filibuster of a January 6 Commission and discussions of whether there will be any real accountability, that’s a useful illustration about the limits of our ability to measure the efficacy of the investigation right now. Paul Hodgkins could be (and probably is) just some Trump supporter who hopped on a bus, or his latex gloves could be the fingerprint of a connection to more organized forces.

With that said, I’d like to talk about what we can say about the investigation so far, and where it might go.

Last week, when I read this problematic and in several areas factually erroneous attempt to describe the attack in military terms, I realized that readers new to my work may not understand what I do.

I cover a range of things, but when I cover a legal case, I cover the legal case as a means to understand what prosecutors are seeing. That’s different than describing the alleged crime itself; particularly given the flood of defendants, I’m not, for example, reading through scraped social media accounts from before the attack to understand what was planned in the semi-open in advance. But reading the filings closely is one way to understand where the criminal investigation might go and the chances it will be successfully prosecuted and if so how broadly the prosecution will reach.

I’m not a lawyer, though I’ve got a pretty decent understanding of the law, especially the national security crimes I’ve covered for 17 years. But my background in corporate documentation consulting and comparative literature (plus the fact that I don’t have an editor demanding a certain genre of writing) means I approach legal cases differently than most other journalists. For the purposes of this post, for example, my academic expertise in narrative theory makes me attuned to how prosecutors are withholding information and focalizing their approach to preserve investigative equities (or, at times, hide real flaws in their cases). Prosecutors are just a special kind of story-teller, and like novelists and directors they package up their stories for specific effects, though criminal law, the genre dictated by court filings, and prohibitions on making accusations outside of criminal charges impose constraints on how they tell their stories.

One of the tools prosecutors use, both in a legal sense and a story-telling one, is conspiracy. The problematic military analysis, linked above, totally misunderstood that part of my work (as have certain Russian denialists looking for a way to attack that doesn’t involve grappling with evidence): when I map out the conspiracies we’re seeing in January 6, I’m not talking about the overarching conspiracy that made it successful, how the entire event was planned. Rather, I’m observing where prosecutors have chosen to use that tool — by charging four separate conspiracies against Proud Boys that prosecutors are sloppily treating as one, and charging (as of yesterday) sixteen members of the Oath Keepers in a single conspiracy — and where they haven’t, yet — for a set of guys who played key roles in breaching the East door and the Senate chamber who armed themselves and traveled together. As that set of guys shows, prosecutors aren’t limited to using conspiracy with organized militias, and I expect we’ll begin to see some other conspiracies charged against other networks of insurrectionists. It’s virtually certain, for example, that we’ll see some conspiracies charged against activists who first organized together in local Trump protests; I expect we’ll see conspiracies charged against other pre-existing networks (like America First or QAnon or even anti-vaxers who used those pre-existing networks to pre-plan their role in the insurrection).

Conspiracies are useful tools for prosecutors for several purposes. For example, a conspiracy charge can change what you need to prove: that the conspiracy was entered into and steps taken, some criminal, to achieve the conspiracy, rather than the underlying crime. It can used to coerce cooperation from co-conspirators and enter evidence at trial in easier fashion. And it’s the best way to hold organizers accountable for the crimes they recruit others to commit.

If Trump, or even his flunkies, are going to be held accountable for January 6, it will almost certainly be through conspiracy charges built up backwards from the activities at the Capitol. I am agnostic on whether they will be, but it’s not as far a reach as some might think. This handy guide to conspiracy law that Elizabeth de la Vega laid out during the Mueller investigation provides a sense of why that is.

Conspiracy Law – Eight Things You Need to Know.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

We know that Trump and his flunkies shared the goal of the conspiracies that have already been charged: to prevent the certification of the vote. Trump (and some of his flunkies) played a key role in one of the manner and means charged in most of the conspiracies: To use social media to recruit as many people as possible to get to DC. Arguably, Mike Flynn played another role, in setting the expectation of insurrection.

What’s currently missing is proof (in court filings, as opposed to the public record) that people conspiring directly with Trump were also conspiring directly with those who stormed the Capitol. But we know the White House had contact with some of the conspirators. We know that organizers like Ali Alexander and Alex Jones likewise had ties to both conspirators and Trump’s flunkies (an Alex Jones producer has already been arrested). We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6). Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob. If Trump or his flunkies are held accountable, I suspect it will go through conspiracies hatched in Florida, and the overlap right now between the Oath Keeper and Proud Boys conspiracies are in Floridians Kelly Meggs and Joe Biggs. But if they are held accountable, it will take time. It’s hard to remember given the daily flow of new defendants, but complex conspiracies don’t get charged in four months, and it will take some interim arrests and a number of cooperating witnesses to get to the top levels of the January 6 conspirators, if it ever happens.

This post, which is meant to be read in tandem with this one, assesses developments in the last week or so in the Oath Keepers conspiracy case.

DOJ Arresting Their Way to Clarity on Joe Biggs’ Two Breaches of the Capitol

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The Proud Boys Leadership conspiracy indictment describes that Joe Biggs breached the Capitol twice.

He entered first on the west side through a door opened after Dominic Pezzola broke through an adjacent window with a riot shield.

At 2:14 p.m., BIGGS entered the Capitol building through a door on the northwest side. The door was opened after a Proud Boys member, Dominic Pezzola, charged elsewhere, used a riot shield at 2:13 p.m. to break window allowed rioters to enter the building and force open an adjacent door from the inside. BIGGS and Proud Boys members Gilbert Garcia, William Pepe, and Joshua Pruitt, each of whom are charged elsewhere, entered the same door within two minutes of its opening. At 2:19 p.m., a member of the Boots on the Ground channel posted, “We just stormed the capitol.”

Then, Biggs left the building, walked around it, took a selfie from the east side, then forced his way in the east side and headed from there to the Senate.

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

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

Understanding Biggs’ actions — including whether they were coordinated with the Oath Keepers who entered at virtually the same time as him (including fellow Floridian Kelly Meggs, who had just “organized an alliance” with the Proud Boys in December) — is crucial to understanding the insurrection as a whole.

That’s particularly true given that Biggs re-entered the Capitol and headed to the Senate, where Mike Pence had only recently been evacuated. That’s also true given how Biggs’ actions coincide so neatly with those of the Oath Keepers.

At the moment Pezzola breaks the Capitol window with a shield, Person Ten contacts Joshua James (from Alabama but seemingly affiliated with the Florida Oath Keepers). At the moment Biggs enters the Capitol, someone on the Oath Keepers’ Signal channel informed the list that “The[y] have taken ground at the capital [sic]. We need to regroup any members who are not on mission.” This is a quicker response than the Proud Boys Boots on the Ground channel itself had to the initial breach.

And that’s what happened. Both the Oath Keepers and the Proud Boys regrouped and opened a new front on the assault on the Capitol.

Rhodes called Kelly Meggs. Person Ten called James. Then Rhodes had overlapping phone calls with Person Ten and Meggs. Around that time, The Stack started making their way to an entry of the Capitol on the other side of the building from where they were. And James and Minuta hopped in some golf carts and rushed to the Capitol (I’m not sure from where). During the period when The Stack, commanded by Kelly Meggs, was making their way to the Capitol and Biggs was walking around rather than through it, Roberto Minuta arrived and started harassing the cops guarding the door through which Biggs and The Stack would shortly enter, perhaps ensuring that the cops remained at their post rather than reinforcing the east side.

I had speculated here that Proud Boys in the initial breach — most notably former Army Captain Gabriel Garcia — were live streaming with the intent of providing tactical information to people located remotely who were performing a command and control function.

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

A filing arguing for detention for Ethan Nordean confirms that Proud Boys located offsite were monitoring the livestream and providing instructions.

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

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

So at least on the Proud Boys side, there was this kind of command and control.

And the government has been arresting their way to some clarity on this point.

Sometime before March 1, the government got access to both the leadership Telegram channel the Proud Boys used to coordinate the insurrection and the “Boots on the Ground” channel, meaning they’ve got monikers for around 35 active Proud Boy participants in the insurrection who have not yet been arrested. In the weeks since the Biggs and Nordean conspiracy indictment disclosed that the government had these chats, the government has arrested several people with ties to one or another of these men (though without saying whether they identified them from the Boots on the Ground channel or whether they arrested them at this time for investigative reasons).

Two of these men just happen to be two of Joe Biggs’ co-travelers the day of the insurrection, Paul Rae and Arthur Jackman, both also from Florida. The complaints for both are very similar, possibly written by the same FBI agent. Both complaints go through the greatest hits of the Proud Boy actions that day, listing all the conspiracies already charged. While the affidavits include the testimony of acquaintances of both men (in Jackman’s case, obtained after a January 19 interview with Jackman himself, meaning that testimony couldn’t be the lead via which they IDed him), the affidavits also focus on their entries with Joe Biggs, with Rae entering the west Capitol door right next to Biggs.

And Jackman walking up steps with his hand on Biggs’ shoulder.

Each affidavit includes the photo obtained from warrants served on Biggs showing the selfie mentioned in the Leader indictment (bolded above).

In Rae’s affidavit, they’ve redacted out all but his face and Biggs’.

They use the same approach in Jackman’s affidavit, redacting the others (including Rae, who had already been arrested).

If I were one of the two other guys in this picture, I’d be arranging legal representation right now.

The affidavits show both men entering the Capitol on the east side, along with Biggs. As he did on the west side, Rae walked in beside Biggs (you can see Jackman just ahead of Rae in this picture).

And as he did elsewhere in the Capitol, Jackman walked with his hand on Biggs’ shoulder.

Jackman’s affidavit shows him in the Senate (where we know Biggs also went).

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

Because if the government can show that this second breach by Biggs was coordinated with the Oath Keepers, with The Stack led by the guy who arranged an alliance in December, Kelly Meggs, it will make these five separate conspiracies mighty cozy (in any case, the government is already starting to refer to the multiple Proud Boys conspiracies as one).

There’s at least one other action on which both militias may have coordinated: aborted efforts to launch a second wave after 4PM, something that Rudy Giuliani seems to have had insight into.

But for now, the government seems pretty focused on arresting their way to clarity about why Joe Biggs breached the Capitol, then walked outside and around it, and then breached it again.

* I had suggested in this post that UCC-1 might be Nicholas Ochs. But that’s not possible, because the government knows he was onsite. Moreover, the government is now treating defendants in one of the Proud Boys conspiracy indictments (most notably Dominic Pezzola) as co-conspirators with those charged in other conspiracy indictments (including Nordean), so Ochs would be an indicted co-conspirator. Another — far more intriguing possibility — is that it is James Sullivan (who might have a leadership role in Utah’s Proud Boys), who was in contact with Rudy Giuliani about the insurrection, and who inexplicably hasn’t been arrested. Certainly, Rudy seems to have had the information available on those chats in real time.

The Grand Theft Golf Cart Conspiracy: DOJ Backed Off Charges against Roberto Minuta

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Yesterday, DOJ added Roberto Minuta and Joshua James — both of whom provided security to Roger Stone in advance of the insurrection — to the Oath Keepers conspiracy indictment, making a third superseding indictment (S3) against the militia. The showiest part of the indictment describes how Minuta and James rode in golf carts (from where, it doesn’t say, nor does it explain how it knows exactly what Minuta said while on the golf cart escapade) to the Capitol to join in the insurrection.

Between 2:30 and 2:33 p.m., MINUTA, JAMES, and others rode in a pair of golf carts towards the Capitol, at times swerving around law enforcement vehicles, with MINUTA stating: Patriots are storming the Capitol building; there’s violence against patriots by the D.C. Police; so we’re en route in a grand theft auto golf cart to the Capitol building right now … it’s going down, guys; its literally going down right now Patriots storming the Capitol building … fucking war in the streets right now … word is they got in the building … let’s go.

At about 2:33 p.m., MINUTA, JAMES, and the others in their group parked the golf carts near the intersection of Third Street and Pennsylvania Avenue, Northwest. They then continued on foot towards the Capitol.

But the golf cart vignette is not the most interesting detail in the S3 indictment. The additions on the most recent superseding indictment (S2) are interesting for what the government did and did not add with the inclusion of the two Oath Keepers who were not part of The Stack that breached the Capitol, Minuta and James.

The crimes not charged

In spite of Minuta’s self-description, the government did not charge Minuta with Grand Theft Golf Cart. It’s never actually explained where they got the carts, but the Oath Keepers had been using carts as part of their protection detail for people like Roger Stone. If they used golf carts owned or rented by Stop the Steal or some other organizer for the rally, however, it might implicate those owners in the conspiracy if they didn’t report the golf carts as being stolen as part of an effort to breach the Capitol.

But Grand Theft Golf Cart is only the beginning of crimes not charged against the newest additions to the conspiracy.

In the complaint against Minuta, the government had shown probable cause that Minuta obstructed the investigation by deleting his Facebook account on January 13.

Finally, on January 13, 2021, the week after he attacked the Capitol and after much media reporting on law enforcement’s investigation to bring the Capitol rioters to justice, Minuta deleted his Facebook account of over thirteen years.

[snip]

Evidence also demonstrates that one week after he participated in forcibly storming the Capitol, Minuta deleted a Facebook account he had maintained for 13 years to conceal his involvement in these offenses.

[snip]

On January 6, 2021, the FBI opened an investigation into the attack on the Capitol, and a grand jury of the United States District Court for the District of Columbia subsequently opened an investigation. Within the first week of the investigation, a number of subjects were arrested and many more subjects’ photographs were shared over the Internet by both the FBI and regular citizens who took it upon themselves to publicize and seek information about the Capitol attackers.

Records indicate that Roberto Minuta opened a Facebook account associated with phone number XXX-XXX-4147 (known to be associated with Minuta) on November 24, 2007. On January 13, 2021—one week after Minuta and others attacked the Capitol on January 6— Minuta deleted his account.

From the first iteration of this conspiracy indictment, the government had charged others for deleting their Facebook accounts — first Thomas Caldwell, and then Graydon Young. So it would have followed the pattern already set to include a Count 7 against Minuta for his deletion of Facebook.

It’s not in there.

But that’s not the only crime not charged.

The complaint against Minuta focused closely on his taunts against cops in the minutes before The Stack arrived (the government may suspect that Minuta did this to occupy the police while insurrectionists breached the Capitol from the west side, to ensure officers guarding the east side of the building could not go assist those being overrun on the west side).

The indictment adds this further interaction between the cops and Minuta.

At 3:15 p.m., inside the Capitol building, MINUTA and JAMES pushed past U.S. Capitol Police Officers who physically placed their hands on MINUTA and JAMES in an unsuccessful attempt to stop them from progressing toward the Capitol Rotunda.

Other January 6 defendants (not part of this Oath Keeper conspiracy) got charged with obstructing the police during a civil disorder for such physical interactions. Not Minuta and James.

Minuta and James got charged, along with the other members of the conspiracy, with one (but not both) of the trespassing charges used against virtually all the January 6 defendants. But Minuta entered the Capitol with a holster of bear spray (visible on his hip in the picture above). Others who entered the Capitol similarly armed had an enhancement added for carrying a deadly weapon, an enhancement that increases the potential sentence to 10 years. Minuta was not similarly charged (meaning, too, that the Oath Keepers who conspired with him were not charged with abetting his armed entry to the Capitol).

Finally, all the other conspirators, including Thomas Caldwell (who never entered the Capitol and was on the other side of it from where The Stack entered) were charged with abetting the destruction of the Capitol door through which The Stack entered. This is the charge that counts as a crime of violence for detention purposes, and also can merit (and is being treated as meriting, for the Proud Boy conspiracy cases) a terrorism enhancement. But neither Minuta nor James were charged with it, even though the indictment notes they entered the same door that The Stack went through.

At 3:15 p.m., inside the Capitol building, MINUTA and JAMES, together with others known and unknown, forcibly entered the Capitol building through the same east side Rotunda doors through which members of the stack had entered about 25 minutes earlier.

It’s unclear why DOJ wouldn’t treat Minuta and James the same way they treated Caldwell (and Kenneth Harrelson, who went in with The Stack but not part of it). I can think of several possible explanations. But they didn’t, which is notable (particularly in the wake of the DC Circuit decision that led to the release of Zip Tie Guy Eric Munchel and his mother).

In short, if Minuta (and James) were treated the same way other January 6 defendants were, they would be facing significantly more serious charges and significantly more prison time. They’re not.

One other, potentially related detail: The complaint that Minuta was charged with — which was obtained on February 24 but not executed until weeks later, seemingly in conjunction with the Joshua James arrest — is titled, “Affidavit in Support of Complaint Minuta (non conspiracy) 2021 02 23,” almost as if at that point DOJ wasn’t sure whether they were going to treat him separately from the rest of the Oath Keepers or not. They appear to have decided to do so, and along the way, thereby limit his potential criminal exposure.

Who is Person Ten and what role did he play with Stewart Rhodes?

Minuta and James complaints included new details about the role of Oath Keepers heard, Stewart Rhodes, described as Person One in all the Oath Keeper filings. Their addition to the conspiracy effectively added more on Rhodes to the conspiracy indictment.

At least as interestingly, the S3 indictment added a Person Ten. Minuta had been Person Five in the James complaint, it’s not clear who Person Four is, and Persons Six, Seven, Eight, and Nine are not described at all, but — along with Person Ten — are likely some of the people in this picture.

Rhodes paid for Person Ten’s hotel room in the Hilton Garden Inn in DC, but Person Ten arrived the day before Minuta and Rhodes, who also stayed at the Hilton Garden Inn in Vienna.

Curiously, the S3 indictment leaves out some key communications, especially those from a leadership Signal chat that showed up in earlier filings. Between a Caldwell detention motion, a Watkins detention motion, James’ complaint, and the superseding indictment, this partial list of known Oath Keepers communications suggest that Person Ten might be the person coordinating deployments that day. Consider two details from the partial list of the known communications among Oath Keepers below (I’ll update this later, once I catch up on the week of filings).

Highlighted in yellow, Person Ten has a series of calls back and forth with Joshua James, pre-Golf Cart Grand Theft. Right in the middle of it all, someone — not described in this indictment — informs the Signal group as a whole that “the[y] have taken ground” and “we need to regroup any members who are not on mission.” Shortly thereafter, James and Minuta launch the Grand Theft Golf Cart to get to the Capitol, where Minuta taunts the police, preventing them from moving to reinforce the overrun Capitol on the other side, and the members of The Stack leave Trump’s speech prematurely and go to the Capitol. That is, Person Ten calls for reinforcements (Rhodes repeats his Signal text), and then Minuta and James in the golf carts and The Stack converge on the northeast side of the Capitol to breach a new entry point.

Now consider the pink highlight: Unless the government or I have made a mistake in the timing, Person Ten and Kelly Meggs are both on the phone with Stewart Rhodes together. Because of the length of Person Ten’s calls, it overlaps entirely with Rhodes’ call with Meggs (which — again, unless there’s an error of timing — means Rhodes either has two phones or either via conferencing or a hold, had both on the same phone at the same time).

In either case, Person Ten seems to have a key role as a communication pivot between different groups of Oath Keepers.

The communications not included

Finally, consider this: I have not included all known texts in the table above (most obviously missing are Watkins’ Zello texts). But after suggesting strong ties between James and Minuta, the government has included none of their multiple communications, neither on January 6 nor before that, in the superseding indictment. Similarly, the government has left out the Signal chats showing minute to minute deployments as the Oath Keepers launched a second front on the Capitol.

All these communications are tantalizing and hint at a good deal more coordination during the insurrection. And remember: Both Minuta and James were with Roger Stone for part of the day (earlier in the day, I think). But the government is still including just a fraction of the communications it knows about.

Update: Correct that the indictment said Minuta and James rode in the golf carts, didn’t drive and that the Meggses stayed at a different Hilton Garden than Rhodes and Minuta and Person Ten. Thanks to BB.

Update: I want to make clear that the reasons why DOJ backed off charges with Minuta may not all stem from the same reason, nor does this necessarily indicate he is cooperating. For example, in the wake of the DC Circuit decision in Munchel, the chances that DOJ could get pre-trial detention for either Minuta or James, are much lower. So charging them with abetting the damage doesn’t serve an investigative purpose at this time. And it’s possible after they seized Minuta’s phone, they discovered something to indicate he had deleted Facebook in response to Facebook’s decision to shut down Trump on the platform. To be honest, Minuta and James are an odd fit for this conspiracy as currently laid out, which suggests it’s likely to change in the near future.

Days after an Oath Keeper Event with Roger Stone, Kelly Meggs Described Having “Organized an Alliance” with the Proud Boys

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I had been waiting for the moment when DOJ would unveil some of the Facebook content that Graydon Young attempted to delete when he shut down Facebook on January 7. I had similarly been waiting to see how DOJ rolled out Roger Stone as a key pivot between the Florida Oath Keepers (which Kelly Meggs led, and which Stone bodyguards Roberta Minuta and Joshua James were part of) and the Proud Boys (whose key leaders Enrique Tarrio and Joe Biggs live in Florida).

Overnight, in its response to Meggs’ attempt to get bail, the government did both. Ostensibly, they did so to show that Meggs’ interview with the FBI had not been entirely truthful about (among other things) being in DC to protect the cops and vetting Oath Keeper members.

On the first point, yes, Defendant Meggs made a statement to the FBI in the hours following his arrest. But that fact was known at the time of Defendant Meggs’s first detention hearing, and, regardless, simply speaking with law enforcement does not mean that a person is not a danger. This is especially so when some of the statements Defendant Meggs made to the FBI appear to be in conflict with the evidence.

[snip]

This sentiment appears in conflict with Defendant Meggs’s allegation in his motion (and what he stated to the FBI upon his arrest) that he was at the Capitol to help “protect” police officers. (ECF 82 at ¶ 15.)

[snip]

On the evening of January 3, 2021, co-defendant Steele sent an email to Defendant Meggs’s email account at Proton Mail,8 copying co-defendant Young. Steele attached her application and vetting form, and wrote: “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.” Defendant Meggs appears to have provided instructions to co-defendant Steele, because the following day (January 4), Steele again sent her application and vetting form to another Oath Keepers email address at Proton Mail. On her email, she copied Defendant Meggs. In contrast to this evidence, Defendant Meggs inexplicably told the FBI that “the only person I’ve ever vetted” was a man six months earlier. Interview Tr. at 28-29.

In a filing that revealed details of Meggs’ Facebook, Signal, ProtonMail, and GoToMeeting use, it described Meggs writing on December 19 — five days after his wife and Young did “security” for Roger Stone at a Stop the Steal rally, evidence of which the government presented (the picture below) in their response to Meggs’ wife’s bid for bond — that he had “organized an alliance between the Oath Keepers, Florida 3%ers, and Proud Boys” to “shut this shit down.”

On December 26, Meggs called this insurrection (albeit in response to Trump’s order) explicitly.

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

DOJ included some (not all though: there was one called ““florida dc op planning chat” they don’t seem to have included) of the planning meetings on GoToMeeting.

A week ago, DOJ was content to prove that Connie Meggs’ claims that she didn’t know any of these people by introducing the picture where she and Graydon Young posed with Stone on December 14.

And Defendant Meggs obviously was acquainted with other members of the Oath Keepers group who stormed the Capitol with her on January 6; the photo below, which was shared on Facebook on December 15, 2020, shows Defendant Meggs (red oval) posing at a book signing with several other individuals, including co-defendant Graydon Young (green oval):

Yesterday, prosecutors in this case had to get chewed out because former Acting US Attorney Michael Sherwin blabbed his mouth (completely inappropriately) on 60 Minutes, discussing what at that point had been merely a suggestion, that DOJ’s conspiracy case would integrate three different militia groups.

And the bulk of those cases are federal criminal charges, and significant federal felony charges. Five, 10, 20-year penalties. Of those 400 cases, the majority of those, 80, 85%, maybe even 90, you have individuals, both inside and outside the Capitol, that breached the Capitol, trespassed. You also have individuals, roughly over 100, that we’ve charged with assaulting federal officers and local police officers. The 10% of the cases,  I’ll call the more complex conspiracy cases where we do have evidence, it’s in the public record where individual militia groups from different facets: Oath Keepers, Three Percenters, Proud Boys, did have a plan. We don’t know what the full plan is, to come to D.C., organize, and breach the Capitol in some manner.

By the end of the day (having had their secret blown), DOJ showed that not only had the guy in charge of the Stack been thinking in terms of “insurrection” for over a week, but was also thinking about coordinated action among the different militia.

There’s still a problem with this conspiracy, as constructed. The Oath Keepers had a plan — which DOJ has now presented evidence they coordinated with two other militia groups. But the plan wasn’t limited to preventing vote certification (in part, because when they traveled to DC, they still believed that Trump or Mike Pence might make such an action unnecessary). The plan was insurrection.

But that only makes it more likely DOJ will be forced to charge it as such.