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Mike Lee Provides Key Evidence Implicating Trump in the Existing Criminal Conspiracy

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Because Donald Trump’s Personal Injury lawyer, Michael Van der Veen, made a specious argument about the First Amendment to successfully give 43 Republicans cover to vote to acquit the Former President in his impeachment trial, the discussion about Trump’s potential criminal exposure for January 6 (which according to CNN he is concerned about) has largely focused on incitement charges.

That’s true even though the trial led Mike Lee to offer up evidence implicating Trump in the same conspiracy charges already charged against 10 defendants: conspiring to delay Congress’ official proceeding to certify the electoral college vote. As I have noted, DOJ has started mapping out conspiracy charges against both the Oath Keepers and the Proud Boys:

While there are differences in the scope of the conspiracy and overt acts involved, all three charging documents charge defendants with conspiring “to stop, delay, and hinder Congress’ certification of the Electoral College vote,” effectively conspiring to commit 18 USC 1512, tampering with the official procedure of certifying the electoral college vote, an official procedure laid out in the Constitution.

And in spite of their votes to acquit the Former President last night, both Tommy Tuberville and Mike Lee provided evidence that the FBI might use to investigate Trump in that conspiracy. As I noted days after the attack, during the attack, Trump twice attempted to reach out to Tuberville to ask him to delay the count. The second time, Rudy Giuliani even left a message specifically asking for a delay as such, precisely the object of the already charged conspiracy charges.

I know they’re reconvening at 8 tonight, but it … the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. [snip]

Over the last few days, both Tuberville and Lee offered up more details on the earlier call. Tuberville confirmed the content of the call, including that he told the President that his Vice President had been evacuated.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

And Lee — who twice demanded that references to this call be removed from the Congressional record — ultimately provided phone records showing that even after Pence had been publicly rushed to safety, Trump was still working on delaying the vote rather than addressing the danger. Trump tweeted about Pence at 2:24, specifically complaining that Pence hadn’t given states a chance to “correct” facts, effectively a complaint that Pence had not disrupted the orderly counting of the vote.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

And then, two minutes later, Trump attempted to call Tuberville and, after Lee turned over his phone to the former coach, spoke to him for four minutes. It matters that Tuberville told Trump about the evacuations, though it is highly unlikely he had not been informed both informally and formally at that point. But it matters just as much that even after the insurrectionists had breached the building, Trump took two overt acts to attempt to delay the vote.

A Trump defense might argue — as his Personal Injury Lawyer did this week — that he was just trying to count the votes, but Trump had already made an unconstitutional request of Mike Pence, something Trump’s team provided no defense for. And that’s before you consider the evidence that Rudy, at least, was in direct contact with James Sullivan, who is affiliated with the group, the Proud Boys, that has already been accused of conspiring to breach the Capitol (indeed, another conspiracy case, against Proud Boys Dominic Pezzola and William Pepe, charges that they conspired to interfere with cops trying to keep protestors out of the Capitol, and the Chrestman indictment also includes that as a separate conspiracy).

I’m not saying this will definitely happen. The bar to charging a Former President remains high.

But DOJ has already charged ten people for doing what Trump was also demonstrably doing that day. And, partly because of Mike Lee’s desperate effort to avoid having the record of him implicating Trump in the congressional record, Lee ended up making the timeline of the events public without the FBI having to breach speech and debate concerns to obtain it. By doing so, Lee made it easier for the FBI to make a case against Trump if they ever attempt to do so.

Mike Lee may have helped prevent Trump from being barred from running for President again. But Mike Lee also made it easier to prosecute Trump for those very same acts.

Update: NYT just posted a story showing that six of the Oath Keepers Roger Stone was palling around with leading up to the attack entered the Capitol on January 6.

The Role of Trump’s Incitement in Providing Violent Foot Soldiers [Updated]

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As I’ve covered, in addition to a conspiracy charge tying Zip-Tie Guy’s actions to his mother’s cheering of violence, the government has thus far charged two sets of defendants from organized gangs in the January 6 insurrection — three members of the Oath Keepers and two of the Proud Boys. While Proud Boy Dominic Pezzola is charged with assault for his efforts to steal the police shield he used to bash open a window, his co-defendant William Pepe and most other defendants identified as Proud Boys were not charged with assault (Robert Gieswein, who was indicted on his own, did allegedly assault cops with a baseball bat; he appears in videos with the Proud Boys that day, though was not identified as such in his charging documents).

Thus far at least, the most violent actions from that day aren’t known to have been perpetrated by the right wing militias, members of which appear to have, instead, channeled the violence of others, possibly while pursuing more tactical goals (like locating members of Congress).

That makes the way in which the government describes that other violence important, as it may or may not tie everything together (and tie it back to those who incited the violence).

Take Emanuel Jackson, a 20-year old black guy from DC who was twice caught assaulting cops on video. First, he was caught on film punching a cop, an assault which charging documents describe helped break the police line allowing others to stream in.

The defendant, EMANUEL JACKSON, is observed on U.S. Capitol video surveillance footage making a fist and repeatedly striking a U.S. Capitol Police officer on his person while attempting to forcefully enter the building. United States Capitol Police officers are designated as officers of the United States under 18 U.S.C. 1114.

At approximately 2:48 p.m., the large crowd that was being restrained by law enforcement overpowered the officers and gained entry. One of the first individuals observed entering the doorway is the defendant.

Then, later that day, he attempted to get back into the Capitol wielding a baseball bat.

At 4:50 p.m., the violent and aggressive crowd continued to confront law enforcement at the West Terrace entrance. The crowd was armed with various weapons and multiple individuals are observed assaulting law enforcement in the entranceway. The defendant is clearly observed in surveillance video of this entrance, wearing the same clothing described above and observed in earlier footage, and armed with a metal baseball bat. The defendant is observed repeatedly striking a group of both U.S. Capitol and Metropolitan Police Department uniformed officers with the baseball bat.

These two alleged assaults happening two hours after each other, the first unarmed, the second armed, attest to the sustained violence of the riot, as well as a possible intensification of it as violence came to incorporate additional weapons. Over those two hours, Rudy Giuliani was calling Senators asking for delay.

While Jackson did have a backpack on him during the riot, there’s nothing in Jackson’s file that suggests any organizational affiliation with known extremist groups (nor is there any explanation of why a 20-year old black guy would ruin his life for Donald Trump). According to a government detention motion, in an interview, Jackson described attending Trump’s rally and going from there to the Capitol.

During the defendant’s post-arrest interview, he clearly articulated that he attended former President Trump’s rally earlier that day, and that he joined the thousands of individuals who descended on the U.S. Capitol to protest the election results.

That ties his later actions to the events at the rally.

That’s important, because Jackson confessed that his goal in storming the Capitol was to delay the counting of the vote (and he was charged with obstructing an official proceeding as a result, which itself carries a steep sentence if violence is involved).

During the interview, the defendant stated that his purpose in joining the violent mob was to enter the U.S. Capitol and disrupt the vote count of the Electoral College as it met to certify the results of the 2020 Presidential Election. Thus the defendant combined his criminal intention to interfere with the functioning of Congress with multiple violent assaults – one with a dangerous weapon – on the law enforcement officers trying to protect that function.

The detention motion describes how his initial assault made it possible for him and others to storm the building.

The defendant was part of a group that tore out windows, ripped open the blocked entrance, and then physically attacked law enforcement in an effort to gain entry. The law enforcement officers are in full uniform with the word “police” clearly visible. At approximately 2:48 p.m., the defendant is observed physically striking a law enforcement officer with his fist. The punching continues for several strikes and seconds later, the mob forces their way into the entranceway and overruns the group of law enforcement officers. The defendant’s assaultive behavior in part allowed the large mob of individuals to successfully breach the U.S. Capitol, putting additional law enforcement officers and members and staff of Congress at grave risk. The defendant’s actions allowed other rioters to commit multiple other criminal acts inside the building.

So at least on this thin record, it appears that Jackson went to the rally, got riled up to disrupt the certification of the vote, and then took repeated violent actions in service of doing just that. As the detention motion describes, Jackson was one spoke in a wheel that together thwarted democracy.

The defendant was a spoke in the wheel that caused the historic events of January 6, 2021,

On January 27, Jackson’s attorney asked for a one month continuance, with the government’s consent. That generally indicates the defendant is preparing to plead before indictment (which isn’t surprising given that, before he got a lawyer, Jackson confessed to his assaults).

That means it’s possible that by the time Trump’s impeachment trial starts, Emanuel Jackson will have pled guilty to being inspired by Donald Trump to halt the vote certification, walking down Pennsylvania Avenue and then assaulting two cops in an effort to help Trump steal the election.

Update:  Hunter Seefried, whose dad was the one caught carrying a Confederate flag through the Capitol, played a key role in cleaning out the window many streamed through. The father and son pair marched over after listening to Trump.

Defendant Kevin Seefried told law enforcement that he had traveled with his family from Delaware to the District of Columbia to hear President Trump speak and that he and Hunter Seefried participated in a march from the White House to the Capitol led by an individual with a bull horn.

Finally, I have reviewed video footage posted to Twitter which shows Hunter Seefried punching out glass in a window in the Capitol complex after people adjacent to him in the crowd broke it with a wooden 2 x 4. Kevin Seefried confirmed to law enforcement agents that Hunter Seefried was asked by an individual unknown to the Seefrieds to assist with clearing the window because Hunter Seefried was wearing gloves. After Hunter Seefried complied, people from the crowd outside, to include the Seefrieds, were able to access the interior of the Capitol Building.

Barton Wade Shively, a former Marine who admitted to assaulting several cops, also came down for the rally and then walked to the Capitol afterwards.

During the interview, SHIVELY admitted to driving to Washington, D.C. with friends to attend the Trump rally on January 6, 2021. SHIVELY further stated that he and his friends walked to the U.S. Capitol grounds and that a significant number of protestors broke through the first set of barricades. After which, SHIVELY explained that he was in the back of the crowd, but once the barricades were broken down by other rioters, SHIVELY walked over the broken-down police barriers and up the U.S. Capitol steps where law enforcement officers were standing protecting the U.S. Capitol. SHIVELY stated that when he confronted the law enforcement officers, he was pushed back, SHIVELY admitted he became angered at that time. SHIVELY admitted “I got caught up in the moment.” and grabbed a police officer by his jacket and began yelling at the officer.

[snip]

During the interview with agents, SHIVELY admitted to a second incident physical and assaultive encounter with law enforcement officers. SHIVELY stated he was walking down a line of officers who were protecting the U.S. Capitol from rioters, when an officer repeatedly pushed SHIVELY with his baton and commanded SHIVELY to move away. SHIVELY admitted to punching the officer on the officer’s riot helmet.

Spaz: More than Just a Thumb Drive [Updated]

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The government released its motion for detention for Dominic Pezzola, AKA “Spaz,” the Proud Boy who was among the first to break into the Capitol.

As a Marine with ties to the Proud Boys, it’s easy to see why the government thinks he’s dangerous.

To support their claim he is, though, the government made two arguments that probably aren’t the main reasons. First, they treat his use of a police shield to break open the door of the Capitol as a crime of violence.

Felony destruction of government property is a crime of violence. For purposes of the bail statute, as relevant to these offenses, a crime of violence is defined as “an offense that has an element of the use, attempted use, or threatened use of physical force against the person or property of another,” if that crime is punishable by ten years or more in prison. See 18 U.S.C. § 3142(f)(1)(A) & 16. Section 1361 of Title 18 of the U.S. Code meets those requirements. It is punishable by ten years if the property damage was greater than $1,000, and its elements include the use of physical force against the property of another.

More spectacularly, they point to the bomb-making materials they found at his home.

The FBI also executed a search warrant at the defendant’s residence at the time of his arrest. Agents recovered, from a room that appeared to be used exclusively by the defendant, a thumb drive that contained hundreds of .pdf files. While some of those files are related to seemingly innocuous topics, a significant number of those .pdfs provide detailed instructions for making homemade firearms, poisons, and/or explosives. A sample of titles includes, but is not limited to: (1) multiple serials of a series entitled “Advanced Improvised Explosives,” those serials including “Explosive Dusts” and “Incendiaries;” (2) “The Box Tube MAC-11,” with subtitle, “The Ultimate DIY Machine Pistol;” (3) “Ragnar’s Big Book of Homemade Weapons;” and (4) “The Advanced Anarchist’s Arsenal: Recipes for Improvised Incendiaries and Explosives.” All of the above examples contain detailed instructions for how to make the subject matter reflected in their titles, and they are but four of hundreds of similarly titled .pdf files on the recovered thumb drive.

But I’m more interested, as is my wont, in the ways that the government points to something more.

It does so, first of all, by hinting at additional charges to come — though lays out charges that are likely not the ones DOJ has in mind for Pezzola.

The defendant currently stands charged with violations of 18 U.S.C. §§ 1361, 1512(c)(2), and 1752(a), stemming from his role in the violent events that took place at the U.S. Capitol on January 6, 2021.

[snip]

The defendant is currently charged by complaint with one crime of violence—breaking the window of the Capitol with the shield—and the evidence as laid out above would establish probable cause to believe that he committed another crime of violence a short time earlier, robbery of U.S. government property, in violation of 18 U.S.C. § 2112.

[snip]

The evidence as laid out above would also establish that the defendant violated 18 U.S.C. § 2112, robbery of U.S. Government property, and § 111, assault on a federal officer, among other things. The government acknowledges that the defendant is not charged with these offenses at the time this memorandum is submitted.

More importantly, the government repeatedly talks about how he coordinated his actions.

The defendant’s actions show planning, determination, and coordination.

It uses the language of conspiracy — persons known and unknown — to describe his actions leading the mob towards the Capitol.

At around 1:00 p.m. EST, on January 6, 2021, known and unknown individuals broke through the police lines, toppled the outside barricades protecting the U.S. Capitol, and pushed past U.S. Capitol Police (“USCP”) and supporting law enforcement officers there to protect the U.S. Capitol.

The motion describes how he walked up to the barriers with others, including this guy in a flag bandana.

It shows how, at the moment he breaks in the window through which the Capitol was breached, he was wearing an earpiece.

The government describes how that first group of people immediately turned to “where they counting the votes?” (though were distracted from finding them by Officer Goodman).

Pezzola was part of a group that turned to the right and eventually confronted USCP Officer Eugene Goodman, demanding to know “where they meeting at, where they counting the votes?” It is unclear from the video which member of the mob shouted that question at Officer Goodman.

And the motion describes Pezzola talking about a “we” who had taken the Capitol.

“Victory smoke in the Capitol, boys. This is f***ing awesome. I knew we could take this motherf***er over [if we] just tried hard enough.”

While the motion lays out its argument for detention by emphasizing other things, the argument it is really making is that Pezzola, as a key member of the conspiracy (and as someone with the operational security to flee), he needs to be detained.

It’s not surprising that the government points to evidence of a conspiracy. After all, he’s associated with the Proud Boys, a key focus of their attention (and the motion cites a W-1 who is clearly privy to their plans).

It’s just telling how the government only hints at that argument while pointing to other things that make Spaz dangerous.

Update: DOJ announced the conspiracy indictment of Pazzola with William Pepe, the guy in the flag bandana pictured above.

 Dominic Pezzola, 43, of Rochester, New York, and William Pepe, 31, of Beacon, New York, were indicted today in federal court in the District of Columbia on charges of conspiracy; civil disorder; unlawfully entering restricted buildings or grounds; and disorderly and disruptive conduct in restricted buildings or grounds. Pezzola was also charged with obstruction of an official proceeding; additional counts of civil disorder and aiding and abetting civil disorder; robbery of personal property of the United States; assaulting, resisting, or impeding certain officers; destruction of government property; and engaging in physical violence in a restricted buildings or grounds.

The prosecution team includes the guy who prosecuted Maria Butina, Erik Kenerson, along with a CT prosecutor from NSD.

The case is being prosecuted by Assistant U.S. Attorneys Jason McCullough and Erik Kenerson of the U.S. Attorney’s Office for the District of Columbia and Taryn Meeks of the Department of Justice National Security Division’s Counterterrorism Section. Valuable assistance was provided by the U.S. Attorneys’ Offices for the Western and Southern Districts of New York. The case is being investigated by the FBI’s Washington Field Office, with assistance by the FBI’s Buffalo Field Office and the FBI’s New York Field Office.

Update: Here’s the indictment itself. It is very narrowly drawn, describing the conspiracy to cover just their successful entry past the cops at the second barrier.

The object of the conspiracy was to obstruct, influence, impede, and interfere with law enforcement officers engaged in their official duties in protecting the U.S. Capitol and its grounds during the demonstrations planned for January 6, 2021.

I suspect DOJ did this, in part, to have a way to keep Pepe detained. He’s not even accused of entering the Capitol, nor is he charged with stealing anything or assaulting a copy. But by being charged in a conspiracy with Pazzola, he’s on the hook for Pazzola’s more obviously violent acts.