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Questions about the Proud Boys Superseding Indictment

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As noted here, DOJ charged Enrique Tarrio, along with the existing leadership conspiracy defendants and Dominic Pezzola, This is just the second superseding indictment against the key Proud Boys. And while it’s good that Tarrio was finally included and there are hints of interesting coordination, unlike with the Oath Keepers conspiracy, where each superseding indictment pointed to a relentless march in one direction, where the Proud Boy investigation is heading is far less clear to me.

For now, I’ll assume that’s simply because they’re holding their cards close.

Who is missing

My first question pertains to the non-inclusion of certain people in this indictment.

The first is William Pepe, who had been charged with Dominic Pezzola on the indictment that got consolidated with this one. He has either flipped (which would be especially noteworthy given that he is represented by John Pierce), or he’s just sitting out there in a conspiracy with himself.

Another person not included here is Ron Loerkhe. With Jimmy Haffner, he was instrumental in breaching the East side of the Capitol and seems to have provided military structure to the attack. The two of them remain charged only by complaint and in February DOJ got a 3 month continuance on their case.

A third is Aaron Whallon-Wolkind, a close associate of Zach Rehl’s who kibbitzed the attack from Philadelphia that day. He was raided back in October, seemingly suggesting he too might get charged. The indictment doesn’t charge him. It also leaves out some of his statements that were in earlier court filings.

Who is cooperating and who is not

Thus far, there is only one overt cooperator in the Proud Boy cases: Matthew Greene, the former co-defendant of Dominic Pezzola (who has been moved onto this indictment) and Pepe (who has disappeared).

There are three senior Proud Boys — named as Person 1, Person 2, and Person 3 — whose status remains unknown. All three had key leadership positions. And they presumably were involved in a video chat Tarrio scheduled for December 20 to discuss Person 3’s comment that, “most of the protest will be at the capital building given what’s going on inside.” Person 1 is almost certainly Jeremy Bertino, who lives in SC; a number of well-informed people believe Person 2 is Wolkind. [h/t CH]

There are other Proud Boys who could be included in this indictment but who aren’t. Dan “Milkshake” Scott got a continuance in February for 120 days; that filing stated that he and the government had not yet even started plea negotiations. Joe Biggs’ co-travelers on the Arthur Jackman indictment are all still charged individually, even though two of them were literally touching Biggs at key moments during the day; the government is only now sorting through conflicts posed by John Pierce’s representation of three of them that would have to precede any plea discussions. Zach Rehl’s co-travelers also remain charged by complaint (and just misdemeanors, too); in February the government got a continuance until April. Jeff Finley, who also with Rehl and the others for part of the day, got a continuance in February until late March, to allow for “continued discussions about the case.” [Corrected to note Finley is a PB] Gabriel Garcia, who seemed to be one of the most useful people reporting back so others could coordinate from outside the riot, seems headed for trial by himself.

Father Jeremy and son Jeffrey Grace remain in uncertain status, too. After dad got busted for paling around with Proud Boys last summer, they’ve been in flux but still just charged (not even with each other!) with trespassing. In February Jeffrey’s case got continued until St. Patricks Day and Jeremy’s got continued to April.

Meanwhile, on Friday, Ricky Willden set a change of plea hearing for April 7, pretty far in advance as these things go. Because he was charged directly with indictment, it’s not clear what the government knows, but he has ties to the Proud Boys and others.

The inconsistent references

In addition to the three Person-Numbers, this indictment refers to people by all manner of convention.

It names Stewart Rhodes in describing the meeting he had with Tarrio in a parking garage after Tarrio was released from jail on January 5.

Then there are multiple people described as “an individual whose identity is known to the grand jury,” the most interesting of whom is the person who shared a 9-page document about occupying key buildings in DC.

But that’s also the way the indictment describes Ryan Samsel before explaining that he, “put one arm around BIGGS’s shoulder and spoke to him” before be broke through the first barrier in front of the Capitol. On Friday, Jia Cobb (who took over the Samsel case from Tim Kelly when several people were added), ordered Samsel transported from the State Jail in Pennsylvania he had been in to a the Federal jail where DC jail residents had been moved to. Since Samsel has been charged, there’s no reason not to name him, just as Rhodes is named.

Where is Trump

As I noted earlier, there’s no mention of Enrique Tarrio’s visit to the White House in December. The White House claimed that was no big deal, and maybe it is.

But this indictment also leaves out all mention of Proud Boys, including Tarrio, playing on Trump’s Stand Back and Stand By comment.

Where is the obstruction charge?

In some ways, this indictment charges more aggressively than the earlier one. As other indictments have, it swaps the 18 USC 371 conspiracy (with a maximum sentence of 5 years) for an 18 USC 1512(k) conspiracy (with a maximum sentence of 20 years).

It charges all the men for the assaults originally charged just against Donohoe and Pezzola.

But it doesn’t include an obstruction charge for Tarrio, in spite of his explicit efforts to prevent others from cooperating, recordings of which were publicly released.

Where does this go from here?

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

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.

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.