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The Additional Complexities of the Proud Boy Sedition Case

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Some weeks ago, someone involved in the Proud Boy case emailed me a personal invitation to the Proud Boy leader trial later this year: “please accept my invitation to come report on the proceedings in person.  In my opinion, it will prove far more interesting than the OK trial.” It had been a long time since I had heard from this person — since I warned him, for a second time, I would not treat his emails to me as presumptively off the record, because by then the frequency of them and the conflicts between what he said about the First Amendment publicly and what he said to me on emails had become newsworthy in and of itself.

I have no intention of traveling to DC for the Proud Boy trial. Like the Oath Keeper one, there will be scores of journalists who are very familiar with the case who will do great live coverage. I would add little, if anything.

But this person’s promise that the trial will be more interesting than the Oath Keeper one is a sound prediction. To be clear: I think the evidence shows that the Proud Boys are far more complicit in the attack on democracy on January 6 than the Oath Keepers, who were mostly whack right wingers with delusions of grandeur. But I also recognize that the Proud Boy case has been far more difficult for DOJ to put together than the Oath Keeper one, in significant part because they have been more successful at cultivating authoritarian law enforcement that likes their mob culture.

Remember, several Proud Boys, including Tarrio, worked with Roger Stone to threaten Amy Berman Jackson and Bill Barr’s DOJ treated it as a mere legal technicality. The Proud Boys got sanction, as a mob, from the President’s own mouth, which had ripple effects throughout government on the way they were treated.

So I wanted to look at three indications of the difficulties the Proud Boy prosecution may face that the Oath Keeper prosecutors did not.

Delayed phone exploitation

First, in a hearing yesterday in the case against five men who were co-travellers with Joe Biggs the day of the attack, prosecutor Nadia Moore mentioned that she had just provided the “scoped” phones from (I think) Paul Rae and Eddie George — “scoped” is what they call it when the FBI pulls out the things that are responsive to a warrant. That’s a fairly shocking delay in exploiting their phones. Rae was arrested on March 24, 2021 and George was arrested on July 15, 2021. But it’s true that a May discovery index from the Proud Boy leader case only shows a scoped LG Tablet from George, with no scoped phone listed for either (though there is a phone video from Rae listed).

It may well be that — like Enrique Tarrio — they had really complex passwords on their phone. It took over a year to exploit the content of his phone, even though it was seized before January 6. There appear to be others, too, whose phones were not yet exploited in May.

Aside from a delay in the scoping of Stewart Rhodes’ phone due to the volume of encrypted texts on it and a privilege review holding up the exploitation of Kellye SoRelle’s phone, there were no known similar delays on the Oath Keeper side.

Complicit FBI and law enforcement

While the Oath Keepers, like the Proud Boys, intentionally recruit law enforcement, the Proud Boys have been better at co-opting cops. Around five of the charged Proud Boys were former or still cops when charged. Tarrio had been a formal informant during a prior criminal prosecution. And several other members of the Proud Boys, including Joe Biggs, provided information to the FBI about what they claimed were Antifa.

Biggs described his own relationship with the FBI this way:

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.

This is the same office where an FBI Agent, in August, refused to participate in the arrest of militia-associated men who planned to bring weapons to January 6. The agent then ran to Chuck Grassley and Ron Johnson, bitching, after his clearance was suspended because he didn’t like the way FBI was running domestic terrorism investigations.

The single FBI informant known to have been present on January 6 appears not to have told his handlers about a meeting he was at the night before where using violence was discussed. And so DOJ has given two members of the Kansas City Proud Boy cell who were with him — Ryan Ashlock and Louis Colon — unbelievably sweet plea deals, I suspect to sustain the rest of the cases against the Proud Boys.

Both Tarrio and Biggs have made specific requests for their own communications with law enforcement — in Tarrio’s case, he claims it is Brady material. That is, they plan to argue they couldn’t be guilty of plotting against the government because they’ve been so chummy with often right wing authoritarian cops in the past.

Witness backsliding

The Proud Boys have also been very good at pressuring witnesses not to testify against the mob. It had seemed that Ryan Samsel might enter into a plea deal describing what transpired between him and Biggs right before he kicked off the entire riot, for example, until Samsel was assaulted in still unexplained circumstances at the DC jail. Zach Rehl seemed like he was considering a plea deal until Tarrio called Rehl’s wife about it.

Jeff Finley, who was a co-traveller of Rehl’s, seems like he cooperated his way into a misdemeanor plea deal (like Brandon Straka is known to have), but in a July request for a four-month continuance, the government seemed to suggest they weren’t sure how complicit Finley was.

The government requests this continuance to allow time for the parties to fully evaluate the nature and seriousness of the defendant’s misconduct and for the parties to prepare a full and complete allocution to assist this Court in its sentencing.

All this is background to the Jeremy Bertino plea rolled out yesterday. Bertino was a high level Proud Boy who, because he was injured in a December 12 brawl, was not present on January 6, but was closely involved in discussions in advance of it.

Bertino’s possible arrest has been anticipated for months. A misdemeanor docket for Bertino was briefly unsealed on September 15 but then sealed. Yesterday, he pled guilty to one count of seditious conspiracy and one count of unlawful weapons possession for a small arsenal he had in spite of a past felony conviction. He is, as everyone (including me) has reported, the first Proud Boy to plead to seditious conspiracy. And he’s another participant in key leadership discussions in advance of the attack.

His statement of offense, however, leads me to wonder whether he didn’t get this plea deal in part to keep Charles Donohoe — who like Bertino is from North Carolina, and who pled guilty to obstruction and assault in April — from backsliding as a cooperator.

Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020 and emphasizing the import of the December 12, 2020 confrontations, including explicit discussions about using Tarrio’s anticipated arrest to rile people up against the cops. The description of changing attitudes about the cops (something that has featured in Proud Boy indictments from the start) may serve to combat Tarrio and Biggs’ efforts to claim chumminess with the cops.

Bertino further understood that due to a number of negative interactions with law enforcement, including the events of December 12, the Proud Boys increasingly viewed police as the enemy and Proud Boy members increasingly referred to the police as “coptifa,” meaning that they viewed the police as siding with Antifa.

The SOO explains that Bertino did not know what plan Biggs and Nordean came up with at a still unexplained meeting around 9PM on January 5. A very similar paragraph appears in Donohoe’s statement of offense.

What I’m most surprised about is who it includes and who it excludes: The SOO names Donohoe at least twelve times — sworn statements implicating Donohoe in events, many of which he himself admitted to in his own SOO. That shouldn’t be necessary for a cooperating witness (though because they were both in the Carolinas, the two men would have worked closely together). While it mentions Person-3, whom Alan Feuer has identified as John Stewart, it does not name Aaron Wolkind at all, referred to frequently in earlier Proud Boy materials as Person-2. With the exception of Person-3 (who is not yet charged), the focus is entirely on those already charged in the leaders conspiracy, not any other Proud Boys.

It is undoubtedly an important step to get a plea to sedition from someone who wasn’t even present the day of the attack. But that doesn’t alleviate the many things that make this case more complex than the Oath Keeper one.

Discovery Delays at the East Door: What Key January 6 Plea Negotiations Look Like

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Lots of people have lost patience with the January 6 investigation based on misunderstandings about what it has discovered so far and where it may be heading. So I’d like to explain a delay that might tangibly hold up the investigation for two months: plea negotiations that might provide more information on the coordinated effort between the Proud Boys, Oath Keepers, Alex Jones, and an alarming number of Marines to breach the East front of the Capitol.

(Although who am I kidding? The people complaining don’t understand the investigation in this level of detail.)

When DOJ filed the existing superseding indictment charging the Proud Boy leaders last March, it made clear that the crowd of people assembled on the East steps before those doors were opened from the inside was of some interest, not least because we knew even then that Biggs and two other Proud Boys entered with the stack of Oath Keepers, which was led by Floridian Kelly Meggs, who had forged an alliance between Florida militia members in December 2020.

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

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

That is, this reference and others suggested there was coordination between two of the main militia groups involved in the attack.

I noted in April that the arrest of  Florida Proud Boys Paul Rae and Arthur Jackman, two guys who followed Biggs everywhere he went that day, was likely an attempt to clarify how that assembly worked — an attempt that probably posed a risk for the two others included in a selfie Biggs and his co-travelers took from the top of the East steps.

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

Those other two guys (actually there were three), Edward George and now-former Florida cops Kevin and Nathaniel Tuck, were arrested in July.

We’ve subsequently learned the inquiry into the East door is far vaster than that. The inquiry into how the East door got opened from the inside started at least by February; it figures prominently in Philip Grillo’s arrest affidavit. In May, DOJ arrested active duty Marine Chris Warnagiris for ensuring the East door stayed open once it had been breached. At the end of June, DOJ arrested Proud Boy Ricky Willden for his role in breaching the East side, without telling us what they knew about it. Also at the end of June, DOJ arrested Darrell Youngers and George Tenney; the former is a Marine, the latter is the guy who first opened the East door, before others like Grillo joined in. Leading up to Josiah Colt’s plea in July, DOJ likely learned more about how his co-conspirators, Nate DeGrave and Ronnie Sandlin, knew to head to the East door to fight with cops to keep it open. In September, the government revealed that Jerod and Joshua Hughes, brothers who were instrumental in helping to open the West door, who then occupied the Senate floor, had — like Biggs — exited the building and reentered via the East door breach along with the Oath Keepers.

Key arrests — those of Proud Boys Jimmy Haffner and Ron Loerhke — came in early December. Loerhke — another former Marine — played a significant role in focusing the mob on the West side of the building before he, along with Haffner, joined the others on the top of the East steps and allegedly helped break the police line to get in that East door. Just before Christmas, based on information discovered as late as October, DOJ added charges against the Johnson men, father Daryl and son Daniel, for their role in fighting to keep the East door open. Over the course of the year, then, DOJ has been charging many of those involved in the breach of the East door with felonies.

In August, DOJ started going after the Pied Pipers who brought extra bodies to the top of the stairs to fill the breach by arresting Alex Jones’ side-kick, Owen Shroyer. The judge presiding over the most important Proud Boys cases, Tim Kelly, is also currently considering Shroyer’s cover story for how he and Jones led mobs to the steps.

Along the way, DOJ also arrested MAGA tourists like the Getsingers, who attested that they followed Alex Jones’ lies all the way to the top of the East stairs only to push into the Capitol right along with the organized militias. They also arrested a bunch of people who took video footage that likely helps to clarify what happened there.

Over the course of a year, then, DOJ has slowly built up evidence of a coordinated assault, involving both major militia conspiracies and Trump’s designated Pied Piper, Alex Jones, largely orchestrated by former and one Active Duty Marines and one car salesman (Meggs), to open a second breach the Capitol.

We now know that it happened. What we’re waiting for is to learn how it happened: what kind of communications — and when — brought everyone to the East steps at the same time. Who knew about it, at the Capitol, or even down Pennsylvania Avenue?

In the wake of key decisions upholding DOJ’s application of obstruction to January 6, people from this crowd who might be able to offer more insight are reportedly considering pleading. For example, in a status hearing with the Hughes brothers on Friday, after Judge Tim Kelly orally rejected their challenge to DOJ’s obstruction application like he had done Ethan Nordean’s in December, both their attorneys talked like they were strongly considering a plea but just needed time to do their due diligence. If the Hughes were able to explain how they, with no discernible militia ties (though Jerod received travel funds from someone affiliated with a “Patriot” group), happened to be in all the most important places in the insurrection, it might be really useful for DOJ.

But it’s going to take two months for any kind of plea, cooperative or otherwise, to be negotiated, per the status hearing.

Similarly, at least some of Joe Biggs’ co-travelers are discussing a plea deal. In a joint status report for the men who posed with Joe Biggs on the East steps — Arthur Jackman and Paul Rae, who trailed Biggs all day on January 6, and Edward George, Kevin Tuck, and Nathaniel Tuck, the guys in the group arrested later — the parties asked for a two month continuance, citing discovery delays.

Second, since the last status conference in this case, the government has also produced six global productions, involving tens of thousands of files, to all Capitol Breach defendants. These productions have included, among many other things, thousands of files of U.S. Capitol Police Closed Circuit Video footage; over 1,000 files of body-worn camera footage; maps of the Capitol; reports of interviews and other information; and government work product aimed at assisting defense counsel in understanding the discovery in this investigation. Third, in this case in particular, the government produced on December 22, 2021 a significant quantity of cross-discovery that had been previously produced to defendants in the case of United States v. Ethan Nordean et al., No. 21-CR-175 (TJK).

The discovery process and negotiations with respect to a potential resolution of these cases are expected to continue past the first week of March.

Finally, the government and counsel for defendant Paul Rae note that a pretrial violation report was filed as to Mr. Rae on October 6, 2021. See Dkt. 68. This violation report stated that Mr. Rae was arrested for boating under the influence. Id. Mr. Rae’s BUI case is ongoing. Pretrial services is not recommending action at this point. Counsel for Mr. Rae notes that Mr. Rae was admonished for this incident, and states that there have been no further issues since that arrest. The government defers to the Court in terms of how it wishes to handle the violation report relating to Mr. Rae’s arrest. The government may affirmatively seek a change in Mr. Rae’s bond status or conditions if his ongoing BUI case results in a conviction.

Now, I’m skeptical that all five of these guys would plead guilty. I’m skeptical the three of them represented — with no conflict waver requested from DOJ — by John Pierce (Rae and the Tucks) would plead, because Pierce’s twin goals in representing an unsustainable number of January 6 defendants appears to be turning them into fundraising pawns and firewalling Joe Biggs. But obviously, the three prosecutors on this case believe two months might lead to plea deals where a hard deadline on any plea offer might not.

Generally, DOJ has required that militia defendants agree to cooperate with any plea. And while these five are not charged with conspiracy — they’re known mostly to have tagged along behind Biggs — they might be valuable witnesses to things DOJ might not otherwise have access to, such as Biggs’ side of phone conversations he had that day (there’s reason to believe, for example, he had calls with his former boss, Alex Jones).

Perhaps DOJ knows of some more cross-discovery that may make it worth their while to plead that will be coming in the days ahead.

Whatever it is, this selfie on the top of the East stairs is one small but seemingly significant detail in one of the tactically most important events of they day. And because of the very real delays in finalizing discovery in this case, this one won’t be resolved (if it is) before March. There’s no reason to believe DOJ could have done anything different to accelerate the process. The slow process is, in large part, due process overwhelmed by the difficulties of collecting all the evidence in this case.

I expect DOJ will continue to roll out new details about the breach at the East door in days ahead. Whether these men plead or not may not hold anything else up. They may be just five more bodies alleged to have worked to obstruct the peaceful transfer of power (two, George and Nathaniel Tuck are also accused of Civil Disorder; George is also accused of assault), along with two (the Hughes brothers) facing the possibility of terrorist enhancements for their role in obstructing the peaceful transfer of power.

But this is an example, however obscure, of the ways that the very due process we’re trying to uphold in preserving  our democracy slows down the quick resolution that everyone is demanding.

Update: On Wednesday, lawyers for Youngers and Tenney indicated that they’d probably take a plea offer from the government. That case, too, has been continued two months.

Also yesterday, DOJ finally moved for a conflict review, almost six months after John Pierce filed his appearance for both the Tucks in that case.

How the FBI Missed Alleged January 6 Leader Joe Biggs

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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.]

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

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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

The Grand Jury Secrets Hiding the Proud Boys’ East Door Activities

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By my very quick review, there have just been a handful of January 6 defendants charged individually via indictment, without first being charged by complaint.

Lewis Cantwell was arrested in February for civil disorder and obstruction, but whose actions on January 6 are not laid out in any public court documents.

Richard Harris was arrested via indictment in March for resisting arrest and obstruction. A motion supporting detention revealed that Harris persuaded cops to back down at one of the entrances and picked up a phone and purported to threaten Nancy Pelosi; he had assaulted a journalist at a protest in December in Oregon and — though this is contested — lived out of his car after that time.

Daniel Rodriguez was arrested via indictment in March for tasing Michael Fanone, among other things. A HuffPo article, which in turn relied on the work of various volunteer Sedition Hunters, had already provided ample introduction on Rodriguez.

The Klein brothers — Matthew and Jonathanpeter — probably count as one unit. They were charged via conspiracy indictment in March. Their drawn out detention fight showed one or both have ties to the Proud Boys, they followed Dominic Pezzola in the Senate side door, and then later successfully breached the North Door.

Other than that, people have been initially charged via indictment in group or conspiracy indictments: Verden Nalley got indicted along with William Calhoun a month after Calhoun was first charged. Albuquerque Cosper Head and Kyle Young were indicted for assault along with Thomas Sibick, who had already been charged. Taylor Johnatakis and Isaac Sturgeon were indicted on assault charges with Craig Bingert, who had already been charged. A now sprawling assault indictment including Jack Whitton, Clayton Mullins, and Michael Lopatic started with complaints against Jeffrey Sabol and Peter Stager. Another sprawling assault indictment including Tristan Stevens, David Judd, Christopher Quaglin, Robert Morss, and Geoffrey Sills built off a Patrick McCaughey complaint.

When some of the militia members got added to one or another indictment — Matthew Greene to one of the Proud Boys indictment, and several Oath Keepers to that omnibus indictment — they were indicted without a complaint first.

Which is to say, in this investigation, it has been very rare for an individual to be initially charged via indictment.

That’s why it’s notable that the government arrested Ricky Willden yesterday, a Proud Boy from Northern California, on assault and civil disorder charges via an indictment obtained a week earlier. The government issued a press release that describes that Willden was on the East side cheering as a bunch of Marines and one co-traveller opened the door, then sprayed some stuff at cops guarding the door.

The Proud Boys is a group self-described as a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.” In publicly available videos recorded on Jan. 6, Willden can be seen in a crowd near the east door of the Capitol at 2:24 p.m. (according to time stamps in one of the videos) wearing a dark jacket, beanie cap and gloves, and cheering as the doors to the Capitol opened. At 2:35 p.m., he can be seen raising his hand and spraying an unknown substance from a green can toward police officers who were standing guard at the east door.

But because the government arrested Willden via indictment, they don’t have to release a public explanation of their probable cause to arrest him. Indeed, the press release pointedly cites “publicly available videos” to back the only allegation it makes.

One reason to charge someone on indictment rather than complaint is to hide the identity of witnesses who have testified. I find that particularly interesting, in part, because there were several people who posed in Joe Biggs’ picture on the East side, but thus far, just Paul Rae and Arthur Jackman have been identified from the picture (though Biggs surely knows who the others are). While the government has ostentatiously rolled out one after another Oath Keeper cooperator — first Jon Schaffer, then Graydon Young, and yesterday Mark Grods — aside from an unindicted co-conspirator identified in some of the Proud Boy indictments (UCC-1), whose identity those charged also know, the government has hidden the cooperators it has surely recruited from the notoriously back-stabbing group.  The hybrid approach the government has used — charging five overlapping conspiracies but also charging a bunch of Proud Boys who worked in concert with others individually — has (surely by design) made it harder for both participants and observers to understand what the government has in hand. There have been a few inconclusive hints that one or another person has flipped (or that Judge Tim Kelly, who has presided over most of the Proud Boys cases, had a sealed hearing that might reflect a plea deal), but nothing concrete.

For weeks it has been clear that unpacking how it happened that two militias and a bunch of Marines converged on the East Door as if all had advance warning would be one key to demonstrating the larger conspiracy behind the January 6 insurrection.

But just as DOJ has rolled out a new player in those events, they’ve moved everything to a grand jury to hide its secrets.

The Crossroads of Insurrection: The Senate Chamber Insurrection Defendants

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In a recent motion opposing relaxing Larry Brock’s release conditions, the government revealed that it, “is continuing to investigate the Defendant for the offense of obstruction under Title 18 United States Code Section 1512(c).” Brock is the retired Lieutenant Colonel who, like Eric Munchel, brought Zip Ties onto the Senate floor. In spite of Brock’s online writings shortly after the election predicting that, ““Fire and blood will be needed soon,” Brock was charged only with misdemeanor trespassing for his role in the insurrection.

Since then, the Senate has been a locus of increased attention, as the government arrests more people with video of what happened there and rounds up the co-conspirators of those they arrested months ago.

That increased attention provides a way to look at the events of January 6 via a different lens. Rather than focusing on the most spectacular defendants — no one is more spectacular than Jacob Chansley, but Eric Munchel’s actions attracted attention away from others — by focusing on who breached the Senate, we can understand some of the logistics that allowed it to be breached. And by whom.

The picture we get, as a result, is a crossroads of the really aggressive participants of the January 6 insurrection, with cultists, militia members, GOP operatives, and curious tourists all represented.

I am assuredly not saying there was or is a conspiracy that joins all these people. While there are some pregnant unanswered questions about individuals like Leo Bozell, Bradley Barnett, Jacob Clark, and Patrick Montgomery — as well as conduct like assaults charged against Montgomery and DJ Shalvey that remain undescribed — there’s absolutely no reason to believe this was all coordinated. … Beyond, of course, the President calling out the mob on Mike Pence.

A focus on the Senate is useful, though, to show how the multiple breaches interacted. The first people who came in the West door (including the Hughes brothers), the Northwest door (including Patrick Montgomery and his buddies), and the East door (which is how Joe Biggs got to the Senate), all made it to the Senate before it was secured. Indeed, a number of people who made it to the Senate (like Ronnie Sandlin) were instrumental in opening the East doors from inside, before they reached the Senate. So looking at who got to the Senate how helps to clarify how all the three main breaches worked in tandem, and in fairly quick succession.

It’s also a reality check about the relative importance of various groups who breached the Capitol. While this is still an impartial picture, the narrative to date suggests that QAnon managed to get far more of their adherents to the Senate floor than either the Proud Boys (Joe Biggs and Arthur Jackman showed up after getting in with the help of people inside) or the Oath Keepers (Kelly Meggs and Joshua James showed up too late). QAnon held a prayer on the dais while the militias were still breaching doors.

There are a number of people who remain — publicly at least — unidentified, such as two of Patrick Montgomery’s associates or someone who shadowed Bozell.

This post, a description of those who breached the Senate organized alphabetically by the most important participant, is just a baseline from which to understand more about who go to the Senate and how.

Update: In comments a few people have explained what significance I attribute to continuances a few of these defendants, like Leo Kelly, have. It means several things. First, it means the person in question is immediately moving to discuss a plea deal. One of the defense attorneys here seems to have chosen to really aggressively seek such continuances (Kira West is a noticed attorney on three of these defendants: Leo Kelly and Christine Priola, both of whom got continuances before being formally charged, and Tony Mariotto, who was charged by information; in the latter two cases, though, West sponsored outside attorneys Pro Hac Vice). But from a narrative perspective, it means our understanding of what the government knows about the defendant is frozen at the moment the FBI agent writes an arrest affidavit, whereas with defendants who get detained and then challenge that detention, which include a high percentage of the defendants who made it to the Senate, we often learn what the government found on the person’s cell phone. One of the points I attempted to make here is that for a variety of reasons, the story told in the court filings leaves out significant and, in some cases, intentional gaps in the revelation of what the government knows.

Note: This is based of my own imperfect list of who was described as being where. Plus, I suck at visual identifications. Please let me know what I’ve missed in comments. 

Thomas Adams

Per his arrest affidavit, Thomas Adams traveled from Springfield, IL, and claims to have just followed the mob with an unnamed friend (probably Roy Franklin, who was interviewed along with him the day of the insurrection) up the scaffolding to what I believe is the Northwest door. The cops he saw after he entered the building “weren’t really doing much … just waiting to see if we’d try to push past them.” Soon thereafter, he entered the Senate, where he saw Jacob Chansley, who he thought was “hilarious.” This is a photo of Adams in the Senate.

Adams took a lot of video while he was in the Capitol, including footage from the Senate floor the government may be particularly interested in, including this image.

Adams was arrested on April 13, over three months after he appeared in an article describing his exploits that day, during a period when the government seemed to be arresting a lot of people who took a lot of video of key scenes. He was charged with trespassing and obstructing the vote count.

Tommy Allen

Tommy Allen flew to DC from Rocklin, CA. He was picked up on video recordings in the Senate from 3:03 to 3:10PM on January 6. In addition to this picture, he was filmed taking papers from the clerks’ desks at the front of the Senate and putting them in his back left pocket, as well as absconding with the American flag.

He would later tell a journalist he took a letter from Trump to Mitch McConnell from the then-Majority Leader’s desk.

Allen was arrested on January 22 after first a stranger and then someone who’d “interacted with him on a number of occasions” alerted the FBI to his Facebook posts, which he tried to delete after he returned home. The latter witness also told the FBI that he or she had heard that Allen had destroyed the documents he took in his backyard.

Allen was charged with trespassing and (probably misdemeanor) theft; after he was formally charged with the same charges on February 2, he wasn’t arraigned until April 8.

Bradley Bennett and Rosie Williams

At some point on January 6, QAnoner Bradley Bennett and his partner Rosie Williams seemed to pray with DJ Shalvey and two others.

And they appear to have gotten in the Capitol the same way that Andrew Griswold did (so probably the East entrance, after those doors were opened from inside). They also made it to the Senate.

Those images would seemingly expose the couple mostly to trespass charges — and indeed, that’s all Rosie got charged with, both on their arrest complaint and their indictment.

But from the start, Bennett responded to his pursuit with obstruction. First, per a tipster who had tracked Bennett for his QAnon postings, Bennett deleted most of his January 6 postings within a day of the event.

Publicly, on the day of the event, Bennett blamed Antifa instigators.

But Bennett texted an associate the same day and clarified that Jacob Chansley was not Antifa.

Bennett and Chansley now share an attorney, Albert Watkins.

Then, after the FBI arrived in Kerrville, TX on March 23 to arrest the couple based off a March 19 warrant, only Rosie was there to be arrested. Per a motion for detention, Bennett had left on March 13 (though one of his sisters claims they split up in February), rented a car, drove to North Carolina, then went to stay with a friend in Fort Mill, South Carolina for two weeks, then hid for another 10 days until finally agreeing to turn himself in on April 9. He stopped using his cell service in that time period and stopped posting to Facebook, shifting to Telegram instead. At some point, he got rid of his new iPhone 11, claiming it did not work (there’s still some uncertainty about when and why he ditched the phone).

Bennett’s efforts to evade arrest may well arise out of nothing more than QAnon paranoia. Though several other aspects about him suggest he may have a more sophisticated Q-related grift going on. But he had attracted attention, even among Q adherents, even before January 6, and he was among the most elusive defendants of all January 6 arrestees.

Joe Biggs and Arthur Jackman

That Joe Biggs made his way to the Senate chamber did not show up in his arrest affidavit, or the first several filings in his case. It was mentioned in the “Leadership indictment” charging Biggs and three others with a conspiracy to obstruct the election certification.

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

65. After re-entering the Capitol by force, BIGGS and another member of the Proud Boys traveled to the Senate chamber.

But that indictment, released on March 10, may have increased the urgency of the focus on the Senate, as it showed that Biggs entered the Capitol twice — first in the initial wave, through the West door, and then through the East door — in a kind of pincer movement and after doing so went to where Mike Pence had only recently been evacuated.

I’m not sure I’ve seen pictures of Biggs in the Senate. But the arrest affidavit for Arthur Jackman — with Paul Rae, one of two Floridians who tailed Biggs around that day — shows him, after twice being caught walking with his hand on Biggs’ shoulder…

… And posing with Biggs and Rae for a selfie on the East steps …

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

And taking this selfie with his Proud Boys emblazoned cell phone.

In fact, the investigation into Jackman (at least as described in the affidavit) started when a friend of Jackman’s shared that selfie — which Jackman had first sent to a childhood friend — with the FBI.

When interviewed by the FBI on January 19, a good two months before he was arrested, Jackman explained that he had joined the Proud Boys in 2016 as a way to support Trump, refused to say whether he had entered the Capitol, but claimed the Proud Boys weren’t there to infiltrate it as [this makes no sense] it was not a sanctioned Proud Boys event.

It’s going to be hard to argue he didn’t breach the Capitol as part of a Proud Boys’ event (twice!) when he did so each time tailing along behind Joe Biggs.

Joshua Black

Joshua Black claimed that God instructed him to drive to DC and take part in events on January 6, and he came with his knife. He was at the front of the mob pushing past barricades before the initial breach of the Capitol (though it’s not clear whether he was pushing himself or being pushed from behind), and after being hit in his face with a plastic bullet, he then walked around the Capitol and entered the East side, at the forefront of another mob. Then he found the Senate Chamber.

While there, he joined others in rifling through and photographing papers on the desks and then in prayer. He ordered someone else (maybe Christian Secor?) to get out of the presiding officer’s chair and not to be disrespectful, and ordered others not to loot the place.

He self reported after he showed up in media coverage, and then later admitted to the FBI he brought the knife that would significantly expand his legal exposure.

He was formally charged with obstruction, and the trespassing charges against him were enhanced because of that knife. He spent over three months in jail, in part because an Alabama Magistrate believed he might be dangerous if he came to believe God ordered him to commit violence. After a hearing on April 23, Amy Berman Jackson released him to home confinement.

Leo “Zeeker” Bozell

Someone whose kids went to school with Zeeker Bozell’s kids tipped of the FBI on January 14 that he had been part of the riot.

Then later, when CNN published footage from the New Yorker on the Senate rioters, that same tipster alerted the FBI to that, too, circling the scion of the movement conservative, Leo Bozell, in the picture.

After being interviewed by the FBI on January 19, the same very persistent witness followed up again on January 24 with this YouTube video that included a fleeting glimpse of Bozell, this time on the balcony in the Senate.

The clip itself is innocuous. But the crowd it captures on the balcony, possibly a convergence of the first people to arrive, may be far more important.

What may have finally piqued the FBI’s interest in the son of a prominent Republican operative were the videos showing that while Bozell was up on the balcony — before anyone was on the floor of the Senate — he and a much younger man (Mike P persuasively argues that this is Bruno Cua in comments) took steps to ensure that two cameras would not capture what was about to happen on the Senate floor.

Bozell was originally charged with trespassing and obstruction on February 11; he was arrested 6 days later. It wasn’t until his indictment on March 12 — two days after Joe Biggs was indicted in the “Leadership” indictment — that Bozell was charged with doing or abetting $1,000 of damage while forcibly entering the Capitol, the same charge used to detain some Proud Boys and Oath Keepers prior to trial. But in spite of being implicated in a crime of violence, Bozell was released on personal recognizance.

Larry Brock

Larry Brock is the less famous of the two Zip Tie Guys in the Senate that day, though Brock was even more kitted out than Eric Munchel. According to his arrest affidavit, within two days of the riot, Brock’s ex-wife called the FBI and told them he had been on the Senate floor. That same day, someone who knew of Brock’s Air Force background and ties to defense contractor L3 also tipped off the FBI.

Brock is one of the people (Oath Keepers Kelly Meggs and Joshua James were recently disclosed to be others) who also made it to Nancy Pelosi’s office, suggesting he was hunting top legislators. Yet, even though videos show Brock lecturing the other insurrectionists that, to win the I/O (information operation) war, they needed to avoid damaging anything, and even though Brock’s social media shows he had started talking war days after the election and mused that, “I really believe we are going to take back what they did on November 3,” while traveling to DC, the government only charged him with misdemeanor trespass (though as noted above, they’re still weighing obstruction charges for him).

Jacob Chansley

Jacob Chansley’s strutting poses have made him the poster child of the insurrection, but the self-billed “Q Shaman” was well know to those who tracked extremist organizing and QAnon before January 6.

As with Joshua Black, the FBI didn’t need to come looking for Chansley. He called them on January 7 and admitted he was the guy with animal pelts and no shirt.

Even though Chansley was originally charged on January 8 only with trespassing, an indictment obtained 3 days later charged him with obstruction and civil disorder. When Royce Lamberth denied Chansley’s bid for pre-trial release, he treated the spear Chansley had brought as a dangerous weapon, which will make his trespassing charges a felony as well.

Amid all the discussions about Chansley since he was arrested, one thing has gotten little public attention: his admission that he traveled to DC with some other people from Arizona, people who no doubt would implicate him in an extremist network that predated January 6. Unless I’ve missed it, that network hasn’t been implicated together.

Jacob Clark

The government got an arrest warrant for Jacob Clark by March 5. It appears to be based largely off using facial recognition to match his Colorado driver’s license to nine different pictures obtained from surveillance videos from the Capitol, corroborated by one person who knows him. They also used returns from the Google GeoFence warrant to show he was inside the Capitol from 2:15 until 3:25PM the day of the riot and returns from a Verizon warrant showing him driving from Colorado to DC from January 4 to 5 and then returning starting on January 7.

Because the government didn’t arrest Clark until April 21, over six weeks after obtaining the warrant, the warrant affidavit surely only shows a fraction of what the government knows about him. Even still, the affidavit shows Clark to have been like Where’s Waldo during the time he was in the Capitol, with surveillance footage showing him in four different confrontations with police in four different locations, each time seemingly pushing the cops to let rioters run through the building. The most easily identifiable (though he was also in the Rotunda as it was breached) shows that Clark took part in the exchange with plain clothes police outside the Senate gallery that Nate DeGrave was also charged for.

What’s interesting is the video shows that Clark got to that hallway over a minute before almost everyone else.

Clark was charged with civil disorder, obstruction, and trespassing, but perhaps because he was only recently arrested, he has not yet been indicted.

Josiah Colt, Ronnie Sandlin, and Nick DeGrave

I described here how these three men planned and outfitted for the insurrection together. The key takeaway from that post for the purpose of this one is that Sandlin and DeGrave are accused of tussling with cops so as to permit the East door of the Capitol to be opened (through which some key conspirators rushed), but also of fighting with cops just outside the Senate Chamber (along with Jacob Clark, above, and with Christian Secor watching) so as to permit the Chamber itself to be breached.

Only Josiah Colt is recognizable among these three, but his two buddies played pretty key roles in the success of the larger insurrection.

Elias Costianes

The FBI received a tip on January 8 that Elias Costianes had posted videos of his participation in the riot on his Snapchat account. On January 19, the tipster provided the videos he uploaded. Those showed Costianes filming himself in the Senate, outside Pelosi’s office, and possibly watching the East doors being breached. He was charged on February 3 with trespassing and obstruction and arrested on February 12. He was indicted on the same charges on March 3, and his case has been continued since, meaning there’s no explanation for why he knew precisely where to go in the Capitol.

Bruno Cua

Cua, a spoiled 18-year old whose own parents enabled his participation in the insurrection, was part of the mob that fought to get into the Senate Chamber (along with Sandlin, DeGrave, and Clark). According to his arrest affidavit, he was turned in by local police officers, who knew him because he has a history of pissing off his neighbors and ignoring orders. He was charged on January 29, arrested on February 5, and indicted on February 10. He was charged with obstruction, civil disorder, and assault/resisting, and his trespass charges were enhanced because he carried a baton with him. Even after the insurrection, Cua still endorsed violence.

Violent protests against the capital (NOT SMALL BUSINESS’S) are well within our constitutional rights

Dear Swamp Rats, The events at the capital were a reminder that WE THE PEOPLE are in charge of this country and that you work for us. There will be no ‘warning shot’ next time.

Everyone who works in congress is a traitor to the people and deserves a public execution.

But beyond details from his social media posts, there was nothing from an extended detention fight that illuminated more about Cua’s ties.

Andrew Griswold

For all we can tell from the court filings, Andrew Griswold is just some guy who went to the Senate floor along with a bunch of other people who wanted to prevent the vote count.

But there are a few interesting features of his case. Someone else who went to the Senate helped get Griswold, from Niceville, Florida, arrested. His Febuary 26 arrest affidavit, describing how he was one of the first people to come through what must be the East door after it was opened with the help of Sandlin and DeGrave, relies, in part on,

camera footage obtained from an individual (W-2) who also entered the Capitol on January 6. At multiple points during the video, an individual who appears to be GRISWOLD is visible, wearing a camouflage jacket.

[snip]

At one point in the video, W-2 walks through a hallway, and GRISWOLD is visible ahead. W-2 then enters the Senate gallery, and GRISWOLD is again visible, as seen in the screenshot below:

The discovery shared with Griswold may describe this as, “One clip from a video obtained in another investigation” which the government deems as Sensitive.

Magistrate Michael Harvey approved Griswold’s arrest warrant on February 26. But the first arrest warrant against him was quashed by Harvey, apparently on March 1; the arrest warrant that Harvey approved is also dated March 1. Griswold was arrested on March 5 and that same day he and his attorney stipulated to the fidelity of the FBI image of his phone so he could get it returned, which is a reasonable thing to do if you want to avoid buying a new phone but very rare among January 6 defendants (indeed, Vitaly Gossjankowski won’t so stipulate with his laptop, even though that has expensive software on it to assist his hearing disability). Griswold was charged with trespassing and obstruction, but almost two months after his arrest, he has not been formally indicted.

Apparently as part of Griswold’s efforts to get the DC pretrial release conditions imposed rather than the local FL ones (the conditions differ in terms of the travel restrictions, the reporting requirements, restrictions on alcohol and other drugs, and — most notably — restrictions on the right to retain a legal firearm), the original Florida judge in his case recused and another granted Griswold’s request. All subsequent January 6 defendants seem to be having restrictions imposed on gun ownership, so that may have been the issue.

Paul Hodgkins

In an interview on January 26, four days after an acquaintance provided the FBI with a selfie he posted to Parler, Paul Hodgkins told the FBI that he traveled to DC alone, on a bus, and didn’t know any of the people engaged in violence or destruction around him. But before he started rifling through things on the desks in the Senate, he put on some white latex gloves, which is a curious bit of preparation for a guy who just hopped on a bus alone.

Hodgkins’ release conditions — initially, with a $25,000 bond and high intensity supervision, though with the bond later dropped by Magistrate Merriweather and then his curfew loosened by Judge Randolph Moss — were much stricter than other defendants charged, like he was on March 5, with trespassing and obstruction. (That could either stem from a strict local magistrate or from a prior arrest record.) In both of Hodgkins’ appearances, his lawyers have talked about making a plea deal.

Jerod  and Joshua Hughes

Jerod and Joshua Hughes are brothers from Montana. They watched as Dominick Pezzola busted through a window to break into the Capitol, were among the first 10 people in (amid a group that included Proud Boys who — like them — are from Montana), then Jerod kicked the door open to allow other rioters in behind them.

They went from there immediately towards the Senate floor, following Officer Goodman closely behind Doug Jensen.

Once inside the Senate, Jerod set about ransacking desks as Christian Secor, holding his America First sign, looked on.

That’s about all their arrest warrant, charging them with civil disorder, damaging government property, obstruction, and trespassing describes. They turned themselves in on January 11 after the FBI released their pictures on a BOLO. They were indicted on February 10. Since that time first Jerod, then Joshua, have moved for bond, which Judge Tim Kelly granted to both on April 7.

Those detention disputes, revealed that the brothers had driven over days to attend Trump’s rally. They claimed, at first, that they had gone to the Capitol in response to Trump’s exhortations. But after the prosecutor reviewed the Cellebrite report from Jerod’s phone on April 5, the government discovered texts showing buddies had funded the trip, and that Jerod claimed that he was behaving as a model citizen by participating in an insurrection.

Defendant: Ah we didn’t do anything crazy like destroy shit or fight the cops. Trespass and vandalism. Meh. I’ve done time. It’s josh I worry about.

Person Five: It’s the trespassing I worry about, but there may have been so many of you that figuring it out is more trouble than it’s worth. Were you in the photos? I could only see josh

Defendant: They got my ugly mug up and down. Trespassing ain’t shit. I feel like I was behaving like a model citizen ready to reclaim my country. Not enuff people followed.

Jerod said to someone else that they had wanted to hold the place but didn’t have numbers to accomplish that.

Person Six: How was it

Defendant: Insane on a few different levels.

Defendant: I saw picture [sic] of me and josh already on the news. Not enough people followed us in to hold the place. We had to get the fuck out.

The government also noted — attributing it to a picture on Jerod’s phone though they surely would have had it before — that the two had been present in the Senate Gallery, as well as the Senate floor.

Leo Christopher Kelly

Leo Kelly did an interview the day of the riot — after being among the first people in the Capitol and praying with others on the dais of the Senate — expressing some reservations about invading other people’s space. He asked a Deputy US Marshal to tell the FBI he would turn himself in if an arrest warrant were issued. He was arrested, just on trespassing charges, days later. Since that time, the government has twice deferred formally charging him, with the next deadline for a preliminary hearing set for May 10.

Anthony Mariotto

Like fellow Floridian, Arthur Jackman, Tony Mariotto was first IDed after he shared a selfie from the Senate Gallery and a friend shared it (after Mariotto had deleted his Facebook account) with the FBI.

Mariotto was in Georgia when the FBI first caught up with him. But when they asked, he immediately returned to Florida, and, on January 19, handed over his phone to be imaged. Three days later he was arrested. On February 8, he was formally charged with trespassing.

His arrest affidavit, which describes, “other videos that were recorded inside the Capitol Building during the events of January 6, 2021,” doesn’t describe what was on those videos. They may be among those that implicate others who entered the Senate.

Patrick Montgomery and Brady Knowlton

The investigation of Patrick Montgomery is a useful snapshot for understanding the Senate as a crossroads. As I wrote here, his acquaintances started turning him into the FBI the day after the insurrection, leading to his arrest and formal charge on misdemeanor trespassing charges by information. Even while that was happening, the FBI was investigating a guy who showed up in one of his pictures from the day, Brady Knowlton.

Knowlton’s arrest affidavit implicated two other guys, one that a witness who has been in a lawsuit with Knowlton for years described as Knowlton’s “right-hand man,” but who remains unnamed and uncharged. And surveillance images of Knowlton and Montgomery IDed someone — the guy in the hoodie who entered the Capitol with Knowlton and Montgomery — whom FBI either declined to name or had not yet IDed when they got the Knowlton arrest warrant.

The three of them went to the Rotunda — where people were opening a third breach to the Capitol — and from there to the Senate, with Knowlton filming from his camera the entire time.

When the government indicted Montgomery and Knowlton on April 16, they not only charged both with obstruction, but they added assault and civil disorder charges against Montgomery for an unidentified exchange with cops.

So in addition to the assault that Montgomery allegedly was involved in, this thread still leaves two men unidentified.

Christopher Moynihan

Per his arrest affidavit, Christopher Moynihan is another of the people who rifled through official papers when he got to the floor of the Senate on January 6. g “There’s got to be something we can use against these fucking scumbags,” he was quoted as saying. In the wake of the New Yorker video, two of Moynihan’s former co-workers alerted the FBI to his identity. He joined the prayer on the dais, but with a sour face that made it look like he was just going along. He was arrested on February 25 and indicted with the same obstruction and trespassing charges on March 17.

Eric Munchel and Lisa Eisenhart

Eric Munchel and his mom, Lisa Eisenhart, quickly became the focus of both legal and press attention given his spectacular appearance on the floor of the Senate with Zip Ties.

They were arrested early — on January 15. Munchel’s admission to having a taser when he breached the Capitol increased both’s legal exposure under a deadly weapon enhancement. But Munchel’s general compliance with law enforcement also helped to convince the DC Circuit they would not be a threat going forward.

After the events of January 6, Munchel apparently considered joining Proud Boys. But instead, he’s now the poster child both for the threat of kidnapping, but also for a DC Circuit standard of bail that treats involvement in a terrorist event as a historical threat, and requires detention decisions to consider whether the same people pose a forward-looking terrorist threat.

The more important point for the purposes of this post is that the government has not yet shown proof that Munchel or his mother did more than recognize the two militias as they were engaged in armed MAGA tourism while holding zip ties.

Christine Priola

According to her arrest affidavit, the government identified Christine Priola’s presence in the Senate chamber within days, based in part on the sign she carried reading, “The Children Cry Out for Justice,” perhaps suggesting a QAnon affiliation. Curiously, the affidavit explains that she and others — the first people in the Senate — “entered the restricted floor area of the Senate chambers and took photographs of the evacuation of the Senate chambers that were required based on the unauthorized entrance,” suggesting the rioters arrived even earlier than the impeachment case had made out.

After a tip on January 8 from someone in Cleveland that Priola, who worked for the Cleveland School District, was the one holding the sign, the FBI searched her home and seized her devices — on which she had filmed events in the Senate — that same day. But when the FBI imaged her phone, there were no photos, videos, chats, or messages from January 4 through 7, and the location of the phone was also unavailable until 4:23PM on January 6, when her phone showed up northeast of the Capitol.

Priola was arrested for trespassing on January 14, but since then her case has been on hold, without even an Information to show whether the FBI obtained more information on why her phone had been cleared within two days.

Michael Roche

Michael Roche is one of the people who joined Jacob Chansley in prayer on the Senate dais. The story of how he came to be arrested — and why he was not arrested until April 13 — remains a muddle. He was IDed on February 8 when law enforcement found a video he made posted to someone else’s account. In the video, he admitted that,

We did get a chance to storm the Capitol. And we made it into the chamber. . . . We managed to convince the cops to let us through. They listened to reason. And when we got into the chamber … we all started praying and shouting in the name of Jesus Christ, and inviting Christ back into out state [sic] capitol.

That seems to have led the FBI to this photo was posted by Seth Roche, explaining that he took the picture before people started claiming that Jacob Chansley was Antifa and explaining (I think) that his brother had stood shoulder to shoulder in prayer with Chansley, “in the main capital [sic] chamber [sic] holding up the Bible.”

Roche’s arrest affidavit suggests the FBI found both those posts before the New Yorker posted its story on January 17 with the video of Chansley, Roche, and others praying.

According to the arrest affidavit, nothing else happened until US Marshals, in an effort to find a missing child, knocked on Roche’s door, thinking the child’s family lived there. Roche told the Marshals he thought they were coming to arrest him. When the Marshals informed the FBI that same day, the FBI got the Marshal to ID Roche as the person in the NYer.

Again, all that happened by February 2. It wasn’t until April 7 when the FBI submitted his arrest affidavit. The affidavit not only has no more recent evidence in it, but it doesn’t really explain why Roche (unlike — say — Larry Brock) got charged with obstruction along with trespassing.

Those questions further raise the question about whose Facebook his interview appeared on, because that person may be the real person of interest associated with Roche.

Christian Secor

It seems like Christian Secor’s classmates at UCLA jumped on the opportunity to report Secor’s involvement in the January 6 insurrection. Eleven people, many of them students, IDed Secor as one of the people who had sat in the presiding officer’s seat or otherwise shown up in the New Yorker video of the Senate occupation.

But Secor did more than tour the Senate. The surveillance videos the FBI included with his arrest affidavit show Secor was among those who shoved the East doors open from inside.

He was close to  the brawl outside the Senate gallery doors involving Nate DeGrave, Ronnie Sandlin, and Jacob Clark.

There’s even a clip of him just behind the woman that the FBI suspects of having Nancy Pelosi’s laptop (per a Homer, AK woman who claims she was mistakenly IDed as such).

There’s no reason to believe Secor and this woman are together, but the proximity is interesting given that Riley June Williams, also a Groyper, allegedly first took the laptop.

Secor was arrested on suspicion of assault, civil disorder, obstruction, and trespassing on February 16 and indicted on those same charges on February 26. In March his lawyer moved to get him released in time to finish his UCLA finals. The government tried to oppose his release, pointing in part to his pro-fascist views, in part to the weapons he had been acquiring and in part to his alleged attempts to cover up his involvement. But Judge Trevor McFadden released him on a $200,000 bail with a rather curious kind of home incarceration that lets him out to work.

DJ Shalvey

DJ Shalvey is the guy wearing an undersized hard hat depicted in videos of people rifling through papers in the Senate. He’s quoted thinking Ted Cruz sold them out before others tell him, no, Ted Cruz was right there with the insurrectionists.

The FBI obtained an arrest warrant for him after two long-time associates alerted the FBI, one of whom shared selfies that Shalvey sent him the day of the riot, by February 12. But he wasn’t arrested until March 9, reportedly after turning himself in. Somewhere along the way he must have interviewed with the FBI, though, because his (still undocketed) indictment released Friday not only added assault and civil disorder charges against him, as well as theft charges for taking a letter from Mitt Romney to Mike Pence, but they also made Shalvey the rare if not only January 6 defendant charged with lying to the FBI about that assault.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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