The Passport and the Antifa Hunt: The Militia Counter-Stories Emerge

In both the case against Proud Boy Leader Ethan Nordean and accused Oath Keeper Thomas Caldwell, the defendants are arguing that the government has made errors about their activities.

With regards to the former, Nordean’s wife submitted a sworn declaration stating, among other things, that the passport the government has pointed to as evidence that Nordean might flee was not — as the government claimed — on the dresser by the bed, but instead inside a jewelry box on the dresser. She also claimed that Nordean received a Baofeng radio on January 7, the day after the insurrection, and that to her knowledge, he “did not possess” one before that date.

The government responded with a picture showing that, at a time they claim precedes the search, a picture they took to show the weapons they had secured shows the passports were on the dresser.

Additionally, she claimed that Nordean’s cell phone “was without power” on the day of the insurrection, which is irrelevant to why he stashed it in the drawer or whether it would have useful evidence.

Ms. Nordean responded with her own picture showing that, in a picture taken on December 8, 2020, the jewelry box was closed.

This would be a matter of he-said she-said, FBI agents against the wife of a suspect, except for one thing. In her original affidavit, Ms. Nordean tries to rebut the government’s focus on the Baofeng (the government claims the Baofeng he got on January 7 is a different one than the one he used the day of the riot, but in any case the one they seized was set to the channel used by the Proud Boys during the riot), she noted that “it is [her] understanding that his mobile phone was without power throughout January 6, 2021,” a detail the defense relied on to suggest, first of all, that the government was purposefully withholding that detail, and that that — and not the evidence of the Proud Boys discussing obtaining the radios and using a specific channel — is why the government had focused on the Baofeng.

But it does the opposite. A bunch of the Proud Boys brought live cell phones to their insurrection on January 6. William Chrestman appears to have tried avoiding using cell coverage, but got geolocated using his Google account. For Nordean to spend an entire day his phone powered off suggests an operational security that many of his buddies didn’t have. It certainly suggests he might have the wherewithal to search for a passport he might make use of, suggesting it’s possible that he, not the FBI, took the passports out of the jewelry box (though they would have been out there for a day because, per Ms. Nordean, Ethan wasn’t home the night before the raid.

Meanwhile, Thomas Caldwell says the government has similarly misunderstood everything about his involvement in an insurrection. There’s a claim he makes that I find quite compelling: that Jessica Watkins and Donovan Crowl hid out at his home — and tried to lose a tail on the way there — to hide from the press, not the FBI.

Contrary to the Court’s understanding, Caldwell informed FBI agents that Watkins and Crowl contacted him—not vice-versa–and requested to come to his farm to get away from the media, not law enforcement.22 That is, subsequent to a New Yorker article that identified Watkins and Crowl as being involved in entering the Capitol, their small town Ohio residences were surrounded by scores of media. 23

22 Undersigned counsel reviewed over a thousand social media messages in discovery. Multiple messages from Watkins and Crowl express a desire to run away from the media throng that descended on their small Ohio hometown. Not one message evinces an intent to avoid authorities, who had not yet charged the two with a crime. In fact, Watkins’ mother, who is not a suspect in this case, fled Ohio and hid from the media in Florida. Also, discovery confirms that Watkins and Crowl reached out to Caldwell, not vice-versa.

23 Similarly, the Government’s claim that Caldwell advised Watkins and Crowl to “avoid law enforcement” by making sure that they were not followed to his farm is misplaced. Caldwell’s concern was that the pair weren’t followed by the media to his farm. Caldwell did not want a hundred reporters camped outside his farm.

But in the rest of the filing, Caldwell spins a fairy tale while at the same time he admitted he spends a lot of time spinning fairy tales.

To put his personality in more context, Caldwell is an amateur screen writer. Specifically, Caldwell has written screenplays with military style plots.17 Undersigned counsel has read a couple of these screenplays, which are heavy on hyperbolic military language. To give the Court a sample of his writings, in one screenplay Caldwell depicts a “dog fight” between rival aircraft, with one pilot radioing out “Buzzard One, this is Slingshot, I got two bogies on my six; say again, two bogies on my six; May-day, May-day.” What the Government misunderstands is that Caldwell’s language and personality center around his military career and his addiction to Hollywood.18

Ultimately, the fairy tale Caldwell spins in this filing is that he didn’t conspire to interfere with the vote count, but instead was just aiming to hunt Antifa.

He explained his contacts with the Oath Keepers, who he viewed as a self-styled group of patriots who sought to protect Trump supporters from Antifa and who provided security at Trump events. The concerning social media posts Caldwell made, he explained, all referred to fear that Antifa would attack Trump supporters on January 6th . 21

21 This fear was well-founded. In fact, contrary to the Government’s suggestion that Antifa is a virtuous group with a few bad apples, this organization is a domestic terrorist organization that has taken over cities like Portland and Seattle, burned buildings and churches, killed and injured police officers, defaced and destroyed public monuments, and violently injured hundreds of Trump supporters across the country. In fact, just a month before the Capitol was breached, Antifa attacked elderly Trump supporters at a December rally in Washington.

As part of this fairy tale Caldwell argues that the government has the timeline of the Zello chats included in the evidence against him, and therefore mistook a plan to guard people like Roger Stone for a plan involving the Capitol.

The Court placed great weight on this evidence, as it purported to show a specific, contemporaneous plan to breach the Capitol. In court papers, the Government described the Zello communications as follows:

“At the approximate 5 minute mark, the voice believed to be [codefendant] Watkins reports, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.”

“At the approximate 7 minute 44 mark, an unknown male states, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.”

The voice believed to be WATKINS responds, “We are in the mezzanine. We are in the main dome right now. We are rocking it . . .[.]” ECF 1-1, ¶27 (ZMF-21-119) (second criminal complaint) (emphasis added).9

The latest indictment includes the same chronological representation, only without time-stamps. The Government’s inference is clear: The Oath Keepers had a plan to invade the Captiol and arrest elected officials, discussed this “invasion plan” at the “5 minute mark,” and were inside the Capitol a few minutes later executing the plan (at the 7:44 mark). Unfortunately, the Court has been misinformed by the Government. Upon receipt of discovery, undersigned counsel discovered that the Government’s Zello evidence actually consists of a National Public Radio (NPR) report, which aired random snippets of Zello communications. The above timestamps the Government referenced are time-stamps in the NPR report, not from Zello. In other words, the referenced Zello communications did not take place 2 minutes and 44 seconds apart in real time.

Ironically, after listening to these Zello communications, the Government’s smoking-gun proof of premeditation fizzles. Specifically, it is clear that the communication regarding “sticking to the plan” happened several hours before the Capitol breach, and probably in the very early morning, as there is no crowd noise in the background. 10 By contrast, the second Zello communication (from inside the Capitol) had substantial background noise.

10 Published reports suggest that as many as 500,000 demonstrators showed up to the rally. The fact that the audio reveals no crowd noise suggests that this particular Zello communication happened before hundreds of thousands of rally-goers entered the streets of Washington.

I’ll return to the temporal claim later. But there are several things that mark this story as a fairy tale. First, he’s complaining that the male voice has no background noise whereas Watkins’ does have background noise. Caldwell is comparing messages from different people in different places.

Moreover, while he nods to the NPR original of this (which he doesn’t cite, but I assume is this WNYC interview), he doesn’t acknowledge two sets of texts that the government has yet to rely on (but surely will), which make it clear the plan was prospective and tied to the Capitol. First, from two blocks away, Watkins reports that everyone is marching on the Capitol.

MILITIA What kind of numbers do we have going into the capital? Any estimates? What percentage of the crowd is going to the capital?

WATKINS One hundred percent. Everybody’s marching on the capital. All million of us. It’s insane. We’re about two blocks away from it now and police are doing nothing. They’re not even trying to stop us at this point. [END CLIP]

And then, a block away, Watkins informs her interlocutor that she’s going to go silent because “Imma be a little busy.”

WATKINS Yeah, we’re one block away from the Capitol now. I’m probably going to go silent when I get there because Imma be a little busy.

INFORMANT Hey, my girlfriend is at the Capitol right now and she said that cops are coming in from the right of the building. [END CLIP]

Even assuming the rest of the excerpts are a jumble (and I expect we’ll get clarity on this point shortly), it’s clear that Watkins’ objective is the Capitol, not guarding Roger Stone.

But there’s one more part of the texts that make that clear: the channel name. “Stop the Steal J6” The Oath Keepers didn’t arrange radio communications to keep Roger Stone safe. They arranged radio communications to stay in touch as they jointly assaulted the Capitol.

But there’s a bigger tell in this filing of fairy tales, the filing that argues Caldwell’s communications can’t be taken literally because he lives in a fantasy world, presents a claim that he believed Antifa presented a serious threat, and then claims that Caldwell’s denials must be believed because, “The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.” Caldwell tells a fairy tale about the crimes of which he is accused.

Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3

The issue as to whether Caldwell violated 18 U.S.C. § 1752(a)(1) (Entering and Remaining in a Restricted Building or Grounds) is still being researched by undersigned counsel. Obviously, however, this charge is the least of the Court’s concerns in weighing the factors under the Bail Reform Act.

Caldwell is personally accused of two counts of obstruction. The first, 18 U.S.C. § 1512(c)(1), accuses him (like Graydon Young) of attempting to delete damning Facebook content, an accusation this filing rebuts.  But he is singularly and as part of the conspiracy also accused of violating 18 U.S.C. §§ 1512(c)(2), 2. The object of the conspiracy is not, as Caldwell would suggest, to storm the Capitol. It was, instead, to stop the electoral vote count.

The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is an accusation his entire fairy tale story doesn’t deny, nor does his narrative about his own actions that day (or the planning leading up to it) rebut the claim.

As I’ve said, at least one part of Caldwell’s story may well be true: that Watkins and Crowl were hiding out from the press, not (yet) the FBI. But none of Caldwell’s re-imagining of the record even attempts to rebut that he and his terrorist buddies were attempting to interfere with the counting of the vote as laid out in the Constitution.

Then again, Judge Mehta may not be his desired audience. Instead, his claim this was all about Antifa may be an attempt to feed GOP efforts to deny they encouraged a terrorist attack on the Capitol.

Update: Took out a reference to Nordean’s phone in his daughter’s drawer. That was William Chrestman, not Nordean. I thought I had removed it.

Update: Beryl Howell granted Nordean home detention yesterday, judging that the government (which backed off some of its earlier claims about Nordean’s role) had not proven that Nordean had directed the breach of the Capitol.

Josh Hawley Shocked and Alarmed to Discover the FBI Would Follow the Money behind Right Wing Terrorists

There wasn’t much useful oversight in the Senate Judiciary Committee hearing with FBI Director Christopher Wray today. Democrats got him to repeat, over and over, that there is no evidence that Antifa or people only pretending to be pro-Trump were behind the January 6 insurrection. But there was almost no mention of Trump as the unifying force behind the disparate groups there. Instead of talking about how the Former President’s lies riled up the insurrection, Ben Sasse focused on people in their mother’s basement and grandmother’s attic.

There was a lot of focus on how a January 5 FBI report predicting that Congress might be targeted got disseminated, but none on why the FBI didn’t know what the rest of us did much earlier than that: that these unhinged terrorists were coming to DC in large numbers. No one raised QAnon until Wray dodged Richard Blumenthal’s questions about whether members of Congress pushing QAnon conspiracies exacerbate the problem.

Lindsey Graham and John Kennedy tried to score points because someone didn’t activate the National Guard in time, all the while pretending not to understand that the single person in DC who had unquestioned authority to order the Guard to the Capitol, but did not, was the Commander in Chief at the time.

Things got really weird when Republicans expressed concern about surveillance.

Mike Lee — who actually is a champion of civil liberties — suggested the only reason why right wingers might have been interviewed by the FBI would be by geolocating those who attended the rallies, even if they didn’t enter the Capitol. Then he bizarrely asked if the legal process behind such surveillance was FISA, which targets foreign threats, or National Security Letters.

Crazier still was Josh Hawley’s follow-up to Mike Lee’s questions.

Hawley, who’s not a champion of civil liberties and normally likes to beat up social media companies, asked a series of questions that seemed utterly ignorant — shocked really — how over the course of arresting almost 300 people, the FBI would show probable cause to obtain geolocation data, metadata, financial data, and social media data.

Hawley: Can I just go back to a series of questions that Senator Lee asked you? He asked you about the geolocation and metadata aspect gathering related to, gathering of metadata, that is, related to your investigation of the January 6 riot. You said you weren’t familiar with the specifics. Can I just clarify your responses to him. So when you say you’re not familiar, are you saying you don’t know whether the Bureau has scooped up geolocation data, metadata, records from cell phone towers. Do you not know. Or are you saying that the Bureau maybe has or hasn’t done it. Just tell me what you know about this?

Wray: So when it comes to geolocation data specifically — again, not in a specific instance, but even the use of geolocation data — I would not be surprised to learn but I do not know for a fact that we were using geolocation data under any situation in connection with the investigation of January 6. But again, we do use geolocation data under specific authorities in specific instances. Because this is such a sprawling, that would not surprise me. When it comes to metadata, which is a little bit different, obviously than geolocation data, I feel confident that we are using various legal authorities to look at metadata under a variety of situations. But, again, the specifics of when, under what circumstances, with whom, that kind of thing, I’m not in a position to testify about with the sprawl and size of the investigation. And certainly not uh in a, you know, Congressional hearing.

Hawley: What authorities do you have in mind? You say that you’re using the relevant authorities, what authorities are they?

Wray: Well, we have various forms of legal process we can serve on companies that will allow us to get acc–

Hawley: And that’s been done?

Wray: We’re using a lot of legal process in connection with the investigation, so, yes.

Hawley: But, specifically, serving, serving process on companies, using, invoking your various legal powers to get that data from companies, that’s been, that’s been done, of gathering this data?

Wray: In gathering metadata? I, I,

Hawley: Yeah.

Wray: Again, I don’t know the specifics, but I feel confident that that has happened because metadata is often something that we look at. And we have a variety of legal tools that allow us to do that under certain circumstances.

Hawley: What about the cell tower data that, uh, was reportedly scooped up by the Bureau on the day, during, in fact, while the riot was underway. What’s happened to, what’s happened to that data? Do you still have it. Has it been retained? Uh, do you have plans to retain it?

Wray: Again: whatever we’re doing with cell phone data, I’m confident we’re doing it in conjunction with our appropriate legal tools–

Hawley: Well, how — here’s what I’m trying to get at, I think it’s what Senator Lee was trying to get at. How are we going to know what you are doing with it, and how are we going to evaluate the Bureau’s conduct if we don’t know what authorities you’re invoking, what precisely you’re doing, what you’re retaining. I mean, this is, you said to him repeatedly you weren’t familiar with the specifics, you’ve now said it to me. I don’t know, I’m not sure how this committee is supposed to evaluate anything that the Bureau is doing — you’re basically saying just “trust us.” I mean, how are we gonna know? Do we have to wait until the end of your investigation to find out what you’ve done?

Wray: Well, certainly I have to be careful about discussing an ongoing investigation, which I’m sure you can appreciate. Uh, but, uh, all the tools that we have done in conjunction with prosecutors and lawyers from the Justice Department. Now, if there’s information we can provide you, before an investigation’s completed that goes through what some of the authorities we have, the tools we have, etcetera we could probably provide some information like that that might be useful to you to help answer the question.

Hawley: That would be helpful. Thank you. I’ll hold you to that. Let me ask you about some other things that have been reported, um in the press, particularly there have been a series of reports that the Bureau has worked with banks in the course of the investigation into the January 6 riot, both before and after, and that some banks, particularly Bank of America, may have handed over data for 200 plus clients who may have used their credit or debit cards to make purchases in the DC area. What do you know about this? Has Bank of America voluntarily turned over information to the Bureau about its customers?

Wray: I don’t know of any of the specifics so I’d have to look into that.

Hawley: And so has the FBI requested similar information from any other companies to your knowledge?

Wray: Again, sitting here right now, I do not know the answer to that question. I do know that we work with private sector partners, including financial institutions in a variety of ways, all the time, in a variety of investigations. But exactly the specifics of what may or may not have happened here? That I don’t know sitting here as we’re talking today.

Hawley: As I’m sure you can appreciate, my concern here is that 12 USC 3403 prohibits financial institutions from turning over confidential client records, unless of course they’ve got reasonable suspicion that there’s a crime being committed. Now the news reports on this have reported that financial institutions were doing this in cooperation with the Bureau without any such indication of a crime, they’re just turning over reams of consumer data. That obviously would be a major legal problem. A major legal concern. Can you try and get me some answers to these questions? I appreciate you say you don’t know today, you’re not aware of what’s going on, but can you look into this and follow-up with me on this?

[Wray acknowledges that the FBI has many authorities]

Hawley: What about the, some of the technology companies, Facebook, Google, Twitter, Apple, Amazon. Has the the FBI had contact with those tech platforms following the events of the Sixth?

Wray: We’ve certainly had contact with a number of the social media companies in connection with the Sixth. So that much I know.

Hawley: Has the Bureau sought to compel any of those companies to turn over user data related to the Sixth?

Wray: Well, again, I can’t tell you the specifics here, but what I will tell you is that we, I feel certain that we have served legal process on those companies which we do with some frequency and we have received information from some of those companies. And whether that’s true from every single one of the companies you listed I can’t say for sure but I suspect it is, because we work with the Social Media companies quite a lot.

Hawley: Are you aware of any of the companies voluntarily turning over data to the Bureau in relationship to the events of the Sixth?

Wray: Sitting here right now, I can’t say for sure.

I knew when I read The Intercept piece making thinly sourced allegations that this would happen, that right wingers trying to protect right wing terrorists and possibly even themselves would profess shock that the FBI used very basic investigative techniques to investigate an attack on the Capitol (Hawley seems to be relying, as well, on Fox News reports, including Tucker Carlson).

But I find it shocking that the former Attorney General of Missouri, with an office full of staffers, can’t review the arrest documents for the 270 people publicly arrested so far to answer these questions. Had he done so, he would have seen that affidavit after affidavit talks about obtaining warrants, including (for non-public data) from Facebook. And the single reference to Bank of America I can think of — describing Kelly Meggs paying for rooms in VA and DC in conjunction with the attack — makes it clear that the FBI used some kind of legal process.

Records obtained from the Comfort Inn in Arlington, Virginia, show that a credit card belonging to Kelly Meggs was used to pay for a room at the hotel on the nights of January 5 and 6, 2021.21 The room, with two queen beds, was booked in the name of a different person suspected of being affiliated with the Oath Keepers.

21 Pursuant to legal process, the government obtained records from Bank of America, which show two charges to the Comfort Inn on January 5, 2021, each for $224. The records also show that on January 7, 2021, Kelly Meggs paid a charge of $302 to the Hilton Garden Inn, located at 1225 First Street NE, Washington, D.C.

A grand jury has already found that these credit card charges — the coordinated spending of people who forced their way into the Capitol wearing tactical gear after providing “security” for right wing figureheads — was evidence of a conspiracy, “to stop, delay, and hinder Congress’s certification of the Electoral College vote.”

And the Senator from Missouri who shared that goal seems awfully concerned that the FBI is using very routine legal process to investigate the larger conspiracy.

Journalists May Be Most at Risk (as Described) from a Presumed January 6 GeoFence Warrant

On February 22, the Intercept had a thinly sourced story reporting (heavily relying on one “recently retired senior FBI official” whose motive and access weren’t explained and one other even less-defined source) on methods used in the January 6 investigation. It started by describing something unsurprising (some of which had been previously reported): that the FBI was using emergency legal authorities to conduct an investigation in the wake of an insurrection.

Using special emergency powers and other measures, the FBI has collected reams of private cellphone data and communications that go beyond the videos that rioters shared widely on social media, according to two sources with knowledge of the collection effort.

In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene. Investigators have also relied on data “dumps” from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.

From there, the story made conclusions that were not borne out by the evidence presented (which is not to say that such conclusions won’t one day be supported).

In particular, the story suggested that these investigative methods were used to investigate Congress, and likewise suggested that the involvement of Public Integrity prosecutors must mean members of Congress are already the focus of the investigation and further suggesting that the location data collection tied to the investigation of members of Congress.

The cellphone data includes many records from the members of Congress and staff members who were at the Capitol that day to certify President Joe Biden’s election victory.

[snip]

The Justice Department has publicly said that its task force includes senior public corruption officials. That involvement “indicates a focus on public officials, i.e. Capitol Police and members of Congress,” the retired FBI official said.

To make the insinuation, the story misstates the intent of a Sheldon Whitehouse statement aiming to use Congressional authorities to remove coup sympathizers from committees of jurisdiction (and ignores Whitehouse’s earlier statement that calls for the kind of data collection described in the story).

On January 11, Sen. Sheldon Whitehouse, D-R.I., released a statement warning against the Justice Department getting involved in the investigation of the attack, at least regarding members of Congress, asserting that the Senate should oversee the matter.

Thus far, the story seems tailor-made to get Congress — the Republican members of which are already trying to sabotage the investigation — to start tampering with it.

Far down in the story, it also describes the orders used with more specificity — but not yet enough specificity to substantiate the claims made earlier in it.

Federal authorities have used the emergency orders in combination with signed court orders under the so-called pen/trap exception to the Stored Communications Act to try to determine who was present at the time that the Capitol was breached, the source said. In some cases, the Justice Department has used these and other “hybrid” court orders to collect actual content from cellphones, like text messages and other communications, in building cases against the rioters.

At the time I suggested the story’s conclusions went well beyond the evidence included in it. I had several concerns about the story.

First, it didn’t address the granularity of location data collected, explaining whether the data collection focused just on the Capitol building or (as the story claimed) “in the area” generally. The Capitol is, according to multiple experts, incredibly wired up, meaning that one can obtain a great deal of data specific to the Capitol building itself. That matters here, because as soon as Trump insurrectionists entered the Capitol building, they committed the trespass crimes charged against virtually all the defendants. And the people legally in the Capitol that day were largely victims and/or law enforcement. It’s not an exaggeration to say that anyone collected off location collection narrowly targeted to the Capitol building itself is either a criminal, a witness, or a victim (and often some mix of the three).

If location collection was focused on the Capitol building itself (we don’t know whether it was or not, and the reports of collection aiming to the find the person who left pipe-bombs in the neighborhood on January 5 do pose real cause for concern), it mitigates some of the concerns normally raised by the use of IMSI-catchers at public events and protests, which is that such location collection would include a large number of people who were just engaging in protected speech, as many of the people outside the Capitol were. Similarly, unlike with most geofence warrants or tower dumps, which are used to find possible leads for a crime, here, FBI had an overwhelming list of suspects from its mass of tips and video evidence already: it wasn’t relying on location data to find suspects. Plus, with normal geofence warrants and tower dumps, the vast majority of the data obtained comes from uninvolved people, posing a risk that those unrelated people could become false positives who, as a result, would get investigated closely. Here, again, anyone collected from location data inside the Capitol was by definition associated with the crime, either as witness, victim, or perpetrator.

Finally, the story not only didn’t rely on, but showed little familiarity with the hundreds of arrest affidavits released so far, which provide some explanation (albeit undoubtedly parallel constructed) for how the FBI built cases against those hundreds of people.

Well before The Intercept article was written, there were a few interesting techniques revealed in the affidavits. Perhaps the most interesting (and not specifically covered in The Intercept article, unless as a hybrid order) described identifying Christopher Spencer from the livestreams on Facebook he posted from inside the Capitol.

The government received information as part of a search warrant return that Facebook UID 100047172724820 was livestreaming video in the Capitol during these events. The government also received subscriber information for Facebook UID 100047172724820 in response to legal process served on Facebook. Facebook UID 100047172724820 is registered to Chris Spencer (“SPENCER”). SPENCER provided subscriber information, including a date of birth; current city/state, and a phone number to Facebook to create the account.

[snip]

The government received three livestream videos from SPENCER’s Facebook UID 100047172724820 as part of a search warrant return. At different times during the videos, Spencer either used the rear facing camera to show himself talking, or turned the phone toward his face. Your affiant would note that the camera is capturing a reversed image of SPENCER in two of these sections of video as evidenced by the text on SPENCER’s hat. As such, reversed images are also provided below the original screenshot [my emphasis]

The first mention of the Facebook return appears before a paragraph describing an associate of Spencer’s who had seen the videos and recognized his wife, and the later paragraph describes the associate sharing a phone number for Spencer that the FBI seemed to have already received from Facebook. As written (and this structure is matched in the affidavit for Spencer’s wife, Jenny) the narrative may indicate that the FBI obtained the Facebook return before the tip and identified Spencer from the Facebook return even before receiving the tip. This is one of the strongest pieces of evidence that the FBI used data obtained from location-based collection in the Capitol from any social media source to identify an unknown subject. But, as described, it also has some protections built in. The data was obtained with a warrant, not PRTT or d-order. That means the FBI would have had to show probable cause to obtain the content (but, for the reasons I explained above, most people in the Capitol live-streaming were committing a crime). There’s also no indication here that this video was privately posted (though with a warrant the FBI would be able to obtain such videos).

All this is a read of what this paragraph might suggest about data collection. It doesn’t describe whether the data was obtained via a particularized warrant (targeting just Spencer), or whether the FBI asked Facebook to provide all live-streaming posted from within the Capitol during the insurrection (there are other early affidavits that targeted the content of Facebook via individualized warrants). In Spencer’s case, I suspect it’s the latter (there’s nothing that remarkable about Spencer’s video, except he was outside Speaker Pelosi’s office). Even so, for most people, posting from inside the Capitol during the insurrection would amount to probable cause the person was trespassing.

Even before The Intercept piece was posted I had also pointed to the affidavit for the Kansas cell of the Proud Boys. It uses location data to place one after another of the suspects “in or around” the Capitol during the insurrection: cell site data showed that the phones of Christopher Kuehne, Louis Colon, Felicia Konold were “in or around” the Capitol during the insurrection. That of Cory Konold, Felicia’s brother, was not shown to be, but,

Lawfully-obtained cell site records indicated that the FELICIA KONOLD cell called a number associated with CORY KONOLD while in or around the Capitol on January 6, 2021.

The most interesting detail in that affidavit pertained to William Chrestman. His phone wasn’t IDed off a cell site. Rather, it was IDed by connecting to Google services “in or around” the Capitol.

According to records produced by CHRESTMAN’s wireless cell phone provider in response to legal process, CHRESTMAN is listed as the owner of a cell phone number (“CHRESTMAN cell”). Lawfully-obtained Google records show that a Google account associated with the CHRESTMAN cell number was connected to Google services and was present in or around the U.S. Capitol on January 6, 2021.

A more recent document — the complaint against the southern Oath Keepers obtained on February 11 but unsealed long after that — describes the phones of those suspects in an area “includ[ing]” (but not necessarily limited to) the interior of the Capitol.

having utilized a cell site consistent with providing service to the geographic area that includes the interior of the United States Capitol building.

Unlike Spencer, the use of location data in the Proud Boys and Oath Keeper complaints seems to be used to establish probable cause. In both the militia group cases, the individuals appear to have been identified via different means (unsurprisingly, given their flamboyantly coordinated actions), with the location data being used in the affidavit to flesh out probable cause. (Undoubtedly, the FBI exploited this information far more thoroughly in an effort to map out other co-conspirators, but it is equally without doubt that the FBI had adequate probable cause to do so.)

The other day, DOJ unsealed an affidavit — that of Jeremy Groseclose — that provides more detail about the location collection at the Capitol. The FBI describes identifying Groseclose off of two tips, both on January 7, from people who had seen him post about being in the Capitol on Facebook (and in one case, remove his Facebook posts after he posted them).

Groseclose wore a gas mask for much of the time he was inside the Capitol (though wore the same clothes as he had outside), which undoubtedly made it more difficult to prove he was the person illegally inside the Capitol preventing cops from ousting the rioters.

The FBI affidavit describes times when Groseclose appears on security footage from inside the Capitol without the gas mask, but doesn’t include it. To substantiate his presence in the Capitol, the FBI included three paragraphs describing what must be a Google geofence warrant showing the device identifiers for everyone within a certain geographic area.

According to records obtained through a search warrant served on Google, a mobile device associated with [my redaction]@gmail.com was present at the U.S. Capitol on January 6, 2021. Google estimates device location using sources including GPS data and information about nearby Wi-Fi access points and Bluetooth beacons. This location data varies in its accuracy, depending on the source(s) of the data. As a result, Google assigns a “maps display radius” for each location data point. Thus, where Google estimates that its location data is accurate to within 10 meters, Google assigns a “maps display radius” of 10 meters to the location data point. Finally, Google reports that its “maps display radius” reflects the actual location of the covered device approximately 68% of the time. In this case, Google location data shows that a device associated with [my redaction]@gmail.com was within the U.S. Capitol at coordinates associated with the center of the Capitol Building, which I know includes the Rotunda, at 2:56 p.m. Google records show that the “maps display radius” for this location data was 34 meters.

Law enforcement officers, to the best of their ability, have compiled a list (the “Exclusion List”) of any Identification Numbers, related devices, and information related to individuals who were authorized to be inside the U.S. Capitol during the events of January 6, 2021, described above. Such authorized individuals include: Congressional Members and Staffers, responding law enforcement agents and officers, Secret Service Protectees, otherwise authorized governmental employees, and responding medical staff. The mobile device associated with [my redaction]@gmail.com is not on the Exclusion List. Accordingly, I believe that the individual possessing this device was not authorized to be within the U.S. Capitol Building on January 6, 2021. Furthermore, surveillance footage from the Rotunda, time-stamped within a minute of 2:56 p.m., shows GROSECLOSE, in his distinctive clothing, using his cell phone in an apparent attempt to take a picture.

Records provided by Google revealed that the mobile device associated with [my redaction]@gmail.com belonged to a Google account registered in the name of “Jeremy Groseclose.” The Google account also lists a recovery SMS phone number that matches [my redaction]. The recovery email address for this account appears to be in the name of GROSECLOSE’s significant other, with whom he has two children in common. Additionally, I have reviewed subscriber records from U.S. Cellular, related to the phone number [my redaction]. This number, along with another, are connected to an account in the name of GROSECLOSE’s significant other. The billing address for this account is [my redaction]. One of GROSECLOSE’s neighbors identified [my redaction] as GROSECLOSE’s address.

This seems to confirm that FBI obtained a geofence warrant from Google, but — at least as described — it was focused on those at the Capitol, perhaps focused on the Rotunda and anything 100 feet from it. This is the kind of granularity that will exclude most uninvolved people. They may have used it (or included it in the affidavit) because by wearing a gas mask, Groseclose made it difficult to show his face in the existing film of the attack.

The affidavit suggests that the Google geofence relied not just on GPS data of users’ phones, but also Wi-Fi access points (there’s another affidavit where the suspect’s phone triggered the Capitol Wi-Fi) and Bluetooth beacons. Again, given how wired the Capitol is, this would offer a granularity to the data that wouldn’t exist in most geofence warrants.

Finally, and most interestingly, this affidavit (obtained on the same day as the The Intercept story and so presumably after the Intercept called for comment) describes that the FBI has an “Exclusion List” of everyone who had a known legal right to be in the Capitol that day. That suggests that, after such time as the FBI completed this list, they could identify which of those present in the Capitol were probably there illegally.

There are concerns about FBI putting together a list like this. After all, Members of Congress might have good Separation of Power reasons to want to keep their personal phone numbers private. That said, there’s reason to believe that the FBI has used this method of separating out congressional identifiers and creating a white list in the past (including with the Section 215 phone dragnet), with congressional approval.

The concern arises in FBI’s definition of how it describes those legally present:

  • Members of Congress
  • Congressional staffers
  • Law enforcement responding to the insurrection (as distinct from law enforcement joining in it)
  • Secret Service Protectees (AKA, Mike Pence and his family)
  • Other government employees (like custodial staff)
  • Medical staff

Not on this list? Journalists, not even those journalists holding valid congressional credentials covering the vote certification.

Already, there have been several cases where suspects have claimed to be present as media, only to be charged both because of their comments while present and the fact that they don’t have congressional credentials. Three are:

  • Provocateur John Sullivan, who filmed the riot and sold the footage to multiple media outlets and “claimed to be an activist and journalist that filmed protests and riots, but admitted that he did not have any press credentials.”
  • Nick DeCarlo, who told the LA Times he and Nicholas Ochs were there as journalists but who FBI noted, “is not listed as a credentialed reporter with the House Periodical Press Gallery or the U.S. Senate Press Gallery, the organizations that credential Congressional correspondents.”
  • Brian McCreary, who on his own sent the video he took on his phone while inside the Capitol, but who later admitted to the FBI that entering the Capitol “might not have been legal” and also described admitting to cops present that he was not a member of the media.

If the FBI is going to use official credentials to distinguish journalists from trespassers, then it could also use those credentialing lists to white list journalists present at the Capitol. But to do that, the journalists in question would have to be willing to share identifying information for all the devices that were turned on at the Capitol, something they might have good reasons not to want to do.

Plus, I suspect there are a number of journalists without Congressional credentials who were covering the events outside the Capitol and, as the rally turned into a riot, entered the Capitol to cover it. Those journalists risked their lives and provided some of the most important early information about the riot and did so in ways that in no way glorified it. But in doing so, their devices may be in an FBI database relating to the attack.

There is clear evidence that the FBI obtained location data from the Capitol as part of its investigation, including Google and almost certainly Facebook. Thus far, the available evidence suggests that the ability to target that collection narrowly limits the typical concerns about tower dumps and geofence warrants (again, any similar data collection outside the Capitol in an effort to find the person who left the pipe bombs is another issue). Moreover, almost all those legal present in the Capitol appear to be whitelisted.

But not all. And the exception, journalists, include those who have the most at stake not having their devices identified and investigated by the FBI.

All that said, perhaps a similarly controversial question pertains to preservation orders. The Intercept describes a letter from Mark Warner calling on carriers to preserve data (and rightly questioning his legal authority to make such a request), then suggests the carriers have done so on their own.

Some of the telecommunications providers questioned whether Warner has the authority to make such a request, but a number of them appear to have been preserving data from the event anyway because of the large scale of violence, the source said.

The story doesn’t consider the — by far — most likely explanation, which is that FBI served very broad preservation orders on social media companies (though some key ones, such as Facebook, would keep data for a period even after insurrectionists attempted to delete it in the days after the attack as normal practice). In any case, broad preservation orders on social media companies would be solidly within existing precedent. But I suspect it may be one of the more interesting legal questions that will come out of this investigation.

Update March 7: Added McCreary.

Oath Keepers Learn the Hard Way: Don’t Plan an Insurrection on Facebook

“For every Oath Keeper you see, there are at least two you don’t see.” – email from Oath Keeper head Stewart Rhodes forwarded from Oath Keeper Graydon Young to his sister, Laura Steele, on January 4, 2021

I want to look at filings from the Oath Keepers investigation to show how FBI is juggling to move quickly enough to prevent obvious subjects from obstructing the investigation without tipping off others to the substance of the investigation. The filings confirm that the FBI will get sealed arrest warrants against subjects who are obviously obstructing the investigation, but may not use them right away, so as to obtain more evidence against them and their immediate co-conspirators. The filings also show how hard it is to delete evidence in an age of social media while conspiring with dozens of other co-conspirators.

The investigation from Watkins to Caldwell to the Parkers, Youngs, and Biggs

There’s a story about the Oath Keepers investigation that arises from the nature of the first publicly charged defendants. According to that story, the founder of an Ohio militia affiliated with the Oath Keepers, Jessica Watkins, boasted on Parler about “forcing entry into the Capitol” on the day of the attack. Videos of the Oath Keeper Stack showed up in videos posted within a day of the attack. Then, on January 13, the Ohio Capital Journal posted an interview with Watkins where she described it “the most beautiful thing” until she started hearing glass smashing — which she blamed on an Antifa false flag attack (a subsequent filing suggests Watkins wanted the Oath Keepers to get good press from the attack, threatening to sue some male journalist if he portrayed the Oath Keepers negatively).

That’s the evidence the FBI showed to obtain an arrest warrant on Watkins on January 16.

Meanwhile, as the investigation was closing in on Watkins, her recruit Donovan Crowl did an interview with the New Yorker for a story loaded with more images of coordinated movement from the Oath Keepers. Crowl offered similarly contradictory excuses for his action as Watkins.

On January 17, the FBI tried to conduct an interview with Watkins, only to be told by her partner, Montana Siniff, that she left Ohio on January 14 to stay with her friend and fellow Oath Keeper, “Commander Tom.”

At some point, the FBI obtained information from Facebook — they don’t explain when or on whom it was served, which I’ll return to. The return showed that Caldwell coordinated hotel reservations at the Comfort Inn/Ballston, not just with Watkins, but also others from North Carolina, as well as speaking with Crowl. This content may not have been obtained via Caldwell yet, because Caldwell’s private messages don’t show up in filings until January 19 (alternately they may have delayed that reveal until Caldwell was arrested).

But the FBI used that public Facebook information to obtain a warrant for Crowl on January 17. Watkins and Crowl turned themselves into Urbana, OH police that day, where the FBI took them into custody.

On January 13, the Guardian did a story on Watkins’ use of Zello.

“We are in the main dome right now,” said a female militia member, speaking on Zello, her voice competing with the cacophony of a clash with Capitol police. “We are rocking it. They’re throwing grenades, they’re frickin’ shooting people with paintballs, but we’re in here.”

“God bless and godspeed. Keep going,” said a male voice from a quiet environment.

“Jess, do your shit,” said another. “This is what we fucking lived up for. Everything we fucking trained for.”

The frenzied exchange took place at 2.44pm in a public Zello channel called “STOP THE STEAL J6”, where Trump supporters at home and in Washington DC discussed the riot as it unfolded. Dynamic group conversations like this exemplify why Zello, a smartphone and PC app, has become popular among militias, which have long fetishized military-like communication on analog radio.

On January 19, the government obtained an amended conspiracy complaint against Watkins, Crowl, and Caldwell. It included the following new information:

  • Quotations from the Zello messaging
  • Facebook messaging from Caldwell pictured standing outside the riot calling everyone in Congress a traitor
  • Facebook messages showing planning between Watkins, Crowl, and Caldwell between December 24 and January 8
  • Instructions for making plastic explosives found at Watkins’ house

Of particular interest, the complaint included the first hint that the Oath Keepers had intelligence — shared using Facebook — about the movements of Members of Congress.

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

Having arrested the two Oath Keepers blabbing to the press and the guy they hid out with, there’s not much more overt sign of the investigation until February 11, when the government submitted filings supporting pre-trial detention for both Watkins and Caldwell.

Arrest affidavits submitted on February 11 and February 12 (but sealed until after February 16) also refer to Watkins’ cell phone returns, including address book information describing Bennie Parker as a recruit, texts between Watkins and Parker coordinating plans for the insurrection and reassuring him the FBI would not prosecute them after the insurrection, and a picture of his wife Sandi Parker. Watkins’ cell phone returns also show a contact for Kelly Meggs in Florida, which she associated in her address book with the Oath Keepers.

Those initially sealed arrest affidavits also rely on surveillance footage and financial records from the Comfort Inn where all the Ohioans  stayed. It shows the Ohioans together in the lobby. It reveals that Kelly Meggs paid for a room that night registered under another suspected Oath Keeper’s name (according to credit card records showing a $302 charge, Meggs apparently stayed at the Hilton Garden Inn the night of January 7). [Update: The indictment clarifies that Meggs paid for two rooms at the Comfort Inn and booked two at the Hilton, of which he paid for one. h/t bb]

The initial affidavit against Kelly and Connie Meggs and Graydon Young and Laura Steele also includes a picture taken — by some unidentified person — from the van from North Carolina.

The same affidavit includes testimony from a witness who interacted with the Oath Keepers on January 6 and was on a text message chain including Young and Steele, who was introduced to them as Gray and Laura and learned they had taken the Metro into DC. It relies on surveillance video from the Metro. It includes returns from Steele and Young’s Google accounts, including Steele’s application to join the Oath Keepers.

It includes location data showing Graydon Young’s phone traveling from Englewood, FL to Thomasville, NC to Springfield, VA, to DC, then back to Thomasville and ultimately, on January 8, back to Englewood. It includes his round trip flight records from Tampa to Greensboro, consistent with the movement of his phone. The affidavit also uses location data to place Steele and the Meggses in a “geographic area that includes the interior of the United States Capitol building.”

It includes subscriber records for Steele, Young, and Kelly Megg’s MeWe accounts, as well as subscriber records for Facebook accounts for everyone. Of particular note, the affidavit used to arrest Young and the others shows advanced legal process for Young, but mostly subscriber information for the others. They also use Young’s Google data to establish probable cause against the Meggs but do not, yet, use it against Young.

It’s likely in the five days between the affidavit and the arrest, more warrants were served for materials on the others.

There wasn’t much added in a February 25 memo supporting Watkins’ pretrial detention — except that aforementioned Watkins text with Stewart Rhodes complaining about media reports making the Oath Keepers look bad (which, because of the timing of the coverage, likely happened almost a week after the insurrection, or later).

If he has anything negative to say about us OATHKEEPERS, I’ll let you know so we can sue harder. Class action style. Oathkeepers are the shit. They rescued cops, WE saved lives and did all the right things. At the end of the day, this guy better not try us. A lawsuit could even put cash in OK coffers. He doesn’t know who he is playing with. I won’t tolerate a defamation of character, mine or the Patriots we served with in DC. Hooah?!

But in a hearing held February 26, prosecutors told Judge Amit Mehta something in an ex parte hearing to support their argument that there really was a Quick Reaction Force outside of DC on the day of the insurrection ready to bring weapons into the Oath Keepers already in DC, which is one of the reasons he denied Watkins’ motion for release.

The earlier investigation into Graydon Young

It took a while for DOJ to unseal all the filings from the other co-conspirators, particularly the long affidavit for the four southerners. But a docket unsealed last week tells another side of that story. On January 15, a tipster identified Graydon Young, one of the Floridians added to the Caldwell and Watkins conspiracy. Based off that tip, the FBI prepared and got authorization for an arrest warrant by January 18. But they didn’t use it, perhaps because FBI was chasing down two false positives based off pictures of Young, as described in the later affidavit (the first of which may have been based off facial recognition).

First, on or around January 14, 2021, after receiving an internet tip and viewing similar photographs and video of Young from the civil unrest on January 6, 2021, an FBI agent drafted an arrest warrant for an individual (Subject-1) other than Young, based on a review of Subject-1’s driver’s license photo and the fact that Subject-1 was affiliated with the Oath Keepers. An FBI agent in Kansas City, Missouri, who was familiar with Subject-1, then determined that Subject-1 was not the individual depicted in the photos at the U.S. Capitol on January 6, 2021. The government did not pursue charges against Subject-1. Second, on or around January 15, 2021, a concerned citizen provided the FBI with a tip that the photograph of Young in the Rotunda was a photograph of Subject-2, who was a co-worker of the concerned citizen in Illinois. On January 18, 2021, SA Wren spoke with the concerned citizen, who stated that Subject-2 had quit the job and moved to Colorado, and “seemed like the type” who would have gone to the Capitol. SA Wren reviewed Subject-2’s driver’s license photo and determined that Subject-2 is not the person depicted in the photographs of Young at the U.S. Capitol.

In other words, FBI was prepared to arrest Young by January 18, within a day of the initial Watkins arrest. But they did not. They kept that arrest warrant sealed while they obtained his location records, travel records (including evidence he drove home from North Carolina rather than flying, and had his sister’s car towed back to North Carolina afterwards), and subscriber information for other social media.

At some point (as noted), FBI obtained Young’s Google account. But on February 11, they used that “solely as evidence against Kelly Meggs. At this time, the government is not seeking to use this email against Young,” suggesting they still needed legal process to use it against him.

Don’t launch an insurrection with a still-active Facebook account

Given that the FBI was ready to arrest Graydon Young on January 18, it’s worth looking more closely at the Facebook evidence in this conspiracy.

The FBI learned on January 15 that Young was probably at the insurrection, had been tagged in planning for the event on January 4, and had attempted to delete his Facebook account on January 7 (it went into effect the next day). Young didn’t delete his related Instagram account until January 13.

At some point, the FBI also learned that Caldwell attempted to unsend messages on January 8, the same day Young shut down his Facebook account.

Nevertheless, Facebook still had Young’s data, including a post from January 6 boasting, “We stormed and got inside.”

The government also obtained highly damning Facebook content from much earlier, including a message he posted to a group, the “War of Northern Aggression,” on November 7. In it, he clearly acknowledges Joe Biden’s victory.

Will this group consider migration to MeWe and Parler? I think censorship is going to get worse with Biden win.

On November 9, he asked again to move from Facebook to MeWe and Parler.

On November 30, he pushed MeWe and Parler again.

I already have MeWe and Parler … waiting for this drama to end before I delete my FB account.

Hey Graydon?!?! The drama for you is just beginning.

Meanwhile, Caldwell didn’t succeed in deleting all his evidence either. As early as January 17, in Crowl’s affidavit, they had a message (it’s unclear whether it’s public or private)

Here is the direct number for Comfort Inn Ballston/Arlington 1-571-397-3955 I strongly recommend you guys get one or two rooms for a night or two. Arrive 5th, depart 7th will work. She says there are five of you including a husband and wife new recruits. This time of year especially you will need to be indoors to set up, etc. Really, press this home, just get somebody to put it on a credit card. Even if you tell the hotel its double occupancy, you can STILL get a couple of people on the floor with bedrolls and the hotel won’t know shit. Paul said he might be able to take one or two in his room as well. I spoke to the hotel last night (actually 2 a.m. this morning) and they still had rooms. This is a good location and would allow us to hunt at night if we wanted to. I don’t know if Stewie has even gotten out his call to arms but it’s a little friggin late. This is one we are doing on our own. We will link up with the north carolina [sic] crew.

The later affidavits include Caldwell Facebook messages sent in November predicting violence.

I am very worried about the future of our country. Once lawyers get involved all of us normal people get screwed. I believe we will have to get violent to stop this, especially the antifa maggots who are sure to come out en masse even if we get the Prez for 4 more years.

On January 6, Caldwell continued to use Facebook, receiving a message informing him,

All members are in the tunnels under capital seal them in. Turn on gas.

And,

Tom all legislators are down in the Tunnels 3floors down

Between Young and Caldwell, Facebook evidence shows that this operation clearly targeted legislators even after they knew Joe Biden had been elected. It turns out that neither of them successfully deleted this Facebook content before the drama really got started.

The delayed reveal

As noted, it took some time for the affidavit for the southern Oath Keepers to be unsealed. In the interim period, the FBI would have been able to investigate the Oath Keeper whose name was on the hotel room Young paid for, and all the other people on the bus on which Young and his sister were pictured. The FBI surely has reviewed any role the War of Norther Aggression Facebook group had in the insurrection. The accounts for which the FBI just had subscriber information on February 11 are probably now being fully exploited (including the WeMe accounts on which they may have been more open about their plotting).

There are still members of The Stack at large, the others on the bus, the group from Mississippi those who provided “security” for Trump’s closest associates. We don’t know where the next Oath Keepers to be arrested are. We do know where the FBI was, 17 days ago.

Timeline of Oath Keeper conspiracy

January 4: Young travels from Englewood, FL to Thomasville, NC. Young tagged in planning messaging for the attack.

January 5: Young travels from Thomasville to Springfield, VA, then heads to DC for the evening.

January 6: Young travels into DC, then back to Thomasville that night. Watkins posts to Parler and Caldwell posts to Facebook. Young posts, “we stormed and got inside” on Facebook.

January 7: Young deleted Facebook content going back to March 2019 (per Facebook record it goes into effect on January 8).

January 8: Caldwell unsends Facebook messages continuing evidence. Young returns to Englewood. Young writes an email saying that his “team leader” during the insurrection was “OK Gator 1” with Kelly Meggs’ phone number.

January 9: Watkins texts Bennie Parker telling him not to worry about the FBI investigating them.

January 11: Young has a vehicle registered to Steele’s address towed from a location near his home to Steele’s home in NC. Young deletes his Instagram account.

January 13: Watkins interview in Ohio Capital Journal. Guardian story on Watkins’ use of Zello. Young closes Instagram account.

January 14: Donovan Crowl story in New Yorker. Watkins and Crowl travel to Caldwell’s property in VA; he gives them OpSec tips for the drive. Bennie Parker texts Watkins asking if she put Sandi “out there” in the Capitol. FBI chases a false positive for Young on an Oath Keeper who lives in Kansas City, MO.

January 15: A tipster who has known Young for 35 years identified Young in an image published by NBC, informs the FBI that on January 4, other people had tagged Young in a discussion about traveling to DC. The tipster further revealed that on January 7, Young deleted his Facebook content going back to March 2019, then deleted the whole thing. FBI chases a false positive for Young to someone in CO.

January 16: Arrest warrant for Watkins.

January 17: Search of Watkins’ house discovers gear and other military items. Interview of her partner reveals she has left to stay with a friend, Commander Tom, and provides a phone registered to him at his VA property as the way to reach Watkins. Arrest warrant for Crowl. Search of a location where Crowl stays finds his tactical vest. Arrest warrant for Caldwell. Both Watkins and Crowl turn themselves in to the Urbana Police, where the FBI takes them into custody.

January 18: First arrest warrant for Graydon Young.

January 19: Caldwell, Crowl arrested by FBI, and Watkins arrested. Amended criminal complaint makes conspiracy charges against Watkins, Crowl, and Caldwell more formal. Search of Caldwell’s property finds Death List targeting election official from a different, a Gadsden flag signed by Crowl and Watkins, and a sales invoice for a weapon designed to look like a phone.

Janaury 21: Stewart Rhodes declares Biden’s “not a constitutional government.” Kelly Meggs closes his Facebook account.

January 27: Indictment for Watkins, Crowl, and Caldwell.

January 29: NYT does video analysis showing the movements of the Oath Keepers from the Ellipse to the Capitol.

February 11: Counterterrorism prosecutors Justin Sher and Alexandra Hughes join team. Motions for pre-trial detention for both Watkins and Caldwell. Sealed complaint filed against Kelly and Connie Meggs, Graydon Young, and Laura Steele.

February 12: Government moves for protective order against the original conspirators; Caldwell objects. Sealed complaint filed against Bennie and Sandi Parker.

February 16: Graydon Young arrested.

February 17: The Meggs and Laura Steele arrested.

February 18: The Parkers arrested.

February 23: Thomas Caldwell appeals detention.

February 26: Amit Mehta grants government motion to detain Jessica Watkins.

Update: I clarified that the email quoted at the top is from Stewart Rhodes, not Graydon Young.

Congress versus the Constitution: Merrick Garland’s Second Reconstruction

Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.

A Tale of Two Zip Tie Guys: The Different Fates of Eric Munchel and Larry Brock

I’ve been following the case against Zip Tie Guy, Eric Munchel, and his mother closely. Last week, they appealed their pre-trial detention to the DC Circuit, in which is likely to be one of the first Circuit challenges to DOJ’s interpretation of this case, and one that is definitely a close case.

Last week, there was a development in the case against the other Zip Tie Guy, retired Air Force Lieutenant Colonel Larry Brock. Like Munchel, Brock showed up in videos on the Senate floor kitted out, wielding zip ties. Like Munchel, Brock voiced radical views, including a willingness to sacrifice himself for Trump before the insurrection.

Two family members and a longtime friend said that Brock’s political views had grown increasingly radical in recent years. Bill Leake, who flew with Brock in the Air Force for a decade, said that he had distanced himself from Brock. “I don’t contact him anymore ’cause he’s gotten extreme,” Leake told me. In recent years, Brock had become an increasingly committed supporter of Donald Trump, frequently wearing a Make America Great Again hat. In the days leading up to the siege of the Capitol, Brock had posted to social media about his plans to travel to Washington, D.C., to participate in Trump’s “Save America” rally. Brock’s family members said that he called himself a patriot, and that his expressions of that identity had become increasingly strident. One recalled “weird rage talk, basically, saying he’s willing to get in trouble to defend what he thinks is right, which is Trump being the President, I guess.” Both family members said that Brock had made racist remarks in their presence and that they believed white-supremacist views may have contributed to his motivations.

His social media posts even mentioned the Oath Keepers and Three Percenters.

Unlike Munchel, Brock also made it to Pelosi’s office, though he denies entering it.

Another thing differentiates Brock from Munchel: when Brock won pre-trial release, the government didn’t appeal that decision. At the time, the government suggested Brock likely faced more charges.

But on Friday, DOJ filed an information against Brock. While the information adds trespassing charges — six in total — it didn’t add felony charges. That’s fairly remarkable, because those who, like Brock, evinced a willingness to do extreme things to keep Trump in power have typically been charged with obstructing the certification of the vote. The same is true of those who made it to the floor of the Senate.

It’s definitely too early to tell (indeed, fairly recently, prosecutors said they weren’t prepared to talk plea deals). But this has all the appearance of someone who is preparing to plead guilty, presumably with a cooperation deal.

The people prosecuting him — DC AUSA Ahmed Baset and NSD AUSA Justin Sher (who joined the case on February 11) — are also on the Oath Keepers conspiracy indictment is another reason to believe that might be true. Indeed, Sher just joined the team on February 11. Baset and Sher are also on the Munchel prosecution team.

I would hope all these tea leaves suggest that Brock is about to flip, and not just for investigative reasons. If a retired officer were to get special treatment this early in the investigation, it would bode poorly going forward. For now, we can say that the two Zip Tie Guys are facing different fates.

Update: Later in the day, April Ayers-Perez (who appears to be a detailee from another US Attorney’s office) replaced Baset on Brock’s case.

Update: Corrected Brock’s rank.

Update: Today Brock pled not guilty to the trespass charges against him, suggesting this is, in fact, just an apparently inexplicable preferential treatment of a privileged defendant.

Government Uses T-Word about the Oath Keepers

As noted in an update here, Jessica Watkins has now conceded that she didn’t meet with the Secret Service on January 6. Rather, as she entered a pen for VIPs, she obeyed when they told her stash her tactical gear outside the pen, which means hours before she stormed the Capitol believing that protected persons Mike Pence, Nancy Pelosi, Chuck Grassley, and Kamala Harris were inside wearing that tactical gear, she had been told by the Secret Service not to wear it around protected persons.

She has also admitted that the Butler County jail put her on suicide watch when she went on a hunger strike, but insists that because she doesn’t believe she was suicidal, the treatment must have been retaliation because she’s transgender (which wasn’t public at the time). None of that eliminates the danger to transgender people in prison or the inhumanity of suicide watch as imposed by US jails and prisons, but she does admit she has been, “treated with respect and dignity” in the DC jail.

That “clarification” was submitted too late for the government to address it. But in their response to Watkins’ motion for bail, they addressed the problem I laid out — that the government has not provided direct evidence tying Watkins’ cell to the violence of destroying the Capitol doors, but has relied on the destruction, generally, to adopt a presumption of detention — this way:

The defendant cannot rebut the presumption of detention in this case. First, she has been charged and now indicted by a federal grand jury for Aiding and Abetting in the Destruction of Government Property, an enumerated offense under 18 U.S.C § 2332(b)(g)(5)(B) from which the presumption of detention arises. The evidence remains unrebutted that she participated in a violent mob that broke the door through which she “forc[ed] entry into the Capitol” moments later. The defendant argues that she did not intend to destroy property and even told others not to engage in such conduct (at 8), however, has no explanation for the video depicting her, along with other Oath Keeper members and associates, gleefully embedded within this mob outside of the Capitol building before moving inside with them after the door was breached. As she stated in the “Stop the Steal J6” Zello app channel, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.” (ECF 15 at 2). Any confusion about the defendant’s intent behind this action, as well as whether law enforcement approved of the breach and entry, is clarified by her January 6 Parler post in which she responds to a comment challenging whether she actually forced entry by confirming, “Nope. Forced. Like Rugby. We entered through the back door of the Capitol.” See Criminal Complaint, January 19, 2021 (ECF 1 at 9).

Second, because the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

The government further relies on communications from October 15 (again, demonstrating the problems with Watkins’ own timeline) and texts directly with Stewart Rhodes to lay out her ideology.

While the defendant asserts that she was just following the constitution and is respectful of law and order (at 4), her adherence is clearly subject to her own understanding of what the Constitution and law mean. As Watkins stated in a text message sent to a recruit on October 15, 2020, when describing her militia: “We are Constitutionalists: non-racial, non-partisan, pro-government so long as that Gov’t follows the Constitution.” The notion that “[s]he recognizes that former President Trump is just that – a former President,” (at 4-5) is belied by the defendant’s statements urging for the need to “fight, kill, and die for our rights” should Biden “still be our President.” (ECF 15 at 4).

[snip]

Finally, detention is necessary because the defendant’s release poses a serious risk of flight. 18 U.S.C. § 3142(f)(2). She has indicated a willingness to go “underground if this coup [Biden election] works,” which comports with the “Warning” issued by the Oath Keeper leader, Person One, calling the current administration “an illegitimate regime” and on members to refuse to obey any acts or orders flowing from this government that are necessarily unconstitutional. (ECF 15 at 13). Moreover, her allegiance to the Oath Keepers and belief in the righteousness of her actions on January 6th has only calcified in the days since. When discussing over text with Person One a media report that portrayed her conduct and that of her fellow Oath Keepers from that day in a negative light, the defendant maintained,

If he has anything negative to say about us OATHKEEPERS, I’ll let you know so we can sue harder. Class action style. Oathkeepers are the shit. They rescued cops, WE saved lives and did all the right things. At the end of the day, this guy better not try us. A lawsuit could even put cash in OK coffers. He doesn’t know who he is playing with. I won’t tolerate a defamation of character, mine or the Patriots we served with in DC. Hooah?!

She has a detention hearing today, which will be an early test of the government’s attenuated use of the damage to the Capitol to label this as terrorism.

The government has shown she planned and trained a cell to fight Joe Biden’s government starting even before the election. Watkins herself has now shown that the Secret Service told her to take off her tactical gear when entering a secured area. The government has now shown she doubled down on her allegiance to the Oath Keepers after the destruction of the insurrection became clear.

We’ll see later today whether that’s sufficient cause to label someone a terrorist.

Merrick Garland Is Killing It

The SJC hearing is on the major cable channels and CSPAN. Streaming everywhere too I assume. It is really good viewing, as these things go. Yes, Ted Cruz came across as applicant to replace Sean Hannity. Yes Chris Coons preened for the cameras.

I generally have a fair amount of criticism for Ben Sasse, but he did extremely well today. Surprisingly so. Pat Leahy, despite a bit of rambling pontificating, did as well.

I would love to have a cross-examiner with a killer instinct like Katie Porter in the SJC.

Bottom line is that Merrick Garland is absolutely slaying this hearing.

The Broken Windows Terrorism Enhancement and Detention of the January 6 Insurrectionists

In this post, I described how Jessica Watkins’ defense attorney, Michelle Peterson, admitted how damning her client’s own description of her actions was, but then invented a false timeline to explain away those statements. Peterson also said that evidence about Stewart Rhodes’ plans for the Oath Keepers to replicate January 6 can’t be held against her client because Watkins was already in jail when Rhodes made those comments, but also says Watkins — who in November, before the Trump rallies that Watkins’ own lawyer cited to explain Watkins’ actions, said she’d go underground if Biden assumed the Presidency — can be released while those plans are ongoing. (Peterson is also arguing that Watkins should go back to running the bar where she recruited co-conspirator Donovan Crowl.)

I think Peterson’s argument fails because the evidence doesn’t match her claims. But she makes an argument that I think will be compelling for some other Oath Keeper defendants.

The government conspiracy charge against nine Oath Keepers alleges a conspiracy to obstruct an official proceeding (the counting of the electoral vote), obstruction of that proceeding, and forcibly entering the Capitol while the Vice President was present. The evidence for those allegations is all clear cut.

But as I described in the post, the government also charges the nine Oath Keepers with destruction of government property and aiding and abetting such destruction.

The indictment only describes destruction in two places: in the general boilerplate description of the event used against all January 6 defendants, and describing the door through which The Stack entered the Capitol, around 40 minutes after the Capitol was initially breached.

In the course of these events, approximately 81 members of the Capitol Police and 58 members of the Metropolitan Police Department were assaulted. The Capitol suffered millions of dollars in damage-including broken windows and doors, graffiti, and residue from pepper spray, tear gas, and fire extinguishers deployed both by crowd members who stormed the Capitol and by Capitol Police officers trying to restore order. Additionally, many media members were assaulted and had cameras and other news-gathering equipment destroyed.

[snip]

The Capitol building doors through which CROWL, WATKINS, SANDRA PARKER, YOUNG, STEELE, KELLY MEGGS, CONNIE MEGGS, and the others in their group breached suffered significant damage.

The government implicates the Oath Keepers in this destruction via an aiding and abetting charge.

It’s on that basis that the government initially moved to detain Watkins.

Watkins made her initial appearance in the Southern District of Ohio on January 19, 2021, and the government moved for detention under 18 U.S.C § 3142(f)(1)(A), on the basis that 18 U.S.C. § 1361 is a crime of violence.

While they don’t explain it specifically in that motion (but the government does elsewhere for other defendants, such as for the Proud Boys’ Ethan Nordean), effectively the government is using the damage done to a government building to get presumption of detention under 18 USC 2332b‘s terrorism enhancement.

Peterson argues that the Watkins’ crimes are not crimes of violence.

The offenses charged are not crimes of violence. While violence was committed on January 6, 2021, and those responsible will be held accountable, that is not the issue before the Court in determining whether Ms. Watkins must be held in custody pending the outcome of her case. Rather the question is solely whether or not there are conditions that can reasonably assure the safety of the community and her appearance until this case is resolved in whatever manner it is resolved. Here, the government has not presented any evidence that Ms. Watkins committed any violence. Their evidence is that 40 minutes after the Capitol had been breached, she went to the Capitol and entered the building. By that time, the door had already been opened. The government acknowledges that “the crowd aggressively and repeatedly pulled on and assaulted” the doors of the building to get inside, causing damage. Ms. Watkins is charged with aiding and abetting this offense, but there is no evidence that this was something she had a criminal intent to do. She would have to have shared in the intent to destroy property, when in fact, she attempted to stop people from destroying property.

Peterson argues that the body cameras of some of the cops with whom Watkins interacted will show her trying to prevent damage (though, as noted, Peterson’s explanation for Watkins’ description of the beauty of breaching the Capitol is utterly inconsistent with the actual comments Watkins made, which framed that beauty specifically in terms of fighting cops).

Peterson’s argument here is important, and it will be very compelling for those Oath Keeper defendants who didn’t leave tracks of messages describing efforts to train a militia to take out the federal government even before Trump’s incitement to violence cited by the defense started. While there might be evidence from other Oath Keepers the government is investigating (remember there is a busload of Oath Keepers from NC who were coordinating with the charged co-conspirators, along with the Quick Reaction Force ready to bring additional weapons, as well as a few more known Oath Keepers who directly confronted cops), nothing in the record thus far shows The Stack had a direct role in the damage to the Capitol.

Compare with the Proud Boys to understand the significance of this. In that case, Dominic Pezzola, in fairly obvious coordination with others, was the very first person to break a window allowing the breach of the Capitol. While the other Proud Boys are not yet charged in a conspiracy with Pezzola, there’s every likelihood they will be, in which case a claim that they worked together to break that window will be reasonable and detention claims based on that property damage against co-conspirators substantiated.

In the apparent Proud Boys plot to breach the Capitol and delay the vote count, breaking that window was a fundamental part of the conspiracy.

This is the same problem the government has — and will face on appeal — with Zip Tie Guy Eric Munchel and his mother, Lisa Eisenhart. While mother and son clearly had intent to obstruct the counting of the vote and Munchel came armed with a taser, there’s no evidence that they were working in concert with those who committed the violence or did the damage to the Capitol.

In both the Munchel case and the Oath Keepers case, the government might believe or might have believed they could rely on another terrorism enhancement, attempted kidnapping of  congressional or cabinet targets (18 USC 351), kidnapping of Presidential staff (18 USC 1751a) or hostage taking (18 USC 1203). The government has argued, for example, that Munchel and his mom are the only ones who saw the Capitol Police zip ties sitting out in public and seized them, after which Munchel headed to where the vote was being counted in the Senate chamber, supporting a supposition he would have detained Senators if he had had the chance.

One of the Oath Keepers on the Zello channel Watkins was using (it’s unclear whether the government has IDed this person yet) told her she was executing a citizens arrest based on probable cause for treason and election fraud, implying a plan to detain members of Congress.

An individual directed, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” WATKINS responded, “We are in the mezzanine. We are in the main dome right now. We are rocking it. They are throwing grenades, they are fricking shooting people with paint balls. But we are in here.” An individual responded to WATKINS, telling her to be safe, and stated, “Get it, Jess. Do your fucking thing. This is what we fucking [unintelligible] up for. Everything we fucking trained for.”

That is, in both cases, there’s reason to suspect the intent was to detain members of Congress — possibly even Mike Pence himself — but that hasn’t been charged against either Munchel and his mom or the Oath Keepers.

The government also may have reason to believe the Oath Keepers conspiracy will ultimately merge with the Proud Boys conspiracy, putting the former on the hook for the violence of the latter.

There’s evidence, for example, that Oath Keeper co-conspirator Thomas Caldwell was trying to coordinate between the militias. By December 23, he described to someone what he knew of the Proud Boys’ plans.

Okay. I got your msg that maybe a whole bunch of you will be going to the rally which is great. [Person Two] and I are going for sure and as of now a bunch of the Oathkeepers from North Carolina whowe hosted here on the farm for the Million Maga march are coming up on one or two buses so that will be neat. I am expecting a big turn out of the Proud Boys (didn’t know until the last march that they had a chapter in Charlestown) and of course the local Vietnamese will probably have at least 2 bus loads like last time. We will keep in touch. I gotta get off my ass and get on parler. I picked up Signal which is a free app that is encrypted talk and text. Thats how I do some secure comms with the Oathkeepers.

On December 30, he reached out to someone in the Three Percenter movement and asked to be included in their plans.

“[A]re you and any of your fellow 3-percenters having any kind of meetings coming up to discuss the 6th of Jan in d.c. or just getting together? I would like to meet some of the guys if you think I ‘m cool enough.” That individual responded, “You can join our group if you want but you have to be veted before you can attend any training events or zoom meetings. Ill get with ya this evening.” In part, Caldwell replied, “Outstanding!”

While there’s no sign yet of a conspiracy charge against the Three Percenters, one of the three people charged together in beating a prone cop, Thomas Lopatic, wore Three Percenter clothes. The father who threatened to kill his kids if they reported his involvement (who mounted the scaffolding used in a flanking move in the breach), Guy Reffitt, is a member. Most intriguingly, Robert Gieswein, who marched with and coordinated with the Proud Boys in the original breach and is also charged with assaulting cops while wielding a baseball bat and some kind of spray, also has ties to the Three Percenters.

There’s also reason to believe that the December MAGA March provided a key networking opportunity in advance of January 6 — for example, Pezzola spent time there with Roger Stone bodyguard, Robert Minuta.

Indeed, one of the likely nodes between the two main militia groups charged with conspiracy is Roger Stone, who was hanging out with both of them. Heck, even Rudy Giuliani, a key proponent of a very different theory of law enforcement involving broken windows, could be such a node.

So it’s possible that as FBI exploits more communications and starts to flip cooperators, they’ll tie the coordinated actions of the various militia together. But they’re not there yet. And until they do that, it’s not clear that the government has the evidence to detain Oath Keeper foot soldiers or random militia sympathizers pre-trial.

The government makes a very good case that the far right — particularly these three groups — have plans to follow up on January 6, plans for which the existing leadership arrested as part of January 6 could play a key role. This is what I’ve pointed to repeatedly (most clearly with Munchel). January 6 was an unprecedented insurgent attack on the country. But that unprecedented attack can look like either civil disobedience involving legally owned weapons or a threat to the Republic. Because of that, it’s not entirely clear how the government’s attempts to detain key figures pre-trial will work out.

Jessica Watkins Defends Herself by Claiming the Armed Militia Parade Was Part of the Plan

In a bid to spring her client from jail pre-trial, Jessica Watkins’ attorney Michelle Peterson accuses the government, twice, of wielding rhetorical flourishes to portray Watkins’ actions in the worst light.

The government’s rhetorical flourishes aside, there is insufficient evidence to demonstrate that Ms. Watkins would be either a risk of flight or a danger to her community if she were released on stringent conditions.

[snip]

The government’s motion for detention is filled with rhetorical flourishes design to inflame the passions of its readers without supporting evidence, e.g., “Watkins single-minded devotion to obstruct though violence” p.1, “this was a moment to relish in the swirling violence in the air” p. 2, and references throughout to her attire as “camouflage.”

It’s true that the government motion for detention portrays Watkins’ actions as a grave threat.

The profoundly brazen nature of Watkins’s participation in the January 6, 2021 assault on the Capitol was uniquely dangerous and continues to impact security in the District and beyond. Watkins joined a violent mob that overwhelmed law enforcement and destroyed government property, re-creating in modern times events not seen in this nation since the War of 1812. In this backdrop, Watkins and her co-conspirators formed a subset of the most extreme insurgents that plotted then tried to execute a sophisticated plan to forcibly stop the results of a Presidential Election from taking effect. And she did this in coordination and in concert with a virulently antigovernment militia members.

But Peterson accuses the government of rhetorical excess while excusing Watkins’ own actions and inflamed self-description of them by suggesting that Watkins was simply helpless in the face of Trump’s lies.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media.

[snip]

However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen.

[snip]

While some of the rhetoric she allegedly engaged in is troubling, she fell prey to the false and inflammatory claims of the former president, his supporters, and the right wing media.

Unless and until Trump’s own crimes get added to these conspiracy indictments, these detention memos will continue to dispute what to call the terrorist event that happened on January 6. Until that time, the government will be relying on legal maneuvers, like charging the Oath Keepers with abetting the physical damage to the Capitol — because the doors through which they breached the building suffered significant damage — as a way to get the presumption of detention tied to a domestic terrorism charge. And defense attorneys will continue to argue that entering the Capitol in military formation after two months of preparation for action in response to the election outcome does not amount to a crime of violence.

I don’t believe we need a domestic terror statute. But we need language to describe domestic terrorism. Because we don’t have agreed on language for this thing, an event that forced the Vice President, the Speaker of the House, and the Vice President-Elect to flee from threats of imminent assassination, these disputes will continue to struggle to fit these actions into our existing categories.

Still, even in Peterson’s description of the problem, there are problems with this story. Watkins’ brief admits that she engaged in apocalyptic rhetoric, but suggests that all happened in November, long before and dissociated from the apocalyptic event.

The government includes statements Ms. Watkins is alleged to have made about the election and the need to fight, kill, or die for rights and statements about being prepared to fight hand to hand. However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen. They are not even alleged to have been made about the January 6 events. The statements were not directed towards law enforcement and are as easily interpreted as being prepared to encounter violent counterprotesters as they had on earlier occasions. And importantly, according to the government, Ms. Watkins made it clear that she would do nothing that was not specifically requested by the President. However misguided, this shows an intent to abide by the law, not violate it. [my emphasis]

Peterson describes the events of January 6, by contrast, as the natural response of veterans anticipating that the then-President might invoke the Insurrection Act, as his disgraced former National Security Advisor Mike Flynn and others demanded.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media. The report of the potential invocation of the Insurrection Act took root in the online community of Trump supporters and led many local militias to believe they would have a role if this were to happen. Ms. Watkins was one of those people. In November, she believed that the President of the United States was calling upon her and her small militia group to support the President and the Constitution and she was ready to serve her Country in that manner. However misguided, her intentions were not in any way related to an intention to overthrow the government, but to support what she believed to be the lawful government.

The problem is, these claims are totally refuted by the timeline.

Flynn was probably the earliest prominent advocate for martial law. That was on December 1, after the November comments in question. Watkins, meanwhile, was looking for a sign even before that, on November 9.

Her concern about taking action without his backing was evident in a November 9, 2020, text in which she stated, “I am concerned this is an elaborate trap. Unless the POTUS himself activates us, it’s not legit. The POTUS has the right to activate units too. If Trump asks me to come, I will. Otherwise, I can’t trust it.”

That’s before the earliest Trump incitement cited by the defense, a November 21 rally in GA.

See id., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 21, 2020 3:34 PM) (Watch: Hundreds of Activists Gather for ‘Stop the Steal‘ Rally in Georgia https://t.co/vUG1bqG9yg via Breitbart News Big Rallies all over the Country.

The earliest moment when Watkins spoke specifically in terms of the Insurrection Act was December 29, long after some of her most inflammatory comments.

In a text exchange with Co-defendant Donovan Crowl on December 29, 2020, she informed, “[w]e plan on going to DC on the 6th” because “Trump wants all able bodied Patriots to come,” and how, “[i]f Trump activates the Insurrection Act, I’d hate to miss it.”

Yet as early as October 26, Watkins was already timing militia training to inauguration.

Watkins emphasized this point to another recruit on October 26, 2020, noting, “the election is imminent. We do have Basic Training/FRX coming up in January though … others who join before then without experience will be REQUIRED to attend for the full week. Donovan already has his Drill Sergeant mode going haha. The rest of us will be training with them to get us all field-ready before inauguration.”

That shows a continuity between Watkins’ pre-election statements and post election plans.

On November 9,2020, WATKINS, the self-described “C.O. [Commanding Officerl of the Ohio State Regular Militia,” sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a weekJong “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “l need you fighting fit by innaugeration.”

And some of her most inflammatory language came in mid-November, such as when, on November 17, she spoke of killing and dying for “our” rights.

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

and:

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

Or, her comments on November 19 about going “underground if this coup works.”

Indeed, on November 19, 2021, Watkins went so far as to text a contact that, “If anything, we need to go underground if this coup works,” as well as for the need “to be cautious as hell going forward” since “[i]f they still this election, we are all targets after Jan 20th.”

Again, this precedes the first instance of incitement from Trump cited by Watkins’ attorney, on November 21.

Moreover, Peterson’s claim that when Watkins spoke of the beauty of the insurrection to a reporter, she was just referring to the National Anthem, is totally refuted by the actual record.

Their evidence is that 40 minutes after the Capitol had been breached, she went to the Capitol and entered the building. By that time, the door had already been opened. The government acknowledges that “the crowd aggressively and repeatedly pulled on and assaulted” the doors of the building to get inside, causing damage. Ms. Watkins is charged with aiding and abetting this offense, but there is no evidence that this was something she had a criminal intent to do. She would have to have shared in the intent to destroy property, when in fact, she attempted to stop people from destroying property. She talked of the beauty of the peaceful protest, but acknowledged that it was only beautiful until she started hearing glass break. When she spoke of the beauty, she was referring not to the violence, but to the chants of USA and the singing of the National Anthem.

In the actual interview, Watkins specifically spoke of “standing our ground” against the cops because “they attacked us.”

“To me, it was the most beautiful thing I ever saw until we started hearing glass smash. That’s when we knew things had gotten really bad.” Watkins also states, “We never smashed anything, stole anything, burned anything, and truthfully we were very respectful with Capitol Hill PD until they attacked us. Then we stood our ground and drew the line.”

Her claim that “they attacked us,” may reflect her co-conspirator Thomas Caldwell’s false claim that the cops were “teargassing peaceful protestors.”

On January 6,2021, at approximately 2:06 p.m., CALDWELL sent WATKINS a text message stating: “Where are you? Pence has punked out. We are screwed. Teargassing peaceful protesters at capital steps. Getting rowdy here… I am here at the dry fountain to the left ofthe Capitol[.]”

That is, it’s not just Donald Trump who riled her up. So did her buddies in the militia (as she riled up fellow members).

Moreover, Watkins’ lawyer makes much of the fact that Watkins’ formation did not enter the Capitol until 40 minutes after it was breached. But that was long after she operated on a belief that the cops had targeted “protestors,” and it reflected actions planned a week in advance.

Perhaps the most intriguing comments in Watkins’ filing — and the most unintentionally damning — are the description of Watkins serving as “escort” or “security” for pro-Trump politicians.

Ms. Watkins has no prior history of violence and has tremendous respect for law enforcement and the Constitution of the United States. Indeed, although misguided, she believed she was supporting the Constitution and her government by providing security services at the rally organized by Mr. Trump and the republican lawmakers who supported his goals.

[snip]

On January 5 and 6, Ms. Watkins was present not as an insurrectionist, but to provide security to the speakers at the rally, to provide escort for the legislators and others to march to the Capitol as directed by the then President, and to safely escort protestors away from the Capitol to their vehicles and cars at the conclusion of the protest. She was given a VIP pass to the rally. She met with Secret Service agents. She was within 50 feet of the stage during the rally to provide security for the speakers. At the time the Capitol was breached, she was still at the sight of the initial rally where she had provided security. The government concedes that her arrival at the Capitol was a full 40 minutes after the Capitol had been breached. [my emphasis]

I believe this is the first description of the Oath Keepers’ role as “security” as these events in any of the legal filings in the case. But it doesn’t seem to help any of the co-conspirators.

Jessica Watkins was invited to an extremist revival event and given a VIP badge. She did so in the guise of providing security. But she admits she was almost 50 feet away from the stage, in no way the right location to be providing security (moreover, I think this claim is somewhat inconsistent with that the reported analyses shows, because members that would become the Stack left early, perhaps in response to Caldwell’s text).

Her brief further describes that she and her kitted-out militia were to provide “escort” to marchers to the Capitol, and she appears to know the intent was to march to the Capitol. One way or another, that still means her stated purpose — the reason she was wearing a VIP pass provided by official organizers (including Ali Alexander and Alex Jones) — was to ensure that those marching on the Capitol were accompanied by a militia that had plans to take up arms if things went badly.

I’m really grateful to Watkins’ attorney for providing the FBI reason to go ask the Secret Service and event organizers about this plan for an armed escort to the Capitol. This may accelerate the process of incorporating at least Roger Stone and Jones into these conspiracy indictments.

But it simply doesn’t help the cause of claiming that the Oath Keepers weren’t part of an organized conspiracy to interrupt the legal vote count. Does that mean that Jessica Watkins should be detained because people incited by the Proud Boys demolished the Capitol door? No. Does it mean she poses a threat because the organization she help[ed] lead started planning even before the election to have people trained to take action? Yes.

In November, Watkins wanted to make sure that Trump himself wanted her militia to take action. Her lawyer claims that Watkins was awaiting the invocation of the Insurrection Act. But even without that invocation, according to this filing, she envisioned serving as the military guard for a march of people from the White House to the Capitol seeking to overturn the election results.

And thanks to this defense filing, prosecutors can start talking about this earlier part of the conspiracy now.

Update: Peterson has submitted a clarification that has made the comments about the Secret Service even more damning. She didn’t meet the Secret Service. She spoke with them as she was coming through security for the VIP pen, from which she fancies she was “providing security.” And they told her to leave her tactical gear outside the pen.

Jessica Watkins, through counsel, respectfully submits this clarification to her motion for release pending the outcome of her case. Counsel apologizes for being less than clear on a couple of points raised in the original motion – something that unfortunately became obvious by media inquiries. Counsel in no way meant to imply that Ms. Watkins met with the Secret Service. A better verb would have been “encountered.” Ms. Watkins spoke with Secret Service members early in the day when she was coming through the check in point for the VIP area. The point counsel was attempting to make was that she encountered law enforcement, including Secret Service officer on her way to providing security for the rally. She was given directives about things she could and could not do, including directions to leave all tactical gear outside of the VIP area, and she abided by all of those directives. Ms. Watkins does not suggest that she has any direct knowledge that her role as security was sanctioned by anyone other than people involved in organizing the rally. She certainly did not mean to suggest that she was hired by the U.S. Secret Service to perform security. Counsel again apologizes for any confusion created by the inartful language used in the motion.

Effectively, then, hours before she entered the Capitol, which was full of protected people, including the Speaker of the House, President Pro Tempore, Vice President-Elect, and the Vice President that Donald Trump had just targeted, Watkins was told not to bring her tactical gear close to another set of protected people. And once she left the VIP pen where she was “providing security,” she put that tactical gear back on.

That only serves to emphasize the degree to which she was targeting Congress.

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