Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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In my post on what prosecutors need to prove to win their case against Michael Sussmann, I noted they had to prove that:

  • Sussmann said the lie that they claim he did: that he affirmatively said he was not sharing the Alfa Bank allegations on behalf of a client
  • He said it on September 19, and not just on September 18
  • It was an intentional lie
  • It was material, meaning the alleged lie mattered to the operation of the FBI

I think the government has, in some ways, done best presenting their materiality arguments (but then, that’s the lowest bar). But even there, exhibits submitted at trial show that at least two of the key decision-makers on investigative issues had received a text referencing that this was a DNC report; Andrew DeFilippis speculated with one of the witnesses who received the text that it was a typo for DNS. And it appears, in multiple situations, people just assumed that Sussmann was at the FBI on behalf of the Hillary campaign, and took it into account. That said, Berkowitz got Baker — who was a key player in the Stellar Wind story that Eric Lichtblau held through an election in 2004 — to explain how important, from a national security perspective, it can be to hold certain stories.

And as I’ll show, Sussmann’s team may have something very special in store to make their materiality argument.

Regarding whether his statement that he was not there “on behalf of any client,” I think Sussmann has made a very good case that he meant his comment to Jim Baker on September 18 that he wanted to help the FBI. Both Marc Elias and Robbie Mook testified that sharing advance warning of a story they wanted to come out was the last they would have wanted or approved, because Jim Comey had done so much to damage the campaign. Particularly if Eric Lichtblau testifies, Sussmann will have a powerful story about all the damage that going to the FBI did to the campaign.

As to the other questions, they all go to Baker’s credibility on the stand.

I can’t say how the jury reacted, but I think prosecutors really didn’t do what they needed to do to prove that Sussmann repeated his comment about not meeting with Baker on behalf of any client and, then, hiding it when he helped the FBI kill the story later in the week. And Berkowitz did even more to show the changing nature of Baker’s statements about the meeting over time.

I did two long twitter threads on Sean Berkowitz’ cross-examination of Baker (Thursday night, Friday morning). I think Berkowitz achieved the following:

  • Used Baker to define “lie” as having an intention to deceive.
  • Made it clear that Baker reconstructed his understanding of his face-to-face meeting with Sussmann with the help of a chain of custody log that an FBI agent referring to the process called “doctored.” That’s going to provide Sussmann’s team a great metaphor to explain what Baker’s memory consists of.
  • Got Baker to suggest his memory of what happened on September 19 amounted to “words to that effect” of what has been charged.
  • Got Baker to agree that there’s at least a 25% chance Sussmann told him he had a client on September 21, which would be proof he wasn’t hiding a client.
  • Foregrounded the possibility that Baker could be prosecuted for his many inconsistent statements, including some that were made in 2018 and some that were made months ago. The statute of limitations on Baker’s inconsistent statements won’t expire until 2027.
  • Showed that Baker’s testimony on the stand was inconsistent with things he told Durham even in recent months; and Baker continues to not remember key details both of what happened on September 19 but also much more recently.
  • Showed that Baker’s reconstructed memory shifts at times from “that matter” (collecting the data) to the meeting itself; this is a reconstructed memory that can only come from prosecutors.
  • Demonstrated that Durham withheld at least three documents that could have “refreshed” Baker’s memory to believing Sussmann had told him he had a client.
  • Placed Durham in the room for some of the key sessions — including in Summer 2020, when Barr and Trump were pressuring Durham to show some results in time for the election — when Baker’s memory was “refreshed.”

Those threads were hard to write and I’m sure even more painful for people who are friends of one or both men to read. The story Berkowitz told was how, through the relentless grind of Republican blowhards and the Trump DOJ’s politicized investigations, Baker came to “remember” testimony that could put his friend, Sussmann, someone who had tried to get him a job when he was at a really bad point in his life, in prison.

There was no way out for Sussmann except to destroy his friend. And Berkowitz at least made it seem that Baker had believed there was no way out for him except to “refresh” his memory to match what Durham wanted.

I suspect it likely that Sussmann’s team will point out that Durham is choosing to prosecute just the people whose story doesn’t match the one that Durham wants to tell. It’s not just Baker whose testimony to Durham is inconsistent with provable facts, but Durham is not prosecuting any of the witnesses who are saying what he wants them to.

With all that as background I want to point to something subtle that I suspect will become part of that theme. Ostensibly to address materiality — Baker’s belief, one he shared with Congress in 2018 but contradicted under coaching by Durham on the stand — that if you have a national security tip you need to feel free to come to the FBI. Baker tweeted it out on June 13, 2019.

This would have been posted weeks after Durham was appointed, which — Baker testified — led Baker to expect he’d be under criminal investigation again.

Q. And you, sir, were aware that Mr. Baker was — I mean, Mr. Durham was reappointed as special counsel, correct, in or around 2019?

A. For this matter?

Q. yes.

A. yes.

Q. And when that happened, you were concerned, were you not?

A. Concerned about what?

Q. That Mr. Durham might come and investigate you more?

A. I wasn’t concerned about it. I expected it.

Q. All right. You expected to be investigated further by Mr. Durham. Correct?

A. Correct.

After having laid out how Baker had been investigated by Durham as part of a leak investigation for years, Berkowitz even introduced a text that Baker sent Ben Wittes the day after Durham was appointed saying, “now I get to be investigated for another year or two by John Durham. Lovely.”

But the tweet about going to the FBI wasn’t about Durham and it wasn’t random.

Rather, it was a response to something Trump said in an interview with George Stephanopoulos, between the time Mueller wrapped up his investigation, in part, of Trump’s request, “Russia, are you listening,” in 2016 and the time Trump asked Volodymyr Zelensky, “but first, I would like you to do us a favor.” On the same day Baker encouraged people to go to the FBI if they had evidence, ABC posted an interview in which Trump said,

“It’s not an interference, they have information — I think I’d take it,” Trump said. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘oh let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressman, they all do it, they always have, and that’s the way it is. It’s called oppo research.”

I’m not precisely sure how Sussmann’s team is going to use this tweet, beyond the materiality question, materiality about precisely this situation, whether someone should share information with the FBI after their opponent solicited help from a hostile foreign government.

But it sure seems to be evidence of more than just materiality.

Like the January 6 Investigation, the Mueller Investigation Was Boosted by Congressional Investigations

Midway through an article on which Glenn Thrush — who as far as I recall never covered the Russian investigation and has not yet covered the January 6 investigation — has the lead byline, the NYT claims that it is unusual for a congressional committee to receive testimony before a grand jury investigation does.

The Justice Department has asked the House committee investigating the Jan. 6 attack for transcripts of interviews it is conducting behind closed doors, including some with associates of former President Donald J. Trump, according to people with knowledge of the situation.

The move is further evidence of the wide-ranging nature of the department’s criminal inquiry into the events leading up to the assault on the Capitol and the role played by Mr. Trump and his allies as they sought to keep him in office after his defeat in the 2020 election.

[snip]

The Justice Department’s request for transcripts underscores how much ground the House committee has covered, and the unusual nature of a situation where a well-staffed congressional investigation has obtained testimony from key witnesses before a grand jury investigation. [my emphasis]

That’s simply false. This is precisely what happened with the Mueller investigation, and there’s good reason to believe that DOJ made a decision to facilitate doing the same back in July, in part to avoid some evidentiary challenges that Mueller had difficulties with, most notably Executive Privilege challenges.

First, let’s look at how Mueller used the two Congressional investigations.

At the start, he asked witnesses to provide him the same materials they were providing to Congress. I believe that in numerous cases, the process of complying with subpoenas led witnesses to believe such subpoenas were the only way Mueller was obtaining information. Trump Organization, especially, withheld a number of documents from Mueller and Congress, including direct contacts with Russian officials and a Steve Bannon email referencing Russian involvement in the election. By obtaining a warrant for Trump Transition materials held by GSA and the Trump Organization emails of Michael Cohen hosted by Microsoft, Mueller got records the subjects of the investigation were otherwise hiding. Steve Bannon, too, falsely told Mueller he didn’t use his personal accounts for campaign business, only to discover Mueller had obtained those records by the time of his October 2018 interview. Surprising witnesses with documents they had been hiding appears to have been one of the ways Mueller slowly coaxed Bannon and Cohen closer to the truth.

We should assume for key figures in the vicinity of Ali Alexander and John Eastman, the same is happening with the January 6 investigation: the very people who’ve been squealing about complying with subpoenas or call records served on their providers are likely ones DOJ obtained covert warrants for.

Then there are the prosecutions that arose entirely out of Congressional interviews. There were three Mueller prosecutions that arose out of Committee investigations.

Perhaps the most interesting was that of Sam Patten — whose interview materials are here. He had an interview with SSCI on January 5, 2018, where he appears to have lied about using a straw donor to buy Inauguration tickets for Konstantin Kilimnik. By March 20, the FBI attempted their first interview of Patten, after which Patten deleted some emails about Cambridge Analytica. And when Mueller did interview Patten on May 22, they already had the makings of a cooperation deal. After getting Patten to admit to the straw purchase and also to violating FARA — the latter of which he would plead guilty months later, on August 31 — Patten then provided a ton of information about how Kilimnik worked and what he had shared with Patten about his role in the 2016 operation, much of which still remained sealed as part of an ongoing investigation in August 2021. Patten had two more interviews in May then appeared before the grand jury, at which he shared more information about how Kilimnik was trying to monitor the investigation. He had two more interviews before pleading guilty, then at least two more after that.

Not only did Patten share information that likely served as part of a baseline for an understanding about Russia’s use of Ukraine to interfere in US politics and provided investigators with an understanding of what the mirror image to Paul Manafort looked like, but this remained secret from much of the public for three months.

It’s less clear precisely when SSCI shared Cohen’s lies with Mueller. But in the same period, both Mueller and SDNY were developing parallel investigations of him. But by the time Cohen pled guilty in SDNY (also in August 2018), Mueller had the evidence to spend almost three months obtaining information from Cohen as well before he entered into a separate plea agreement with Mueller in which he admitted to the secret communications with the Kremlin that he and Trump lied to hide.

Meanwhile, HPSCI’s much more hapless investigation proved a way to get a limited hangout prosecution of Roger Stone. By May 2018, when Mueller developed evidence showing not just ways that Stone was obstructing his own investigation but also how Stone attempted to craft lies to tell to the Committee — coordinated with Jerome Corsi and reliant on threats to Randy Credico — it provided a way to prosecute Stone while protecting Mueller’s ongoing investigation into whether Stone conspired with Russia.

And by all public appearances at the time, it appeared that Congress was acting while Mueller was not. But that was false (and is probably false now). The entire time during which SSCI and HPSCI were taking steps with Cohen and Stone that would late become really useful to the criminal investigation, Mueller was taking active, albeit covert, steps in his own investigations of the two men (whether he was investigating Patten personally or just Kilimnik is uncertain). Mueller obtained his first warrants against Cohen and Stone in July and August, respectively. But no one knew that until the following spring. That is, Cohen and Stone and everyone else focused on Congress while Mueller got to investigate covertly for another nine months.

We should assume the same kind of thing is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

Even those of us who’ve been covering DOJ’s January 6 prosecution day-to-day (unlike Thrush) have no way of saying what DOJ has been doing covertly in the last year — though it is public that they’ve been investigating Alex Jones, the purported new thrust of this investigation, since August.

What we know from recent history, however, is that DOJ’s use of Congress’ work in no way suggests DOJ hasn’t been doing its own.

DOJ’s Reply Motion for Carl Nichols’ Reconsideration on 1512: Other Judge Other Judges Other Judges

I’ve written two posts on former Clarence Thomas clerk Carl Nichols’ outlier ruling rejecting DOJ’s use of 18 USC 1512(c)(2) to January 6. (one, two)

Yesterday, they submitted their reply motion. It reads like this:

Reconsideration of the substantive ruling in Miller is appropriate because that ruling is inconsistent with decisions from every other judge on this Court to have considered the issue. That inconsistency means proving a violation of Section 1512(c)(2) requires additional facts in this case (and other Section 1512(c)(2) cases in front of this Court) but not in any case before any of the other judges of this Court. Moreover, with one exception, the Court’s ruling in Miller did not address the opinions from other judges of this Court, some of whom have explicitly disagreed with this Court after Miller issued.

[snip]

As noted in the government’s reconsideration motion, every other judge of this Court to consider this issue has concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” United States v. Sandlin, No. 21-cr-88, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021) (Friedrich, J.); see ECF 75 at 5-6 (citing cases). At the time the reconsideration motion was filed, one judge had disagreed with Miller in a footnote, United States v. Puma, 21-cr-454, 2022 WL 823079, at *12 n.4 (D.D.C. Mar. 19, 2022) (Friedman, J.), and another judge indicated her disagreement with Miller orally when delivering a “brief ruling” denying a defendant’s post-trial motion for judgment of acquittal, see United States v. Reffitt, 21-cr-32, Trial Tr. 1498, 1502-05 (Mar. 8, 2022) (Friedrich, J.) (attached as Exhibit A to the reconsideration motion). Since the reconsideration motion was filed, judges have continued to reject Miller’s reasoning. See, e.g., United States v. Hughes, No. 21-cr-106, Minute Order denying motion to dismiss count charging Section 1512 (D.D.C. May 9, 2022) (Kelly, J.) (rejecting the “narrow reading” of Section 1512(c)(2) and agreeing with an opinion that “directly responded to and rejected the logic employed in Miller”); United States v. Hale-Cusanelli, No. 21-cr-37, Transcript of motion to dismiss hearing at 4-8 (D.D.C. May 6, 2022) (McFadden, J.)(attached as Exhibit D);United States v. Reffitt, No. 21-cr-32, 2022 WL 1404247, at *7-*10 (D.D.C. May 4, 2022) (Friedrich, J.); United States v. McHugh, No. 21-cr-453, 2022 WL 1302880, at *2-*13 (D.D.C. May 2, 2022) (Bates, J). Although none of those rulings represents “controlling law,” McAllister v. District of Columbia, 53 F. Supp. 3d 55, 59 (D.D.C. 2014) (internal quotation marks omitted), it is surely “significant” that this Court stands as the sole outlier among all the judges on this Court to have ruled on the issue both before and after Miller issued.

Two related factors militate in favor of reconsideration of the Court’s substantive conclusion about the scope of Section 1512(c)(2). First, the Court in Miller addressed only one of the contrary opinions from judges on this Court. See Mem. Op. 16, 18 n.8, 22, 26 (citing United States v. Montgomery, No. 21-cr-46, 2021 WL 6134591(D.D.C. Dec. 28, 2021)). Reconsideration would permit the Court the opportunity to consider in full the “persuasive authority” issued by other judges of this Court. See United States v. Drummond, 98 F. Supp. 2d 44, 50 n.5 (D.D.C. 2000) (noting that within-Circuit district court cases are not binding but “[o]f course” are “persuasive authority”). Second, reconsideration resulting in an interpretation consistent with other judges of this Court would ensure that all defendants charged under Section 1512(c)(2) are treated alike until the court of appeals has an opportunity on post-conviction review to consider the merits of their challenges to the statute’s scope.

[snip]

Second, Miller argues (Opp. 10-18) that the government “misunderstands” (id. at 10) this Court’s textual analysis of Section 1512(c)(2). But the issue is not one of misapprehension; rather, the government (and every other judge on this Court to have considered the issue) understands but disagrees with the Court’s (and Miller’s) interpretation of Section 1512(c)(2)’s reach. [my emphasis]

It uses Garret Miller’s response to implicitly attack Carl Nichols and emphasize the degree to which even Nichols’ Trump appointed colleagues — first Dabney Friedrich, then Tim Kelly, and finally, the judge most likely to agree with Nichols, Trevor McFadden — have disagreed with Nichols’ thinking.

Guy Reffitt’s prosecution is now ripe for appeal, if he still plans on doing that. Or Nichols will choose to adhere to his outlier opinion.

Here’s the current tally on obstruction opinions, with McFadden added.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli

Members of Congress Subpoena Members of Congress

The January 6 Committee just issued subpoenas to five of their colleagues.

Minority Leader Kevin McCarthy was in communication with President Trump before, during, and after the attack on January 6th. Mr. McCarthy was also in communication with other members of the White House staff during the attack and in the days before and after January 6th concerning the events at the Capitol. Mr. McCarthy also claimed to have had a discussion with the President in the immediate aftermath of the attack during which President Trump admitted some culpability for the attack.

Representative Scott Perry was directly involved with efforts to corrupt the Department of Justice and install Jeffrey Clark as acting Attorney General. In addition, Mr. Perry had various communications with the White House about a number of matters relevant to the Select Committee’s investigation, including allegations that Dominion voting machines had been corrupted.

Representative Jim Jordan was in communication with President Trump on January 6th and participated in meetings and discussions throughout late 2020 and early 2021 about strategies for overturning the 2020 election.

Representative Andy Biggs participated in meetings to plan various aspects of January 6th and was involved with plans to bring protestors to Washington for the counting of Electoral College votes. Mr. Biggs was involved in efforts to persuade state officials that the 2020 was stolen. Additionally, former White House personnel identified Mr. Biggs as potentially being involved in an effort to seek a presidential pardon for activities connected with the former President’s efforts to overturn the 2020 presidential election.

Representative Mo Brooks spoke at the rally on January 6th, encouraging rioters to “start taking down names and kicking ass.” In addition, Mr. Brooks has publicly described conversations in which the former President urged him to work to “rescind the election of 2020” and reinstall Mr. Trump as President. The Select Committee also has evidence that Mr. Brooks’s staff met with members of Vice President Pence’s staff before January 6th and conveyed the view that the Vice President does not have authority to unilaterally refuse to count certified electoral votes.

I suspect such a subpoena only conceivably has a chance in hell of working with Kevin McCarthy (or possibly Mo Brooks if he can do it quietly, given how Trump has targeted him). The rest of genuine criminal liability they’d like to use Speech and Debate to dodge.

But this provides a way for the January 6 Committee to package up what evidence they have against these five in such a way as to feed it to DOJ.

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

As I noted back in March, when Project Veritas discovered what was clear from the start — that SDNY had relied on material obtained from emails involving James O’Keefe and two other Project Veritas associates to get warrants to obtain their phones — they tried to claw back not just the emails but also the phones.

[B]efore obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

In March, DOJ told PV to wait until they were indicted to complain (here’s my thread on that response).

Days later, on March 30, PV tried again, petitioning Judge Torres to force the government to return all their phones and their emails.

Tick tock, tick tock.

On April 11, Judge Torres set a briefing schedule: the government had to file a response by May 6, and PV should file their reply by May 20.

Tick tock, tick tock.

Right on schedule, the government filed its response last night. The response is 28-pages long, much of which is dedicated to explaining to PV how the Fourth Amendment works and asserting that SDNY is quite confident the magistrates’ rulings findings there was probable cause that these accounts and devices would contain evidence of enumerated crimes will hold up. The discussion includes a particular focus on how SDNY already has precedents approving investigations that first obtain emails covertly and then seize phones overtly, as they did with Rudy Giuliani and (while they don’t rely on the precedent) did with Michael Cohen before that.

To the extent that the Movants are attempting to raise arguments with respect to execution of the warrants for email account data, there is no legal basis for such challenges at this stage of an ongoing grand jury investigation. Last year, Judge Oetken denied a similar challenge where the circumstances were materially the same: in the course of a multi-year, covert investigation, the Government obtained electronic data pursuant to judicially-authorized search warrants issued under 18 U.S.C. § 2703, the Government had reviewed that electronic data prior to the overt execution of search warrants for electronic devices, and a Special Master was appointed to oversee the review of the contents of the electronic devices (but not the electronic data obtained previously). Specifically, Judge Oetken ruled:

Giuliani and Toensing also seek pre-indictment discovery of the Government’s privilege and responsiveness designations in connection with the 2019 warrants [obtained covertly, pursuant to 18 U.S.C. § 2703]. They cite no legal authority for this request, and the Court is aware of none. If there is a criminal proceeding, any defendants will be entitled to discovery under Rule 16. There is no basis for compelling the Government to produce this information now, during an ongoing grand jury investigation.

Finally, the Court sees no legal basis for Toensing’s request for detailed information about the filter team review process, at least at the pre-charge phase of this matter.

In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2. The circumstances confronted by Judge Oetken are indistinguishable from those presented here. The Movants offer no authority contrary to Judge Oetken’s ruling, and the Government is aware of none. To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.12

12 Or, potentially, by the filing of a civil claim, should one exist, that survives a motion to dismiss and proceeds to discovery.

Just for good measure, though, SDNY makes it clear they had reviewed all the emails before obtaining the overt warrants on O’Keefe and his flunkies, which makes it a good bet they relied on the email content to show probable cause to get the phone warrants.

With respect to the subscriber, non-content, and content information for email accounts referenced by the Movants, which were obtained pursuant to a grand jury subpoena and orders and warrants issued by federal magistrate judges pursuant to the Stored Communications Act (the “SCA”), 18 U.S.C. § 2703, the Government’s review of those materials was completed months ago, before the Movants initiated this Part I matter in November 2021.

I’ve stated repeatedly this was what happened here, only to have a PV lawyer claim I was wrong.

I was not wrong.

As I said, the bulk of this filing is just a primer in how the Fourth Amendment works, as applied. It is thorough, but it mostly feels like T-crossing.

More specific to the facts at hand, however, SDNY accuses PV of attempting to bypass the Special Master process they themselves demanded and Judge Torres approved last year.

Consisting of equal parts rhetoric, speculation, and inaccurate factual assertions, the motion is little more than a misguided attempt to end-run the Special Master process that this Court put in place and prematurely litigate the merits of the Government’s prior investigative steps.

[snip]

With respect to the devices that are subject to the Special Master’s review, the Movants’ attempt to put these arguments before the Court while the same arguments are pending before the Special Master appears to be an improper end-run around the Special Master. As explained above, these very arguments were fully briefed as of April 20, 2022, and are in the process of being decided by the Special Master. The Movants should not be permitted to short-circuit the process that this Court put in place, at their request, and which will adequately safeguard any potentially privileged materials that were contained on the devices.11

11 In the event the Court finds any of these issues material to the resolution of the motion, the Court should defer consideration until after the Special Master has issued a ruling on the same.

Even if Torres is sympathetic to poor James O’Keefe’s plight (and she accorded him better treatment than Rudy Giuliani got in the same court), she’s likely to be pissed about this aspect of things, that she went to the trouble of approving a Special Master and splitting the costs to pay for Barbara Jones’ services, only to have PV demand more.

And here’s why that matters: as SDNY noted, Jones is as we speak making final decisions about what SDNY gets.

The Special Master’s responsiveness review has largely been completed, with the contents of only one device currently under review. The parties have submitted briefs outlining their positions regarding the law and principles that should be applied to the Movants’ objections to the release of the items that the Special Master has deemed responsive to the search warrants to the investigative team. 2

2 The Movants submitted their briefs to the Special Master on April 1, 2022, the Government submitted its response on April 13, 2022, and the Movants submitted a reply on April 20, 2022.

Tick tock, tick tock.

Project Veritas was, almost certainly, already preparing their briefing for Jones when they demanded this end-run around the Special Master process. They had, almost certainly, reviewed what was about to be turned over to SDNY and how, having read the affidavits that PV is still trying to get, Jones interpreted the scope of the investigation. So not only does this timing seem to substantiate SDNY’s claim they’re trying to back out of their demands for a Special Master, but it makes it likely that by the time they file their own reply two weeks from now — tick tock, tick tock — Jones will already have submitted her recommendations regarding what materials SDNY gets.

And until then, SDNY explained in their law school primer to PV about how the Fourth Amendment works in practice, SDNY gets to keep all the evidence implicating a criminal investigation until they decide whether or not to charge anyone.

To the contrary, the electronic devices retained by the Government were obtained pursuant to search warrants issued by a Magistrate Judge after a finding of probable cause, and are currently in the final stages of the Special Master’s review process. Similarly, the contents of email accounts were also obtained pursuant to search warrants issued by Magistrate Judges after findings of probable cause, and the Government’s review of materials obtained pursuant to those warrants was completed months ago. There can be no dispute that the Government’s investigation is ongoing, that these materials include evidence relevant to that investigation, and that, if a prosecution results from the investigation, these materials will have evidentiary value.

[snip]

Third, the Government’s retention of the items and materials at issue is reasonable because its investigation remains ongoing and the return of the property sought would impair the Government’s investigation. The electronic devices at issue either have been determined by the Special Master to contain responsive items, are currently under review by the Special Master, or have not yet been reviewed by the Special Master due to technical impediments. Similarly, the email account content has been reviewed by the Government and has been determined to contain material responsive to the search warrants. See, e.g., In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2 (denying pre-indictment motion to “return” to movants the “results from earlier search warrants of [movants’] iCloud and email accounts” because, among other reasons, “the review of the [earlier] warrant returns is now largely complete”). These items and materials are anticipated to have evidentiary value if a prosecution arises from the Government’s ongoing grand jury investigation. In light of the character of these items and materials and the status of the Government’s investigation, retention of the items and materials is reasonable at least until the Government’s investigation is completed or, in the event a prosecution arises from the investigation, until such time that the criminal case reaches its conclusion.

SDNY is not saying that a prosecution will arise from the materials seized from PV. But they are saying they’ve found evidence that would be relevant if they chose to do so.

And, SDNY repeats again in their primer on how the Fourth Amendment works, it’s only after SDNY makes that decision that James O’Keefe will have standing to challenge these searches.

Todd Wilson: The Seditious Conspiracy Grows Branches

Yesterday, Oath Keeper Todd Wilson pled guilty to seditious conspiracy and obstruction. He’s from North Carolina, and while the Sedition Hunters who have followed the Oath Keepers closely had been tracking him and had noticed Ed Vallejo did not redact Wilson’s name on a transcript submitted in Vallejo’s detention fight, Wilson’s information was rolled out just the morning before he pled. He went from being charged to pleading to sedition in a matter of hours.

(In other news, Judge Amit Mehta released Vallejo to home confinement yesterday.)

What we see in statement of offense — and, I suspect, what we’ll see going forward — is DOJ making little-noticed parts of a much broader network visible. As with Georgia Oath Keeper Brian Ulrich’s statement of offense, for example, Wilson’s provides hints of damning discussions that happened at the state level.

In November 24, 2020, in the “NC OK County Leaders” Signal chat, a group member advised, “we all need to be very careful about what we post here . . . While Signal is end-to-end encrypted, it’s always safest to operate under the assumption that someone is monitoring our conversations electronically.”

For sixteen months, the non-specialist focus on the Oath Keepers has been tracking The Stack and those directly associated with it (though Oath Keeper researchers always had a broader focus). But we’re going to increasingly see pieces of this conspiracy that were visible, but not seen, because the spectacle of The Stack attracted most of the attention. Some of those little-seen aspects of the larger network may prove far more important.

One testament to that is that Wilson showed up, but was not noticed, in photos already submitted to the docket in Oath Keeper cases.

Wilson’s presence in the Rotunda is actually one of the tactically most important parts of his statement of offense. Wilson entered the Capitol from the west side and then helped open the East doors from inside.

Even before he entered the building, though, Wilson was one of four people with Stewart Rhodes watching the building as it was first assaulted and he was with Rhodes as the Oath Keeper leader first entered restricted grounds.

Just before 1:30 p.m., in response to a claim by an Oath Keeper affiliate on the “Leadership Intel Chat” that Antifa had breached the Capitol, Rhodes replied: “Nope. I’m right here. These are Patriots.” Minutes later, Rhodes posted to the group that he was standing at the comer of the Capitol building with four people to include Wilson. Rhodes then posted to the “DC OP: Jan 6 21 Signal group chat: Pence is doing nothing* As I predicted.” Rhodes added, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.”

[snip]

Shortly after 2:00 p.m., Wilson, Rhodes, and others bypassed barricades and Capitol Police officers, and unlawfully entered the restricted grounds of the Capitol. While advancing, Wilson heard Rhodes proclaim that they were in the midst of a “civil war.” Through plumes of smoke, Wilson could see mobs of people climbing up scaffolding and descending on the Capitol. Rhodes soon directed his followers to meet him at the Capitol. [my emphasis]

From there, Wilson (who escaped notice in part because he wasn’t kitted out like the others and who was a member of the Oath Keepers Intelligence Signal chat) entered the building with the goal of gathering intelligence.

At 2:34 p.m., Wilson entered through the Upper West Terrace Doors of the Capitol—the first of the co-conspirators to breach the building. Wilson was armed with a pocketknife and wore a neck gaiter and beanie hat to mask his appearance. Wilson entered the Capitol with the goal of disturbing the Congressional proceeding and gathering intelligence. [my emphasis]

Four minutes later, Wilson was helping push open the East doors, thereby helping The Stack and others open a second front of the attack.

By 2:38 p.m., Wilson had marched through the Rotunda to the east side of the Capitol where he joined in the center of a mob of people trying to push open the Rotunda Doors from inside of the building. Two Capitol police officers stood in front of the closed doors attempting to keep the mob at bay.

[snip]

At approximately 2:39 p.m., the Rotunda doors were forced open, and a mob of people forcibly entered the Capitol through the doors. The entering mob included fourteen Oath Keepers co-conspirators—many of whom were wearing paramilitary clothing and patches with the Oath Keepers name, logo, and insignia—who had moved up and through the crowd on the east side of the Capitol in a military-style “stack” formation (“Stack One”), Wilson took cell phone video of them entering. The Rotunda Doors and surrounding facade suffered thousands of dollars worth of damage during the attack on the Capitol.

Wilson traveled with the others for a bit and may have accompanied the group that went to hunt down Nancy Pelosi.

Wilson walked through the Capitol for the next fifteen minutes, at times interacting with Dolan, Harrelson, and other co-conspirators who were heading southbound toward the House of Representatives.

The Oath Keepers got to insurrection later than the Proud Boys that day. But Wilson’s path makes the Oath Keepers more central players in the pincer effect seemingly coordinated with the Proud Boys and Alex Jones than previously known.

That’s the tactically important part of his statement of offense.

The part that has attracted the attention, however, is that not long after 5PM, Wilson witnessed Rhodes make a call on speaker phone to someone who could directly access Trump.

At the Phoenix Hotel, Rhodes gathered Wilson and other co-conspirators inside of a private suite. Rhodes then called an individual over speaker phone. Wilson heard, Rhodes repeatedly implore the individual to tell President Trump to call upon groups like the Oath Keepers to forcibly oppose the transfer of power. This individual denied Rhodes’s request to speak directly with President Trump. After the call ended, Rhodes stated to the group, “I just want to fight.”

The Phoenix Park Hotel parking garage, remember, is where Enrique Tarrio met with Rhodes on January 5, more details of which were released Monday in a detention memo for the Proud Boys leader.

Tarrio claims that his surreptitious meeting with Elmer Stuart Rhodes III and others in an underground parking garage was “secondary to why he was there.” Defendant’s Motion at *5 Tarrio’s claim is plainly disproven by video of the event, but even if it were accurate, it misses the point.

First, Tarrio intentionally traveled to the Hall of States Parking Garage near the Phoenix Hotel where he met with others who were planning to remain in Washington, D.C. Tarrio’s decision to do so—even while at risk of violating the D.C. Superior Court stay-away order— demonstrates that even after his arrest, Tarrio remained engaged in planning for January 6. This point is further underscored by Tarrio’s efforts to rejoin encrypted communications and coordinate with Nordean and Biggs about the plans for January 6. Second Superseding Indictment (ECF 305) at ¶¶ 63-67 (Biggs: “I gave Enrique a plan. The one I told the guys and he said he had one.”).

Second, video from the documentary crew shows Tarrio making the conscious decision to travel to an underground downtown parking garage to meet with others rather than departing Washington, D.C., as he had been ordered to do. Specifically, filmmakers captured Tarrio preparing to enter the Phoenix Hotel. The next clip captured Tarrio standing outside the hotel near a truck. When asked what happened, Tarrio told the filmmaker, “We went in [the Phoenix Hotel] and somebody advised us that they’re going to call the cops.” Tarrio was then advised by a female companion, “I think we should leave.” The next clip showed Tarrio in a truck stopped outside the Phoenix Hotel, with Tarrio talking to two people standing on the sidewalk. Tarrio then directed the driver of the truck to travel around the corner from the hotel and enter the Hall of States parking garage—where he offered to pay for the entry. While driving down the ramp into the garage, Tarrio was filmed on a phone call advising the other communicant that he could not come back near the front of the hotel because “they’re already looking out the window.” Tarrio then provided directions to the underground garage. The same two people with whom Tarrio communicated in front of the Phoenix Hotel appeared less than five minutes later in the underground parking garage, along with a handful of others.

Going forward, I suspect it would be ill-advised to assume the word “co-conspirator” assumes the conspiracy in question is entirely self-contained in one militia.

That’s worth keeping in mind when trying to guess whom Rhodes called. The most obvious candidate would be Roger Stone, and I promise you, before this is done, we’ll learn that Stone or his flunkies were involved in similar conversations.

But by the time of this call, per this WaPo piece, Stone was already fleeing. (h/t William Ockham)

Stone had said he expected to attend a meeting with administration officials on pardons that had been pushed back to 6 p.m. because Trump had “ruined the schedule for the day.” But following the riot, Stone and Davis left D.C. for the private flight.

Before Stone leftthe Willard for Dulles around 5 p.m., he paused for a photo in front of a hotel TV showing coverage of the riot.

And Wilson’s statement of offense gives the kind of nod to Mike Flynn that earlier Oath Keeper filings had restricted to Stone.

In December 14, 2020, after reading an article posted by a group member in the “Leadership Intel Chat” titled, “General Flynn warns of unelected ‘tyrants,’ says ‘time for God-fearing Americans to fight,'” Wilson replied, “It is time to fight!” [link added]

And Wilson has ties to people who have ties to Flynn.

So who knows? It could be Stone, it could be Flynn, it could be someone else — like Rudy or Mark Meadows — who genuinely did have direct access to the President.

The point being, we’re very close to a point, if not already there, where this networked conspiracy is going to coalesce such that it’s no longer about discrete militia groups, but it’s about people sitting in hotel rooms blocks away from the direct assault on the Capitol.

Update: Corrected the date of the garage meeting.

Update: The correct name of the hotel is the Phoenix Park.

WaPo Polls Whether Trump Should Be Charged Without Polling His Most Serious Suspected Crimes

WaPo is out with a poll showing that a slight majority of Americans believe Trump should be charged for what they claim was “his role in this incident.”

Except they polled only one of Trump’s suspected crimes, “encourag[ing] his supporters to march to the U.S. Capitol, where the riot followed.” They don’t even describe that as incitement, which is the only way it’d be a crime.

But the poll is largely meaningless because they don’t poll the more egregious crimes for which Trump might be charged. Among the things they didn’t poll, all of which are being investigated, is whether Trump should be charged if he:

  • Raised funds by making claims about election results he knew to be false
  • Badgered Brad Raffensperger to alter enough votes so he could win Georgia
  • Had a role in fraudulent electoral certificates from seven swing states, some of which were submitted to the Archives
  • Entered into an agreement, either directly or through someone like Roger Stone, with the militias that directed the assault at the Capitol
  • Made a request of Mike Pence he knew to be illegal and, when Pence refused, sicced his mob on Pence, threatening the Vice President’s life
  • Deliberately limited law enforcement and National Guard response at the Capitol
  • Dangled pardons (one provided, in Steve Bannon’s case) to get others to help sow the Big Lie
  • Aided and abetted assaults on cops

It is mildly interesting that WaPo found a majority of the country believes Trump should be prosecuted for something that, as described, is probably not a crime. It would be far more interesting to see polling on whether Trump should be prosecuted for any of the potentially far graver crimes there is evidence he committed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chad Wolf Covered Up Russia’s 2020 Support for Trump

It’s 2022 and John Durham is still chasing conspiracy theories that Hillary Clinton invented Russia’s assistance for Trump in 2016.

But yesterday, DHS OIG released a report describing how Russia worked to help Trump again in 2020, a report that Chad Wolf then spent months covering up, ultimately burying it in election season dissemination controls. Among the policies the report suggests Wolf’s intervention violated is a 2004 law passed to prevent the kind of intelligence disasters that led to the Iraq War.

It started in spring 2020. Shortly after it became clear that Biden would be the candidate, the part of DHS that focuses on disinformation campaigns wrote a report on overt efforts by Russia to suggest Biden was senile — a repeat, as DHS recognized, of attacks Russian used against Hillary.

In April 2020, CYMC started drafting an intelligence product titled “Russia Likely to Denigrate Health of US Candidates to Influence 2020 Electoral Dynamics,” IA-44399-20 (the product).15 The intelligence analyst who authored the product told us after Super Tuesday,16 he noticed an uptick in Russian state media efforts to question candidate Joseph Biden’s mental health. He said he discussed the issue with CYMC’s mission manager, who mentioned similar actions occurring during the 2016 election. The analyst believed foreign efforts questioning a candidate’s health were worth exploring because they could impact voters’ willingness to vote for that candidate and began drafting the product. In its initial form, the product was approximately two pages in length and included information relating to one “current Democratic presidential candidate” and to Russian activities to influence the 2020 U.S. Presidential election. This version did not contain any information about other countries’ influence efforts. Based on our analysis, the intelligence product initially followed I&A’s internal drafting and editing process — the product was reviewed by CYMC’s team lead, senior intelligence officer, and I&A’s domestic disclosure officer, and oversight offices as described in IA-901 and CYMC policy.

Someone reviewing for privacy considerations asked for an edit because it seemed like sharing the intelligence report might be deemed as endorsing those claims about Biden. That’s how a “tone box” noting Iranian and Chinese complaints about Trump got added, to “blunt” the political impact of the original report.

He told us it was a feature intended to draw a contrast between the actions of Russia and those of Iran and China, but also described the tone box as a “blunting feature” meant to balance the product. When asked whether intelligence products require balancing, he said the addition of the tone box was not politicization, yet also said it showed I&A’s political savviness, as the state and local customers of their products tended to be political.

This is the equivalent of shitty both-sides journalism, but — as the IG Report makes clear — it also created scope problems in the report, which was ultimately about Russia.

Just before the finalized and approved report was about to be publicly disseminated, the DHS Chief of Staff got Wolf involved. At a July 8 meeting with the acting Chief of Intelligence and Analysis, according to his notes, Wolf told him to kill the report because it would hurt Trump.

The other attendees at that meeting, however, don’t remember the meeting that way. In written answers to questions, Wolf claimed he held the report because it was of shoddy quality.

We also interviewed the Acting Secretary, the DHS Acting Chief of Staff, the DHS Deputy Chief of Staff, and the Counselor to the Secretary about what occurred during the July 8 meeting,18 as the Acting USIA indicated to us that either they attended the meeting or were aware of the meeting. Not all of these officials recalled attending the meeting, and those who did recalled some details differently than the Acting USIA. Those who recalled attending the meeting all indicated the Acting Secretary did not make the alleged request to hold the product based on political considerations. More specifically, the Acting Secretary stated that he did not say the product would make the President look bad or would hurt the President’s campaign, and did not claim during the meeting that he had the authority to prevent the dissemination of the product. The Acting Secretary also stated that the meeting “conversation focused around the quality of the work and the apparent problem that I&A lacked any quality control review.

The acting Chief of Staff didn’t remember Wolf asking to kill the report because it would hurt Trump, either. But he did acknowledge that this was the single time when the Acting Secretary inserted himself into the review process.

[H]e said he did not recall the Acting Secretary referring to the product’s effect on the President or the President’s campaign, noting he “would have remembered such an outrageous comment.” Nonetheless, the Acting Chief of Staff also told us he could not recall another instance when the Acting Secretary was involved with other intelligence-related products to the same extent he was with the product, even though officials from the Office of the Secretary had previously voiced concerns over other I&A products. He stated, “During my tenure as Acting Chief of Staff, this is the only product I recall rising to the Secretary’s level….” The Acting Chief of Staff also stated that, other than the intelligence product in question, he could not recall any other instances in which the Acting Secretary had requested a meeting with I&A leadership related to pre-release distributions of I&A intelligence products.

After the July 8 meeting, the report was revised — to add a reference to “covert” efforts to spread the anti-Biden message, through proxies.

Within 2 days of the July 8 meeting, I&A revised the product. The revisions were minimal, mostly consisting of adding and defining the words “covert” and “overt.”

This is a minor report for the content of the report, which measured how the report was held up and Wolf’s role in it. But it is fairly important with respect to the content of the report itself. The IC was collecting intelligence showing that some of the outlets pushing the claim that Biden was senile were proxies hiding their ties to Russia. That’s the kind of information that American voters should know: that the attack lines on Biden were not entirely organic, but were an effort pushed covertly by Russia.

In any case, Wolf intervened again to prevent the dissemination of the report.

The Deputy Under Secretary for Intelligence Enterprise Operations told us that after receiving the advanced notification, the Acting Secretary reached out and spoke with her and the new Acting USIA to express concern because the Acting Secretary did not think the product changed and he did not understand the value it added.

I&A did another draft, which was approved on September 4.

I&A ultimately approved the product for dissemination on September 4.

Wolf got a heads up about that, too, and used it as an opportunity to spin his own involvement.

As I&A prepared the finalized product for dissemination on September 4, 2020, the new Acting USIA emailed the Acting Secretary to inform him about changes to the product’s content and dissemination process, and shared a draft of the product.20 The Acting Secretary did not respond to I&A, and we have no evidence that he made any further comments or requests to I&A relating to the product. However, in an email to his staff on the same day about the product, he focused on messaging the benefits of the involvement of the Office of the Secretary in the intelligence process, writing: “we need to turn this into a good news story. Key point is that I&A produced a better, clearer document because they were not left on their own.”

This document should have gone out that day, just barely making it under the wire of a newly adopted policy withhold certain kinds of reports within 60 days of an election.

In July 2020, I&A adopted a policy ceasing dissemination of unclassified products on foreign influence threats to elections 60 days prior to election day—in this case, September 4, 2020. Its reason for doing so was to safeguard “the Department’s role as a fair, neutral, and nonpartisan institution when it comes to US elections…. [Politics should not] play a role in the decisions of Intelligence Community leaders and officers regarding collection activities or analytic assessments.”

Had the report gone out, we would have had a US intelligence product demonstrating that Russia was pushing the same attack line as Fox News. Here’s part of the report as finalized on September 4:

But it didn’t happen. After Wolf succeeded in stalling the report twice, the report was disseminated via other channels, resulting in narrower circulation and still more delay.

DHS’ Cybersecurity and Infrastructure Security Agency disseminated the product to the National Association of Secretaries of State and the National Association of State Election Directors on September 8, 2020. I&A’s Field Operations Division dissemination occurred even later. As a result, I&A does not appear to have completed its dissemination until October 15, 2020.

DHS’ own review concluded that the report should have more clearly stated its conclusion: that Russia was targeting Democrats again.

[T]he piece seems to almost avoid the main message that is made explicit in the key judgment — that Russian influence actors are targeting the Democratic candidates in 2020[.]

The United States learned, at great cost, about how intently Russia was attempting to sow divisions in the United States by pushing certain campaign attacks. Even under Trump’s control, the government put in place efforts to prevent that from happening again.

And then Chad Wolf ensured those efforts would fail to identify Russia’s repeat performance of its 2016 attacks.

The Tactics of the Louis Enrique Colon Cooperation Agreement

As Capitol Police attempted to lower a barricade protecting the tunnels of the Capitol on January 6, Proud Boy Louis Enrique Colon reached out and prevented it from closing, then placed a chair to further obstruct the gate.

While inside the Capitol building, defendant observed co-defendants Chrestman, Felicia Konold, and Cory Konold at various points inside of the building, including in a downstairs area of the Capitol near where several retractable doors were being lowered by police officers in an attempt to stop rioters from proceeding further into a portion of the building. To prevent one of the doors from closing, defendant used his hands to stop the door and placed a chair in the door’s path, while co-defendant Kuehne and another individual placed a podium in the path of another door.

That’s the basis of the single charge to which Colon pled guilty as part of a cooperation agreement yesterday, 18 USC 231, Civil Disorder.

Defendant knowingly obstructed, impeded, and interfered with law enforcement officers while those officers were lawfully engaged in their official duties incident to a civil disorder that was occurring inside of the Capitol. Among other things, defendant prevented officers from closing a retractable door which was intended to prevent rioters from advancing further into a portion of the restricted Capitol building.

In my opinion, this is, by any measure, the most lenient overt plea deal a January 6 defendant has gotten (and a comment that one of the lawyers in the plea hearing yesterday made suggested that it had recently been sweetened). On top of this charge and trespassing, Colon was originally charged in a conspiracy with other members of the Kansas City Proud Boys, as well as individually with obstruction. With credit for cooperation, according to his plea deal, the former cop may avoid any prison time.

That’s all the more remarkable given that Colon’s statement of offense reveals that he went to the Capitol with a pocket knife and an axe handle.

Among other things, defendant purchased and modified an axe handle to be used as both a walking stick and an improvised weapon

[snip]

Defendant and the group ultimately made their way to the west side of the Capitol’s grounds, outside of the restricted, fenced-off perimeter which had barricades staffed by USCP officers. At the time, defendant was wearing a backpack, pocket knife, tactical vest, tactical gloves, boots, and a helmet adorned with orange tape.

While the knife may be too short to trigger enhancements, carrying an acknowledged weapon has been used to enhance the penalties of others, though it is also the kind of thing prosecutors have used to flip people.

In other words, either Colon’s cooperation is so valuable, or DOJ needed it so badly, that he got a really sweet plea deal even in spite of bringing an “improvised weapon.”

So I’d like to discuss what DOJ may be doing tactically.

First, some background. The Oath Keepers investigation has been marked by a relentless march of new cooperators, publicly unveiled: Jon Schaffer, Graydon Young, Mark Grods, Caleb Berry, Jason Dolan, Joshua James. Boom. Boom. Boom. Boom. By contrast, just two of the overt Proud Boy cooperators have the kind of plea deal that implicates the wider conspiracy, Matthew Greene and Charles Donohoe. For whatever reason — apparently thinner staffing, greater numbers of participants, difficulties created by Enrique Tarrio’s arrest and delayed phone exploitation, investigative equities, corrupt lenient treatment, or a more important role in the overall investigation — DOJ has been using different tactics to get cooperation from Proud Boys and other key far right personalities. As an example, Jeff Finley (like Brandon Straka and likely, soon, Baked Alaska) seems to have cooperated in advance to avoid a felony altogether. So did Jeremy Grace, though his statement of offense implicated his far more complicit father who, if he ever cooperated, might implicate far more important tactical players. Ricky Willden’s statement of offense barely hints at what he knew that day.

Particularly given a reference made to Colon “continu[ing]” his cooperation in the hearing yesterday, this feels more like the kind of deal Finley got, where someone works their way out of more serious charges (which in Colon’s case would be obstruction with a weapons enhancement) ahead of time. That kind of cooperation makes it less visible, but also may make testimony harder to impeach down the road.

With that in mind, I’d like to look at four aspects of his statement of offense.

First, as virtually all conspirators who flip do, Colon implicated his co-conspirators, describing how:

  • Ryan Ashlock, Christopher Kuehne, and another individual traveled with Colon from Kansas City
  • Kuehne brought two AR-15 or similar assault rifles on the trip
  • Kuehne, at defendant’s suggestion, purchased orange, fluorescent tape so the group would be able to identify each other in a crowd
  • William Chrestman, Kuehne, and Ashlock, and others met on January 5 to talk about safety
  • The Konold siblings joined their group on the way to the meet-up at the Washington Memorial
  • Colon saw Chrestman, Felicia Konold, and Cory Konold as police officers attempted to stop rioters from proceeding further into a portion of the building (though the statement of offense doesn’t describe their efforts to prevent it) [my emphasis]

That is, at one level Colon’s cooperation simply shores up the third major Proud Boy conspiracy, just like Donohoe, Greene, and Finley provided direct evidence against the Leader conspiracy.

But consider this big story from Alan Feuer from September. According to 302s that defendants have gotten, one of just two known actively-handled informants among the Proud Boys that day said he had no advance knowledge of plans to disrupt the vote certification.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

[snip]

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day. In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol. The informant’s identity was not disclosed in the records.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

As Feuer noted at the time, if you ignore that this Proud Boys showed up late, this informant’s testimony significantly undermines claims of prosecutors.

There are multiple clues in Feuer’s article and elsewhere — most notably the reference to a young woman (likely to be Felicia Konold) — that this informant was affiliated with the Kansas City cell.

He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

In other words, until such time as DOJ secures testimony to contradict that of their informant, these interviews remain a weak point in the case against the Proud Boys.

They may have gotten that testimony yesterday.

Now consider what this particular cell of the Proud Boys did — and why that may have led DOJ to be satisfied with just the less serious 231 charge against Colon.

DOJ has charged conspiracy tied to January 6 in a bunch of ways: most spectacularly with some Oath Keepers, seditious conspiracy, also with those Oath Keepers (and the alleged Brian Sicknick assailants), conspiracy to injure an officer, and for most people charged with a conspiracy, either the conspiracy charge tied to the obstruction statute (18 USC 1512k, which carries greater penalties), or conspiracy under 18 USC 371.

But for a few of the Proud Boy conspiracies, including this Kansas City cell, the 371 conspiracy had two objects: to obstruct the vote count, but also to obstruct the cops. That’s basically a conspiracy to commit 18 USC 231, the charge Colon pled guilty to.

And the particular act of obstruction that this cell engaged in — preventing the cops from closing the gates leading to tunnels via which rioters correctly believed members of Congress had fled — is one of the most important tactically. That is, this may show not just a desire to mess with the cops, but a plan to go after members of Congress.

This cell is important for the means by which the Proud Boys made things work on January 6. And Colon may be a key witness to the tactical implementation of plans that went into that day.

Finally, consider the description, from Colon’s statement of offense, of this meeting the night before.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

DOJ has been doing a lot of work unpacking the degree to which coordination happened at meetings on January 5 (I expect we’ll see it in more expected plea agreements going forward). These meetings were critically important for getting everyone on the same page, including a bunch of people who weren’t otherwise affiliated.

We have no idea what this meeting was — we’re still looking for details on a meeting that Joe Biggs and Ethan Nordean attended around 9PM the night before, though I doubt that’s what this is.

The description is important for several reasons. First, the focus on “group safety” seems to match the informant’s claim that, “On the eve of the attack … the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists.” Except if it’s that same meeting, then the informant would have also heard someone express a desire to take DC by force, in response to which Kuehne, who is a former Marine, said he was ready to go. At the very least, this description could correct the informant’s claims; it may prove them false.

But it also significantly advances the evidence that some of the Proud Boys, like some of the Oath Keepers, were thinking of using force against the government.

That’s the kind of evidence that has, with the Oath Keepers, helped persuade others to plead out and cooperate.

Update: Note that Robert Gieswein also wore orange tape to insurrection; he allegedly sprayed cops trying to close that barricade.

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