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Amid Plea Discussions, Owen Shroyer Submits a Half-Hearted First Amendment Challenge

May 9, 2022/23 Comments/in 2016 Presidential Election, January 6 Insurrection /by emptywheel

I came in just a few minutes late to the Owen Shroyer status hearing, and missed the better part of it, it went that quickly! That said, according to Shroyer lawyer Norm Pattis, things are quite chummy with prosecutors and they expect they might come to some kind of plea deal.

That makes the flimsiness of a motion to dismiss he submitted the other day far more interesting. He’s supposed to be arguing that because he’s a “journalist” who was covering the riot he was cheering, he shouldn’t be prosecuted. Most of his 1A argument, however, would apply to the hundreds of other people charged with trespassing that day, and doesn’t address the non-prosecution agreement that specifically prohibited Shroyer from being a loud asshole at the Capitol, uniquely among the thousands of rioters. Shroyer repeats false claims about trying to rein in the mob that Tim Kelly already rejected. He makes one half-hearted bid to press freedom:

News reporters and broadcasters often put themselves into harm’s way to cover political demonstrations. Robust public discourse requires free and unrestrained media. In New York Times v. Sullivan, 403 U.S. 713, 717 (1971), Justice Black opined

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

(Black, J. concurring.)

Yet he provides virtually no evidence that he was reporting.

That’s what makes Shroyer’s declaration, which he could be held to (though it is labeled as a draft), all the more interesting. In addition to claiming that he intended, “in substantial part, to report on my observations to our millions of listeners and viewers worldwide,” and repeating the already rejected claims that he attempted to calm the crowd, he included these details about his expectations of the Former President.

While in Washington D.C. on January 6, I accompanied Mr. Jones to the podium at which President Trump was speaking. It was my understanding that we were to follow Mr. Trump from there to the Capitol.

Mr. Jones and I were accompanied by a security detail comprised of fellow Infowars employees and off-duty police officers. We traveled together as a group, with Mr. Jones and I walking within a perimeter established by our security team.

When Mr. Trump did not appear to lead our group, I followed Mr. Jones and the security detail from the podium traveling in the direction of the Capitol building.

At no point as we walked this route did I see impediments or barriers of any kin [sic] suggestion [sic] that we were not free to enter the grounds.

None of this addresses the general details of his trespass or his specific prohibition on being a loud asshole at the Capitol. Indeed, his claim that he didn’t see any barriers as he “walked this route” “in the direction of the Capitol building” (even assuming it is a factual claim, and the Sedition Hunters say it is not), is largely true only because the march itself was unpermitted.

He’s describing thinking that President Trump was going to lead an unpermitted march to the Capitol, and then leading it himself (following along behind Alex Jones like thousands of others), right down Pennsylvania Avenue which had no barriers because there was no march planned.

This doesn’t help him, even ignoring the presence of Ali Alexander, who is not an Infowars employee.

Whatever else this declaration is (and it’s not the kind of declaration that would win a 1A motion to dismiss), it doesn’t protect Donald Trump.

Meanwhile, the status hearing of the other Infowars employee who was supposed to have a status hearing today, videographer Sam Montoya, was continued so he, too, can continue to discuss a plea deal.

The Six Trump Associates Whom DOJ Is Investigating

January 8, 2022/116 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

According to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

Update, 2/8/22: NYT just named the sixth person under investigation: Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

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

December 16, 2021/128 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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.

The How of Owen Shroyer’s Arrest

August 20, 2021/40 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

About an hour after I wrote this in my post on the problems with a Reuters article about the January 6 investigation…

Because of the other problems with this article, I don’t know what to make of the single piece of news in it. As noted above, a former senior law enforcement official claims that, “there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.” That makes sense with respect to Alex Jones; his videographer was arrested long ago and remains charged only with trespass.

Zoe Tillman first reported that InfoWars’ Owen Shroyer had been charged. A picture from the affidavit shows Shroyer on stage with Alex Jones and (though he’s harder to see) Ali Alexander, a key organizer for the events underlying the riot. Jones and Alexander were critically responsible for bringing the crowd first to DC and then to the Capitol, and Jones also allegedly paid for some of the rally (at a time when his show was in real financial trouble).

How DOJ charged Shroyer — at this point, just for trespassing charges — is as interesting that they did.

Shroyer is not alleged to have gone into the Capitol. The closest the affidavit places him is on the East side steps, right behind Jones and (I believe) with Alexander right in front of Jones.

The inclusion of this picture reminds me of how often Oath Keepers filings talk about the others who were also on the East side at the time they breached the Capitol.

Not entering the Capitol is not itself a bar on charges. After all, Couy Griffin was charged for his presence on the West steps, charges that Trevor McFadden didn’t throw out when he had a chance.

But Shroyer is a media personality with a claim to being a journalist. So DOJ offers more to justify it.

As the affidavit lays out, back during Impeachment 1.0 on December 9, 2019, Shroyer got himself arrested for accusing Jerry Nadler of treason.

He wasn’t charged for that until January 17, 2020, and so didn’t resolve the case with a Deferred Prosecution Agreement until February 25, 2020. What happened with Shroyer is what other January 6 defendants claim should have happened to them: misdemeanor charges in DC Superior Court, followed by a deferral.

As part of Shroyer’s DPA, he was required to do 32 hours — just four days! — of community service. He seems to have fiddled around with what entity he was going to do service with, but at one point he claimed he was going to do it with the Sinai Pentecostal Church’s Reverend Samuel Montoya, who also happens to be the father of InfoWars’ videographer, who himself got arrested in April.

Which is another way of saying that Shroyer was dicking around with the meager community service he was required to do as part of his DPA.

The other part of Shroyer’s DPA, aside from the community service he was clearly dodging, was a requirement that he not similarly engage in such disorderly conduct again at the “Capitol,” which was defined by a map that Shroyer signed, which actually may be broader than the protected space that DOJ is charging in the January 6 cases (and so easily encompasses the stage on which Shroyer appeared with Alex Jones).

Due to the nature of the offense, the DPA included the following special conditions for SHROYER:

1. The defendant agrees not to utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof.

2. The defendant agrees not to parade, demonstrate, or picket within any of the Capitol Buildings. 3. The term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all subways and enclosed passages connecting 2 or more of such structures, and the real property underlying and enclosed by any such structure.

In addition, the term “United States Capitol Grounds” was defined to include an area delineated in a map attached to the DPA spanning the Capitol grounds from 3rd Street NW on the west side of the Capitol building, to 2nd Street SE on the east side of the Capitol building (see Exhibit A). SHROYER and his attorney each signed an Acceptance and Attorney’s Acknowledgement, respectively, for the DPA. As a result of the DPA, SHROYER had special knowledge of what areas in Washington, D.C. in and around the U.S. Capitol constituted the U.S. Capitol Grounds. [my emphasis]

In other words, whereas the thousands of other people participating in the January 6 riot might believe they’d only get into trouble if they walked in the building, Shroyer had notice that the protected grounds were broader than that. And he not only may have been subject to a broader protected grounds than those other thousands of people, but it was a violation of his DPA to do it.

Plus, the government claims he played fast and loose with his community service, which meant that even though his crime was committed on December 9, 2019, his DPA remained in place until … well, it’s still in place because Shroyer did only 30 hours, rather than 32 hours, of community service, but it certainly was in place on January 6, because he had done none of his community service at that point.

As of January 6, 2021, the DPA remained in effect. SHROYER had not completed, nor reported the completion of, any of the 32 hours of community service as required pursuant to the DPA. On February 5, 2021, counsel for SHROYER emailed the Government to report that SHROYER allegedly “has completed his 32 hours of community service.” An attached log provided by SHROYER’s counsel reported that SHROYER, in fact, performed only 30 hours of community service beginning on January 19, 2021 through February 4, 2021. Thus, as of January 6, 2021, SHROYER had not completed any hours of community service as required by the DPA, and as of February 5, 2021, his community service obligation remained incomplete.

The rest of this arrest affidavit is gratuitous, a speaking document to nod to where they might go with him. After all, Shroyer was uniquely prohibited from entering the grounds and being an asshole on January 6. That’s all the government would need to charge him.

But the rest is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification on January 5.

SHROYER traveled to Washington, D.C. in January 2021, and in advance of January 6, 2021, spoke of stopping the certification of the Electoral College vote. In a video1 posted to the Infowars website on January 5, 2021, SHROYER gave an address in Freedom Plaza in Washington D.C., during which he stated: “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!”

In another video2 posted to the Infowars website on January 5, 2021, SHROYER called into an Infowars live broadcast and said: “what I’m afraid of is if we do not get this false certification of Biden stopped this week. I’m afraid of what this means for the rest of the month . . . Everybody knows election was stolen . . . are we just going to sit here and become activists for 4 years or are going to actually do something about this . . . whatever that cause or course of cause may be?”3

That is, this is where these charges could go, once they arrest Shroyer and maybe even search his phone. They’re not charging it here — and Shroyer was legally entitled to be an asshole at Freedom Plaza on January 5, as opposed to the Capitol. But they’re making it clear where they could go.

I suspect they hoped to arrest Shroyer at a status hearing scheduled for today, but he didn’t show.

Shroyer was supposed to appear in DC Superior Court on Friday for a hearing to update the judge on the status of his case, but he did not show up, according to the docket. The prosecutor didn’t ask for a bench warrant to arrest him for failing to appear, and the judge set another hearing for Sept. 23. A lawyer listed as counsel for Shroyer said that was a mistake and he was not involved in the case.

Instead, he announced the charges on his InfoWars show, looking a hell of a lot more panicked than a well-funded white guy facing misdemeanor trespass charges should be, even as a recidivist.

This is just one of 580 arrest affidavits accusing someone of trespassing. But it certainly seems to be more than that.

Update: In my post on how one would prosecute Donald Trump, I noted that DOJ has been coy about what went down at a December 12 Stop the Steal rally, probably because (I mused) they haven’t included Enrique Tarrio in any of the conspiracy indictments. As Just Security reported back in February, Shroyer was part of that event, too.

In the video, Owen Shroyer, an Infowars personality, speaks to the crowd on a bullhorn. He is standing next to Tarrio. Shroyer hands Stone the bullhorn. Stone gives brief remarks standing beside Nordean, who appears to have his hand on Stone’s shoulder. “We will fight to the bitter end for an honest count of the 2020 election. Never give up, never quit, never surrender, and fight for America!” Stone tells the crowd. After his brief remarks, Stone passes the bullhorn back to Shroyer. Tarrio joins Stone and Nordean. Tarrio and Stone engage in an inaudible dialogue as Shroyer continues to rouse the crowd. “We got stabbed in the back by the Supreme Court tonight,” shouts Shroyer. “This was never their revolution. This is our revolution!”

Update: Apparently the stage on which Owen and Jones were is within what DOJ is treating as restricted area, but thus far has not arrested anyone for. I do believe it is the case, however, that Owen’s restricted area is larger than the one DOJ has used for January 6.

Update: Corrected that Reverend Montoya is the father of videographer Sam Montoya, per JK.

The Crimes of Violence Ashli Babbitt’s Mob Allegedly Committed

June 19, 2021/45 Comments/in emptywheel, January 6 Insurrection /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Breaking down the door

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

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

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

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

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

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

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

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

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

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

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

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

Assault

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

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

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

He yelled at them,

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

He bragged about the interaction later in the day.

Individual-5: Are you ok?

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

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

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

Obstruction

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

Trespass

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

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

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

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

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

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

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

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

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

He was charged with misdemeanor trespass.

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

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

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

[snip]

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

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

The videographers

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

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

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

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

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

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

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

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

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

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

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

Update, June 24: I’ve added Bingham.

DOJ Moves to Label John Sullivan a Professional Provocateur

May 20, 2021/23 Comments/in January 6 Insurrection /by emptywheel

Yesterday, the government released a superseding indictment for John Earle Sullivan, the guy who filmed video of the insurrection and then sold it to CNN and other media outlets. In addition to adding two crimes for his possession of a knife he boasted of having in his own video but then allegedly lied to the FBI about, the government moved to seize almost $90,000 in forfeiture. The move is an aggressive step that may be justifiable for Sullivan, but has implications for the five or so other propagandists arrested as part of the riot.

Sullivan was first charged, with civil disorder and trespassing, on January 13, after several FBI interviews. His arrest affidavit described how, repeatedly during the video he filmed of the riot, he made comments egging on the rioters. At the moment he caught Ashli Babbitt’s shooting on film, he had pushed himself to the front of that mob by calling out that he had a knife.

When the government first indicted Sullivan on February 3, the added obstruction and abetting charges to the civil disorder and trespass charges. That happened at virtually the same time the government moved to revoke his bail, based off several violations of the limits imposed on his use of social media. Sullivan responded by arguing that all that media contact was his job; his lawyer even provided evidence of the funds CNN have paid him to obtain his video of the insurrection. In response, Sullivan remained on bail with more explicit limits to his Internet access.

The one public discovery notice provided to Sullivan so far includes:

Earlier publications showing his efforts as a provocateur, including “Let’s start a riot” and “How to Take Down a Monument”
His criminal arrest record that includes association with past outbreaks of violence at protests
An interview he did on Infowars after the riot
Subpoenas to CenturyLink and Beehive Broadband, suggesting they were tracking traffic on Sullivan’s website

Then things went quiet in his case until, on May 7, his lawyer filed a motion to get funds in a Utah bank released he said had been seized without warning. It argued that Sullivan is entitled to a hearing at which he can contest that he committed a crime and the funds being seized came from the crime.

Accordingly, the federal courts have held that when the government restrains a criminal defendant’s assets before trial on the assertion that they may be subject to forfeiture, due process requires that the defendant be afforded a post-deprivation, pretrial hearing to challenge the restraint. If certain minimal conditions are satisfied, “[t]he wholesale use of…forfeiture proceedings [should cause] grave concern when the Government has clearly focused its law enforcement energies and resources upon a person and attempts to restrain his property….” United States v. $39,000 in Canadian Currency.” 801 F.2d 1210, 1219 n.7 (10th Cir. 1986).

The United States Supreme Court has made clear that pretrial seizure, pursuant to 21 U.S.C. Sec. 853 (f) requires two probable cause findings: (1) that the defendant committed an offense permitting forfeiture and (2) that the property at issue has the requisite connection to that crime.” Kaley v. United States, 134 S. Ct 1090,1095 (2014).

At the outset, defendant notes that he needs the funds in the seized bank account in order to pay his rent and household necessities. Additionally, the proceeds of the seized bank account are not the product of criminal activity alleged in the indictment.

Thus the new indictment, I guess.

The indictment ties the forfeiture not to Sullivan’s civil disorder charge, which would seem to make sense given Sullivan’s past history of profiting off inciting violence at peaceful protests, but instead to Sullivan’s obstruction charge. That seems to argue that Sullivan’s filming of the insurrection, in which he cajoled police to step down (including from the confrontation before Babbitt was shot) and cheered on the seizure of the Capitol, was part of the successful obstruction of the vote count.

Given Sullivan’s past incitement (which, ironically, was well-documented by leftist activists months before Trump supporters and Sullivan’s own brother tried to base an Antifa false flag claim on Sullivan’s presence), this may be a reasonable argument for Sullivan.

But there are at least five other right wing propagandists who were present at the insurrection for whom that might be a really troubling precedent (an InfoWars video editor Sam Montoya also witnessed and magnified Babbitt’s death).

Again, this may all be merited. And perhaps DOJ is tying Sullivan’s new charges for his knife to the seizure. But it seems an important development to track.

Update: Sullivan’s motion for a hearing on the seizures alluded to more discovery. This letter may describe that discovery. It describes a slew of subpoenas, including Square, JP Morgan, Venmo, Discover, Amazon, and others. In other words, the letter reflects a concerted effort to figure out how Sullivan’s finances work.

But the more interesting detail is item 21, reflecting the HIGHLY SENSITIVE estimate from the Architect of the Capitol estimating the cost of replacing a window. Sullivan’s own video strongly implies he broke that window. But he hasn’t been charged with it yet. That’s important, because he could be — and if he is, it could trigger terrorism enhancements.

It was harsh of the government to seize Sullivan’s funds. But what might come next will be far more harsh.

Update: Justin Rohrlich found and shared the seizure warrants. The logic behind this seizure is as follows:

¶31: The affidavit lays out evidence of Sullivan admitting he’s not a journalist, including hims saying on January 5 that he made that claim up “on the fly.”

¶32: A description of how after the riot, Sullivan changed his webpage description to incorporate a claim to be a journalist.

¶34: Citations to the hearing on his release violations in which he presented the contracts he got for the video.

¶35: A brag, right after he left the Capitol, saying, “Everybody’s gonna want this. Nobody has it. I’m selling it, I could make millions of dollars. … I brought my megaphone to instigate shit.”

¶36: A summary of the deposits paid for use of the video.

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The import of January 5 in January 6

The organizer-inciters called for revolution on January 5

Brandon Straka

3%er SoCal Conspiracy

Alex Jones, Owen Shroyer, and Ali Alexander

The How of Owen Shroyer’s Arrest

The Crimes of Violence Ashli Babbitt’s Mob Allegedly Committed

Breaking down the door

Assault

Obstruction

Trespass

The videographers

DOJ Moves to Label John Sullivan a Professional Provocateur

Interesting links

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Tag Archive for: Sam Montoya

Posts

Rudy Giuliani

Tom Barrack

Sidney Powell

Alex Jones

Roger Stone

Erik Prince

The import of January 5 in January 6

The organizer-inciters called for revolution on January 5

Brandon Straka

3%er SoCal Conspiracy

Alex Jones, Owen Shroyer, and Ali Alexander

Breaking down the door

Assault

Obstruction

Trespass

The videographers

Interesting links

Pages