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The January 6 Militia Witnesses Are Cooperating with DOJ, Probably Not the January 6 Committee

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Liz Cheney made a comment in Thursday’s public hearing that has attracted some attention. As part of her explanation that the January 6 investigation is ongoing, she said,

As we present these initial findings, keep two points in mind. First, our investigation is still ongoing. So what we make public here will not be the complete set of information we will ultimately disclose. And second, the Department of Justice is currently working with cooperating witnesses and has disclosed to date only some of the information it has identified from encrypted communications and other sources.

Some have wondered whether this reflects some kind of insight into where the DOJ investigation is headed.

I doubt that Cheney’s comment reflects any greater insight into where DOJ is headed than I’ve gotten from tracking DOJ’s investigation closely, though as I’ll explain below, the Committee undoubtedly has non-public insight into how the militias coordinated with those close to Trump. (One possible — and important — exception to this assumption might be Joshua James, the Oath Keeper who is known to have testified in an NYPD inquiry targeting Roger Stone associate Sal Greco.)

While the Committee showed clips of depositions it had with Stewart Rhodes (pleading the Fifth in response to a question about arming members), Enrique Tarrio (expressing regret he didn’t monetize the Stand Back and Stand By comment), and Jeremy Bertino (who is Person-1 in the sedition indictment charging the Proud Boy leaders and who told the Committee that membership tripled in response to Trump’s comment), the more substantive claims about the militias on Thursday always cited the indictments against them, not evidence independently gathered by the Committee.

For example, Cheney described how Trump’s December 19, 2020 tweet, “initiated a chain of events. The tweet led to the planning for what occurred on January 6, including by the Proud Boys, who ultimately led the invasion of the Capitol and the violence on that day.” In his questioning of documentarian Nick Quested, Bennie Thompson likewise cited the indictment against the Proud Boys for claims about the lead-up to the attack.

To be sure, Thompson laid out details of the attack that are not generally known, but which are public: the Proud Boys skipped Trump’s speech and kicked off their attack to coincide with the Joint Session, not Trump’s speech; the Proud Boys first attacked at the site where the mob soon to be led by Alex Jones would arrive. I’ve laid out some of these dynamics in this post, and the Sedition Hunters have developed two detailed timelines that show how this worked, one describing the phases of the attack, and another capturing key communications of those implicated in it.

I’ve likewise noted what Cheney has: The Proud Boys — and virtually everyone else who organized in advance — responded to Trump’s tweet as if it was an order. I’ve also described — in a post called, “Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense” — how in cooperating witness Charles Donohoe’s Statement of Offense, DOJ for the first time used the passive voice to describe how the riot was announced.

[T]he foundation of that hierarchy that is so remarkable.

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

The implication from the Statement of Offense is that Donohoe learned certain things starting on December 20 that he has shared with prosecutors. One reason I’m pretty sure that prosecutors haven’t shared it with the Committee, yet, is because Donohoe’s cooperation does not show up in the discovery index provided to the defendants themselves on May 12, over a month after Donohoe flipped, which prosecutors filed publicly last week. Similarly, prosecutors have not yet explicitly told defense attorneys the person who shared a plan with Tarrio talking about occupying the Capitol, though they have the returns for Tarrio’s phone that should help defense attorneys learn that person’s identity.

(I do wonder whether a challenge to a very recent call records subpoena from the Committee by Russian-American Kristina Malimon, discovered by Kyle Cheney, not to mention the high profile former Trump impeachment lawyers representing her, means the Committee thinks they’ve figured out the person’s identity, though.)

The schedule of upcoming January 6 hearings explains one reason why Cheney referenced the ongoing investigation when citing DOJ’s cooperating witnesses:

  • June 13: The Big Lie
  • June 15: Decapitate DOJ
  • June 16: Pressuring Pence
  • June 21: Pressuring the States
  • Hearing 6: Trump Assembles a Mob and Sics it on Congress
  • Hearing 7: Trump Does Nothing as Capitol Is Attacked

The dates for the last two hearings, hearings that will include details about how the Proud Boys paused their attack to await reinforcements brought by Alex Jones, opened a second front in seeming coordination with the Oath Keepers and Jones, and considered a second assault until learning the National Guard had finally been deployed, are not known yet. Whenever they are, though, they’ll come after June 21, and therefore after the June 17 discovery deadline in the Proud Boy Leaders case. DOJ has said they won’t supersede the Leaders indictment beyond what it currently is (meaning no more co-conspirators will be added to it). But the fates of Persons-1 (Bertino), -2, and -3 are up in the air right now, as well as a number of charged Proud Boys (like Ron Loehrke), who played key roles in the tactical success of the attack but who have not yet been indicted. Similarly, the fates of those known to coordinate most closely with the militias — Roger Stone, Alex Jones, and Ali Alexander — remain uncertain.

Who knows? Their fates may be less uncertain between now and the last Committee hearing!

To be clear: as Chairman Thompson told Jake Tapper this week, the Committee does know of some of the coordination. I’ve heard of a communication implicating Stone that I believe the Committee has. Alex Jones complained about how many communications the Committee — specifically those of Cindy Chafian and Caroline Wren — had obtained, and one or both of them also communicated with Tarrio. A key focus of the testimony of Dustin Stockton and Jennifer Lawrence — and surely, Katrina Pierson, whom Stone and his associates have tried to blame for the attack — described their panic after Trump told his mob to walk to the Capitol. That testimony must explain why Pierson fought so hard to keep Wren’s chosen speakers, including Mike Flynn, Roger Stone, Brandon Straka, and others, off the stage. This fight also shows up in Mark Meadows’ texts. And Ali Alexander testified for eight hours; we’ll see how successfully the Committee debunked his already-debunked cover story, but Alexander lost his shit during the hearing on Thursday. The role of the Stop the Steal effort in delivering bodies to the right places at the Capitol is the most important known coordination from the day of the attack.

Rudy Giuliani also had communications with Proud Boy associate James Sullivan, Mike Flynn had some ties to militias (especially the First Amendment Praetorians), and Sidney Powell was paying for the defense of a number of militia members.

The Committee knows a great deal about how Trump’s mob got directed to the Capitol. But I suspect they’re still waiting to learn all the details that cooperating witnesses have provided.

Known cooperating witnesses

Oath Keepers

Jon Schaffer: The substance of Schaffer’s cooperation against the Oath Keepers is still not clear (and could well extend beyond them).

Graydon Young: Young interacted with Roger Stone in the weeks leading up to the attack, may know details of the alliance struck between Proud Boys and Florida Oath Keepers, and was part of the First Stack to bust into the Capitol; he also implicated his sister.

Mark Grods: Grods was the first Oath Keeper who was present at the Willard the day of the attack to flip, and likely provided details of the QRF and implicated Joshua James.

Caleb Berry: Berry would provide more details of Oath Keeper activities, potentially implicating Stone, in Florida, and also was witness to the attempt to hunt down Nancy Pelosi.

Jason Dolan: Dolan would explain why he and Kenneth Harrelson were waiting at the top of the East Stairs when the First Stack, Joe Biggs and his co-travelers, and Alex Jones and Ali Alexander converged there before the door was opened from the inside.

Joshua James: James called in reports from someone who is almost certainly Stone the day of the attack, participated in key discussions with Stewart Rhodes, Kelly Meggs, and Mike Simpson during the attack, and was closely involved in Rhodes’ continued efforts after January 6.

Brian Ulrich: Ulrich would provide details of planning specific to Georgia Oath Keepers and the advance planning in December.

Todd Wilson:  Wilson would explain the mobilization of the North Carolina Oath Keepers; he also witnessed a call Rhodes made to someone close to Trump after the riot.

Proud Boys

Matthew Greene: Greene will explain details of the communications involved the day of the attack and the specific goal to pressure Mike Pence.

Charles Donohoe: Donohoe will provide prosecutors an inside understanding of how the leadership of the Proud Boys worked, including with whom Tarrio may have been working starting in December and details about Tarrio’s arrest, which led Donohoe to try to fill in.

Louis Colon: A Kansas City Proud Boy who received perhaps the most favorable deal will undoubtedly implicate his co-conspirators and describe how the cell structure of the Proud Boys worked on January 6; he may also provide important debunking of someone who had been an FBI informant the day of the attac.

Others

Gina Bisignano: Bisignano cooperated against her fellow SoCal anti-maskers, but in the light of Carl Nichols’ rejection of DOJ’s application of obstruction, is attempting to withdraw her guilty plea. A hearing on her attempt to withdraw her plea will be held on June 22. She has not withdrawn her stated intent, one directly influenced by Trump’s speech, to pressure Mike Pence.

Josiah Colt: Colt cooperated against his co-conspirators, Ronnie Sandlin and Nate DeGrave, describing how they armed themselves and helped open both the East Door and the Senate Gallery.

Klete Keller: The substance of Keller’s cooperation is not known.

Jacob Fracker: Fracker testified against fellow VA cop Thomas Robertson.

Robert Lyon: Lyon testified against his co-defendant, Dustin Thompson.

Misdemeanor cooperators

Virtually all plea deals require the defendant to share their social media and sit for an interview with the FBI. A handful of defendants are known to have convinced prosecutors to drop or hold off felony charges by providing limited cooperation (including sharing encrypted communications) in advance. They are believed to include:

Jeff Finley: Finley was a co-traveler of Proud Boy Zach Rehl on January 6.

Brandon Straka: Straka who was among those excluded from speaking on January 6,  was on Ali Alexander’s Stop the Steal listserv, and spent time with Mike Flynn before heading to the Capitol.

Anthime “Baked Alaska” Gionet: Baked Alaska could share communications involving white nationalists like Nick Fuentes. But Gionet fucked up his plea colloquy, so prosecutors can charge him with a felony incorporating his cooperation if he doesn’t plead by July 10 (not like I’m counting days but that’s less than a month away).

Jacob Hiles: Hiles cooperated against Capitol Police Officer Michael Riley and his buddy James Horning.

Father and son Proud Boy pair Jeffrey and Jeremy Grace likely also avoided felony exposure by cooperating (though Jeffrey’s plea just got pushed back two weeks); they spent much of January 6 with Ron Loehrke.

The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”

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I’ve caught up to all of you in the States watching the first January 6 Committee hearing (my Twitter commentary while watching the video is here).

I think the hearing was an effective scene-setter, laying out information in a coherent narrative.

Perhaps the most striking part of the hearing was the degree to which, aside from the two live witnesses, Capitol Police Officer Carolyn Edwards and Nick Quested, the hearing relied exclusively on Republicans to make their case, with clips from:

  • Jason Miller
  • Alex Cannon
  • Matt Morgan
  • Bill Barr
  • Ivanka
  • Mike Pence (from a video appearance at the Federalist Society)
  • Greg Jacob
  • Steve Bannon
  • General Mark Milley
  • Sean Hannity and Kayleigh McEnany
  • Jared
  • Jeremy Bertino
  • Enrique Tarrio
  • Stewart Rhodes
  • A number of Jan 6 defendants, including Eric Barber

If I’m not mistaken, Thomas Jefferson was the only Democratic President named, but a slew of Republican Presidents were named (George W Bush was not, but Gerald Ford was).

There was plenty of shaming, including calling out Jeffrey Clark and Scott Perry for refusing to cooperate and noting that Kevin McCarthy was scared.

The clip of Jared accusing Pat Cipollone of “whining” when he threatened to quit may make it more likely to get the former White House Counsel’s testimony.

In short, this was directed at Republicans and relied on Republicans to make the case for democracy.

In that frame, I found the closing words of Liz Cheney’s opening statement to be the most effective messaging.

I ask you to think of the scene in our Capitol Rotunda on the night of January 6. There in a sacred space in our Constitutional Republic. The place where our Presidents lie in state. Watched over by statues of Washington and Jefferson, Lincoln and Grant, Eisenhower, Ford, and Reagan. Against every wall that night encircling the room, there were SWAT teams. Men and women in tactical gear, with long guns, deployed inside our Capitol building. There in the Rotunda these brave men and women rested beneath paintings depicting the earliest scenes of our Republic, including one painted in 1824, depicting George Washington resigning his commission, voluntarily relinquishing power, handing control of the Continental Army back to Congress. With this noble act Washington set the indispensable example of the peaceful transfer of power, what President Reagan called, nothing less than a miracle. The sacred obligation to defend the peaceful transfer of power has been honored by every American President, except one. As Americans, we all have a duty to ensure that what happened on January 6 never happens again. To set aside partisan battles. To stand together, to perpetuate and preserve our great Republic.

With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.

At the very least, she provided some mythology on which she will rebuild her party.

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

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[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

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~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.

Prep for the January 6 Committee Hearings: Focus on 18 USC 372

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I’ve got some potentially unwelcome news for you: Given the time zone differential, I think it unlikely I’ll stay up to watch tonight’s prime time hearing of the January 6 Committee. Hopefully, though, I’ll have reviewed it and posted on it by the time most of you wake up tomorrow.

That said, there seems to be a requirement somewhere that everyone do a big prep post of what to expect.

For example, Brookings did legal analysis of Trump’s legal exposure, laying out the evidence and legal background for charging him under 18 USC 371 and/or 1512(c)(2) and (k). I did a (actually, several) versions of that post too. But I posted it back on August 19, 2021.

The Brookings analysis misses a number of things, however. While it cites Judge Amit Mehta’s decision finding it plausible that Trump entered into a conspiracy with the Oath Keepers and Proud Boys (this is a much lower standard than the one DOJ would need to charge Trump), it doesn’t mention Mehta’s decision that Trump may have liability for aiding and abetting the assaults at the Capitol. Similarly, neither Brookings nor anyone else I’ve seen have noticed DOJ’s recent addition, in the same indictments in which they charged the militias for seditious conspiracy (Oath Keeper, Proud Boys), of 18 USC 372 charges, which is a conspiracy to prevent by force or intimidation any person from discharging his duties.

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.

As I’ve noted of late, the only other January 6 defendants charged with a 372 conspiracy are George Tanios and Julian Khater, for the alleged attack on Brian Sicknick and others. In the same way I was screaming in August that TV lawyers need to pay attention to how DOJ was using 1512(c)(2) (which they’ve finally started doing), I’m going to start screaming about 372 now. I think the 372 charges are designed to do more than backstop the showier conspiracy charges. Insofar as Mike Pence was acting in his role as President of the Senate on January 6 (and so would be included in the language about preventing by intimidation Members of Congress from carrying out their duties), it might be easier to charge people like John Eastman or Peter Navarro with 372 than with 1512. That’s because parts of this conspiracy didn’t rely on obstructing the vote certification, it relied on preventing Pence from doing his job.

Plus, Brookings remains, as virtually all such analysis does, far too focused on the events in the Willard, and far too little focused on the Capitol. It’s as if they don’t believe, or can’t conceive, how closely Trump is tied to the violence at the Capitol.

Hopefully, tonight’s hearing will change that focus. As the NYT first reported, documentarian Nick Quested and officer Carolyn Edwards will testify tonight.

When the committee on Thursday evening holds the first in a series of public hearings scheduled for this month, the two people said, it intends to present live testimony from Nick Quested, a British documentarian who was filming the group with its permission during the riot, and from Caroline Edwards, a Capitol Police officer who was injured, according to videotape of the incident, by a rioter who had been in a conversation moments earlier with one of the Proud Boys indicted on the sedition charge.

Mr. Quested spent a good deal of the postelection period filming members of the Proud Boys, including Mr. Tarrio, and is considered by the committee likely to have been a witness to their conversations planning for Jan. 6. Mr. Quested had accompanied the Proud Boys to pro-Trump rallies in Washington in both November and December 2020, and was on the ground with members of the group on Jan. 6 when several played a crucial role in breaching the Capitol.

Mr. Quested was also present with a camera crew on the day before the attack, when Mr. Tarrio met in an underground parking garage near the Capitol with a small group of pro-Trump activists, including Mr. Rhodes of the Oath Keepers. Late in the day on Jan. 6, Mr. Quested and his crew were with Mr. Tarrio in Baltimore, filming him as he responded in real time to news about the riot.

Ms. Edwards, a well-respected Capitol Police officer, is believed to be the first officer injured in the attack, and suffered a concussion during the assault.

Such testimony will explain how the Proud Boys kicked off the entire riot before Trump even finished. Edwards’ assault figures in language added to the Proud Boys indictment when Tarrio was added.

Seconds before 12:53 p.m., BIGGS was approached by an individual whose identity is known to the grand jury. The individual put one arm around BIGGS’s shoulder and spoke to him. Approximately one minute later, this individual crossed the barrier that restricted access to the Capitol grounds. This was the first barrier protecting the Capitol grounds to be breached on January 6, 2021, and the point of entry for NORDEAN, BIGGS, REHL, Donohoe, and PEZZOLA.

This assault — one implicating the Proud Boys in that exchange with Samsel — is the kind of thing covered by 372. A victim impact statement was read in a detention hearing for Samsel, which focused on how much lasting damage the assault had done to Edwards health and ability to work.

With Edwards and Quested’s testimony, I expect the Committee will show that the attack was far more than a disorganized mob, but instead was coordinated, almost like a dance. That coordination includes Alex Jones and his entourage, the Pied Pipers of insurrection, ordered to lead thousands to the attack on the Capitol.

The coordinated events at the Capitol are why another point missed by the legal analysis I’ve seen so far is so important. The Willard is actually the wrong place to start a prosecution of Trump. You can’t hold Trump responsible for the attack on the Capitol unless you first show that he was instrumental in mobilizing the people there — whether by inciting them at the rally, advertising the riot itself in ways rioters took to be orders, or coordination with the militias. All the other stuff just broadens the conspiracy to include the legal talent.

Trump wielded the mob as his weapon. There are witnesses to his premeditated plan to do that in the White House. But to show that those mobilized by Trump responded to his orders, you need to rely on their testimony.

And abundant testimony already shows that thousands would not have rioted except for Trump’s orders or his promises to meet supporters at the Capitol (and Alex Jones’ similar promises, used to move bodies around to form a second front of attack).

Enrique Tarrio thinks this focus is all being coordinated with DOJ. In the wake of the sedition indictment rolled out on Monday, Zach Rehl’s attorney Carmen Hernandez moved for permission to issue a press release responding to the indictment. Hernandez wants to note that Rehl is not, himself, accused of any violence.

Without adding a single factual allegation concerning Mr. Rehl, the government today filed the Third Superseding Indictment in the instant case, nearly 1-1/2 years after Mr. Rehl was first indicted and detained pretrial and just two months before he is scheduled to begin trial. Mr. Rehl is now charged with seditious conspiracy, an offense that requires the government to prove that Mr. Rehl “conspire[d] to overthrow, put down, or to destroy by force the Government of the United States.” Yet, the Third Superseding Indictment does not allege that Mr. Rehl used force at any time nor encouraged anyone to do so.

I think Rehl’s problem is not so much the conspiracy indictment, it’s that he’s the least culpable of the remaining defendants, on the hook for actions that Ethan Nordean, Joe Biggs, and Enrique Tarrio are alleged to have taken, and arguably included in the Leader indictment when others (like Ron Loehrke, who remains charged by complaint with civil disorder) were more instrumental to the success of the assault on January 6.

Tarrio has a different problem, however. Thus far, he’s the only one to have joined, in part, in Hernandez’ motion. He wants to issue a press release claiming that the only reason DOJ charged him with sedition is to make a big stink with the January 6 investigation.

The government filed the Third Superseding Indictment on June 6, 2022 to coincide with the January 6th Select Committee Hearings which are scheduled to commence on June 9, 2022 on prime-time TV. Additionally, the select Committee has announced that the hearings will commence immediately and with the central focus of Enrique Tarrio and the Proud Boys. Documentary producer, Nick Quested who was “imbedded” documented via video recording the events on January 6, 2022 which Mr. Tarrio was not present for. This suspiciously seems orchestrated at the highest levels of government. This Honorable Court should raise caution as to the true intent of why the Government filed a Third Superseding with trumped up allegations with no new supporting facts on the eve of the January 6th Select Committee Hearings.

As the Court is aware, Mr. Tarrio has always been cooperative with law enforcement and has always complied with judicial orders in the past. Mr. Tarrio even voluntarily appeared before the January 6 Select Committee and answered questions honestly without invoking his right to remain silent. In accordance with Local Criminal Rules 57.7, Undersigned seeks the authority of this Honorable Court to make a press release with full compliance of the Protective Order entered by the Honorable Court [D.E.82]

It’s not true that there are no new supporting facts. The sedition indictment added the Tarrio reference to the Winter Palace, seemingly evidence that he intended to occupy the Capitol thereby making it impossible for members of Congress to do their jobs (again implicating 18 USC 372).

At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

But as I noted the other day, the discovery index the government provided as of last Thursday did not yet reflect the cooperation of Charles Donohoe and may not reflect the cooperation of Louis Colon.

Tarrio may not be entirely wrong about some coordination, however — but it may work in the opposite direction.

Multiple reports on the January 6 Committee have indicated that they’re packaging their public hearings up with an eye towards making admissible evidence available to DOJ and other law enforcement investigations. Along with speech and debate and executive privileged testimony, the January 6 Committee has greater ability than DOJ to obtain the testimony of journalists than (under Merrick Garland’s media guidelines) prosecutors at DOJ can.

That’s why the prominent inclusion of Quested is of particular interest. As of last Thursday, there was just one reference to Quested in the Proud Boy Leaders discovery index (though his work is included in open source videos). But whatever testimony he provides tonight will become accessible to prosecutors, who have just one more week before deadlines on discovery start kicking in.

There’s one more detail that I expect the Committee to include that has gotten too little focus: the other bodies.

Because QAnon mobilized bodies in less direct ways than the Proud Boys or Oath Keepers, that effort is in some ways more accessible to Congress than to DOJ (because Congress doesn’t need to show probable cause to obtain evidence). And thus far, at least, the Committee’s efforts at understanding the role of the 1st Amendment Praetorian — militia associated more closely with Mike Flynn — have been more public than those of DOJ.