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OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR

June 30, 2023/18 Comments/in 2020 Presidential Election, January 6 Insurrection /by Brandi Buchman

From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.

With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.

Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September.

It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.

The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department.

Huge but tempered.

Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.

In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally.

Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.

Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here.

I will, however, belabor others.

First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations.

In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.

For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute.

But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy.

I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress.

OATH KEEPERS ON APPEAL

At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow.

And it has.

Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.

Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons.

The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.

Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.)

Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol.

Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted.

THE DEVIL IN THE DETAILS

After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.

Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle.

The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said.

Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications.

They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked.

The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities.

They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”

“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said.

Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event.

During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits.

If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.

“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.

Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew.

On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty. At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue.

Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.

Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.)

And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie.

Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer.

Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully.

When he was en route to D.C. from Texas, bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.”

When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place.

Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C.

At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them.

At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.

It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.

Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6, not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients.

And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers.

Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)

The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.

If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”

“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”

Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact.

Trump would be killed by his enemies if he didn’t act now, Rhodes warned.

‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote.

He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.

He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office.

The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further.

All of these elements are just slivers of what jurors heard in the weeks-long trial.

There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside.

Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”

The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help.

So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)

On seditious conspiracy:

Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett

On conspiracy to obstruct an official proceeding:

Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett

On obstruction of an official proceeding:

Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo

On conspiracy to prevent officials from discharging their duties:

Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett

On tampering or destruction of evidence:

Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett

Impeding officers during a civil disorder:

Jessica Watkins

IS EVERYTHING OLD NEW AGAIN?

When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.

The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.

A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there.

After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise.

At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights.

But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.”

He was the one giving orders, Mehta said.

“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said.

When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it.

The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant.

Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct.

Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist.

The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs.

“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said.

Will these words haunt an appeal to come?

When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is 20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in.

Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.

“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”

Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start.

But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead.

At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals.

Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up.

If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?

Three Months Later, DOJ Finally Gets Interested in Sidney Powell’s Militia Defense Fund

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

In the Oath Keepers case, the government just sent out a letter raising concerns about DC’s Rule 1.8(e) that governs the ethical obligations in cases where a third party pays for someone else’s defense. That’s allowed, but there are three necessary conditions: that the defendant make informed consent, that the payor not interfere in case decisions, and that information about the case may not be shared with the payor.

(1) The client gives informed consent after consultation;

(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) Information relating to representation of a client is protected as required by Rule 1.6.

At issue is the scheme that BuzzFeed revealed and Mother Jones later reported that describes that Sidney Powell is paying for some of the Oath Keepers’ defense.

As the government describes, in response to the government’s queries, lawyers for Stewart Rhodes and Jessica Watkins did not respond, the Meggs’ lawyers and that of Kenneth Harrelson say they’re in compliance with the rule, and William Shipley, who is representing Roberto Minuta, said he’d respond to Judge Mehta’s inquiries, but didn’t answer to DOJ.

1. Attorney David Fischer, who represents Thomas Caldwell, stated that he was in compliance with Rule 1.8(e) and that he “has received no funding from, and has no affiliation with, Defending the Republic.”

2. Attorney Scott Weinberg, who represents David Moerschel, stated he was in compliance with Rule 1.8(e) and that he was not receiving any funding from Defending the Republic.

3. Attorney Gene Rossi, on behalf of himself and co-counsel Natalie Napierala and Charles Greene, who represent William Isaacs, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

4. Attorney Tommy Spina, on behalf of himself and co-counsel Edward B. MacMahon, Jr., who represent Jonathan Walden, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

5. Attorneys Julia Haller and Stanley Woodward, who together represent Kelly Meggs and Connie Meggs, stated that they were in compliance with Rule 1.8(e). They did not specifically inform the government whether their fees were being paid by Defending the Republic.

6. Attorney William Shipley, who represents Roberto Minuta, declined to answer, but wrote, “Should Judge Mehta wish for my client or me to explain the arrangement for funding my client’s legal defense in order to confirm that my client’s Sixth Amendment right to conflict-free counsel are being afforded – or waived – we will provide him with whatever information he requests.”

7. Attorney Bradford Geyer, who represents Kenneth Harrelson, stated that he was in compliance with Rule 1.8(e). He declined to inform the government whether his fees were being paid by Defending the Republic.

The other defense counsel whom the government believes to be retained rather than court-appointed – Phillip Linder and James Lee Bright for Stewart Rhodes, and Jonathan Crisp for Jessica Watkins – have not yet responded to the government’s letter.

The letter DOJ sent to the defense attorneys suggested that Powell’s interests may diverge from these defendants.

The Supreme Court has said that “inherent dangers . . . arise when a criminal defendant is represented by a lawyer hired and paid by a third party.” Wood v. Georgia, 450 U.S. 261, 269 (1981). In Wood, the third-party payer was the “operator of the alleged criminal enterprise,” and thus the lawyer had an interest in the clients not testifying against the third-party payer or taking other actions contrary to the payer’s interest.4 Id. Indeed, comment 10 to Rule 1.8 explains that “third-party payers frequently have interests that differ from those of the client.” Here, Defending the Republic may have interests that diverge from these defendants.

4 As Defendant Kelly Meggs’s former counsel Jonathon Moseley told Mother Jones, Defending the Republic’s “financial support has the effect of making plea bargains less likely.” This fact could be against the interest of a particular defendant.

I’m happy DOJ is addressing this. The lawyers who are reported to be on Powell’s dole seem to be pushing conspiracy theories in lieu of a real defense.

What I don’t understand is the timing. BuzzFeed first reported this on March 9. DOJ only sent out its inquiry letter on June 16, over three months later.

And thus far, DOJ is only raising this in the Oath Keepers’ case. At the very least, you’d think DOJ would make similar inquiries in the Ryan Samsel case; he’s represented by the same team, Stanley Woodward and Juli Haller, as is representing the Meggses. And after he was assaulted, Samsel seemed to decide not to cooperate (against what would be Joe Biggs).

Similarly, William Shipley is representing a slew of defendants, including many of the Proud Boys who might most immediately implicate Biggs.

Finally, Jimmy Haffner, one of the Proud Boys accused of helping to open up the East Door of the Capitol, posed with Powell when her fundraising bus came through town in 2020.

Of course, DOJ has been investigating Powell herself since at least September, so maybe they’re learning of new conflicts only now.

So who else is Sidney Powell paying? And why is DOJ only doing something about it now?

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

June 17, 2022/175 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
Reconfirmation that Trump never called Pence to check on the Vice President’s safety
Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

January 17, 2022/111 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Just as sedition bears down on Roger Stone, the government has put a curtain over what they know about his role in it. The government has moved on from Stone, it seems, to other interesting Oath Keeper interlocutors.

Way back in May, I noted how judicious DOJ was being with statements from Stewart Rhodes — referred to officially as Person One back in his halcyon pre-sedition charge days — in the charging documents for Oath Keepers. Within a few days that month, DOJ added to its insurrection narrative a December 14, 2020 Rhodes post calling for Trump to invoke the Insurrection Act via James Breheny’s charging documents. The iteration of the Oath Keeper conspiracy released at the same time (the fourth) introduced Rhodes’ November 9 GoToMeeting discussion of the Insurrection Act that continues to appear in the indictments.

For eight months, in other words, DOJ has been engaged in a slow-reveal of its case against Rhodes.

Now, in the sedition indictment bearing Rhodes’ name, we get a whole lot more of what Rhodes was saying:

Calls for civil war as soon as a it became clear Biden should win
Rhodes’ adoption of a Serbian (!!!) model for his civil war
An oblique comment — dated to “around this time” of the Inauguration — about Rhodes messaging others to organize local militias to oppose Biden’s Administration

Most of the new comments aren’t as scintillating as the catalog describing the personal arsenal Rhodes was purchasing, though, and a few of the new Rhodes comments included were public before.

There are three comments about Rhodes’ communications, though, that I find intriguing because they seem to hint at other interlocutors with the accused seditionists that we may not know about yet.

The first doesn’t even involve Rhodes directly. Rather, it relays Roberto Minuta describing to someone else that 1) Minuta had spoken directly with Rhodes the night of December 18 and 2) Minuta was sharing with someone apparently outside the Oath Keepers how Rhodes felt.

28. Also on December 19, 2020, MINUTA messaged another individual, “Oath Keepers president is pretty disheartened. He feels like it’s go time, the time for peaceful protest is over in his eyes. I was talking to him last night.”

This wasn’t in the prior indictment and I don’t recall it appearing in any other filings in the case (Minuta was not detained, so there’s less about him in the public record). Unless this was originally on the Facebook account Minuta allegedly deleted, there doesn’t seem to be any reason DOJ wouldn’t have obtained this message when they exploited Minuta’s phone. If they’ve had it for months, then the simplest explanation for its inclusion is that this indictment is all about Rhodes, and the comment captures Rhodes’ commitment to violence. In addition, this comment exhibits a closeness between Minuta and Rhodes (which we’ve seen in earlier charging documents) that may be useful from an evidentiary standpoint.

But I suspect it serves an additional purpose. Minuta wrote it not long after the December MAGA March in DC. While there, he had been hanging out with Proud Boys, including Dominic Pezzola (who like Minuta is from upstate New York). It comes after Mike Flynn’s call for insurrection. After Trump tweeted out a promise for Wild Protests on December 19, a ton of aspiring insurrectionists, both organized and not, started making plans to come to DC. In short, this was a key time in the lead-up to the operation, and Minuta was surprisingly well-connected (for a tattoo artist!!!) within the movement. So I suspect his interlocutor here is of some interest (and it’s even possible the government obtained the text from that interlocutor, not Minuta).

An exchange that Kelly Meggs had with Rhodes on Christmas 2020 is similar.

34. On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don’t do the right thing. But I don’t think they will listen.”

As we recently saw in Proud Boy Matthew Greene’s statement of offense, using proximity to pressure members of Congress (and Pence), became well formulated enough that even a low-level Proud Boy would understand it by the day of the insurrection. Here, both Meggs (who is the Florida-based Oath Keeper who boasted of forging an alliance with the Proud Boys) and Rhodes enunciate this goal, but do so twelve days before the actual attack. As with the Minuta comment, my guess is that the his exchange reflects communication with (at a minimum) the Proud Boys about this shared goal of — in Rhodes’ formulation — terrorizing Congress. It certainly makes it clear that the intent of mobbing the Capitol was formulated well in advance of the event.

There’s one more example. For some reason, DOJ provides the exact time (without time zone) that Rhodes wrote, “There is no standard political or legal way out of this” on December 31, 2020.

40. RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m., RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

For the purposes of the indictment, this shows mens rea that the Yale Law grad leading this insurrection recognized what they were going to do next was not legal. But it also seems to reflect a response (thus the timing) to something — one I haven’t been able to guess yet. The comment comes before Texas Congressman Louie Gohmert’s lawsuit against Mike Pence, the last of a long series of ridiculous “legal” efforts, failed spectacularly. But it comes at around the same time that even Sean Hannity was beginning to give up.

For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

I’m not saying that Rhodes was in contact with Hannity: But something seems to have happened just before 10:08 PM (in whatever time zone) that elicited this response which is not dissimilar from where Hannity’s brain was at the time. And if it was non-public (as Hannity’s panic was), then it suggests Rhodes may have been responding to a well-connected interlocutor.

So it’s not so much that the sedition indictment quotes Rhodes as saying really interesting things. Rather, it seems to suggest he and others were saying things to some interesting interlocutors.

Even as the government is hinting at other interesting interlocutors of the accused seditionists, as I noted above, DOJ has entirely hidden the prior back-and-forth between the Oath Keepers and the Willard Hotel. This back-and-forth involving people who were guarding Roger Stone at the Willard that morning first started to show in the Third Superseding Indictment. Once Jonathan Walden — the guy now charged by himself — got added, the indictments included this exchange:

At 9:36 a.m., WALDEN texted JAMES, “Willard hotel?” At 9:51 a.m., WALDEN placed a phone call to JAMES, which is recorded as missed. At 9:52 a.m., WALDEN texted JAMES, “I’m here, awaiting instruction.” At 10:37 a.m., JAMES placed a phone call to WALDEN, which lasted 2 seconds.

Then last month, Kenneth Harrelson released Mike Simmons’ [Person Ten] 302s (purportedly in a desperate bid to adopt his lies, but possibly also to let others know what FBI had been investigation in May).

They revealed that Joshua James, who was in charge of the security detail at the Willard, called in several times to Simmons and seems to have cited Stone’s gripe about being treated poorly to Simmons.

This is what I was referring to in this post about the effect of disappearing Mark Grods, the one overt cooperator who was at the Willard that morning, from all last week’s indictments. Several decisions made in the structure of these most recent indictments — spinning Walden off by himself, disappearing Grods, focusing on the activities of two stacks in the sedition indictment (and thereby starting the narrative at a later point in time), remaining coy about the present status of Simmons, and eliminating James and Minuta in the Crowl indictment — had the effect of eliminating the coordination with the Willard from the sedition indictment altogether.

Poof! Where’s Roger?

Trust me. I don’t think DOJ has decided that the Oath Keepers’ presence at the Willard was unimportant. On the contrary. I think they’ve just decided to move onto making other people sweat about their communications with now-charged seditionists appearing in the indictment, while hiding how much more they’ve learned about the Willard in recent weeks.

The First Seditious Conspiracy Charges Drop

January 13, 2022/294 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The government arrested Stewart Rhodes today and charged him with other Oath Keepers in a seditious conspiracy indictment. Effectively, this charges everyone who conspired — including by participating in the planning — to bring weapons to Virginia on January 6 (and spins the other Oath Keepers off onto their own indictment). The charges effectively incorporate the material from this post on the Quick Reaction Force and this post on discussion of an insurrection after January 6, with additional details on Rhodes and Edward Vallejo, the guy who organized the QRF.

The charges are, at once, no big deal, because they’re really just the same conspiracy charged in a different way with two conspiracies added. They’re a huge deal, because now Republicans will be hard pressed to continue to downplay January 6. And they’re a solution to some problems and a tool to move on.

First consider the problems DOJ was trying to solve:

How to split up an unwieldy 17-person conspiracy into two trials?
How to charge Stewart Rhodes (and Vallejo) for roles central to the conspiracy when they didn’t do anything like trespassing to make that easy?
How to backstop the sedition charges so white terrorists won’t go free?
How to add leverage to flip key witnesses to move beyond just the Oath Keepers?

Now consider how this works as a tool. For some reason, the government has moved Jonathan Walden to his own charges separately. And Mike Simmons, who in all earlier indictments was called “Person Ten,” here is just described as “operational leader,” which suggests he’s no longer treated as a co-conspirator, either.

Though Kenneth Harrelson released some of the key communications from the Willard Hotel from earlier in the day, those still don’t show up in this indictment. So the government is remaining coy about what it knows about coordination with people at the Willard Hotel. That’s probably because it still needs others to flip — Joshua James would be ideal, but Roberto Minuta might be useful as well — to confirm whatever Mark Grods and Mike Simmons (if he is cooperating) were able to offer about it.

But they are making it clear that they know more about some communications they’ve been talking about for some time. Here’s my favorite.

I noted in April that this was probably a conference call. They seem to suggest they may know the content of it.

In addition, this indictment confirms that Kelly Meggs hunted Nancy Pelosi down (and that the rest of the stack went towards the Senate, as if hunting for Pence).

As mentioned, they’ve added a bunch of charges:

Added Seditious Conspiracy tied to Rhodes’ repeated efforts to arm and train for war
Swapped the 18 USC 371 conspiracy charge for a 18 USC 1512k conspiracy; as I’ve noted, that provides additional enhancements for threats of assassination and kidnapping, as this indictment inches closer to alleging
Added a conspiracy to prevent an officer from discharging any duty (18 USC 372)

What this does is raise the sentencing exposure for the co-conspirators from around 20 years to, with terrorism enhancements for the broken door, maybe 80. It backstops the sedition charges (with the original obstruction charge, but also with the 372 charge) so white terrorists won’t be able to beat the charges. It charges all the other efforts to obstruct this investigation.

But it’s the latter new charge I’m most interested in, even more than sedition:

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

This is what Eric Swalwell has argued some of these same people did. But it is, more clearly, what Donald Trump did to Mike Pence.

This indictment will, presumably, impress all those who’ve been wailing the existing 20 year charges the Oath Keepers were facing were not adequate. But it may also clear a path to move up the chain.

Update: Correcting that Walden must be cooperating. I think that’s a misreading.

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

January 13, 2022/100 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Before 8AM on the morning of the insurrection, the Proud Boys had this discussion on their organizing Telegram thread.

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

UCC-1 has been reported to be Aaron Whallon-Wolkind, who cheered on the insurrection from Philadelphia and interacted with Zach Rehl and other Philly Proud Boys throughout the day. Persons 2 and 3 have not yet been publicly identified.

This discussion and others reveal a key part of the Proud Boy plan for January 6: to incite others — “normies” — to commit violence. And while a number of Proud Boys or close associates engaged in what I’ve called “tactical” violence that day, the vast majority of (and the worst) violence was done by others, mostly by people with either no known or just networking ties to militia groups (such as through anti-mask activism). The Proud Boys weren’t the only militia-linked people attempting to encourage others to engage in violence; it’s a key part of the anti-mask/3% conspiracy, for example. But a stated goal of at least some of the militia members who implemented the assault on the Capitol was to stoke others to engage in violence.

This detail is critical to understanding what DOJ has accomplished so far and where they might be headed. Many of those screeching that DOJ is not doing enough to investigate January 6 — like Elie Honig complaining that DOJ has arrested 700 indistinguishable “rioters” or Hussein Ibish claiming that “many foot soldiers” have “received mainly light prison sentences” but no “planners … have been held to account in any meaningful way” — seem not to understand it.

So I’d like to talk about what we know about the structure of the attack on the Capitol and how it related to things Trump and his minions were doing. Before I attempt to do that, let me rebut a straw man Honig and others have used in an attempt to ignore the facts I present. I share their alarm about the urgent need to respond to January 6 and Trump’s unlawfulness. I am not guaranteeing that Trump will be held accountable.

Where we differ is that I have read the public record on the investigation (and on other investigations that Honig, at least, has denied exist, like the investigation into Sidney Powell’s grifting).

It is not the case that all 700 people who have been arrested were mere “rioters,” — and calling some of these people rioters adopts the preferred label of those championing the coup. And unless you consider mere rioters “foot soldiers,” then very few witting foot soldiers have yet been sentenced. While it is true that no planners have been sentenced, it is also the case that DOJ has arrested some key ones, a small number of whom have been jailed since their arrest, and a great deal of DOJ’s overt investigative focus lies in arresting those who can illuminate how the organizers worked and how they coordinated with others.

Before I lay this out, keep in mind the three main theories of liability for Trump for January 6 (as opposed to his call to Brad Raffensperger, though as I’ve noted, the call to Raffensperger goes a long way to showing Trump’s corrupt mens rea on January 6). At first, people argued that Trump incited the mob. There were problems with that claim, which Trump’s defense lawyers successfully exploited during his second impeachment trial, most notably that the Proud Boys had already kicked off the assault on the Capitol before the former President finished speaking. Still, to prove he incited a riot, you’d need to prove that the people who rioted did so in response to his speech at the Ellipse. Then, after Liz Cheney raised it, TV lawyers discovered what I’ve been pointing out for months. Trump’s actions (and inaction) fit squarely within the application of obstruction of the vote count that DOJ applied from the start. Finally, last week, Congress watchers discovered that Trump might actually have entered a conspiracy to obstruct the vote count, “involv[ing] coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol” — again, consistent with what I’ve laid out for months. That, though, would require mapping out how the various parties entered into agreements and how they communicated and coordinated (with conspiracy members as well as Congress and the mobsters). That’s why I keep pointing to the structure of the existing conspiracy charges: because what Trump did exactly mirrors the overt acts already charged, from getting bodies to DC, ensuring they get to the Capitol, and encouraging means to overtake it.

It’s all one networked conspiracy. Indeed, the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, observed in the Trump lawsuit hearing the other day that there was evidence that militia conspired with the Proud Boys.

Which, if DOJ could ever prove that those Trump entered into an agreement with, like Alex Jones, also entered into an agreement with Alex Jones’ former employee Joe Biggs, it would network Trump right into the conspiracies that rolled out at the Capitol, potentially putting him on the hook for the things those at the Capitol did, including damaging the building (which brings the terrorism enhancement), potentially some tactical assaults, and (if it gets charged), possibly even Kelly Meggs’ effort to hunt down Nancy Pelosi.

That may not be your preferred model of to hold Trump accountable, but I’m fairly certain that’s how DOJ would do so, in addition to whatever liability for him arises out of investigations into people like Sidney Powell or Rudy Giuliani.

What the evidence thus far shows is that Trump brought huge numbers of people to DC and convinced them that, to defend their country, they needed to march to the Capitol and pressure Congress, via one of a number of means, to not certify the election. Alex Jones and Ali Alexander then delivered these bodies to the Capitol, and once there, to a second breach on the East side. The Proud Boys, seemingly anticipating that this influx of “normies,” kicked off and carefully focused the riot just in time to create a real threat to Congress (and Mike Pence) just as they started to certify the vote count. (This Sedition Hunter timeline makes a compelling argument, one consistent with Proud Boy Matthew Greene’s statement of offense, that the Proud Boys paused their assault to wait for the mobs Alex Jones was bringing.)

The plan required six types of participants to make it work:

People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
- Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
- “Smash some pigs to dust”

Had any of a number of things gone differently — had Ashli Babbitt not been shot and had the amped up Zach Alam chased just behind her through the Speaker’s Lobby door before members of Congress escaped; had Officer Eugene Goodman not done several things to prevent both Mitt Romney and Mike Pence from running into the mob; had counter-protestors come out in large numbers to create the excuse for street skirmishes made lethal by arsenals of weapons stashed nearby; had DOD delayed deployment of the Guard even further, allowing a planned second assault to take place — the coup might well have succeeded.

With that has background, let’s turn to the DOJ investigation thus far. Politico has done the best public accounting of sentences here (though I treat Zoe Tillman’s numbers, along with GWU’s, as canonical). As Politico shows, the vast majority of those who’ve been sentenced — and almost as significant a majority of those who’ve pled guilty so far — are trespassers.

The vast majority of people sentenced so far were MAGA tourists, lured to the Capitol by Trump’s speech and the momentum of the crowd. While a sizable number knew of plans to obstruct the vote certification in advance (and a significant number of people were permitted to plead down from obstruction), a bunch of them really did arrive for the speech and stay for the riot.

One example of that is Anthony Scirica, who followed the crowd to the Capitol and decided to enter the Capitol even though he heard a window breaking and alarms going off.

After listening to the speeches at the rally, SCIRICA, along with a group of individuals, walked to the U.S. Capitol from the West. 10. As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

Eliel Rosa went to DC as much for the anti-certification rallies as the Trump speech.

Eliel Rosa and Jenny Cudd traveled from Texas to Washington, D.C. to participate in “Stop the Steal” rallies or protests and to connect with other “Patriots.” Mr. Rosa and Ms. Cudd understood that on January 6, 2021, in Washington, D.C. at the United States Capitol, elected members of the United States House of Representatives and the United States Senate were meeting to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020.

But even still, he attributed his trespassing to being swept up in “mob rule.”

Rosa blamed himself for his unauthorized entry into the U.S. Capitol and stated that he was caught up in “mob rule” at the time.

Kevin Blakely, who traveled to DC with friends, made new friends while waiting for Trump’s speech to start and then joined in to experience history (a common theme among some defendants).

The defendant and three others stood in the Ellipse for more than four hours before the rally started and met with other attendees. After President Trump’s speech, the defendant joined others as they began to walk toward the U.S. Capitol Building. [Blakely] made a detour and returned to the Hyatt Regency, where he was staying during his visit to Washington, D.C. From his hotel room, the defendant watched the crowd as they gathered outside the Capitol Building nad sometime between 2:00 and 2:30 p.m., [Blakely] decided to “get closer and more fully experience this ‘once in a lifetime’ event.”

Even those who did go to the Capitol from Trump’s speech knew, from communications including Trump’s, that it would be a mob. Here’s what Blakely’s friend Paul Conover, who just recently pled guilty, said he was doing.

Prior to January 6, on or about December 24, 2020, defendant posted a message on social media that states in sum and substance: GOING TO WASHINGTON DC WITH BLAKEY [SIC] TO JOIN THE MOB JAN 5TH CMON JOIN US.

Conover appears to be one of the misdemeanants whose arrest DOJ prioritized because they took videos in key locations. After he busted through the East doors closely behind the Oath Keepers and Joe Biggs, Conover narrated as he took a video panning the Rotunda:

This is it, boys and girls. This is the Capitol. Apparently, there’s some crazy shit going on in the Senate today and the certification. They’ve had enough. Well, uh, here we are! Ha ha ha! I pray to god that nobody does any damage to the stuff in here, ’cause I’m not down with that. But I’m kind of, kind of proud of the people that stood up and said you know what? Enough.

The statement of offense for Stacie Getsinger, who described on Facebook going to the East steps because Alex Jones told a crowd that Trump would speak, offered few details, describing only that she “walked to onto U.S. Capitol grounds and up the stairs of the U.S. Capitol with others, including her husband John Getsinger. Once Getsinger got to the outside of the Rotunda North doors, she observed others engaged with law enforcement who tried to stop individuals from entering the U.S. Capitol building.”

Adam Johnson described how he went from hearing Mo Brooks call for violence to running towards the Capitol.

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

Following these speeches, JOHNSON and. Person 1 began marching to the Capitol with the crowd. While marching, JOHNSON heard someone say “Pence didn’t do it.” JOHNSON also saw police running towards the Capitol and heard members of the crowd shout,”they broke into the Capitol!” JOHNSON and Person 1 started running towards the Capitol as well.

Others who came over from the Ellipse more explicitly discussed intimidating Congress. For example, here’s how Michael Stepakoff (who will be sentenced in coming days) narrated his approach to the Capitol.

So we’re marching up Pennsylvania Avenue to the Capitol building. The Senate and House of Representatives are in session . . . There’s nothing like the presence of at least a million Americans who are fed up and pissed off and are not going to stand for having our vote stolen because it’s the sacred right of our people to be able to vote for our president . . . so a million strong, at least a million standing outside the Capitol, storming the gates, so to speak, is going to make them think twice about what they are going to do today . . . God bless America.

While some people cheered the violence and a few got away with violence DOJ only discovered after their plea, the majority of the almost 200 people who’ve pled guilty so far did not engage in violence. With a few exceptions, below, these people weren’t wittingly part of the more organized plans to storm the Capitol. They were the bodies turned into an orchestrated mob, in part by Trump’s tweets and other social media advertising, and in part by those channeling the mob at the Capitol.

If you want to prove Trump incited the riot, you would need to collect these individual stories to prove it. That’s not the only reason DOJ has prosecuted these people, but it does provide evidence showing how people responded to Trump’s calls after he riled them up.

Some of the movement operatives wandered to the Capitol too

Among those who’ve been permitted to plead to misdemeanors, even some that I’d call “movement operatives,” wandered to the Capitol.

For example, right wing podcaster William Tryon, plausibly described following the crowd to the Capitol after Trump’s speech. Frank Scavo, a local PA politician who arranged busses for 200 people to travel to DC, tied his decision to walk to the Capitol to Pence’s decision to certify the vote; he’s one of the defendants sentenced to a longer sentence than the government requested.

There are a few exceptions. America Firster, Leonard Ridge, unsurprisingly seemed to know there’d be an attempt to shut down the vote count ahead of time, telling a friend, “I think we are going to try to block the session of congress” (he was one of the people permitted to plead down from obstruction to the more serious trespassing charge).

Two cases defy explanation. Micajah Jackson, a Proud Boy who denied a pre-January 6 affiliation and continued to attend Proud Boy events during pretrial release, mentioned nothing about that in his statement of offense. We might find out more about this in February, when Jackson is due to be sentenced.

The statement of offense for Brandon Straka, who is perhaps the senior-most inciter-organizer to plead guilty thus far, describes only that Straka took the metro directly to the Capitol, where he was scheduled to speak: “Knowing that Congress was in session to certify the election results at the U.S. Capitol and that Vice President Pence intended to certify the election, Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m.”

It’s not clear how these men were given misdemeanor pleas, when they were clearly part of an organized attempt to prevent the transfer of power. There’s no sign either man cooperated before entering their pleas, though Straka’s sentencing has been held up because, “the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation.” If the current schedule holds, Straka’s sentencing memos will come in tomorrow and he’ll be sentenced next week.

That said, movement operatives like Jackson and Straka are, thus far, the minority among those moving towards sentencing. Most were part of a self-described mob.

About half the felony pleas charged people who wandered to the Capitol

Even two of the three people who’ve pled guilty to assault thus far showed up without any pre-conceived plan to attack the Capitol. Devlyn Thompson, in an unsuccessful bid to use his autism diagnosis to get lenient treatment, described that he went to the Capitol because believed Trump would give another speech, a lie that motivated a good number of mobsters.

When I was leaving, my intention was to listen to another speech at the capitol. I had gotten text messages. I got a text that there was a planned speech. There was supposed to be two speeches at the capitol. One from an Arizona legislator and one from Women for Trump. I thought Alex Jones would be there and Trump.

After getting riled up by clashes between cops and rioters in the earlier part of the assault, Thompson joined in the Tunnel assault, eventually using a baton to hit one of the officers trying to help John Anderson respond to respiratory distress.

Robert Palmer similarly described being lured to the Capitol by a false belief in Trump’s claims.

In Mr. Palmer’s warped mind, on the day in question, he was acting as a patriot and for the good of the nation. While his intent was misplaced and his actions inexcusable, he sincerely believed that he was acting as a patriot on the day in question. Unfortunately, that mindset, coupled with the crowd mob effect, saw an otherwise law-abiding and successful father and business owner assault Capitol police.

Palmer was at the Capitol for hours, cheering the violence, before he got sucked in and participated in it by throwing a series of things at cops.

Just Scott Fairlamb, who was sentenced for punching a cop, clearly knew shit was going to go down in advance. He RTed a Steve Bannon prediction that “All hell is going to break loose tomorrow,” and asked, “How far are you willing to go to defend our Constitution?” Those statements are one of the reasons why Fairlamb, uniquely thus far, pled to both obstruction and assault and, if not for some mitigating circumstances that came out at sentencing, might have faced a terrorism enhancement.

There are two straight obstruction defendants sentenced so far, Paul Hodgkins and Jacob Chansley. Like many of the trespassers, Hodgkins simply followed the crowd after Trump’s speech (he was charged with a felony because he made it to the Senate floor).

Just Chansley, then, turned a central role in the right wing movement — importantly, as a celebrity in QAnon — into a key role obstructing the vote count and threatening Pence. There’s far more to say about the success QAnon had in mobilizing bodies to where they could be the most useful (and the Podcast Finding Q revealed that FBI was investigating that in the weeks after the attack). But the operational model by which people like Chansley got to the Senate floor is different than for other MAGA tourists who were turned onsite.

There are more known cooperators than straight felony pleas

To a great degree, this entire exercise is misleading, which is why pat comments from people trying to dismiss the investigation are so misleading. There are a number of reasons the stats skew where they are now: Obviously, people will plead to a misdemeanor more quickly than a felony. Virtually all of those charged with obstruction have been waiting for judges to rule on challenges to that application, and as those people move towards pleading out (as they have started to do), it still will take some weeks to finalize pleas. One reason for that hold-up: DOJ is only now making the final bits of global discovery available, without which many attorneys, for due diligence reasons, will not advise taking a plea.

A more important reason claims about who has been sentenced are misleading is that there have been more felony cooperators than straight felony pleas thus far. With two people convicted for making threats, there have been seven people who pled to a felony sentenced. There are nine overt cooperators (and presumably more we don’t know about). And while two cooperators — Josiah Colt and Gina Bisignano — are cooperating against their own limited network of more serious defendants, cooperation deals like Colt’s structured under 18 USC 371 networks into any larger conspiracy, potentially putting conspirators on the hook for the assaults of his co-conspirators. The other cooperating witnesses, though, have provided information about how the planners who’ve been in custody for most of a year — Kelly Meggs and Kenneth Harrelson for the Oath Keepers, Joe Biggs and Ethan Nordean for the Proud Boys — and those who have not yet been arrested orchestrated the attack.

This was a fairly flat conspiracy, with Proud Boys on the scene implementing orders from Proud Boy leaders who are, themselves, just one degree from Donald Trump through people like Alex Jones and Roger Stone. In addition to the 17 plus four Oath Keepers charged in a conspiracy, there are several more Oath Keepers being prosecuted. In addition to the 16 Proud Boys plus one cooperator charged with conspiracy, there are a slew more arrested individually and in co-traveler groups (some of whom are at risk of being added to conspiracy charges once they’re formally charged) who can offer information about the funding for all this, what Proud Boy leaders were saying during the riot, and some key tactical organization. Some of the 3%ers charged so far networked with key right wing funders, January 5 speakers, and even Ted Cruz.

So yes, 700 people have been arrested so far, and half of those are normies whose non-violent presence was operationalized in a well-planned assault on the Capitol. Many of the 150 assault defendants were “normiecons [who] have no adrenaline control.” But 200 of the arrestees are accused of more witting participation in a plan to prevent the peaceful transfer of power and of those 100 have networked insight into how that worked. Those people haven’t been sentenced yet because discovery and legal challenges have delayed most from accepting plea offers.

The most chilling passage in any statement of offense, in my opinion, is Matthew Greene’s description of realizing — from his service in Afghanistan — the moment the mob turned into an insurrection.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

In the days and weeks after he recognized Americans turning insurgent in their own country, Greene returned home and started assembling a (seemingly illegal) arsenal and preparing for war.

He told another acquaintance in the days following the riot to be prepared to do uncomfortable things. He ordered over 2,000 rounds of assault-rifle ammunition and a gas mask. And he engaged in conversations with other Proud Boys on encrypted messaging platforms in which he stated a continuing desire to “take back our country” – in Greene’s own words, written in chat platforms post-January 6, “this is a 4th generation” war, and “we must stand together now or end up in the gulag separately.”

The effort to spark an insurrection at the Capitol was not one implemented by “foot solders,” but some highly trained veterans who were onsite, including an alarming number of Marines in most key tactical locations. And the network of people who stoked the normies to serve as useful bodies to this effort ties, via just one or two steps, right to Trump.

That’s the conspiracy DOJ has been investigating for a year.

Update: Took out detail that Straka was not at Ellipse. The key detail is he claims he took the Metro, didn’t walk.

Joshua James’ Frequent January 6 Updates on His Jilted VIPer

December 10, 2021/7 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The other day, Kenneth Harrelson invented a premise to publish the 302s from Mike “Person 10” Simmons, the Oath Keepers’ still-uncharged field commander for January 6.

In a response (technically a surreply), AUSA Kathryn Rakoczy made it clear the government believes Simmons was being dishonest. She provides several data points to demonstrate that, contrary to what he told the FBI, Simmons was well aware about the breach of the Capitol … which raises questions why he hasn’t been charged, yet.

Person Ten, as an uncharged individual who was aware that others have already been charged, had a motive to downplay or disregard both his own involvement and any preplanning efforts. And documentary evidence contradicts Person Ten’s blanket denials. For instance, on October 8, 2021, the government disclosed a Signal chat thread named “Jan 5/6 DC Op Intel team,” which included Person One, Person Ten, codefendant Joshua James, and about seven other individuals. On the Signal thread, shortly before 2:00 p.m. on January 6, a participant posted a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots – not those who were going to go in disguise as Patriots and cause trouble[?]” Person Ten authoritatively answered, “[T]here [sic] patriots.” Person One added, “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]” Codefendant Joshua James followed with, “Were coming to Capitol ETA 30 MIN[.]”

The Sixth Superseding indictment alleges that at 2:14 p.m. on January 6, Person Ten informed the “DC OP: Jan 6 21” Signal chat that “The[y] have taken ground at the capital,” and, “We need to regroup any members who are not on mission[.]” ECF 513 ¶ 125. At 3:05 p.m.— twenty minutes after Defendant Harrelson and other codefendants breached the Capitol, and ten minutes before Defendant James and his second wave of coconspirators breached the same doors—Person Ten also messaged another individual, “Were [sic] storming the capital.”

Particularly given the confirmation that the government believes he was lying, I’d like to point to some redacted references to a VIP that Joshua James was guarding who was bitching that he wasn’t getting VIP treatment.

This is likely Roger Stone. That’s true because — as Dan Friedman reported — James was “guarding” Stone that day (and Simmons guarded Stone the previous day), the name seems to fit, and Stone has publicly complained about his treatment that day.

While exchanging calls with Simmons, James traveled from the Willard Hotel, in downtown Washington—where he had been leading a security detail guarding Stone—to the Capitol.

What appears to be the first reference to this person also seems to fit the name, which would be the full name, Roger Stone, on first reference. Roberto Minuta, Jonathan Walden, and the now-cooperating Mark Grods were also guarding Stone.

Which brings us to the middle reference. Simmons claims that James called him every time his VIP moved.

Only, if that VIP was Roger Stone, he didn’t move. By his own account he stayed at the Willard before taking his bruised ego and leaving town.

If that’s right, it means Simmons was trying to explain multiple calls with James, and to do so, he offered the bullshit excuse that Stone, who by his own account never left the Willard, kept moving.

These calls are earlier than the ones that the indictments disclose. They would effectively serve to warn Roger Stone of this investigative interest.

But they also suggest that the Oath Keepers were keeping their operational lead closely informed of what some VIP — likely Roger Stone — was up to at the Willard that day.

Update: Way back in April — April!! — I argued that Person Ten — Simmons — played the role of a communication pivot that day, including at one point seemingly being on a 3-way call with Rhodes and Kelly Meggs.

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 calls that Harrelson — as a Floridian, someone with ties to Stone — revealed predated all these, to a period when Stone was at the Willard and everyone else was at the Ellipse.

How the FBI Missed Alleged January 6 Leader Joe Biggs

August 29, 2021/79 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Let’s talk about how central Joe Biggs is to what we know of the implementation of January 6.

It explains a lot that — at least according to a claim Biggs himself made — two FBI agents were relying on him for information against Antifa in the lead-up to the terrorist attack.

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

I don’t mean they were complicit. Rather, that they weren’t even aware that he was in the middle of plans to conduct a terrorist attack on the nation’s Capitol is a testament to and perhaps an explanation for how the FBI missed all this.

Joe Biggs is a former Army Staff Sergeant who did tours of duty in Iraq and Afghanistan before he left with a medical discharge and PTSD. After some troubled years, he started contributing to InfoWars, serving as a key proponent of the PizzaGate scandal that turned John Podesta emails stolen by Russia into an attack on a pizza restaurant in DC; he was formally ousted from InfoWars shortly after the Comet Ping Pong attack, but remained in the InfoWars orbit. Alex Jones claims he gave Biggs a big severance when he left. After that, Biggs was a key proponent of the Seth Rich conspiracy, posting the manufactured FBI Report that served as a basis for the Fox News story that had to be retracted.

According to one of Biggs’ own court filings, after he moved to Florida to take care of his mother in 2018, he contributed the same propaganda skills that fostered an attack on Comet Ping Pong and falsely impugned a murdered DNC staffer to the Proud Boys, ginning up events to sow violence in the name of Antifa.

The same year, 2018, after the move to Florida, Biggs became active as an organizer, event planner and thought leader in the Proud Boys. He used his platform as a radio and social media personality to promote Proud Boy events and ideas. In particular, he personally planned two major events: rallies in Portland, Oregon in both 2019 and 2020 designed as counterdemonstrations against Antifa, which had been active in and around Portland for over two decades.

His presence in Florida put him in close proximity to Enrique Tarrio and (as if his ties to InfoWars didn’t already do so) through him Roger Stone.

When Trump called out the Proud Boys in his first debate against Joe Biden, Biggs responded, “President Trump told the proud boys to stand by because someone needs to deal with ANTIFA . . . well sir! we’re ready!!” (Note, this hasn’t shown up in DOJ filings.)

Immediately after and in the weeks after the election, Biggs kept declaring war. “It’s time for fucking War if they steal this shit.” “No bitch. This is war.” ““This is a war on Americanism. This is only the beginning.”

On December 11, the Proud Boys (at least Enrique Tarrio and Ethan Nordean) appeared prominently at a Stop the Steal event with InfoWars personality Owen Shroyer. There was coordination between the militias at a march the following day, after which Enrique Tarrio destroyed a Black Lives Matter banner from the Asbury United Methodist Church in DC.

In the days after both the DC even and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

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

In the days after, both Tarrio and Biggs posted plans to dress like Antifa rather than in their signature yellow and black.

9. For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

10. On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

On December 30, Southern California 3%er Russell Taylor described a plan to meet at the Capitol and — in conjunction with Stop the Steal — surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

This plan — surrounding the Capitol — was what Stop the Steal figures partially carried out on January 6.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

After all that, the Proud Boy leaders agree to meet at 10AM the next day.

As captured by the WSJ, the next day, after the Proud Boys met at the Washington Monument, they then marched the East side of the Capitol first, but then later approach it from the Northwest. Just before Trump started speaking and before a broader call to assembly tied to 1PM, at 12:52 Biggs said something to Ryan Samsel, who then kicked off the assault on a series of barricades, giving a police officer a brain injury in the process.

Proud Boys Dominic Pezzola and Billy Chrestman were among the leaders of the next confrontation. After a series of fights, at 2:13, Dominic Pezzola broke through a window in the Capitol. Biggs followed him, with some other Proud Boys (in this picture, Paul Rae) in tow, a minute later.

Meanwhile, even as Biggs was leading a mob of people in a violent attack on the Capitol, Alex Jones — Biggs’ former employer — was leading a larger mob of people from the Ellipse, where they had just been instructed by their President that “we’re going to the Capitol, and we’re going to try and give…we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.” Jones stopped when he got to the Capitol and gave a speech.

According to Stacie Getsinger, a woman from South Carolina who was arrested for trespassing in June who was listening to Jones at that first speech, Jones told his audience to go to the other side of the building (which would be the East side), because that’s where Trump’s next speech would be.

She and her husband did. Trump gave no speech, but they were among the first wave of people to breach the East entrance.

Alex Jones went to the other side of the Capitol, too. Even before he did, though, Oath Keeper Jason Dolan was on the stairs, waiting.

As Dolan waited, Jones and his entourage (including Ali Alexander and the recently arrested Owen Shroyer) pushed up the stairs stack-style.

Meanwhile, at some point, former InfoWars employee and Florida militia member reportedly joined in an alliance with the Oath Keepers by fellow Floridian Meggs, Biggs left the Capitol from one of the West entrances, walked around it, and assembled on the East Steps with Arthur Jackman, Rae, and two others (probably Kevin and Nathan Tuck, and possibly Edward George; the Tucks are both — now former — cops, and Jackman’s and one of the Tucks’ spouses still are cops).

At 2:39, Rae and Jackman can be seen approaching the East Door with Biggs.

At around 2:40, they entered the East door.

At almost exactly the same time, Jason Dolan and Kenneth Harrelson entered the door along with the Oath Keeper stack led by Kelly Meggs (this is believed to be a picture Harrelson took of Dolan filming the entry; if you watch the video you can see both signs visible in the Biggs photo, making it clear that the people kitted out with helmets in that picture are the Stack).

People like the Getsingers — who were brought there by Alex Jones — pushed through around the same time.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

[Thanks to Benny Bryant for continuing to help me sort through the Oath Keeper side of this, and thanks to gal_suburban for sharing the video of Jones on the East side.]

Joseph Hackett’s Detention Argument: Guns, Operational Security, and Involvement in Kelly Meggs’ Plans for Nancy Pelosi

August 18, 2021/11 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In a status hearing in the Oath Keeper conspiracy case on August 10, Kathryn Rakoczy revealed the government had provided “certain information” to defendants that might limit or shape defense theories. She then mentioned uncharged individuals or unindicted co-conspirators.

How Person Fifteen became D-2

Then yesterday, in a memo supporting continued pretrial detention for Joseph Hackett, the government rolled out a new way to refer to those who’ve entered into cooperation agreements against their former co-conspirators (and siblings): D-1 and D-4, as opposed to Person One, Person Two, and Person Ten.

D-1, who shared details of the organizational structure of the Florida Oath Keepers, may be Graydon Young, whom the indictment describes getting operational security instructions from Hackett shortly after he joined the Oath Keepers and who lives about 30 miles from Sarasota.

According to a defendant who has pled guilty pursuant to a cooperation plea agreement (and who will be referred to as D-1), Defendant Hackett was the “leader” of the Oath Keeper CPT5 group of approximately five men from the Sarasota area. According to D-1, the organization’s hierarchy had D-1 reporting to the CPT team leader (here, Hackett), who would report to the State lead (here, Kelly Meggs).

5 D-1 did not know what CPT stood for, but other Oath Keeper materials suggest it stood for “community preparedness team.”

D-4, who shared details of what Hackett did on January 7, may be Caleb Berry, who drove to and from the insurrection from Florida.

According to a defendant who has pled guilty pursuant to a cooperation plea agreement (and who will be referred to as D-4), Defendant Hackett was one of the members of the Oath Keepers who deposited long guns at the Comfort Inn Ballston on January 5 and collected them on January 7.

[snip]

In other words, while Defendant Hackett had his phone with him at the Capitol – he is seen on surveillance video holding it up to take a picture or video, and he admitted to D-4 that he had recorded a video that he later deleted – he took substantial efforts to ensure that he would not be linked to the phone, and that the phone would not be linked to the Capitol attack.

[snip]

According to D-4, on January 7, 2021, while Defendant Hackett was in a car driving from Washington, D.C., to Florida, with co-defendant Kelly Meggs and others, he admitted that he had already deleted from his iPhone a video he had taken while inside the Capitol the prior day

But the numbering system is bound to make Oath Keepers and conspiracists like Darren Beattie, Tucker Carlson, and Glenn Greenwald more paranoid. That’s because, if my assumptions above are correct, the counting appears to start with Young, not the first Oath Keeper known to enter a cooperation agreement, Jon Schaffer, who did so on April 14 (Young was second, Mark Grods was third, and Berry was fourth; the subtitle of this section is based on a wildarse guess that in this scheme, Grods, who was described before he flipped as Person Fifteen, would become D-2). That suggests someone else may have flipped, possibly between June 28 (when Grods pled) and July 7 (when Berry did).

Checking the East Door

The detention motion includes a long description of Hackett’s attempts to use operational security while hanging out with a bunch of people who weren’t, such as this picture showing him using his customary face covering while hanging out with a bunch of people who didn’t.

It also elaborates on a narrative that had shown up in earlier detention motions. It describes Hackett moving inside the Capitol with (it says) Kelly Meggs and Kenneth Harrelson, from the Rotunda to outside of Nancy Pelosi’s door. From there, Hackett walked back to the East Door of the Capitol, as if he was waiting for someone, and then returned to (the government presumes, though they may have video of this now from other defendants) Pelosi’s door.

Attached as Exhibit 3 is a compilation of Defendant Hackett’s movements within the Capitol for the approximately 12 minutes he remained inside, as captured on surveillance video. Notably, he spent most of his time with his co-conspirators Kelly Meggs, Moerschel, and Harrelson. At around 2:45 p.m., Defendant Hackett left the Rotunda through the south door, headed towards the House of Representatives (and the office of Speaker Pelosi).

[snip]

Defendant Hackett was not visible on camera for approximately one minute. He then went to check on the exterior doors through which the group entered, before returning to his coconspirators south of the Rotunda, near the Speaker’s office, where he remained, off camera, for approximately 5 minutes. This is the area and the time that Kelly Meggs and Harrelson were similarly not visible on surveillance video.

Exhibit 3 consists of 26 photos showing which of his actions from inside the Capitol were captured on CCTV — far more detail than the three paragraphs describing Hackett’s movement included in the indictment.

146. After they penetrated the Capitol building, CROWL, WATKINS, SANDRA PARKER, Young, STEELE, KELLY MEGGS, CONNIE MEGGS, HARRELSON, HACKETT, DOLAN, ISAACS, MOERSCHEL, Berry, and the others in the Stack collectively moved into an area inside the building known as the Capitol Rotunda.

[snip]

155. At2:45 p.m, KELLY MEGGS, CONNIE MEGGS, HARRELSON, HACKETT, DOLAN, MOERSCHEL, and Berry walked southbound outof the Rotunda and towards the House ofRepresentatives.

[snip]

158. At2:54 p.m. HACKETT and MOERSCHEL exited the Capitol.

After milling about the Rotunda, Hackett walks across it to talk to Meggs and Harrelson. Berry — who may be D-4, but who definitely has agreed to tell the government everything he knows — was present.

The detention memo suggests they — apparently including Berry and Connie Meggs, though the detention motion doesn’t mention them — went from here to stand outside Pelosi’s office, and then Hackett — apparently by himself — came back through the Rotunda, stood outside the East Door, looking outward, as if waiting to meet with someone.

Hackett then enters back into the Capitol, goes back to where he (apparently) left Moerschel, Harrelson, and Meggs, along with Berry and Connie Meggs (though they aren’t mentioned) and then he and Moerschel exit the building.

Joseph Hackett’s detention motion is about Kelly Meggs

The government largely substantiates their argument that Hackett is too much a threat to be released with their evidence that he’s a leader of an organized militia, armed, and went to great lengths — both in real time and after the fact — to obscure his actions. Hackett’s actions inside the Capitol — unlike many of his co-defendants, he is not charged with an additional resisting cops or civil disorder charge for anything he did inside the building — would seem to add little.

The government gets there, repeatedly, by tying Hackett’s own actions to those of Meggs, to whom (D-1 has testified) he reported in the Oath Keeper hierarchy. In Hackett’s detention motion, for example, the government adds to a text they had included, in similar associative fashion, in Kenneth Harrelson’s detention motion showing Meggs admitting that “we looked for[] her.

In Hackett’s detention memo, they show that the night of the election (they get the conversation from UTC wrong and falsely claim this happened very late the night of the election; it would have happened before polls closed in much of the country), Meggs was threatening to “go on a killing spree … Pelosi first.”

And, almost gratuitously, the government uses a reference to the DC Circuit’s decision upholding Christopher Worrell’s detention as a way to remind Judge Amit Mehta that Meggs had purportedly orchestrated a plan with the Proud Boys.

In Worrell, the D.C. Circuit held that the “district court’s dangerousness determination was [not] clearly erroneous,” based in part on the defendant’s “membership in and alleged coordination with the Proud Boys, some of whose members have been indicted for conspiring to attack Congress.” 848 F. App’x at 5-6.8 The same heightened dangerousness applies here, as the actions of self-proclaimed members of the Proud Boys and Oath Keepers are similarly situated in terms of their dangerousness based both on their personal actions and their coordination with their coconspirators. And not only have 18 Oath Keeper members and affiliates (Defendant Hackett included) been indicted in this case, but there is also evidence of coordination between the Oath Keepers and the Proud Boys. (See Gov’t Opp to Kelly Meggs’ Motion for Pretrial Release (ECF 98) at 8 (quoting December 22, 2020, Facebook message: “we have made Contact with PB and they always have a big group”)), and 10 (quoting December 25, 2020, Facebook message: “we have orchestrated a plan with the proud boys. I have been communicating with [redacted] the leader.”).)

It’s as if to say that Hackett is dangerous by himself, but he’s especially dangerous (or just as likely, important to flip) because he was part of what Kelly Meggs was involved with on the day of the insurrection.

The pictures included as an exhibit seem to suggest that not just Hackett — but also Connie Meggs (who would have spousal privilege but who also just got a new lawyer) and Caleb Berry, who may be D-4, a witness to efforts to try to destroy evidence about what happened during the insurrection — were witnesses to whatever Meggs was up to when he went to the office of the woman he threatened to kill on the night Biden won the election. What Hackett would know is why he went back to the door of the Capitol, as if awaiting someone.

According to the government, that makes him dangerous and likely to obstruct the investigation.

Update: This analysis adds to the evidence that Berry is the guy standing by the stair doors at the QRF hotel, and therefore almost certainly D-4.

“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

July 7, 2021/54 Comments/in emptywheel, January 6 Insurrection /by emptywheel

In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

7, 8, 9. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

10. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

16. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

17. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire