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Royce Lamberth Not as Easy to Fool as Tucker Carlson’s “Cousin-Fucking” “Terrorist” Viewers

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Royce Lamberth just denied Q-Shaman Jacob Chansley’s bid to vacate his conviction based off footage Tucker Carlson falsely claimed was new and hadn’t been provided in discovery to Chansley.

The whole opinion is worth reading, both for Lamberth’s explanation of what a hack Tucker Carlson is, and for the extent to which Lamberth substantiates Chansley’s guilty verdict, again. For example, Lamberth complains at

Finally, the Court would be remiss if it did not address the ill-advised television program of March 6, 2023. Not only was the broadcast replete with misstatements and misrepresentations regarding the events of January 6, 2021 too numerous to count, the host explicitly questioned the integrity of this Court-not to mention the legitimacy of the entire U.S. criminal justice systemwith inflammatory characterizations of cherry-picked videos stripped of their proper context. In so doing, he called on his followers to “reject the evidence of [their] eyes and ears,” language resembling the destructive, misguided rhetoric that fueled the events of January 6 in the first place. 16 The Court finds it alarming that the host’s viewers throughout the nation so readily heeded his command. But this Court cannot and will not reject the evidence before it. Nor should the public. Members of the public who are concerned about the evidence presented in Mr. Chansley’s case and others like may view the public docket and even attend court proceedings in these cases. Those ofus who have presided over dozens of cases arising from, listened to hundreds of hours of testimony describing, and reviewed thousands of pages of briefing about the attack on our democracy of January 6 know all too well that neither the events of that day nor any particular defendant’s involvement can be fully captured in a seconds-long video carelessly, or perhaps even cynically, aired in a television segment or attached to a tweet.

But a more important part of the opinion pertains to this: the decision once again vindicates DOJ’s decision to give every January 6 defendant access to all the discovery in the case.

Lamberth included a table showing when the government had provided Chansley with each (but one 10 second clip) of the videos Tucker showed in his program.

The opinion discusses the government’s approach to discovery in this case at length. Ultimately, he credits the government’s decision to make all the video available to all the defendants — something which created a significant delay in these cases.

The vast majority of the CCTV footage aired on the program, which did not contain any new facts, was made discoverable through Evidence.com prior to Mr. Chansley’s sentencing. Gov’t Opp’n at 16-17.

[snip]

In alternative, Mr. Chansley argues that even if the videos were disclosed, the government provided too many videos too late because it would have been physically impossible for defense counsel to review the 4,800 hours of footage disclosed on October 22, 2021 before Mr. Chansley’ s sentencing in mid-November 2021. Def.’s Mot. at 16 & n.3. Aside from the fact that “[Mr. Chansley] cite[ s] no authority for the proposition that the government fails to meet its Brady [] obligations by providing too much discovery,” United States v. Bingert, Nos. 21-cr-91-1, 21-cr91-2 (RCL), 2023 WL 3203092, at *6 (D.D.C. May 9, 2023) (emphasis in original), this argument is an obvious red herring.

[snip]

[I]t it is precisely the government’s recognition of this District’s exacting Brady standards that compelled the government to contract for, fund, and facilitate the introduction of a platform to disseminate massive amounts of discovery in cases related to January 6, 2021, and to equip defense teams with the tools necessary to digest the information made available on the platform. To be sure, this unprecedented prosecutorial effort places enormous disclosure burdens on the government and necessitates novel approaches to sharing discovery information with defendants. That said, Mr. Chansley has not demonstrated how the government’s approach is inconsistent with Brady.

As with Dominic Pezzola’s similar attempt to use the Tucker Carlson show to muck up his prosecution, this vindicates DOJ’s decision to take the laborious and time-consuming effort to put this together.

The Three Reported Charges against Trump: 371, 1512, and (maybe) 242

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I want to caution about the reports on the charges named in Trump’s target letter. Even after Jim Trusty got the summons for Trump’s Espionage Act indictment, reporting based on his representation of the charges turned out to be inaccurate — not least, because what was assumed to be one 18 USC 793 charge turned out to be 31.

All the more so here, where Trump’s team has even less information to work with.

That said, since comments on that other thread on the target letter have gotten so long, I’ll note that Rolling Stone says the target letter cites three charges.

The letter mentions three federal statutes: Conspiracy to commit offense or to defraud the United States; deprivation of rights under color of law; and tampering with a witness, victim, or an informant.

Once you’ve translated from the legalese, two of these are totally expected:

18 USC 371: Conspiracy to Defraud the US has generally been discussed in terms of the fake elector scheme — basically, an effort to get 16 electors in all the swing states to submit fraudulent certificates to NARA. That the scheme was fraudulent is easy to prove. What’s harder to prove is Trump’s personal involvement it, which will have required DOJ to breach several levels of privileged communication to prove (something they took steps to do on Lisa Monaco’s first day on the job). That said, we’ve seen that they’ve been doing that, most recently with proffers from both Boris Epshteyn and Rudy Giuliani, who implemented the scheme.

But this is a broad statute, and DOJ could also charge Trump with ConFraudUS for campaign finance crimes, among other known Trump acts.

18 USC 1512(c)(2): What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering. (Though Jack Smith could also charge Trump for attempting to tamper with Cassidy Hutchinson’s testimony.) I first started laying out how Trump might be charged for this in August 2021. More recently, I’ve recommended people read Royce Lamberth’s Findings of Fact in the Alan Hostetter case — a VIP, like Trump, who was prosecuted in part for inciting others to obstruct the vote certification — to see how judges are applying this law to January 6.

In summary, if my assumptions that this would be charged in conjunction with January 6 are correct, it would require the government to prove that:

  • Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.
  • Trump intended to obstruct the vote certification. This would require proving that he knew the significance of the event, which DOJ will prove with the weeks of plotting he put in before the event.
  • Trump had corrupt purpose in doing so. The standard for corrupt purpose as regards this statute is still being decided by the DC Circuit, but it will end up being some combination of “otherwise illegal activity” and “corrupt benefit.” The former might be proven by showing that Trump knowingly gave an illegal order to Mike Pence. The latter would easily be proven by showing that Trump wanted to retain an office he didn’t win.

Note that DOJ has been charging conspiracy tied to this statute under 18 USC 1512(k) and I would be unsurprised to see that happen with Trump.

The last of these statutes is more of a surprise.

[See correction below] 18 USC 242: It prohibits someone from impeding someone’s rights “under color of law,” which can mean “beyond the scope of one’s official duties.” Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.

This charge may be why, since last year and increasingly in recent weeks, Jack Smith has focused on the harassment of election officials. Just today, AJC reported that Smith subpoenaed footage from the State Farm arena counting center, suggesting Ruby Freeman might be treated as a victim here as well, which would be well, well deserved.

Two other potential implications of this. When January 6 defendants have argued that Trump authorized them to attack the Capitol, DOJ has always responded that the President has no role in the vote certification. So if DOJ were to include January 6 in such a charge, it would be an area — one of the most clear cut areas in the Constitution — where the President literally has no authority, and so easy to show that Trump was exceeding his authority.

Additionally, as noted above, the standard for corrupt purpose on obstruction is not yet settled. The DC Circuit might yet require “corrupt purpose” to be shown via some “otherwise illegal activity.” If that happens, DOJ may want to have several other crimes charged that will prove that prong of the offense, of which 242 could be one.

In other words, the thinking may be, in part, that it’s clear the President has no authority in the Electoral vote certification. Trump tried to deprive Biden voters of their franchise with his efforts on January 6. And that is one of a number of other crimes he committed in his efforts to obstruct the vote certification.

All that said, note my caution about the giant game of telephone this discussion relies on. Ultimately, we’ll learn what the charges are soon enough.

Update: Both the NYT and Guardian have reported that the third charge is 18 USC 241, not 242. Jack Smith is going to accuse Donald Trump of voting fraud.

Maggie and Mike Back Together Again, This Time on, or with, January 6 Corrupt Purpose

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Yesterday, the NYT broke the news that Jared Kushner testified before Jack Smith’s grand jury last month and told them — in testimony that conflicts with other witness testimony — that his father-in-law really did believe he had won the election.

Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned multiple witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump had privately acknowledged in the days after the 2020 election that he had lost, according to four people briefed on the matter.

The line of questioning suggests prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power — essentially that his efforts were knowingly based on a lie — evidence that could substantially bolster any case they might decide to bring against him.

Mr. Kushner testified before a grand jury at the federal courthouse in Washington last month, where he is said to have maintained that it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.

The scoop, which brings the old team of Maggie and Mike back together again, is fine. Whoohoo! Another top witness.

Just as interesting that Jared has testified is the news — buried in paragraph 31 — that Ivanka has not yet testified before the grand jury, though there’s a good deal of wiggle room about whether she has complied with a document subpoena or whether she has spoken with prosecutors outside of a grand jury.

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Maggie and Mike, always solicitous of Ivanka and her family, mention Ivanka’s testimony to the January 6 Committee, but they neglect to mention that after Ivanka testified to the January 6 Committee, the committee specifically called her out for her lack of candor, effectively inviting DOJ to consider false statements charges for her. So it may not be a good sign for Ivanka that she hasn’t been called before the grand jury.

That’s an interesting detail, but given that this is Maggie and Mike, I’m as interested in what appears between the Jared news and the Ivanka news: Maggie and Mike’s explanation for why (they claim) this matters. They explain that asking whether Trump knew he lost is important to ascertaining whether he had a “corrupt purpose” in obstructing the vote certification. Based on that premise, Maggie and Mike raise doubts about whether Jack Smith will be able to charge this, because without that, they suggest, Smith will lack one key element of the obstruction statute.

Maggie and Mike don’t mention that dozens — probably over a hundred — people have been convicted under 18 USC 1512(c)(2) for their actions on January 6 already; by DOJ’s most recent count, 310 people have been charged with it. Many if not most of them tried to argue at some point that their crimes were cool because they really did believe Donald Trump’s lies.

To be fair to poor Maggie and Mike, who after all are mere journalists, the conceit that Trump might dodge obstruction charges because he believed his own hype is one that has long been parroted by TV lawyers, and Maggie and Mike do cite several lawyers talking about how having proof that Trump knew he lost would strengthen the case.

But we have two years of public record showing that’s not how it works.

What VIP obstruction looks like: Alan Hostetter

Here’s what a guilty verdict for obstructing January 6 looks like in reality, taken from findings that Reagan-appointed Judge Royce Lamberth wrote up to support his guilty verdict yesterday for Alan Hostetter, a southern California anti-mask activist who played a key role in organizing others from southern California to come to DC on January 6.

In December 2021, I wrote about the challenges and import of prosecuting people like Hostetter — I called him and similar figures organizer-inciters — for obstruction, in part because it’s a test of whether DOJ will be able to hold even more senior people accountable for inciting others to commit violence.

Like Trump, Hostetter is a VIP who didn’t enter the Capitol, but who spent the weeks leading up to January 6 riling up others to obstruct the vote certification. As such, he’s a really good read on how obstruction might apply to Trump.

Every time Lamberth presides over a bench trial, he writes up and dockets his findings. I could hug him for doing so, because they provide a really superb way to understand how a very senior judge who has been presiding over these cases for over two years views them. Journalists and TV lawyers who, unlike Lamberth, haven’t been living and breathing January 6 for two years could learn a lot from reading every one of his findings reports, or at least this one.

Lamberth pointed to the following evidence to support his guilty verdict that Hostetter had obstructed the vote certification:

After arriving at the West Plaza, Mr. Hostetter advanced underneath the inauguration stage scaffolding and up a set of stairs leading to the inauguration stage. While on the stairs, Mr. Hostetter used a bullhorn to cheer on the crowd below as it violently fought against police and attempted to break the lines. Meanwhile, on a landing at the top of the stairs, several officers formed a line to prevent a group of rioters from reaching the inauguration stage. Mr. Hostetter’s co-conspirator, Mr. Taylor, joined the group of rioters and began pushing against the officers who were blocking access to the stage.

[snip]

Mr. Hostetter’s actions obstructed and impeded the proceeding by, together with the actions of others, forcing the evacuation of Congress and the end of the certification session, as shown in the testimony of Inspector Hawa and Mr. Schwager. By joining the riot, exhorting the crowd, standing with a vanguard of rioters making a highly-visible and violent effort to access the inauguration stage, and remaining on the Upper West Terrace for two hours while police attempted to clear out rioters, Mr. Hostetter helped ensure that Congress was under a sufficient security threat requiring adjournment and then an inability to resume the official proceeding that their actions helped to disrupt.

It’s not just that Hostetter’s own physical premise obstructed the vote certification, his exhortations to other, more violent people, did too.

Lamberth specifically noted that Hostetter’s purpose was to obstruct an election result he viewed as fraudulent.

Among other evidence … Mr. Hostetter’s own testimony[] demonstrate[s] that Mr. Hostetter understood his purpose on that day to be stopping an election result that he viewed as fraudulent by obstructing or impeding the Electoral College Certification.

Lamberth cited multiple exhibits and testimony showing that Hostetter knew the significance of the Electoral Certification. Notably, he describes how Hostetter listened to Trump explaining what he wanted, and then took action.

Mr. Hostetter testified that he had been closely following the efforts to overturn the 2020 Presidential Election and news about what was happening with the Electoral College Certification. Additionally, Mr. Hostetter testified that he listened to speeches at the Ellipse given by Rudy Giuliani and President Trump, was engaged by them, and remembers President Trump talking about Vice President Pence. During President Trump’s speech, President Trump made statements concerning what he wanted to happen with the certification and Vice President Pence’s role in the certification, which Mr. Hostetter heard.

Lamberth substantiated Hostetter’s corrupt purpose — what Maggie and Mike claim requires proof of knowledge that Trump lost — by pointing to the former cop’s consciousness of wrong-doing by walking, armed with a hatchet, onto Capitol grounds, what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement.

Mr. Hostetter had the necessary mental state to meet the “corruptly” requirement. First, by himself carrying an inherently dangerous weapon into the restricted grounds of the Capitol, Mr. Hostetter used an unlawful means, specifically the independently felonious means of entering and remaining in a restricted building with a deadly or dangerous weapon.

Lamberth also pointed to Hostetter’s own incitement of others as evidence of corrupt purpose.

Additionally, Mr. Hostetter sent numerous messages and made speeches before and immediately after January 6 effectively calling for revolution. He also recorded videos in which he called for executions of public officials in connection with the 2020 Presidential Election.

Importantly, Lamberth specifically addresses, and dismisses the import of, Hostetter’s claims that he believed he was doing something good.

I also find that even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions are ultimately serving a greater good does not negate consciousness of wrongdoing.

[snip]

[T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful. Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And Lamberth addresses the mid-point of the appellate debate at the DC Circuit on corrupt purpose in the Fischer decision — requiring an unlawful benefit to find corrupt purpose.

I find that Mr. Hostetter took these actions in order to provide an unlawful benefit to his preferred presidential candidate, President Trump–by disrupting the Electoral College Certification that would have led to President Trump’s loss of the presidency.

Requiring finding an unlawful benefit is not, yet, the standard for obstruction in the DC Circuit. A separate panel considered the standard for corrupt purpose in Thomas Robertson’s appeal on May 11. But it is likely to be the most conservative standard that the DC Circuit (and even SCOTUS) would adopt, so Lamberth is protecting this verdict in advance of further rulings from the Circuit.

In any case, as I’ve noted over and over, even if that were the standard, it would apply to Trump if he were charged far more easily than any of the 300-plus people who’ve already been charged with obstruction for January 6. For Trump, whether he believes he won or not is not only unnecessary, but because he was trying to steal the election, it’s easier to prove corrupt purpose under this standard for him than for anyone else.

This is what applying the obstruction statute to January 6 looks like in real life. One after another judge has, like Lamberth, explained why it doesn’t matter whether someone believed that Trump won.

It doesn’t matter. Maggie and Mike built an entire story around a standard that two years of directly applicable precedents — precedents that will dictate terms of the elements of offense if Trump ever is charged under 18 USC 1512(c)(2) — show doesn’t matter.

Whether Trump believes he won doesn’t matter for 18 USC 1512(c)(2).

Jared Kushner’s central role in monetizing the lies

Whether Trump knew he won doesn’t matter for 18 USC 1512(c)(2).

It does matter — a lot — for any campaign finance charges arising out of January 6, and in that, it could have an indirect impact on Jack Smith’s charging decisions.

And, in part because Jared made himself scarce for January 6 itself, that’s actually the area where the former President’s son-in-law has more personal exposure than on the conspiracy to obstruct the vote certification.

This is a point MSNBC’s Lisa Rubin made at length in response to this news yesterday (and her coverage of this is so good I hereby create a special category of people who happen to be lawyers but even in spite of that provide superb TV analysis based on the actual facts).

Here’s how J6C addressed it.

Several days earlier, Trump Campaign Senior Advisor Jason Miller had explained the intention for this round of advertisements in an email. He wrote that, “the President and Mayor Giuliani want to get back up on TVASAP, and Jared [Kushner] has approved in budgetary concept, so here’s the gameplan” in order to “motivate the GOP base to put pressure on the Republican Governors of Georgia and Arizona and the Republican controlled State legislatures in Wisconsin and Michigan to hear evidence of voter fraud before January 6th.”317 Miller anticipated a budget of $5 million and asked for the messaging to follow an earlier round of advertisements, “but the endings need to be changed to include phone numbers and directions to call the local Governor or state legislature.”318 On December 22nd, Jason Miller texted Jared Kushner that “POTUS has approved the buy.”319

[snip]

Trump Campaign leadership was fully aware of post-election fundraising totals. According to Coby, President Trump’s son-in-law and senior advisor Jared Kushner “had the most interest in the digital program” and “would just check in on [fundraising] results,” and routinely received updates regarding fundraising from Coby.70 Coby also made clear that Kushner was heavily involved in the Campaign’s budget process71 and that he updated Kushner on TMAGAC’s post-election fundraising totals.72

The Select Committee received documents confirming Kushner’s involvement. For example, on November 8, 2020, Kushner requested that a daily tracker be created showing the Trump Campaign’s financial position from election day forward.73 In an email, Kushner noted that the tracker would allow the Campaign to consider its cash flow ahead of the creation of “a new entity for POTUS[’s] other political activities.”74 Just days after the election, and after the Campaign had three of its four best fundraising days ever on November 4th, 5th, and 6th,75 Kushner was preparing for the launch of President Trump’s new leadership PAC, Save America. Kushner stated that he needed this new daily tracker because the Trump Campaign was going to continue fundraising post-election.76 Kushner continued to receive these detailed daily trackers, which included Save America’s fundraising hauls, through at least December 2020.77

Jared Kushner isn’t much use as a witness about Trump’s actions and intent on January 6 itself.

He’s a central witness to the decision to monetize Trump’s lies by sowing violence — and even, to then use that money for purposes other than addressing election integrity. That’s why his grand jury testimony last month is of interest.

And his claim that Trump really believed he won may not help Trump; it may hurt Jared. But then, Jared has a very direct interest in claiming that all this fundraising based off lies were based on a good faith belief Trump had won.

Campaign finance fraud is an otherwise illegal action

I’m not promising here that Trump will be charged with obstruction — though, as noted, I long ago pointed to people like Hostetter as early tests of whether he could be, and his conviction yesterday shows how that might work.

I’m saying that people who came late to the understanding that DOJ is using obstruction to prosecute January 6 — which I first mapped out 23 months ago — seem little interest in the two years of precedent about how it will be applied. I include, for special notice, this “model prosecution memo” from JustSecurity — which doesn’t even mention the Justin Walker concurrence in Fischer (which Lamberth addressed in his findings), much less the pending Robertson decision in the DC Circuit that will dictate this application for Thomas Robertson, for Alan Hostetter, and for Donald Trump — in that category.

Trump’s knowledge of his loss matters far more for his decisions about fundraising than it does for obstruction charges. But they may influence any obstruction charges, because campaign finance violations — Trump’s fundraising through the moment he sicced his mob on the Capitol — would be one way DOJ could prove otherwise illegal conduct to meet that corrupt purpose standard under 18 USC 1512(c)(2) if that’s what the DC Circuit adopts in Robertson.

Plus, profiting off false claims of being robbed is another way that Trump personally benefitted from the incitement, even ignoring his bid to stay in power.

Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

[snip]

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

 

The Conspiracy to Use a Very Large Trump Sign as a Weapon To Obstruct the Vote Certification

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Yesterday, a guy named Marshall Neefe pled guilty to conspiracy to obstruct the vote count (18 USC 1512(k)) and assault (18 USC 111(a)).

Unless you’re a really avid reader of this site, you’ve likely never heard of him. He’s just a QAnoner from Pennsylvania who planned with his buddy Brad Smith to arm themselves, with a club and a knife, respectively, and head to DC in response to Trump’s call.

The assault that Neefe pled to was, as part of a mob, using a very large Trump sign to push cops off their defensive line.

On the Capitol grounds, NEEFE and SMITH participated in hoisting and pushing a large metal sign frame holding a oversized “TRUMP” sign into a defensive line of Metropolitan Police Department (“MPD”) and USCP officers attempting to prevent rioters from further advancing on the West Front plaza of the Capitol. NEEFE understood and admits that at all times, these officers qualified as federal law enforcement officers and were engaged in performance of their official duties. The all-metal sign frame was approximately at least eight feet tall and 10 feet wide, welded with screws, and supported by large casters that were approximately the size of a man’s head. As described by one USCP officer who was part of the defensive line, the sign frame was heavy and it took at least 15 officers to carry the sign away after the rioters thrust into their line.

NEEFE’s hands were on the large metal sign for at least 10 seconds, including while the sign made contact with the line of officers. NEEFE advanced forward with the sign and other rioters into the line of officers, and retreated from the line after officers drove him and others back with pepper spray.

As part of his plea, Neefe didn’t plead guilty to 18 USC 111(b), using a deadly weapon. But his sentencing guidelines do treat the very large Donald Trump sign as a dangerous weapon.

Neefe is by no means the only one charged with assaulting cops with a very large Donald Trump sign.

But it’s significant, in this case, because of the way the conspiracy against Neefe and Smith was charged.

Neefe and Smith, like several of the other “lesser conspiracies” charged against non-militia members, started conspiring to participate in an insurrection in direct response to Trump’s own statements.

While both spoke in revolutionary terms immediately after the election, they viewed what is almost certainly Trump’s December 19 tweet as a direct call to action. Smith even called it a call to action on December 22.

SMITH: The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

NEEFE: We goin? . . . Cause hot damn son i really wanna crack some commie skulls.

SMITH: Yeah I”m going 100%. This is way more important than the last one actually. This one’s literally to save the city from chaos while they do their thing in the capital [typos original]

Smith also tried to recruit others to join them, citing (as other accused Jan6ers were in the same period) Trump’s orders as uniquely explicit.

Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesn’t burn down right away. It’s the only time hes ever specifically asked people to show up. He didn’t say that’s why  but it’s obviously why.

Somehow (how is of particular interest to me, given Smith’s apparent reference to one of the earlier rallies for Trump in DC), Smith’s understanding of the plan changed by December 31, when he raised storming the buildings with Neefe.

I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.

Smith continued to try to recruit others to come storm the buildings with him.

Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.

And the day before the attack, Smith called to, “Sacrifice the Senate!!!!!”

In the aftermath, both Smith and Neefe referenced Pence to explain their actions. “Then we heard the news on pence,” Neefe posted, “Amd  [sic] lost it …. So we stormed.” Smith, probably writing before Congress completed certification in the early hours of the morning on January 7, claimed that, “Pence cucked like we knew he would but that was an Unbelievable show of force and it did its job.”

All of which is to say that the very large Trump sign in Neefe’s guilty plea is more than symbolic. These totally random dudes took Trump’s call to violence as an order. They armed themselves, came to DC having at least considered taking over buildings, and did so explicitly in response to the demands Trump made of Pence.

In the context of the conspiracy, as charged, this largely meets the terms Amit Mehta laid out when ruling it plausible that Trump entered into a conspiracy with the Proud Boys and Oath Keepers. “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding.” Indeed, they even fit the framework Mehta laid out when deeming it plausible that Trump aided and abetted assaults — like the one using a very large Trump sign — on cops at the Capitol.

As noted, this conspiracy was charged under 18 USC 1512(k), meaning the sentence can be enhanced — as the guidelines have been, with Neefe — because of the use of threats. With this guilty plea, Trump may literally be on the hook for conspiring to obstruct the vote certification via his joint liability in using that very large Trump sign as a weapon to prevent the certification of Joe Biden’s win.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters

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In a post laying out what I called my “taxonomy” of the DOJ investigation of the January 6 crime scene, I noted that the next step in holding those who orchestrated January 6 responsible was to start holding the “organizer-inciters” responsible.

 I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

Though you might not know it from the coverage, DOJ has charged several people who played a key role in creating and mobilizing the mob that seized the Capitol. This is where, however, the obscurity of the investigation and First Amendment protections raise real questions about whether DOJ will be able to move up the chain of responsibility.

I’d like to look at the prospects of accountability at three nodes of organizer inciters:

  • Walkaway founder Brandon Straka
  • SoCal anti-maskers Russell Taylor and Alan Hostetter
  • Alex Jones, Owen Shroyer, and Ali Alexander

The import of January 5 in January 6

Before I do so, though, a word about January 5. Though the general outline of the January 6 attack kicked off in November 2020 and was fine-tuned in December (the MAGA events in both months were critical both as dry runs and for networking among participants), the final outline of plans took place in the days before the riot. There seems to have been an intra-militia meeting planned on January 3 in Quarrysville, Pennsylvania where groups, “[got] our comms on point with multiple other patriot groups.”

After Proud Boy Enrique Tarrio got arrested on January 4, the Proud Boys frantically tried to regroup. As late as 9PM on January 5, Joe Biggs and Ethan Nordean were meeting with some unnamed group, out of which came their plan for the 6th.

There were rallies organized for January 5 at which a number of leaders gave incendiary speeches. There’s some reason to believe that members of what I’ve called a “disorganized militia” conspiracy, Ronnie Sandlin, Nate DeGrave, and Josiah Colt, learned key details of the plan for the next day at that event, which allowed them to be tactically important in the breach. Other disorganized attendees, like Jenny Cudd, came away from those Janaury 5 speeches persuaded a revolution was inevitable.

On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”

As Robert Costa and Bob Woodward have described, Trump ratcheted up the pressure as the mobs formed the night of January 5 by falsely claiming that Mike Pence agreed he could ignore the true vote counts.

Yet, even in spite of the import of January 5 to what happened on January 6, DOJ has included remarkably few details about what January 6 defendants did that day.

The organizer-inciters called for revolution on January 5

The three organizer-inciters are a notable exception. As I noted in this post, DOJ focused on the January 5 speeches of Straka, Shroyer, and Taylor in their arrest affidavits. Straka’s described how he called for revolution on January 5.

STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

The SoCal 3%er conspiracy described how Russell Taylor called for violence.

[T]hese anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

And Owen Shroyer’s arrest affidavit described him calling for revolution, too.

Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!

But the treatment of these three organizer-inciters, both in their charges, and the development of their prosecution so far, has been very different.

Brandon Straka

Originally, Brandon Straka was charged with trespassing and 18 USC 231, civil disorder, for egging on rioters as they stripped a cop of his shield.

At around the 3:45 mark of the video, an officer from the United States Capitol Police holding a protective shield could be seen in the crowd. As individuals pushed past the officer toward the entrance of the U.S. Capitol, the officer held his shield up in the air. At around the 3:59 mark of the video, STRAKA stated, “Take it away from him.” STRAKA and others in the crowd then yelled, “Take the shield!”

As several people in the crowd grabbed the officer’s shield, STRAKA yelled, “Take it! Take it!” The crowd successfully pulled the shield away from the officer as the officer appeared to be trying to move back toward the entrance of the building.

After his early arrest, his case was continued without indictment several times, first in February, then in May, then in August, each time invoking fairly standard boilerplate about a plea. “The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.” In September, Straka was finally charged, with just the less serious of the two trespassing misdemeanors. After a tweak in October reflecting that he never entered the Capitol itself, he pled guilty on October 6. His statement of offense says only this about January 5:

Brandon Straka flew to Washington D.C. to speak at a rally protesting the election results on January 5 and January 6, 2021.

It focuses entirely on his role in egging on rioters at the Capitol.

This plea could be one of the ones in which someone cooperating was able to plead to a misdemeanor (the only confirmed one of which, so far, was Jacob Hiles, who cooperated in the prosecution of Michael Riley). After all, he could provide valuable information not just on the plans for January 5, but also explain what he learned about why the scheduled rally on January 6, at which he was also supposed to speak, got canceled. And in fact, he posted the kind of self-justification in advance of pleading that might reflect cooperation.

[O]n Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

“Hang on tight,” Straka wrote on the site, where he has asked for financial support and plugged a forthcoming “grand relaunch” of his campaign. “Let it come, and let it go. It means nothing. It’s just pointless noise. The best is yet to come. We’re almost there.”

But his plea agreement includes the boilerplate cooperation language that generally gets taken out when someone has already cooperated, which is one reason to believe his plea may just reflect good lawyering.

We may find out whether his plea included a cooperation component when we see the filings regarding his sentencing. He was originally supposed to be sentenced on Friday December 17, but that got bumped back (as many things are, these days) to December 22. His sentencing memos were due on December 15. But unless something happened with PACER overnight, they’re not there (PACER was particularly unreliable yesterday on account of the AWS outage, but the filings could also be sealed).

Update: The two sides have asked for 30 more days to make sense of some stuff that has recently come up.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final Pre- Sentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

The government is currently ordered to file its sentencing memorandum and any video evidence in support of its memorandum on December 17, 2021. The government respectfully requests that this deadline be extended based upon the reasons stated.

3%er SoCal Conspiracy

Calling the indictment against Alan Hostetter et al the “3%er SoCal conspiracy” is actually a misnomer, because it has more to do with how two men calling for violence helped organize Southern Californians largely mobilized around anti-mask politics.

The indictment provides evidence that some of the men charged–Erik Warner, Tony Martinez, Derek Kinnison, and possibly Ronald Mele– are 3%ers. Though the indictment shows Hostetter invoking the language of 3%ers in one place, he is the head of the American Phoenix anti-mask group and his anti-mask activism is one of the places Hostetter met Russell Taylor (the other is the QAnon conference in Arizona in October 2020). Hostetter and Taylor repurporsed a Telegram chat Hostetter was already using to sow violence to organize Southern Californians to travel to DC for the rally, then created a new one on January 1 called “The California Patriots-DC Brigade.”

Much of the conspiracy involves the planning of alleged conspirators for the trip, including discussions of how to bring weapons to DC.

Just one of these men, Warner, entered the Capitol; the rest skirmished around the West Terrace. Not all of the January 6 defendants whose arrest documents show them to be members of the California Patriots-DC Brigade Telegram chat are included as part of this conspiracy; Jeffrey Scott Brown and Ben Martin, who were each charged individually, are described to have been part of the chat, and it’s likely that Gina Bisignano and Danny Rodriguez and his co-conspirators were also part of that chat (among others). In addition, there’s a Person One described in the indictment, whom Hostetter has identified as big GOP donor Morton Irvine Smith, who wasn’t charged, though Irvine Smith’s actions appear distinguishable from Hostetter’s only in that he didn’t climb onto the West Terrace on January 6. So it’s not entirely clear why DOJ included the six people they did in this conspiracy.

As I laid out before, in addition to being charged individually with obstructing the vote count, the men were charged with conspiracy under the obstruction statute rather than the conspiracy statute, as most other January 6 conspiracies were charged (though a Patriot-3%er two person conspiracy unsealed the other day uses 1512(k) as well). Taylor was charged for civil disorder for an interaction with cops and his trespassing charges were enhanced because he was armed with a knife. Warner and Kinnison are separately charged for efforts to hide the Telegram chat.

In other words, this conspiracy ties together two guys publicly calling for violence with members of a militia who discussed arming themselves.

Hostetter says he wants no part of it, though. After getting permission to represent himself in October, earlier this month the former cop filed a motion to dismiss the entire indictment because of alleged government misconduct. The entire thing is the kind of batshit conspiracy theory you’d expect from Tucker Carlson or Glenn Greenwald, spinning what appears to have been inappropriate coddling of him by an Orange County Sheriff’s Sergeant into an FBI plot (that started in spring 2020) to get him, involving Yale’s Secret Society Skull and Bones, the Freemasons, Scientologists, Mormons, and a talented artist named Bandit who likes to mock him. (Read this thread if you want to laugh along.) In the wild yarn Hostetter spins, he argues both Irvine Smith and Taylor must be FBI informants and therefore he can’t be held accountable for any of the actions they induced him to take.

He asks to be severed from the other defendants and/or have his case thrown out because, he claims, he “has never knowingly met, nor has he ever knowingly communicated with, four of the co-defendants,” the 3%ers, and according to his feverish conspiracy theory, Taylor is an FBI informant who set him up (Taylor is Mormon, which is where that part of Hostetter’s conspiracy theory stems from). In a filing asserting as fact that, “the election of 2020 was actually stolen from a duly elected President whom was elected in one of the biggest landslide victories in the history of our country,” Hostetter complains that his actions to prevent the vote count of the actual winner do not amount to a crime.

On January 6, 2021 defendant did not commit one act of violence. Defendant did not commit one act of vandalism. Defendant never entered the U.S. Capitol Building. Defendant never conspired with anyone to do anything illegal, immoral or unethical. The government has not provided anything, that defendant has yet seen in discovery, that contradicts these claims by defendant. Yet, defendant is charged with federal felonies that could result in his imprisonment for up to twenty years.

Particularly given the scope of Dabney Friedrich’s ruling on the application of obstruction, with its caveats regarding whether legal activities can be deemed part of an effort to obstruct the vote count, Hostetter’s claims may have some success (Royce Lamberth is presiding over the case).

His motion to dismiss doesn’t, however, mention a number of overt acts described in the conspiracy to obstruct the vote count:

  • His participation in the November 14, 2020 MAGA event in DC
  • His own November 27, 2020 call to execute “traitors”
  • A December 12, 2020 Stop the Steal rally in Huntington Beach
  • His own calls for people to travel to DC starting on December 19, 2020

Rather than addressing most of the overt acts alleged against him, Hostetter provides what appear to be cover stories for two key December 2020 events in this timeline.

After Taylor and Hostetter spoke at an Orange County event on December 15, they met with Irvine Smith the next day, and Taylor gave both axes.

On December 15, 2020, defendant and co-defendant Russell Taylor both spoke at an Orange County Board of Supervisor’s Meeting. This was only three weeks prior to January 6th. As usual at the Board Meeting, the topics to be discussed related to Orange County issues to include Covid-19 related issues, which is what we typically spoke out about. For some reason, while Taylor was speaking during this particular board meeting, he made the following comment to the Board which was completely unrelated to any of the topics on the agenda: “Week after week, I and others are with thousands in the street all up and down the state of California. You know what they are saying? Revolution. Storm the Capitol.”

[snip]

On December 16th, the day following Taylor’s comments to the Orange County Board of Supervisors, co-defendant Russell Taylor met defendant and “Person One” Morton Irvine Smith at a Mexican restaurant in San Clemente, CA called “El Ranchito.” Taylor was the organizer of this meeting and had requested, planned and organized it a few days prior. While at the restaurant, Taylor told defendant and Irvine Smith that he had purchased gifts for them. Taylor reached under the table and pulled out two boxes and gave them to defendant and Irvine Smith.

Inside these boxes were the axes that have been referred to in the indictment as proof of defendant’s nefarious intent to attack the Capitol using the axe as a weapon of some sort. Until receiving this “gift,” defendant had never personally owned an axe in his life. As he gifted it to us, Taylor described the axe metaphorically as a “battle axe” representing the battles we had already fought in support of freedom and the many battles yet to come.

Upon leaving the restaurant, either (informant) Taylor or (informant) Irvine Smith requested one of the restaurant employees take our photograph in front of the restaurant holding the axes. Defendant liked the photograph and thought it looked quite masculine and “tough” so he posted the photograph to Instagram with a somewhat provocative comment attached to the photograph. Defendant’s comment was, “The time has come when good people may have to act badly, but not wrongly.” Defendant continued in this post with, “Thank you @russ.taylor for the gift of the #thebattleaxe representing the many battles yet to come.”

Defendant had read this quote about good people possibly having to act “badly but not wrongly” in a meme very close in time to when Taylor gifted the axe to him. Defendant had no thought whatsoever about January 6 or the U.S. Capitol when creating this Instagram post. Defendant had been making public speeches regarding the fact that the U.S. was and had been “at war” with the Chinese Communist Party and domestic enemies for approximately 8 months prior to receiving this axe from Russell Taylor

Hostetter posted the photo not as a call for war, he claims, but because it made him look manly. And his caption to the photograph wasn’t a prospective call to war on January 6 in response to Taylor’s call for revolution, but to the prior 8 months of political unrest.

Particularly given Hostetter’s description of the December 16 meeting, which he helpfully tells us was actually planned, “a few days prior” (and so possibly the same day that Irvine Smith, but not Hostetter, returned from the DC MAGA March), I find the description Hostetter gives for his involvement in the January 5 event of interest. He learned of it from Irvine Smith at around the same time as that same December 16 meeting at El Ranchito and before — the indictment alleges but Hostetter ignores — he started recruiting people to attend the event.

January 5, 2021: Defendant’s non-profit organization, American Phoenix Project (APP), cohosted a rally with a group called Virgina Women for Trump. The VWT group was headed by Alice Butler-Short, a well-known and well-connected woman in the DC area.

This event, and APP’s ability to co-host it was brought to defendant’s attention in mid-December after informant Morton Irvine Smith returned to California after attending the December 12, 2020 Stop the Steal rally in Washington DC. Defendant did not attend this event. Irvine Smith claimed to have met Ms. Butler-Short for the first time at this 12/12/2020 event and the two of them agreed to APP becoming involved in co-hosting the event together.

Irvine Smith arranged for defendant to participate in a conference call with Ms. Butler-Short and two members of another group identified as Jericho March as they were a nationally known group also supporting election integrity. Once this conference call was completed, defendant told Irvine Smith that he was not interested in having American Phoenix Project co-host the event as it was too far away from California to be able to properly assist in putting it together and defendant had also gotten a bad vibe / feeling from some of the other participants in the conference call.

Irvine Smith was highly disappointed and notified defendant that he, Irvine Smith, would then just continue to help Butler-Short on his own time as they had developed a good relationship and he wanted to be personally helpful to her. Within a week or two, Irvine Smith notified defendant that Butler-Short had lined up some very big-name and popular conservative speakers for the event to include Roger Stone, Alex Jones, General Michael Flynn’s brother Joe Flynn, among several others. Irvine Smith notified defendant that ButlerShort was continuing to hold out the invitation for APP to co-host this event with her group, to include flying the APP banner at the event. Irvine Smith told defendant the only thing Butler-Short requested of APP was to help her with finding security staff to cordon off an area in front of the Supreme Court because it was a “first come, first served” policy as far as finding a location to set up a stage and microphone.

[snip]

After hearing from Irvine Smith about the high-quality speakers involved and the relative ease with which APP could co-host such a high-profile event, defendant agreed to co-host the event under the APP banner. Were it not for the individual efforts of Morton Irvine Smith, neither defendant nor APP would have been involved with this event at all.

Irvine Smith’s role in getting him this gig certainly raises more questions about why he wasn’t charged, but it doesn’t change Hostetter’s own exposure.

Hostetter adds to the questions about Irvine Smith’s treatment by revealing that Irvine Smith was not searched until the day before this indictment (Hostetter also makes much of what appears to be FBI’s choice to image Irvine Smith’s devices rather than seizing them).

On 1/27/2021 when Taylor and defendant had search warrants served on them, Irvine Smith did not. It wasn’t until nearly five months later, on June 9, 2021 that Irvine Smith finally had a search warrant served on him. This was one day before defendant’s indictment was unsealed. The timing of Irvine Smith’s “raid” is transparently obvious and laughable. It was intended to “clean him up” as an informant.

Hostetter’s questions about Irvine Smith, who funded much of his actions, are as justified as questions from the Oath Keepers about Stewart Rhodes not being charged yet. But I expect this crazypants motion to be dismissed and the conspiracy prosecution to continue to hang on whether all six members of the conspiracy entered into an agreement to help stop the vote count on January 6.

But Hostetter’s motion does suggest that the conspiracy indictment uses the involvement of the 3%ers as a way to raise the stakes of both Hostetter and Taylor’s own public calls for violence. That is, DOJ seems to have charged these organizer-inciters (but not the guy funding it all, yet) by exploiting their ties to an organized militia.

Alex Jones, Owen Shroyer, and Ali Alexander

The way that DOJ appears to have used militia ties to charge organizer-inciters Alan Hostetter and Russell Taylor makes their treatment of far more important organizer-inciters, Alex Jones, Owen Shroyer, and Ali Alexander, more interesting.

Ignore for a moment Ali Alexander’s crucial role in setting up explicitly violent protests.

It is a fact that the guy leading the coup, Donald Trump, asked Alex Jones (personally, as Jones tells it) to lead the mobs Trump had incited at the Ellipse down the Mall to the Capitol. As Jones was doing this, his former employee, Joe Biggs, was kicking off the entire riot. It is also a fact that Jones lured rioters like Stacie Getsinger to the East side of the building, to where Biggs and the Oath Keepers were also gathering, by promising a second speech from Trump.

There’s reason to believe that Jones and Biggs remained in contact that day, evidence of which DOJ would presumably have from Biggs’ phone, if not his phone provider (based on whether the contact was via telephony or messaging app). If it was the latter, getting it may have taken a while. While DOJ obtained Ethan Nordean’s phone when they searched his house (because his spouse provided the FBI the password), and obtained the content of Biggs’ Google account quickly (which included some videos shared with his co-travellers), it may have taken until July 14 to exploit Biggs’ phone (this Cellebrite report must pertain to Biggs because it is not designated Highly Sensitive to him). While the content of any calls Biggs had with his former boss would not be captured, some of it is also likely available from videos shot of him. If his co-travellers wanted a cooperation deal they might be able to provide Biggs’ side of any contacts with Jones too, though several of Biggs’ co-travelers are represented by John Pierce, who may be serving as a kind of firewall for Biggs or even Enrique Tarrio.

Nevertheless, if DOJ has in its possession evidence that one of the guys accused of masterminding the plan to breach the Capitol from two sides was in contact during that process with Jones, who lured unwitting rioters to the second breach by lying to them, then DOJ would appear to have far more evidence tying Jones to militia violence than they used to charge Hostetter in a conspiracy with 3%ers. And Jones got just as far inside the restricted area of the Capitol — to the top of the steps on the East side — as Hostetter did.

Of course, two things have made it harder to charge Jones: he is a media figure, one who very quickly disseminated a cover story claiming his intent for joining the Proud Boys and Oath Keepers at the site of the second breach was to de-escalate the situation, not to escalate it.

DOJ has been chipping away at both those defenses. It already arrested two of Jones’ employees, videographer Sam Montoya and on-air personality Owen Shroyer.

DOJ arrested Montoya for trespassing on April 13 and charged him with misdemeanors on April 30. The arrest warrant cited a number of things Montoya said that were captured on his own footage making it clear he viewed himself as part of the mob.

We’re gonna crawl, we’re gonna climb. We’re gonna do whatever it takes, we’re gonna do whatever it takes to MAGA. Here we go, y’all. Here we go, y’all. Look at this, look at this. I don’t even know what’s going on right now. I don’t wanna get shot, I’ll be honest, but I don’t wanna lose my country. And that’s more important to me than—than getting shot.

And DOJ noted that Montoya had no press credentials for Congress (a really shitty distinction for an event where legitimate journalists chased mobsters inside).

At times during the video, Montoya describes himself to others inside the Capitol Building as a “reporter” or “journalist” as he attempts to get through crowds. The director of the Congressional press galleries within the Senate Press office did a name check on Samuel Christopher Montoya and confirmed that no one by that name has Congressional press credentials as an individual or via any other organizations.

Montoya’s case has been continued on his own initiative since then. Given the discovery notices he has gotten — from AUSA Candice Wong — he had been treated as part of the mob most closely involved in the scene at Ashli Babbitt’s shooting. On December 10, Montoya got discovery from the Statutory Hall Connector that other defendants in that group did not get, and a different prosecutor, Alexis Loeb, took over his case. Loeb’s January 6 caseload is eclectic, but in October she started taking over the case of Proud Boys Joshua Pruitt, and Nicholas Ochs and Nicholas DeCarlo, and she has always been in charge of the prosecution of the pair that played a key role in opening the East doors from the inside, George Tenney and Darrell Youngers.

In August, Shroyer was arrested. His arrest was opportunistic, relying on the fact that he had a still-unsatisfied Deferred Prosecution Agreement arising from his attempts to disrupt Trump’s first impeachment making his loud presence inside the restricted are of the Capitol uniquely illegal. He filed a motion to dismiss his case, which was basically the cover story about de-escalation that Jones offered up immediately after the riot and Ali Alexander prepared to deliver to Congress last week. In a filing debunking that cover story, the government noted that calling for revolution — as Shroyer and Jones did from the top of the East steps — does not amount to de-escalation.

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Shroyer let the due date to reply to this debunking, November 22, pass without filing anything. A status conference that had originally been scheduled for Tuesday, December 14 has been rescheduled for Monday December 20.

As I said in my taxonomy post, the government seems to be very close to being able to demonstrate how that the breach of the second front worked, an effort on which the Proud Boys, Oath Keepers, and Alex Jones seemed to coordinate.

Doing so will be very important in demonstrating how the militia conspiracies worked. But if DOJ finds a way to charge Alex Jones for his role as the Pied Piper of insurrection, the organizer-inciter who provided the bodies needed to fill that second breach, it would bring the January 6 investigation up to an order issued directly by the former President.

The investigation of three InfoWars figures — Montoya, Shroyer, and Jones — who all have legitimate claims to be media figures happens even as DC judges are getting more insistent that DOJ adhere to Merrick Garland’s own media guidelines. In November, for example, Chief Judge Beryl Howell required prosecutors to acknowledge the media guidelines if they sought orders and warrants targeting news media.

Of course, Alexander has no such press protection, and his decision to go mouth off to Congress for seven hours last week may prove as self-destructive as the similar decision by his mentor, Roger Stone, four years ago.

The government seems to have a pretty good case about how the multi-front breach of the Capitol worked. The question is whether First Amendment protections will shield those who made that breach possible from prosecution.

Kevin Fairlamb and Jacob Chansley Sentences Affirm Judicial Legitimacy

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Today, Judge Royce Lamberth sentenced Jacob Chansley, the QAnon Shaman, to 41 months of prison for obstructing the vote certification on January 6. The sentence comes a week after Lamberth sentenced Kevin Fairlamb to the same 41 month sentence; Fairlamb pled guilty to both obstructing the vote and assault, for punching a cop.

Here’s my livethread of the Fairlamb sentencing. Here’s my livethread of the Chansley sentencing.

Whatever you think of these sentences, there were some themes from both worth taking away.

First, the defense attorneys in both cases spoke at length about how honorably the AUSAs on the case — Leslie Goemaat for Fairlamb, and Kimberly Paschall for Chansley — had acted throughout the prosecution. “The decency of prosecutors like this serve only to elevate the entire criminal justice system,” Fairlamb’s lawyer, Harley Breite stated. Chansley’s lawyer, Al Watkins, welcomed of Kimberly Paschall’s ability to see Chansley as an indivdiual. (Chansley also thanked Lamberth for ensuring he’d have access to organic food in accordance with his shamanic faith.)

In both cases, the defendant spoke about the legitimacy of Lamberth’s judgment. While both claimed they had come to see the error of the ways in pretrial detention, they nevertheless acknowledged that if Lamberth saw fit to send them to prison, they accepted his judgment. “I could not have asked god for a better judge, to judge my character, this is a wise man, who’s going to be impartial, going to be fair,” Chansley said of the judge who had repeatedly deemed him unsafe to release. “I just hope you show some mercy on me, Sir,” Fairlamb said.

In both cases, Lamberth — a Reagan appointee whose past notably independent decisions include presiding over much of the litigation over a Native American Trust lawsuit, Cobell, as well as some of the first rulings to rein in the Executive’s FISA demands — seemed moved by the men’s remorse. In both, he considered but rejected a below guidelines sentence (for both men, the guidelines range was 41 to 51 months). In both cases, he sentenced them men to the guidelines sentence, albeit the lowest one, because of the severity of their actions. “It’s such a serious offense under those circumstances,” Lamberth said of Fairlamb’s actions that day, “an affront to society and the law to have the Capitol overrun and this riot stop the whole functioning of government. I cannot give a below guidelines sentence.” With Chansley, Lamberth similarly judged, “The basic problem I have with a departure downward, what you did here was horrific, as you now concede, and obstructing the functioning of government as you did is a type of conduct that is so, uh, serious that I cannot justify downward departure.”

You may not like either of these sentences. But one thing that both did — whether motivated out of genuine remorse or as part of a cynical ploy to butter up a judge — is reaffirm the legitimacy of the judicial process. By imposing real sentences on two men he seemed to believe exhibited real remorse for their actions, Lamberth emphasized how serious the January 6 attack was. Both these men recognized their actions as crimes. Both recognized the legitimacy of a judge imposing sentence for it. And both defendants recognized the professionalism of those at DOJ working to prosecute the case.

Amid all the efforts to decry any effort to hold January 6 rioters accountable, those are no mean achievements.

January 6 Defendants Succeed in Proving They Were Treated Better than Other DC Detainees

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As I’ve noted, because of Christopher Worrell’s claims he has been denied medical treatment (many claims of which don’t match his own medical record), Royce Lamberth held the Warden and the Director of the DC jail in contempt, leading to a Civil Rights Division investigation.

I’ve also noted Nate DeGrave’s fantastic complaints about jail conditions, including that he has to eat baloney sandwiches.

Yesterday, the Marshal Service revealed that, seemingly in response to Lamberth’s Worrell order, it did unannounced visits at several DC jail facilities. It determined that one DC jail facility was not fit to house inmates.

But that was the other DC jail facility — not the more modern one where all the January 6 defendants are housed.

The USMS inspection was prompted by recent and historical concerns raised regarding conditions at the DC DOC facilities, including those recently raised by various members of the judiciary.

The inspection encompassed two DC DOC housing facilities – the Central Treatment Facility (CTF) and the Central Detention Facility (CDF). During the unannounced inspection, the U.S. Marshal reviewed both housing facilities and conducted more than 300 voluntary interviews with detainees.

The U.S. Marshal’s inspection of CTF did not identify conditions that would necessitate the transfer of inmates from that facility at this time. CTF houses approximately 120 detainees in the custody of the USMS, including all the defendants in pre-trial custody related to alleged offenses stemming from events that took place on January 6 at the U.S. Capitol, as well as other federal detainees. Housing assignments for detainees are determined by the DC DOC.

The U.S. Marshal’s inspection of CDF revealed that conditions there do not meet the minimum standards of confinement as prescribed by the Federal Performance-Based Detention Standards. CDF houses approximately 400 detainees in the custody of the USMS.

Too be clear: The conditions the January 6 defendants are held in are still inadequate, at least with respect to their access to discovery and the limits on video conference rooms (which limit how quickly judges can schedule hearings, one of Judge Lamberth’s underlying complaints).

But as Judge Mehta has said in response to such claims, the conditions January 6 defendants are experiencing are the same that a number of other predominantly brown defendants, some of them who’ve been jailed significantly longer than the January 6 defendants, have been experiencing.

Or, in some cases, those other detainees were experiencing significantly worse conditions.

Update: Judge Lamberth ordered Worrell moved to Alexandria jail immediately, and released to home detention in Florida once Pre-trial services vets someone to take over his custody.

DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

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In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.

Royce Lamberth Refers DC Jail to DOJ for Civil Rights Investigation

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Judge Royce Lamberth, a 78-year old Reagan appointee with a libertarian streak, just held the Warden and the Director for the DC Jail in civil contempt for not providing the medical records of Christopher Worrell in timely fashion as he ordered. He further found that DC Jail had abridged the civil rights of Worrell and referred the jail to Merrick Garland for investigation for general civil rights violations.

Worrell’s medical issues — both pre-existing non-Hodgkins lymphoma and a hand he broke while in jail — have been pending for some time. For a time (back when John Pierce was his lawyer), Worrell was himself delaying treatment by refusing to go to medical appointments. The government had been regularly submitting Worrell’s medical records to the docket. Last week, Judge Lamberth ordered the jail to include the doctor’s notes from a hand specialist who reviewed Worrell’s hand injury ASAP.

According to their claims today, they recognized these notes weren’t in the electronic file on Tuesday morning, and scanned them in before Lamberth ordered a show cause hearing (they did not, however, offer to share metadata proving that point). Lamberth didn’t buy that — and was already steaming about DC Jail’s decision to limit how many video conference rooms are available (which has made it almost impossible to schedule last minute hearings).

In judging that DOC had violated Worrell’s civil rights, Lamberth raised the possibility that he was treated this way because he’s a Jan 6 defendant. I’m not sure there’s any evidence to support that.

It’s still too early to understand what will happen as a result of this, both to Worrell’s case, and to the January 6 investigation generally. There’s not much evidence that this treatment is because these guys are Jan 6 defendants. But neither is there any evidence that the jail has done what it has needed to do to respond to the increased demands created by the January 6 investigation.

Hopefully, at the very least, this will serve as a wakeup call that the DC Jail needs to do better.

How Jacob Chansley Proved Patrick LeDuc Right

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I have written repeatedly about how charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512).

A review of what has happened with five men who’ve pled guilty to obstruction so far illustrates not only the range of sentences possible from the same charge, but also the factors DOJ is using to distinguish defendants based on their actions on January 6.

Before I lay out what has happened, first a word of explanation: To get to sentences, the two sides in a plea deal first agree on a  “Estimated Offense Level,” then (if someone pleads guilty), knocks a few points (usually 3) off for pleading. That gives a number that gets plugged into the Sentencing Table to figure out the guidelines sentence, in months, based on whether someone has a criminal record.

So in what follows, I’m showing the initial calculation (before the 3 points taken off for pleading guilty), and then showing what the plea agreement says the guidelines will be. In the table, I’ve marked the four different guidelines calculated in the five cases I discuss here (Scott Fairlamb has some criminal background so may get bumped up a level, but the others have no criminal background).

Paul Hodgkins, who traveled alone to bring his Trump flag to the floor of the Senate, pled guilty to obstruction, and went into sentencing facing a 15 to 21-month sentence (and ultimately got an 8-month sentence).

The number you’ll see Patrick LeDuc mention — 14 — in an email below is obtained by knocking 3 points off 17. And the 15-21 months is taken by checking the “0” criminal record column for an offense level of 14.

Scott Fairlamb. who didn’t plan for insurrection but while there punched a cop, pled guilty to obstruction and assault and goes into sentencing facing 41 to 51 months. DOJ has reserved the right to invoke a terrorist enhancement (including in his plea colloquy) that, if Judge Lamberth agreed, could result in a far stiffer sentence, up to 10 years.

Josiah Colt, who planned his trip to DC with two others, came to DC armed, and rappelled onto the Senate floor, pled guilty to obstruction, but faces (before getting credit for cooperation) 51 to 63 months.

Graydon Young, who planned in advance with a militia, entered the Capitol as part of a Stack, and tried to destroy evidence, pled guilty to obstruction, but faces (before getting credit for cooperation) 63 to 78 months. The difference in guideline between him and Colt is not that Colt’s “militia” was disorganized (a couple of guys he met online), but rather that Young tried to destroy evidence. Otherwise, they’re the same.

These four men all pled guilty to the same crime, obstruction of the vote count, but all faced and are facing dramatically different sentences based on the context of what they had done. And for those who deliberately used violence in pursuit of obstruction could face longer sentences, up to 20 years, which happens to be the same sentence that some sedition-related charges carry, but (again, unless judges overturn this application of obstruction) would be far easier to prove to a jury.

Somewhere around 200 January 6 defendants have been charged with obstruction, but among those 200, there’s a great range of actions they took in their alleged effort to prevent the peaceful transfer of power, including:

  • How obstructive their actions were (a 3 point enhancement)
  • Whether they used violence or threats thereof (an 8 point enhancement)
  • Whether they planned in advance to obstruct the vote count (a 2 point enhancement)
  • Whether they engaged in further obstruction (a further 2 point enhancement)
  • Whether someone did or abetted more than $1,000 in damage to the Capitol (which will likely get a terrorism enhancement)

And this is an issue that will play out in Paul Hodgkins’ effort to appeal his sentence.

According to claims made in court, Hodgkins decided to admit his guilt early on, which led to him being the first person to plead guilty to that obstruction charge. His lawyer at the time was a guy named Patrick LeDuc, a JAG Reserve Officer who learned after he started representing Hodgkins he had to deploy to the Middle East. Immediately after he was sentenced to a below guidelines sentence, per representations a new lawyer has now made, he asked if he could appeal (Friday, Judge Randolph Moss granted his request to extend his time to appeal). What LeDuc said in response will likely be the matter of a legal fight. We do know that on August 21, LeDuc told Hodgkins, “You have no right to appeal the sentenced [sic] pursuant to our plea agreement,” which suggests that at that point, LeDuc understood Hodgkins’ complaint to be with the sentence, not the competence of his representation.

But we know, for sure, that LeDuc told Carolyn Stewart, Hodgkins’ new lawyer, that other January 6 defendants who made it to the Senate floor were going to be charged with more enhancements to the base obstruction charge than Hodgkins.

Here is what you should know. Capitol Hill Defendants found in the Senate are all being offered a felony (same as Paul)(some more than one felony) with an 8 level enhancement (you might consider obtaining a Federal Sentencing manual for your reference). I was able to get the DOJ to agree to only a 3 level enhancement. You ought to know that my plea deal was adopted at the highest level to include the AG of the United States. That meant that my client was at level 14 instead vice level 19. Other Capitol Hill defendant [sic] are looking at 46 months low end. The AG instructed AUSA Sedky to argue for mid range – 18 months. And you would suggest that is evidenced [sic] of malpractice. I would argue that an attorney of 6 months accusing an attorney with over 250 jury trials at both the State and Federal level, and with 30 years of experience is unprofessional on your part.

If you think the plea deal was insufficient, then you ought to know that the United States makes offers with a a [sic] take it or leave it attitude. Everything in the plea deal was boilerplate with one exception that did not bother me. That was a provision that required me to agree that level 14 was good to go and that I would not object to the PSR. I was allowed to argue for a variance under 3553, which was my strategy all along, and the judge did indeed vary 3 levels into ZONE B. Ms. Sedky is a very experienced prosecutor, and the plea deal was arranged over many lengthy phone calls over a period of 3 months. Being the first felony case to be resolved was something that DOJ had to concur in because my case was going to set the precedent for every one to follow and the stakes were high for both sides.

My strategy paid off to Paul’s benefit. No other Federal defendant who is pleading to a felony will get a sentence better than Paul (nearly 250 others)  We had a very good judge who understood the issues, and the sentence was a fair reflection of the fats.

LeDuc is obviously furious at being called incompetent (and writing from Qatar where he is also juggling a huge influx of refugees from Afghanistan). But in this passage he describes a lot of the background to the plea deals that was evident to those  of us following closely, but for which there had been only off the record confirmation.

I think things may intervene that change DOJ’s plans (particularly if any of the challenges to 1512 are successful). But LeDuc describes that the plan when he was involved was to give Hodgkins a good deal and then use that as the precedent for everyone else. With other judges an 8-month sentence may not actually be the floor, but it is the base level treatment DOJ thinks it will adopt for those charged with felonies.

We’ve seen a few people plead down from felonies to 18 USC 1752, but thus far those people are looking at close to the same sentence as Hodgkins, 6 months, a difference of 2 months and the onerous felony conviction.

One thing LeDuc did say is that other defendants who made it to the Senate floor will face 8 level enhancements. Again, I’m virtually certain there will be others who made it to the Senate that will avoid this treatment.

But yesterday, with Jacob Chansley’s sentence, LeDuc was proven correct: another defendant, with whom Hodgkins stormed the Senate floor, got an 8 point enhancement for doing so.

.

Note that, as with Fairlamb, the government reserved the right to ask for a terrorist enhancement, though I did not hear AUSA Kimberly Paschall make a record of that in yesterday’s plea hearing, as AUSA Leslie Goemaat did in Fairlamb’s plea hearing.

To be sure, Chansley’s Statement of Offense includes multiple things that weren’t present with Hodgkins (nor will they be present for some others who made it to the Senate floor). According to his sworn Statement of Offense, Chansley defied orders from Officer KR four different times, and made public and written comments while in the Senate that might be deemed a threat, including to Mike Pence personally.

11. At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building. In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers, instructing them to peacefully leave the building. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

12. Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.

13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

14. The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K.R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

15. After Officer K.R. again asked the defendant to vacate the seat, the defendant remained, calling other rioters up to the dais and leading them in an incantation over his bullhorn, which included giving thanks for the opportunity “to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

16. Finally, at approximately 3:09 p.m., other law enforcement officers arrived to support Officer K.R., and cleared the defendant and other rioters from the Chamber. [my emphasis]

While it’s a puzzle to compare who posed more of a threat, Scott Fairlamb or Jacob Chansley, DOJ is treating both as people who deliberately tried to prevent the vote count by using violence or threats thereof. And because of that, DOJ has gotten their attorneys to agree, they should face a sentence more than twice as long as Hodgkins faced.

And that’s precisely what Patrick LeDuc told Hodgkins’ new lawyer would happen.

Update: I’ve corrected that these are the only five men who’ve pled guilty to obstruction. Some other Oath Keepers also did.