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DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

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It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.

[snip]

To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

Broken Windows Policing and January 6 Plea Deals

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Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

The Crimes of Violence Ashli Babbitt’s Mob Allegedly Committed

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In the Oversight Hearing on January 6 the other day, Paul Gosar suggested that Ashli Babbitt, who was shot while jumping through the last door protecting House members, had been executed.

Paul Gosar: Do you know who executed Ashli Babbitt? … The Capitol Police officer that did that shooting, Ashli Babb — appeared to be hiding, lying in wait, and he gave no warning before killing her.

As it happens, the day after Gosar made these comments, yet another insurrectionist who was standing with Babbitt when she was killed, Kurt Peterson, was arrested in Abraham Lincoln’s birthplace of Hodgenville, KY. According to his arrest warrant, prior to the insurrection, Peterson had accused Democratic lawmakers of treason that should be penalized with death. Peterson claimed to have been at the insurrection with three former Special Forces guys, all in their sixties.

After the insurrection, on January 10, Peterson posted an account on Facebook almost certainly intended to minimize his actions. He claimed, for example, to have entered through a back door that had been opened, and further claimed that when he entered, he told people not to hurt anyone or anything. (He recorded this on voice recognition software so the bracketed corrections are my own.)

When at the back door that we were at open[ed] and there and there were no police to restrain the crowd many people entered at that time. I stood at the door and told everyone that we were not there to hurt anybody or damage anything but as a show of solidarity to right the wrongs of the past election.

In fact, a video cited in his arrest warrant shows someone the government alleges to be him breaking an exterior window to the Capitol screaming, “This is our house. Let us in.”

Peterson is accused of breaking that window, which cost $2,700 to repair. Causing more than $1,000 of damage under 18 U.S.C. §1361 can (and has been invoked to, in this investigation) carry a terrorism enhancement under 18 U.S.C. §2332(b)(g)(5). While it’s unlikely the government will do so with Peterson (they have done so primarily with militia members), given his politicized threats of violence in advance of the insurrection, Peterson could be charged with terrorism for breaking that window.

In the same self-serving account of the day, Peterson gave this account of witnessing Ashli Babbitt’s death.

I did stop men from trying to break down the large wooden doors to the house chamber. Then I saw chairs being brought into the corridor going to the speaker’s lobby. They also grabbed a large sign with a heavy metal base stating no photography. I pushed into the corridor yelling for them to stop trying to break through the doors into the speaker’s lobby. The woman who was shot used the leg of a chair to hit a glass panel on in the door. There were numerous police officers in the stair tower and hallway that I was in.

Before I could get to her the shot rang out from behind the doors in the speaker’s lobby through the glass which shattered hitting many [police] officers and people there. It was a young man in a suit who was supposedly a bodyguard for Chuck [S]chumer.

The bullet hit the woman in the neck which caused her to fall backwards [im]mediately. It could have hit numerous [police] officers that were there. Non lethal force could have been use[d] with out the lethal shot that was made by this body guard in the speaker’s lobby.

I had my 1st aid [gear] with me and asked numerous times to be allowed to render 1st aid to this woman. I was told that they were waiting for the fire department to [respond] and they would not let me give her 1st aid. She died on the floor within 10 minutes of the shot being made.

On the John Sullivan video, there’s no sound of Peterson warning anyone. Rather, there are cries of “Break it down!” with multiple calls before the shot that there was a gun just behind the door the mob was threatening to break down. Everyone in the front line, including Babbitt, should have heard warnings about, if not seen, the gun carefully aimed at the mobsters at the door.

Had non-lethal force been used, the mob might have become more inflamed than they already did. Indeed, many January 6 defendants excuse their behavior, including multiple people accused of assault, as retaliation to the use of non-lethal force.

Peterson suggests that police attending to Babbitt weren’t already giving her First Aid even as they were trying to clear the mob. It appears that another of the rioters, someone with a camera, responded even more quickly than Peterson, along with some of the cops. It is true that Peterson fumbled in his chest as if grabbing for gear. It’s also true that even before that, police were yelling at him to clear out so first responders could get to her. Another video shows that even more closely — as a long line of rioters were clearing a path, Peterson kept talking to the cops.

If the government’s accusations are true, one of the people accusing cops was, himself, dramatically understating his own involvement that day, including his alleged assault on the Capitol that could be (but has not) charged as terrorism.

Breaking down the door

But Peterson is not the only one. While DOJ has thus far charged only a relative handful of people who made up the mob screaming “Break it down!” who were present when Babbitt died, those present range from people accused of trespass to others whose damage to the Capitol could be charged with a terrorism enhancement.

Zach Alam: Zach Alam was the most determined of several men who broke the glass in the door through which Babbitt was trying to enter. Like Peterson, he is accused of damaging the building and obstructing the vote count. In addition, he is charged with assaulting police and civil disorder. A filing opposing his pre-trial release describes his action of the day as “agitated” and rightly notes he stood out among the mob during multiple confrontations with police (including one minutes earlier at the doors to the House Chamber). The video from the Speaker’s Lobby door shows him punching and then kicking the door, then using Christopher Grider’s helmet to hit the panes.

Alam went on the run after January 6 because — as he told a family member — he didn’t want to go back to jail again (he has some recent arrests in DC). During this period on the lam, Alam used at least one assumed name, stolen license plates, and false identification.

Lawfully obtained records show that the defendant has provided multiple false names to service providers, including at least one false name – “Zachary Studabaker” – for services since the events of January 6, 2021.

In addition, according to the government’s information, the defendant was at the time of his arrest driving a vehicle that he had purchased around September 2020 but never registered, and for which the defendant had used multiple license plates, including in recent months. These include a Washington, D.C. license plate, found inside the defendant’s vehicle in Pennsylvania, which was reported stolen in 2018 by an individual who indicated that the front license plate was taken off his vehicle while parked in Northwest D.C. D.C. traffic cameras captured a black Chevy truck matching the description of the defendant’s vehicle bearing this license plate as recently as January 4, 2021. Moreover, when agents located the defendant at the motel in Pennsylvania, they observed the defendant’s black Chevy truck parked outside and noted that it bore Pennsylvania license plates for a Mazda vehicle.

Upon arrest, moreover, the defendant had multiple identification cards in his wallet, including a D.C. driver’s license and a D.C. identification card for one male, a Permanent Resident card for a second male, and University student identification card for a female. Among the items agents seized from the defendant’s motel room nightstand, moreover, were two mobile phones – a Verizon flip phone as well as an iPhone.

Per the same filing, Pennsylvania state authorities are also investigating Alam in conjunction with the January 29, 2021 burglary of an antique store.

This is the kind of defendant whose violence Babbitt was part of. Had Babbitt survived, she might have been on the hook for abetting Alam’s actions at the Speaker’s Lobby.

Chad Jones: Along with Alam, Chad Jones helped to break the panes of the Speaker’s Lobby door. In his case, he hit the window with a flag pole holding a wrapped up Trump flag. Jones was charged with resisting officers and civil disorder on top of the damage to the door.

Christopher Grider: Like Alam, Christopher Grider ran to the Speaker’s Lobby after being turned back at the House Chamber. Like Alam, he is charged helping to break through the Speaker’s Lobby doors through which Babbitt jumped. He handed Alam his own helmet, which Alam used to continue beating on the doors. Even after handing Alam the helmet, Grider allegedly pushed and kicked on the doors himself.

Grider backed away from the door when people started to call out about the gun. But like Peterson, he didn’t leave the scene to let officers respond.

Grider is charged for the destruction to the door, obstruction, and trespassing.

Assault

Brian Bingham: Brian Bingham was arrested June 22 in Alabama (which is neither of the states in which he was known to be living in his arrest warrant, Florida and New Jersey). He had been IDed by people who knew him from the Army with days after the insurrection and posted this photo from minutes after Babbitt’s death to his Facebook account (it’s unclear from the arrest warrant how Bingham’s attempts to shut down his Facebook account failed; possibly they obtained a preservation order).

Bingham appears to have been loitering around the East door as if knowing it would open before it did.

Minutes after Babbitt’s shooting, Bingham got in a tussle with two cops trying to expel him (the best footage of which was captured from another rioter’s phone, which may explain the delay in arresting him).

He yelled at them,

“You won’t hurt ANTIFA, but you’ll murder innocent girls!” “Where do you want me to move? Push me again!”

He bragged about the interaction later in the day.

Individual-5: Are you ok?

BINGHAM: I got to manhandl[e] 5 cops and live to tell

Individual-5: Lol… All of this does not surprise me! Stay safe. Trump2020

Bingham is not charged with obstructing the vote (which is surprising for a number of reasons, but may be consistent with an approach of undercharging those present at Babbitt’s death). But he is charged for the interaction with police.

Obstruction

Alex Sheppard: Like many others, Alex Sheppard ran from the stand-off at the House Chamber to the Speaker’s Lobby door, where he was picked up on Sullivan’s video. Presumably because he explained on social media he was driving from Ohio to DC to protest the RIGGED election, he was also charged with obstruction.

Trespass

Most of the others who directly witnessed Babbitt’s death have been charged with trespass, even though several badgered cops in ways that has gotten others charged with civil disorder or took affirmative steps to halt the vote count that has gotten others charged with obstruction.

Thomas Baranyi: Unlike some others, Thomas Baranyi (who was standing just behind her when she died) admitted that Babbitt died while attempting to breach a heavily guarded door.

We had stormed into the chambers inside and there was a young lady who rushed through the windows. A number of police and Secret Service were saying get down, get out of the way. She didn’t heed the call and as we kind of raced up to try to grab people and pull them back, they shot her in the neck, and she fell back on me.

Like many of the people at the door of the Speaker’s Lobby, he had recently been part of a mob that tried to storm the House side itself, only to try the Speaker’s Lobby next. Baranyi is charged with misdemeanor trespassing.

Ryan Bennett: Bennett was shouting “Break it down” while live-streaming the event as Babbitt was shot.

In Live Video 2, shot from inside the Capitol Building, at approximately the 1:40 minute mark, Bennett seemingly yells “no!” in the direction of a banging noise. In Live Video 4, Bennett seemingly yells “no destruction!” at approximately the 0:40 second mark when someone is seen kicking a door. However, in Live Video 3, Bennett seemingly chants “break it down!” along with the crowd at approximately the 2:47 and 3:54 minute marks. Based on my knowledge of the investigation and the events at the Capitol building, I believe the “break it down” chant was in relation to a door located in the Speaker’s Lobby that was barricaded by USCP and where a woman was later shot. A gunshot can be heard at approximately the 2:42 minute mark of Live Video 4.

Though he wore a Proud Boys hat the day of the riot, which was found when the FBI searched his home, he was charged only with misdemeanor trespass.

Phillip Bromley: According to his arrest affidavit, Bromley witnessed the shooting, and then appeared in a video posted to Parler describing it and stating he was 8 feet away.

In his narrative of events on Video 1, BROMLEY states: “listen…everybody needs to know the truth.” BROMLEY proceeds to describe how he “breached the right side,” “went in,” and “came to two large glass doors.” When he reached the doors, BROMLEY continues by stating he was talking with SWAT officers and reminding them “of their oath,” at which time “a gunshot went off” and a woman was “shot her in the neck.” BROMLEY continues by stating it “did not look like a survivable wound” and that “she [the woman who was shot] was eight feet in front of me on a line.” BROMLEY further describes the clothing he observed the woman to be wearing when she was shot and states “they shot her and she is dead.”

He was charged with misdemeanor trespass.

David Mish: David Mish called cops himself, on January 7, to describe what he knew about Babbitt’s shooting.

According to Mish, Babbitt was telling the cops to open the door before she died.

On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.”

[snip]

In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach.

That said, perhaps because he reached out to cops himself, perhaps because he claims to have tried to talk others out of damaging the Capitol, DOJ only charged Mish with misdemeanor trespass.

The videographers

Brian McCreary: Brian McCreary self-reported his presence in the riot by sharing video he had taken of the day, including from the Babbitt shooting.

After taking this picture; I decided to leave the building. Walking around the building, found a place to take a nice overhead shot of the crowd. Shortly after I made my way there and managed to take one clip of the crowd; people broke into that very side – so I followed them to see what they were doing. -Clip 20210106_144223 Following said crowd. -Clip 20210106_144434 Crowd breaks glass to Speakers Library, hear a shot fired. -Clip 20210106_144544 Crowd begins a game of telephone with Shot and killed a girl over here. At that point; I decided to leave the site. Walked to parking garage; jumped in my car and drove home. Im now just noticing that I am limited to 4 uploads; I will call and follow-up to provide the rest.

Perhaps because he reentered the building after leaving once, the government charged him with obstruction as well as trespassing.

Sam Montoya: Like John Sullivan, Infowar’s Sam Montoya’s video leads up to the Babbitt shooting. Like John Sullivan, Montoya eggs on the crowd as he films it. “We have had enough! We’re not gonna take your fucking vaccines! We’re not gonna take all your bullshit! The people are rising up!” But unlike Sullivan (and perhaps because of his tie to an actual media outlet), Montoya was charged only with misdemeanor trespass.

John Earle Sullivan: John Sullivan, whose name came up in texts between his brother and Rudy Giuliani, is the most enigmatic of January 6 defendants. Banned by lefty activists as a provocateur in the months leading up to the insurrection, Sullivan showed up on January 6 and caught key confrontations on video, while he could be heard egging on rioters in his own recording. At first, he was charged with trespass and civil disorder. His first indictment added obstruction and abetting. A second indictment enhanced his charges for carrying a knife during the protest (which he repeatedly asserted on his own video), false statements for denying it to the FBI, and a forfeiture allegation tied to the $90K he made by selling his video of the day (including Babbitt’s shooting). While Sullivan has been given a damage estimate in discovery — possibly tied to a window he seems to describe himself breaking in an office — he has not yet been charged for doing that damage.

The defendant approaches a window and states, “We did this shit. We took this shit.” The defendant also appears to break a window and says, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.”

Sullivan used his knife — which the government claims he showed publicly in the mob before the House Chamber — both in that mob and later the Speaker’s Lobby to get others to let him up near the front of the mob.

In the moments before Babbitt’s shooting, Sullivan was, just as Babbitt was, cajoling the police to step away from their posts.

After Babbitt’s death, according to the government’s support of seizure of Sullivan’s funds, Sullivan repeatedly boasted both of riling up the mob and of having video he could — and in fact did — monetize.

The defendant also spoke to someone on speakerphone, stating, “I brought my megaphone to instigate shit. I was like, guys we’re going inside, we’re fucking shit up…. I’m gonna make these Trump supporters f—all this shit up…. But I mean you’ll see. I have it all, I have everything, everything on camera, everything I just told you, and I mean everything. Trust me when I say my footage is worth like a million of dollars, millions of dollars. I’m holding on to that shit.”

So while Sullivan has not been charged for breaking a window — which if he were, would make a fifth person present who could be charged with a terrorism enhancement — he was charged with wielding a knife, lying about it, and inciting those around him to riot.

Update, June 24: I’ve added Bingham.