2020 Presidential Election Archives - Page 88 of 131

“This is not reverse RICO!” Shane Jenkins Gives Away John Pierce’s Game

September 2, 2021/50 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

John Pierce, the trial attorney who is attempting to represent up to 18 January 6 defendants while lying in a COVID ward, seems to have found three kinds of clients for himself (I’ve included a roster below). There are a bunch of Proud Boys and other militia members who might serve as a kind of firewall for Joe Biggs and Enrique Tarrio. There are a handful of people charged with trespassing who have said outlandish things in the past about January 6. And there are three defendants with criminal records accused of assaulting cops. Two of those three, Peter Schwartz and Shane Jenkins, (the other is James McGrew) had hearings today to figure out what to do with their defense attorney who already had too much on his plate before getting COVID.

The hearings didn’t provide much more clarity into what has happened with Pierce. The same unbarred, indicted associate, Ryan Marshall, whom Judge Amit Mehta ordered last week to find a member of the DC bar to show up today appeared, alone in the first hearing and with a Bankruptcy lawyer who is not a member of the DC bar for the second. Marshall revealed they were trying to get an outside attorney to sign a contract to help represent all these defendants. That attorney is not the bankruptcy lawyer though, who just offered to fill in when she heard about the troubles in the news. Mehta asked Marshall about Pierce’s partner, Bainbridge (with whom Marshall purportedly works), but Marshall said he had never met him.

Marshall did admit Pierce is very sick and had spent most of yesterday sleeping. He said Pierce expects to get out in a week, but that was based on Pierce’s own representation, not anything someone with medical expertise said. Marshall said Pierce is not (now?) on a ventilator.

But when it came time to ask what Schwartz wanted to do about this, he revealed Marshall hadn’t spoken to him all week. He claimed this was the first he heard about it. He reeled off a bunch of complaints — a spider bite, old contacts, poor medical care — but in spite of a long, long criminal record, didn’t seem to understand that’s what lawyers are for, to help air those complaints. Nor did he understand that he doesn’t have the uncontested ability to refuse to waive Speedy Trial, particularly not when the bozo lawyer he has chosen to represent him goes AWOL.

Things were a bit different with Shane Jenkins, for whom “Pierce” filed a notice of appearance from the hospital (Marshall explained a paralegal had done it on Pierce’s instructions). Plus, Marshall had at least spoken to Jenkins to reassure him it’s a good idea to hire Pierce even though he’s hospitalized.

After Judge Mehta decided it was prudent to leave Maria Jacobs, the public defender currently representing Jenkins, on the job until someone actually qualified to practice law in DC showed up, Jenkins had his say.

Like Schwartz, he insisted he won’t waive Speedy Trial (as with Schwartz, Mehta waived it for a few weeks). Like Schwartz, he complained about the discovery he had gotten.

But — particularly given Pierce’s earlier claims about wanting to do a Public Authority defense — the specific claims Jenkins made about discovery were genuinely enlightening (these are my live-tweets).

Several questions about discovery. I received cracked disc that no longer works. Edited videos that exclude very important information. If these were used before GJ, that’s deception.

Jenkins claims there was a murder being covered up by DOJ, or suppressed by DOJ. “I’d love to proceed to trial, the facts prove the truth, I look forward to DOJ laying facts on table, full discovery, not interested in waiving BRady. This is not reverse RICO.”

Jenkins apparently claims to believe that the videos of his alleged assaults were edited to hide a murder, apparently committed by the police, on the West Terrace of Capitol. He appears to be claiming that he was retaliating for that murder.

With Ryan Samsel (who wisely fired Pierce in late July), Samsel seemed to have made coached claims about who assaulted him in jail, something that has not yet been publicly confirmed, though the public and totally believable story blames the guards. It’s not surprising, though, that someone who is a trial attorney and not a defense attorney, would encourage his clients to make public claims accusing the government.

But what Jenkins did was interesting precisely because Pierce claimed, when he announced he was going to mount a Public Authority defense, that he needed all the video.

He’s going to get all the video. Every January 6 defendant will get it.

And none of it will show that cops committed a murder on the West Terrace.

But Jenkins at least suggested that he plans to defend himself against assaults clearly shown on video by claiming that the real videos show cops killing peaceful Trump supporters.

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. While he has been hospitalized with COVID, Pierce submitted some filings attempting to get Worrell out of jail because he’s not getting medical care; the most recent filing not only thrice misstated what jail Worrell is in, but also admitted he has refused treatment at least five times.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

5. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

6, 7, 8. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

9. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares.

10. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

11. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

12. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

13. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

14. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

15. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

16. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

Brandon Fellows Gets a CIPA Notice

September 2, 2021/4 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In a truly curious development, Brandon Fellows — the guy on the left in the picture, who is currently accused only of obstruction and trespassing in the January 6 riot — just got a CIPA notice. The Classified Information Procedures Act provides a way for the government to prosecute people using classified information while limiting how much information must be shared with the defendant or made public. Effectively, the government gets to show the judge classified information and argue that it is not helpful to the defense or ask to substitute something more innocuous for the classified information to be used at trial.

It’s not yet clear what kind of classified information the government wants to use against Fellows.

But one thing I’ve been tracking is DOJ’s thus far fruitless attempt to figure out who stole Jeff Merkley’s laptop.

Fellows was one of the people who was in his office during the riot and his arrest affidavit mentions the laptop, but admits that at that point (in January) they had no evidence he stole it.

On January 6, 2021, a live stream video on the DLive platform was broadcasted to the public from user “Baked Alaska” and a portion was later posted on Twitter. In the video, several people were observed in an office that appeared to be within the Capitol. The video showed a person who appeared to be FELLOWS, sitting at a table with his feet propped up on a table, as shown in the still shot below. The chairs, table, drapes, and wall art appeared to be consistent with those in the office posted by Senator Merkley. The conference room in which FELLOWS is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in the video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36pm, documenting some of the damage to his office, as described above. At this time, there is no evidence that FELLOWS was involved in any of the theft, damage, or destruction – other than being a part of the group that occupied the office for some period of time.

Fellows’ discovery shows they obtained a Pen Register on him (which would allow the government to track his contacts). But it doesn’t show that he received what the guy with whom he was pictured with in Merkley’s office, Justin McAuliffe, received: a picture of the stolen laptop.

In a letter describing the discovery provided to McAuliffe, DOJ included a picture of Merkley’s stolen laptop, among other items.

Since I first started tracking this question — and all the defendants arrested because they were filming in Merkley’s office — in May, several more people who were in Merkley’s office have been arrested.

A (surely partial) list of those who were in Merkley’s office, with their arrest date and current status, includes:

Anthime Gionet (Baked Alaska): Arrested January 15, still charged (with just trespassing) on original arrest affidavit
Brandon Fellows (upstate NY): Arrested January 16, indicted (with obstruction) February 2, jailed for being an asshole to pre-trial services July 15
Justin McAuliffe (Long Island): Arrested January 28 and still charged on arrest affidavit, finalizing plea deal as soon as he recovers from a recent car accident
Zach Rehl (Philly): Arrested in the Proud Boys Leadership conspiracy indictment on March 19, charged with conspiracy to obstruct the vote count, among other crimes
Felipe Marquez (Miami): Arrested January 19 then later charged with obstruction, only to plead guilty to a misdemeanor on September 10
Karol Chwiesiuk (a cop from Chicago who did recon the night before the attack): Arrested June 11, still charged with just trespassing on original arrest affidavit
Anton Lunyk (NY): Arrested May 11, charged with trespassing on June 17
Antonio Ferrigno and Francis Connor (NY): Buddies of Lunyk arrested on trespass charges on August 31
Oliver Sarko (OH): Arrested April 30, still charged with just trespassing on original arrest affidavit
Jody Tagaris (FL): Arrested around May 14, charged with trespassing on May 19, change of plea scheduled for October 15
Gary Edwards (PA): Arrested May 4, charged with trespassing on May 18
Nathan Entrekin (the guy from AZ who dressed like Captain Moroni): Arrested July 15, still charged on original affidavit

Some of these people — like Entrekin and Edwards — were probably arrested to get to video they took, including of what happened in Merkley’s office. Gionet, too, took video, but I would be shocked if he weren’t eventually charged with (at least) obstruction. There’s three buddies from Brooklyn (Lunyk, Ferrigno, and Connor) who realized they were in trouble when they showed up in pictures with Gionet.

Fellows is currently the only one of these people charged with a felony, obstruction.

But given that people with ties to the far right who were in Nancy Pelosi’s office stole a laptop and offered it to Russia, I do wonder whether someone also tried to share Merkley’s laptop with Russia.

That’s the kind of thing that might require classified information to charge.

Update: h/t Eureka for reminding me Rehl was pictured smoking in Merkley’s office.

Update (9/10): I neglected to include Felipe Marquez in this list. He just pled guilty. I’ve added him.

David Mish’s Silence on Ashli Babbitt’s Last Words

August 31, 2021/5 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I have followed, with great interest, how January 6 prosecutors have used the misdemeanor pleas to establish their larger case about January 6. In this post, I noted that Eliel Rosa’s sworn statement of offense describes how obvious it was for someone approaching the Capitol at the same time Ethan Nordean was that cops didn’t want them there.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

In this post, I collected a bunch of language from statements of offense that either validated a defendant’s own recording of the riot or described some of the violence.

That’s why I was particularly interested in the statement of offense of David Mish. Mish was a witness to Ashli Babbitt’s death. His arrest affidavit had described that he called Metropolitan Police Department on January 7 and offered information in conjunction with Babbitt’s death.

12. On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.” Detective Hendrick clarified with MISH that his sole investigatory focus was on the shooting and that he was not involved in investigating MISH’s actions inside the United States Capitol. Detective Hendrick explained that investigation of demonstrators’ actions inside was being handled by other agencies and that he could not say whether or not MISH would be arrested. MISH subsequently stated that “I came up the stairs where the scaffolding was. Um, I was with a group of guys. . . . [E]verybody was yelling ‘breach the building.’”

He told Detective Hendrick that he heard — and recorded — Babbitt telling the police blocking her entry into the Speaker’s Lobby that the mob she was with were “not gonna stop.”

14. In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach. MISH stated he would provide the video footage to MPD Detective Hendrick and subsequently e-mailed a link to a Google Drive folder. To date, neither MPD nor the FBI has been able to access the content of the link. [my emphasis]

But none of this shows up in Mish’s statement of offense. There’s just one mention of the Babbitt shooting.

While inside the U.S. Capitol, the defendant entered a bathroom near the Speaker’s Lobby and came out to hear the fatal shooting of Ashli Babbitt.

And the Statement of Offense focuses on evidence implicating Mish, not collecting details about Babbitt’s killing.

On approximately January 7, 2021, the defendant contacted the Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt inside the U.S. Capitol. On January 8, 2021, a detective with the MPD contacted the defendant by phone. During that conversation, the defendant stated that he had entered the U.S. Capitol on January 6, 2021. The defendant also described the clothing he was wearing, which matched the clothing the defendant was seen wearing on video footage taken inside the U.S. Capitol.

Mish’s plea agreement includes the boilerplate language on cooperation addressing his social media, not anything he witnessed (or claimed to have witnessed) at the Capitol.

There’s no conclusion we might draw from this — aside from, in this case, pertaining to one of the most sensitive parts of the ongoing investigation, DOJ did not include information they otherwise might.

The Dog Ate My Conflict — Car Accident — Ventilator — Disconnected Phones: Miscellany from the January 6 Investigation

August 31, 2021/101 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I’m working on a few other things but wanted to capture a few details about the January 6 investigation.

John Pierce succeeds in hiring a new client from the COVID ward

Last week, I described how Ryan Marshall, an associate of John Pierce — the trial lawyer attempting to represent 17 January 6 defendants — claimed Pierce couldn’t be at a hearing for someone who would be his 18th because, “Mr. Pierce is in the hospital, we believe, with COVID-19, on a ventilator, non-responsive.”

After another hearing in which that associate, Marshall, showed up with few explanations, DOJ sent out notices to most of the defendants purportedly represented by Pierce, explaining the many conflicting explanations for Pierce’s absence offered in the last week.

The U.S. Attorney’s Office has had no contact with Mr. Pierce—by phone, e-mail, or otherwise—since Monday, August 23, 2021, when he appeared for a hearing before the Honorable Paul L. Friedman in United States v. Jeremiah Caplinger, No. 21-cr-342 (PLF). Since that time, the U.S. Attorney’s Office has heard conflicting information about Mr. Pierce’s health and whereabouts. The morning of Tuesday, August 24, Mr. Pierce was scheduled to appear before Judge Friedman for a status hearing in United States v. Nathaniel DeGrave, No. 21-cr-90. Mr. Pierce was not present at the hearing. Instead, Ryan Marshall—an associate from Mr. Pierce’s law firm who is not a licensed attorney—appeared in Mr. Pierce’s place and represented to the court that Mr. Pierce’s absence was due to a conflict. A few hours later, Mr. Marshall attended a reverse-proffer session with a different defendant represented by Mr. Pierce, telling the Assistant U.S. Attorney that he had just gotten word that Mr. Pierce had been in an accident and was on his way to the hospital. Mr. Marshall then proceeded with the reverse-proffer session in Mr. Pierce’s absence.

The next morning, August 25, Mr. Marshall again appeared in Mr. Pierce’s place at a hearing before the Honorable Amit P. Mehta in United States v. Shane Jenkins, No. 21-cr-245. At that hearing, Mr. Marshall represented to the court that Mr. Pierce was hospitalized with COVID19, on a ventilator, and non-responsive. After that information was reported publicly, a different individual reached out to an NPR correspondent and wrote that Mr. Pierce did not, in fact, have COVID, but instead “was hospitalized on Monday due to symptoms that he believed might be related to Covid-19”; “appears to have been suffering from dehydration and exhaustion”; and “remains under the care of his doctors[.]”3 On Thursday, August 26, Mr. Marshall again appeared before Judge Mehta in Mr. Pierce’s stead, this time in United States v. Peter Schwartz, No. 21-cr178. Before that hearing, Mr. Marshall told the Assistant U.S. Attorney that he had not had any direct contact with Mr. Pierce, but that one of Mr. Pierce’s friends had told him that Mr. Pierce was sick with COVID-19 and another had said he was not. During the hearing, Mr. Marshall requested, and was granted, a sealed bench conference at which to discuss Mr. Pierce’s condition. Later that evening, the same NPR correspondent reported that “[o]ne source close to attorney John Pierce tells me that [Mr.] Pierce is currently hospitalized, and has been diagnosed with COVID19, but firmly denied that he was ever placed on a ventilator.”4 Adding to the confusion, Mr. Pierce, who generally posts multiple messages to Twitter on a daily basis, has not tweeted since August 20.5 And there are reports that “multiple phone numbers for Pierce’s law firm, Pierce Bainbridge P.C., have been disconnected.” [my emphasis]

DOJ then declared all those cases to be “effectively at a standstill” and invited the respective judges to “take any steps [they] believe[] necessary to ensure that the defendant’s rights are adequately protected while Mr. Pierce remains hospitalized.”

Just as all these letters started to go out, the Notice of Attorney Appearance that Marshall had claimed had been filed on August 24, only dated August 30 and auto-signed by Pierce (who may or may not be on a ventilator), appeared in the docket for Shane Jenkins, the defendant at whose hearing Marshall first reported that Pierce was on a ventilator. Shortly thereafter a notice letter covering Jenkins went to Judge Amit Mehta, who had already received at least one for other Pierce defendants. It noted,

At an August 25, 2021, hearing before the Honorable Amit P. Mehta in United States v. Shane Jenkins, No. 21-cr-245 (APM), Ryan Marshall, an associate at Mr. Pierce’s firm, stated that Mr. Pierce now also represents Jenkins. A notice of appearance, purportedly signed by Mr. Pierce, was filed this morning (DE 22).

And with that filing, a man who may be incapacitated acquired an 18th defendant to represent.

WaPo has a good story on Pierce’s other shenanigans, including telling other defense attorneys that this is all a false flag operation and leaving one co-counsel unpaid.

“This whole thing was absolutely a false-flag FBI and intelligence community and military special operations set-up,” he wrote in a late July email to a group of lawyers coordinating defense efforts. The message was shared with The Washington Post. “I don’t [think] a single defendant should take any plea that involves one additional day in jail. At least that’s my mind-set.”

Another attorney replied, “John, can you explain more about how this false flag set-up worked? I’m unclear about the details of what you’re saying.” Pierce did not elaborate.

In another email chain discussing Capitol Police interviews, Pierce wrote, “THIS WHOLE THING WAS AN LEO/IC SET-UP,” referring to law enforcement officers and the intelligence community, “AND WE NEED TO WORK TOGETHER TO PROVE IT.”

[snip]

James Kelly, listed as co-counsel with Pierce in a Jan. 6 case, said Monday that he cut ties with the firm in June because he wasn’t paid, is withdrawing from the case and declined further public comment.

The December 17 cooperation update in the Oath Keepers investigation

Meanwhile, things seem to be progressing in the Oath Keepers case. As a reminder, there are four known cooperators in the case: Jon Schaffer, Mark Grods, Graydon Young, and Caleb Berry. In each, Judge Amit Mehta set a two month deadline for the first status report.

In the Schaffer case, the status report submitted on or before June 16 was quickly sealed; indeed, everything since his plea remains sealed.

In both the Graydon Young and Mark Grods case, however, the status report recently got filed.

In the case of Young, the notice similarly reported on ongoing cooperation, asked that Young’s release conditions be relaxed (to match those of other cooperators, though it doesn’t say this), and asked for December 17 to be the next status report in Graydon Young’s case.

The parties report that Defendant Graydon Young continues to cooperate with the government. We request the opportunity to file a further status report by December 17, 2021.

Defendant Young requests that the Court modify his release conditions, stepping him down from home incarceration to an appearance bond on personal recognizance, with the following conditions: not obtain a passport, surrender any passport, not possess any firearms or destructive weapons, not have any contact with co-defendants or associates or affiliates of the Oath Keepers, stay out of Washington, D.C., and notify Pretrial of any travel outside the Middle District of Florida. The government does not oppose this request.

In the Grods case, DOJ asked for the next status report to be due on the same day, December 17.

The parties report that Defendant Mark Grods continues to cooperate with the government. We request the opportunity to file a further status report by December 17, 2021

Berry pled guilty more recently, so his first status report isn’t due until September 21, two months after his plea.

None of this is all that surprising, but the fact that DOJ harmonized the next report date for Young and Grods, who would otherwise be a week apart, suggests DOJ thinks of that as a milestone in the Oath Keeper case. It may be tied to the first trial date for the conspirators, currently set for January 31, 2022. Or it may reflect some understanding of what the prosecutors think they have before them.

If it’s the latter, it says they’ve got four more months of investigation to complete before they’ll finish.

Update, September 18: The two sides have submitted a status report in the Caleb Berry case, and there, too, they’re asking for a December 17 report date.

“Zachary Studabaker’s” best-in-riot passwords

In a bid to delay trial for Zachary Alam, the guy who punched through the Speaker’s Lobby door with his bare fist, prosecutor Candice Wong gave an updated status on discovery for him (see this post on discovery provided to those who helped Alam break through the Speaker’s Lobby doors; Wong has sent Alam one, two, three, four, five, six). As part of that paragraph, Wong disclosed that the government is still trying to crack the passwords on multiple devices belonging to Alam.

The government has provided defense counsel with significant case-specific discovery, as outlined in seven discovery notices filed with the Court between March 26, 2021, and July 14, 2021. See ECF Nos. 10, 14, 17, 20-22, 24. The materials provided include videos encompassing surveillance footage from the U.S. Capitol Police, body-worn-camera footage from the Metropolitan Police Department, open-source videos posted on news and social media platforms, and videos obtained through legal process or voluntary productions in other Capitol investigations that depict the defendant. Case-specific discovery provided to the defendant also includes reports of interviews with civilian and law enforcement witnesses, grand jury materials, search warrant returns, subpoena returns, and jail calls. As the defendant was inside the Capitol for over half an hour, covered four floors, and had multiple interactions while he was there, the government continues to identify and produce additional case-specific materials. Also forthcoming are extractions of the multiple digital devices recovered from the defendant upon his arrest, for which law enforcement is still attempting to decrypt the defendant’s password protections.

The fifth discovery letter, above, describes four devices obtained via a warrant.

It’s not surprising that Alam would have pretty solid passwords. A detention motion in the case described that Alam used aliases…

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

Stolen license plates…

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

False identification…

Upon arrest, moreover, the defendant had multiple identification cards in his wallet, including a D.C. driver’s license and a D.C. identification card for one male, a Permanent Resident card for a second male, and University student identification card for a female.

Burner phones…

Among the items agents seized from the defendant’s motel room nightstand, moreover, were two mobile phones – a Verizon flip phone as well as an iPhone.

[snip]

For “Sun 1/10/21,” the defendant had written “activate burner,” indicating that four days after the events at the U.S. Capitol, he began using a “burner” phone. That “burner” appears to refer to the Verizon flip phone that agents recovered, as executing agents photographed a receipt dated January 10, 2021, for a “Verizon” phone paid for with $65.13 in cash at a Walmart in Pennsylvania.

Cryptocurrency…

The defendant’s other notes from January 10 referred to his intent to “buy crypto[currency]” and “consolidate crypto,”

[snip]

Meanwhile, on “Wed 1/13,” the notes indicate that the defendant planned to “buy CRV on Binance,” an online exchange for trading cryptocurrencies.

[snip]

He also wrote on another page, “Research security (location intelligence)” and “Research how to launder BTC [bitcoin]” right above notes that likewise appear to concern January 6: “Wanted a civilized discussion w/ our representatives but the door wouldn’t open” and “Call out Pence – should have been over.”

And (a poorly implemented) VPN…

Indeed, in a jail call he made on February 21, 2021, the defendant told an individual that he believed he had been tracked down by law enforcement through GPS on his phone and complained that he had downloaded “VPN on my phone” and “got IP Vanish” but that it was “a bullshit service”; “I tried to make that thing run all the time, and it just shut off like randomly sometimes… They can’t f–ing have the VPN running 24 hours? Basically the same thing as not having it… That’s how they figured out my general location.”

But that’s the thing: Alam was using a great deal of operational security. But when it came down to it, he used a free VPN and had his burner phone sitting on a nightstand right next to his smart phone. He was attempting to use operational security, but he was botching it at every opportunity.

And yet the FBI has not yet cracked passwords on multiple — at least two — of the four devices they seized from him, after arresting him seven months ago. FBI has had limited difficulties getting into January 6 defendants’ phones (the most notable of which was solved when they forced Guy Reffitt to use his face to open his Surface Pro), and there are suspects — including two charged suspects and one who fled bail — who have spent longer periods than Alam as fugitives. But this detail seems to suggest that Alam has the best passwords among the 600 January 6 defendants.

How the FBI Missed Alleged January 6 Leader Joe Biggs

August 29, 2021/79 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Let’s talk about how central Joe Biggs is to what we know of the implementation of January 6.

It explains a lot that — at least according to a claim Biggs himself made — two FBI agents were relying on him for information against Antifa in the lead-up to the terrorist attack.

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

I don’t mean they were complicit. Rather, that they weren’t even aware that he was in the middle of plans to conduct a terrorist attack on the nation’s Capitol is a testament to and perhaps an explanation for how the FBI missed all this.

Joe Biggs is a former Army Staff Sergeant who did tours of duty in Iraq and Afghanistan before he left with a medical discharge and PTSD. After some troubled years, he started contributing to InfoWars, serving as a key proponent of the PizzaGate scandal that turned John Podesta emails stolen by Russia into an attack on a pizza restaurant in DC; he was formally ousted from InfoWars shortly after the Comet Ping Pong attack, but remained in the InfoWars orbit. Alex Jones claims he gave Biggs a big severance when he left. After that, Biggs was a key proponent of the Seth Rich conspiracy, posting the manufactured FBI Report that served as a basis for the Fox News story that had to be retracted.

According to one of Biggs’ own court filings, after he moved to Florida to take care of his mother in 2018, he contributed the same propaganda skills that fostered an attack on Comet Ping Pong and falsely impugned a murdered DNC staffer to the Proud Boys, ginning up events to sow violence in the name of Antifa.

The same year, 2018, after the move to Florida, Biggs became active as an organizer, event planner and thought leader in the Proud Boys. He used his platform as a radio and social media personality to promote Proud Boy events and ideas. In particular, he personally planned two major events: rallies in Portland, Oregon in both 2019 and 2020 designed as counterdemonstrations against Antifa, which had been active in and around Portland for over two decades.

His presence in Florida put him in close proximity to Enrique Tarrio and (as if his ties to InfoWars didn’t already do so) through him Roger Stone.

When Trump called out the Proud Boys in his first debate against Joe Biden, Biggs responded, “President Trump told the proud boys to stand by because someone needs to deal with ANTIFA . . . well sir! we’re ready!!” (Note, this hasn’t shown up in DOJ filings.)

Immediately after and in the weeks after the election, Biggs kept declaring war. “It’s time for fucking War if they steal this shit.” “No bitch. This is war.” ““This is a war on Americanism. This is only the beginning.”

On December 11, the Proud Boys (at least Enrique Tarrio and Ethan Nordean) appeared prominently at a Stop the Steal event with InfoWars personality Owen Shroyer. There was coordination between the militias at a march the following day, after which Enrique Tarrio destroyed a Black Lives Matter banner from the Asbury United Methodist Church in DC.

In the days after both the DC even and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

In the days after, both Tarrio and Biggs posted plans to dress like Antifa rather than in their signature yellow and black.

9. For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

10. On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

On December 30, Southern California 3%er Russell Taylor described a plan to meet at the Capitol and — in conjunction with Stop the Steal — surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

This plan — surrounding the Capitol — was what Stop the Steal figures partially carried out on January 6.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

After all that, the Proud Boy leaders agree to meet at 10AM the next day.

As captured by the WSJ, the next day, after the Proud Boys met at the Washington Monument, they then marched the East side of the Capitol first, but then later approach it from the Northwest. Just before Trump started speaking and before a broader call to assembly tied to 1PM, at 12:52 Biggs said something to Ryan Samsel, who then kicked off the assault on a series of barricades, giving a police officer a brain injury in the process.

Proud Boys Dominic Pezzola and Billy Chrestman were among the leaders of the next confrontation. After a series of fights, at 2:13, Dominic Pezzola broke through a window in the Capitol. Biggs followed him, with some other Proud Boys (in this picture, Paul Rae) in tow, a minute later.

Meanwhile, even as Biggs was leading a mob of people in a violent attack on the Capitol, Alex Jones — Biggs’ former employer — was leading a larger mob of people from the Ellipse, where they had just been instructed by their President that “we’re going to the Capitol, and we’re going to try and give…we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.” Jones stopped when he got to the Capitol and gave a speech.

According to Stacie Getsinger, a woman from South Carolina who was arrested for trespassing in June who was listening to Jones at that first speech, Jones told his audience to go to the other side of the building (which would be the East side), because that’s where Trump’s next speech would be.

She and her husband did. Trump gave no speech, but they were among the first wave of people to breach the East entrance.

Alex Jones went to the other side of the Capitol, too. Even before he did, though, Oath Keeper Jason Dolan was on the stairs, waiting.

As Dolan waited, Jones and his entourage (including Ali Alexander and the recently arrested Owen Shroyer) pushed up the stairs stack-style.

Meanwhile, at some point, former InfoWars employee and Florida militia member reportedly joined in an alliance with the Oath Keepers by fellow Floridian Meggs, Biggs left the Capitol from one of the West entrances, walked around it, and assembled on the East Steps with Arthur Jackman, Rae, and two others (probably Kevin and Nathan Tuck, and possibly Edward George; the Tucks are both — now former — cops, and Jackman’s and one of the Tucks’ spouses still are cops).

At 2:39, Rae and Jackman can be seen approaching the East Door with Biggs.

At around 2:40, they entered the East door.

At almost exactly the same time, Jason Dolan and Kenneth Harrelson entered the door along with the Oath Keeper stack led by Kelly Meggs (this is believed to be a picture Harrelson took of Dolan filming the entry; if you watch the video you can see both signs visible in the Biggs photo, making it clear that the people kitted out with helmets in that picture are the Stack).

People like the Getsingers — who were brought there by Alex Jones — pushed through around the same time.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

[Thanks to Benny Bryant for continuing to help me sort through the Oath Keeper side of this, and thanks to gal_suburban for sharing the video of Jones on the East side.]

Zia Faruqui Doesn’t Want to be DOJ’s Fall-Guy for Media Policy Secrecy

August 26, 2021/42 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As I noted, on Friday, InfoWars personality Owen Shroyer was charged — at this point, with just trespassing — in the January 6 insurrection. But as I also noted that his affidavit, “is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification on January 5.” As a general practice, the government has arrested many non-violent January 6 defendants on trespassing charges and then fleshed out any further charges afterwards (in part, because that maximizes the opportunity to get people to cooperate).

Tuesday, some documents were unsealed that reveal I’m not the only one who thinks so. So, apparently, does Zia Faruqui, one of three DC Magistrate judges dealing with all the January 6 cases as they come in (and, of note, until last year an Assistant US Attorney in the DC US Attorney’s Office).

Faruqui attempts to hold the government to public record standards

We know what Faruqui thinks because he has been trying to force the government to treat court records as the public documents they’re supposed to be, as he did here.

Not long after he became a Magistrate judge, Faruqui got stuck with government requests to collect journalists’ communications that were predictably controversial when they were disclosed. In an order issued in July, Faruqui scolded the government for suggesting they could seal the records request (along with its tactically unique approach to getting journalists’ records) indefinitely.

A sealed matter is not generally, as the government persists in imagining, “nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse.” Leopold, 964 F. 3d at 1133 (citing RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981)). Rather, it is merely frozen in carbonite, awaiting its eventual thawing. Cf. THE EMPIRE STRIKES BACK (Lucasfilm Ltd. 1980)

As Faruqui describes it in an order drafted last week along with the arrest warrant for Shroyer, but not released until yesterday, the government was trying to do the same with Shroyer’s arrest warrant. When the government asked for the arrest warrant, he asked if they would memorialize their basis for finding that Shroyer’s arrest met DOJ’s media guidelines. Magistrate Judge Michael Harvey forced the FBI agent to include language addressing the issue earlier this year in the arrest warrant for Matthew Purse; in that case, the Agent simply included language explaining how he had determined that Purse was not a member of the media.

But, as Faruqui describes it in his order, in Shroyer’s case, the government was unwilling to assert that they had followed their media guidelines with Shroyer in the affidavit, much less explain their thinking surrounding it.

On August 19, 2021, the undersigned had a telephone conference with representatives of the USAO regarding the Complaint. The undersigned inquired as to whether:

the Department of Justice considered Shroyer to be a member of the media;

the USAO had complied with Department of Justice policies regarding the arrest of media members; and

the Assistant U.S. Attorneys would memorialize the answers to these two questions in the Complaint, consistent with their prior practice.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations

Afterwards, Faruqui sent a draft of his order to USAO (that is, to his former colleagues). One of his former supervisors, John Crabb, wrote back and said that DOJ doesn’t have to share this because it would reveal internal deliberations.

[A] requirement to proffer to the Court how and on what basis the Executive Branch has made determinations under these internal Department policies would be inconsistent with the appropriate role of the Court with respect to such policies and would risk disclosing internal privileged deliberations. Moreover, such inquiries could risk impeding frank and thoughtful internal deliberations within the Department about how best to ensure compliance with these enhanced protections for Members of the News Media.

Crabb further explained that the Shroyer case is distinguishable from the Purse case.

As the Court notes, Addendum Order at 7-8, this Office has conferred on previous occasions with the Court regarding certain aspects of the Department’s media polices. In the main, those situations are distinguishable; and, in any event, the government is not bound by those prior actions.

Probably, this situation is distinguishable because Purse was affirmatively shown not to be media. Shroyer clearly is, in some sense. Under DOJ’s media guidelines (assuming they’re not using the exception for a suspected foreign agent), that leaves two possibilities. Either they deemed some of the things for which Shroyer got arrested to be outside his newsgathering role. And/or they determined he had committed a crime in the course of his newsgathering activities, the equivalent of hacking to obtain source materials for journalism.

DOJ’s reliance on the Deferred Prosecution Agreement, including Shroyer’s failure to even begin paying off his community service debt before January 6, provided DOJ with an easy way to publicly establish a crime largely independent of his actions on January 6, which is one of the reasons I was so interested in how they had arrested him.

Faruqui’s probable cause determination

But Faruqui’s order may hint at what DOJ is really thinking.

Faruqui’s order is organized this way:

I. Introduction, explaining why he’s writing this order.

A. Events of January 6th, explaining the content of Shroyer’s propaganda (including propaganda from before he trespassed on January 6)

B. Prior Criminal Conduct, explaining Shroyer’s past disruption charge and his DPA

C. Statutory Violations, explaining the basis for the two misdemeanors Shroyer was charged with

D. Inquiry of the Court, explaining that Faruqui tried to make DOJ go on the record for how this complied with their media guidelines

II. Standard, explaining the reasons for treating the press with sensitivity and laying out the parts of the media guidelines that focus on protecting newsgathering

III. Analysis, describing how on two earlier occasions DOJ had provided more on the record than they had here, but were unwilling to do so here, then restating Shroyer’s actions

IV. Conclusion, finding that even a credentialed journalist committing the same actions Shroyer had would have reached probable cause for a crime but also finding that DOJ gave an unsatisfactory answer about how it applied its media guidelines [my emphasis]

It’s the last bit — the end of Section III and the short Section IV — I’m most interested in. In one paragraph, Faruqui explains that DOJ said something to him (presumably before he approved the warrant on the 19th) confirming they had followed the media guidelines, but were unwilling to put that they had done so or what their analysis was in writing. That’s what led him to draft this order and ask again for them to put it in writing.

Yet here the government is unwilling to address its compliance with its internal regulations regarding the press. When questioned by the Court, the USAO’srepresentatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” 28 C.F.R. § 50.10(f)(2). The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.

The next paragraph restates Shroyer’s alleged crime, but combines stuff that appears in sections I.A. and I.C., above, which results in a description of alleged crimes that go well beyond trespassing (though Faruqui does review how Shroyer knew he couldn’t “engage in disruptive and riotous behavior” at the Capitol).

Shroyer’s January 2020 arrest gave him clear notice that he could not engage in disruptive and riotous behavior at the Capitol Building and Grounds. Yet beginning on January 5, 2021, Shroyer began urging others to join him in protest at the Capitol Building and Grounds premised on the false claim that the election was “stolen.” Statement of Facts at 3. This conduct continued on January 6, 2021, when Shroyer made additional statements urging on the mob and personally entering the restricted area of the Capitol building in brazen defiance of his DPA. See Statement of Facts at 4–6. His stated goal was clear: to stop former Vice President Pence from certifying the election by “tak[ing] the Capitol grounds”. Id. at 6. Shroyer described his personal role in the riot: “We literally own these streets right now.” Id. at 6. On January 6th, Shroyer was “aid[ing], conspir[ing] with, plan[ning], or coordinat[ing] riotous actions.” United States v. Munchel, 991 F.3d 1273, 1284 (D.C. Cir. 2021).

In the bolded language, Faruqui describes obstruction as it is being charged in January 6. He then purports to cite from Munchel, the DC Circuit decision that DC judges have used to separate those who assaulted cops and those who masterminded the attack from those who pose less of a threat going forward. Only the quote doesn’t appear in the opinion, not even in other grammatical form. Faruqui’s citations should end before (or bracket) the word “riotous.” Here’s how the passage appears in Munchel:

In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

This is, as I noted, the language that District judges have used since Munchel in justifying detaining people. Faruqui is seemingly saying that Shroyer did things — and this language has primarily been used with militia leadership — that have gotten other people detained. Effectively, Faruqui has suggested that Shroyer is, like Kelly Meggs and Joe Biggs, one of the key leaders in this attack.

After having likened Shroyer to the likes of Meggs and Biggs, then, Faruqui says (in the conclusory section) that there is probable cause that Shroyer committed the crimes he has just described.

The undersigned finds there was probable cause to believe Shroyer committed the above-described violations.

Coming immediately after the sentence likening Shroyer to Meggs and Biggs, this language might not refer solely to the trespass charges approved in the warrant, but also to the broader language Faruqui used, encompassing obstruction and conspiracy.

And indeed, the affidavit does substantiate (at least) obstruction charges, even if it doesn’t include that among the charges (as I noted before all these documents were unsealed).

Who is making this case — Faruqui or DOJ?

As noted above: according to Faruqui’s order, it’s not that the government didn’t say whether it had adhered to its media guidelines. He explicitly says that they did.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations.

[snip]

When questioned by the Court, the USAO’s representatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” [my emphasis]

Rather, DOJ refused to put that it had in writing.

Which makes it unclear whether this extrapolation from Shroyer’s arrest affidavit, from the details that substantiate the two trespassing charges in it to the details that could not have any role in a trespassing charge but which show that Shroyer pre-meditated an attempt to stop the vote count, is Faruqui’s own extrapolation or something he heard in his discussions with DOJ last week, the things they’re not willing to put into writing.

Contrary to some analysis of this order, it is not a prospective order for anything — Faruqui had already approved the arrest warrant when he issued it. Nor is Faruqui saying that he doesn’t know if DOJ considers Shroyer a journalist (though he’s more oblique on that point than he is on others).

Rather, the reason he wrote this order was to memorialize what he understands, from conversations he had with DOJ, went on.

The Court issues this addendum opinion to ensure that the record accurately reflects: 1) the conversations between the Court and the Department of Justice; and 2) the Department’s break with its prior practice of confirming its adherence to these regulations.

[snip]

The Court issues this addendum opinion in response to the USAO’s break with prior practice, and to ensure that the judicial record accurately reflects: 1) the conversations between the Court and the USAO; and 2) the undersigned’s understanding of the steps taken by the Department to comply with 28 C.F.R. § 50.10.

What Faruqui doesn’t say, though, is where in this opinion DOJ’s representations (at a minimum, that they did, in fact, follow media guidelines) end and where his own analysis begins. That is, we don’t know whether the analysis that implies Shroyer is one of the key planners of this operation, just like Biggs and Meggs, is Faruqui’s analysis or what DOJ explained, verbally but not in writing, when they explained that they had complied with media guidelines.

Update: DOJ has unsealed an Information charging Shroyer just with trespassing.

John Pierce Tries to Hire His 18th January 6 Defendant while on a Ventilator with COVID-19

August 25, 2021/187 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I’ve written about John Pierce’s efforts to collect a cast of January 6 defendants to represent — many, those who could incriminate Joe Biggs, especially Proud Boys. That means he represents a ton of Floridians, though he lives in California. As of this morning, he represented 17 defendants (after having been fired by two other key January 6 participants, Ryan Samsel and Alan Hostetter, already).

Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. On September 24, Alex Stavrou replaced Pierce as Worrell’s attorney.

1. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

2. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

3. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 7, White got a PD to temporarily replace Pierce until she found someone else she liked.

4. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

5, 6, 7. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

8. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved. On September 7, Brad Geyer replaced Pierce.

9. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

10. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

11. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

12. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

13. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

14. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

15. Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn.

16. Anthony Sargent: On September 24 (the same day he swapped off of Christopher Worrell’s case), Pierce showed up at the initial appearance for Anthony Saregent, another Florida Proud Boy.

Representing this many defendants would be an impossible feat, even for the most experienced defense attorney, and harder still for a civil attorney like Pierce. Plus, some of these representations would seem to pose serious conflicts.

At a status hearing for Shane Jenkins, a January 6 defendant accused of assault, this morning, his currently retained attorney, Public Defender Maria Jacob, started by saying that she believes that she’s being replaced. John Pierce’s colleague, Ryan Marshall (who is not barred in DC but nevertheless handled Pierce’s appearance in Nate DeGrave’s case yesterday), piped up to say, yes, that was happening but unfortunately the notice of appearance he thought had been filed last night had not appeared on the docket yet. When Judge Amit Mehta asked where Pierce was, Marshall said, “Mr. Pierce is in the hospital, we believe, with COVID-19, on a ventilator, non-responsive.”

Judge Mehta wished the Pierce family well and scheduled a hearing next Thursday rather than accepting the appearance of a lawyer on a ventilator to represent his 18th client in this matter.

Update: A week ago, Pierce said he would never get vaccinated.

Update, September 24: I’ve updated the clients who’ve since fired Pierce.

“its really difficult to determine whats real and what’s fake;” At Least Three Oath Keepers Believed Trump Invoked the Insurrection Act on January 10

August 25, 2021/72 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In a government filing responding to a request from Joshua James to have his bail conditions relaxed, the government provided a number of new details about the investigation (as well as noting that, since James’ wife has made almost $200,000 in a fundraiser tied to his arrest, his claim to need to work to provide for his family is unpersuasive).

The filing reveals (possibly based off reconstructed James texts), that on January 10, at least three Oath Keepers had come to believe that Trump had invoked the Insurrection Act, but was being prevented from releasing it.

Kelly Meggs knew about it — but said his guys from Florida were “stay[ing] home until shots fired.”

Kelly Meggs: Insurrection act appears to be signed and we shall se [sic] what tomorrow brings.

James: Yes..

Kelly Meggs: Stay safe

James: You too! Are you coming to TX?

Kelly Meggs: Nope Fl stays home until shots fired !

In addition, James spoke about it with Brian Ulrich.

Ulrich: We heard [Person One] might be disseminating information to all of us is that true?

James: Hes gone comms dark. Im with him.

Ulrich: Oh? Lol well there was talk that he was announcing. Can you guys at least tell me or us is trump going to do something is up with this is all about is he actually doing something?…

Ulrich: Been hearing since this AM that trump signed EO and he was going to have a speech but nothing confirmed.

James: That’s correct. The Insurrection act has been signed but not published to the public. They are keeping him locked away.. theres so much bad information coming from all angles its really difficult to determine whats real and what’s fake.

Ulrich: But is it coming that’s all I want to know…

James: Everyone needs to stay calm, and let’s see what POTUS does.. Yes Its already happening.

Ulrich: Ok. [Person One] ok? You guys needs to stay below the radar.

Since James was with Stewart Rhodes (and armed) when he wrote this, it seems likely Rhodes believed this as well.

If nothing else, the fact that at least three people independently came to believe that Trump had invoked the Insurrection Act will give DOJ probable cause to obtain the communications that might reveal why — and via what channels — they believed that to be true.

Update: The January 6 Select Committee just released their document requests. They ask for any discussions about the Insurrection Act from a variety of departments, including DOJ and DOD.

From November 3, 2020, to January 20, 2021, all documents and communications relating to the possibility of invoking the Insurrection Act, including but not limited to documents and communications concerning that possibility with respect to preparation for the events of January 6, 2021, or responding to the January 6, 2021, attack.

Stop the Steal: Hints of the January 5 Rallies in the January 6 Riot Investigation

August 23, 2021/72 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

With the charges against Owen Shroyer, the government has now charged three people who had a speaking part in several rallies tied to Stop the Steal the day before the insurrection: Brandon Straka, Russell Taylor and his co-conspirators, and Shroyer. Because I’m working on some gaps in the government’s story — gaps that must be intentional, for investigative or prosecutorial reasons — I want to look at how DOJ is beginning to fill in the story about January 5.

With Walk Away founder Brandon Straka, who was arrested on January 25, the mention of his speech at the Stop the Steal rally at Freedom Plaza in his arrest affidavit was almost incidental, included along with the rest of his incendiary speech directly tied to the riot (but the affidavit didn’t include his other public comments over a broader period — for example, it doesn’t mention Straka’s role in sowing suspicion of the Michigan vote tally).

My review of STRAKA’s Twitter account on January 11, also found a video he had posted of himself speaking at a “Stop the Steal” rally held at Freedom Plaza in Washington, D.C. on January 5, 2021. As of January 13, STRAKA had removed this video from his Twitter account, but a video of the entire event had been posted to YouTube. The video showed that STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

Though Straka was charged with civil disorder for encouraging others to strip an officer of his riot shield, he has not yet been indicted, with or without obstruction, which these statements would seem to support. Instead, the government has gotten two 90-plus day continuances in this case with Straka’s consent, offering the explanation that, “are continuing to communicate in an effort to resolve this matter.” Straka currently has a status hearing scheduled on August 25, Wednesday, though these things do get moved quickly.

The January 5 rally at the Supreme Court (which featured some of the same people as the Freedom Plaza one) appears in the So Cal Three Percenter conspiracy indictment in part for the logistical challenges it posed.

On December 30, 2020, KINNISON sent a text message to MELE, WARNER, and MARTINEZ in which he attached a flyer advertising the January 5, 2021 rally outside the Supreme Court, at which TAYLOR, HOSTETTER, and PERSON ONE were named speakers for the American Phoenix Project. After KINNISON set this message, MELE wrote, “We need to make sure we roll into town earlier on the 5th now,” to which KINNISON responded, “We can leave Saturday.”

But it still provided cause for DOJ to mention that by December 30, Russell Taylor knew of a Stop the Steal plan to “surround the Capitol.”

On December 30, 2020, TAYLOR posted to his “russ.taylor” Instagram account:

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Mentioning this rally also gave DOJ an opportunity to describe Taylor promising to “fight” and “bleed” in his speech at the rally.

On January 5, 2021, TAYLOR spoke at a Virginia Women for Trump rally in front of the United States Supreme Court as part of a panel of American Phoenix Project speakers. In his speech, he stated:

I am Russell Taylor and I am a free American. And I stand here in the streets with you in defiance of a communist coup that is set to take over America. But we are awake and we are never going back to sleep. We are free Americans and in these streets we will fight and we will bleed before we allow our freedom to be taken from us. We declare that we will never bend a knee to the Marxists within Antifa, to the tyrannical Democrat governors who are puppets, and to the deep state commie actors who threaten to destroy America…. But now these anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

That is, in the conspiracy indictment charging 3 percenters with organizing not just themselves to come armed to the Capitol, but others in Southern California, the earlier rally serves as both an organizational focus and a platform to sow violence.

Shroyer’s affidavit mentions several things he said on January 5

SHROYER traveled to Washington, D.C. in January 2021, and in advance of January 6, 2021, spoke of stopping the certification of the Electoral College vote. In a video1 posted to the Infowars website on January 5, 2021, SHROYER gave an address in Freedom Plaza in Washington D.C., during which he stated: “Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!”

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

In addition, SHROYER was featured in promotional material circulated by Infowars. One promotional video urged listeners to “come to the big D.C. marches on the 5th and 6th of January, I’ll see you there.”4 The video ended with an edited graphic of SHROYER and others in front of the Capitol building. That graphic is depicted below:

1 https://banned.video/watch?id=5ff4aebaa285a02ed04c4d6e.

2 https://banned.video/watch?id=5ff511bb5a212330029f5a9c.

3 https://banned.video/watch?id=5ff511bb5a212330029f5a9c.

4 https://www.banned.video/watch?id=5ff22bb71f93a8267a6432ee.

While Shroyer is circled in that graphic — which demonstrates that Jones had a plan to go to the Capitol (significantly, this is the East front) days in advance — it really is all about Jones.

As I noted, this is just a trespass arrest, like hundreds of other trespass arrests (though by charging Shroyer with violating a pre-existing Deferred Prosecution Agreement, they lessen any claims of persecution that will come as they investigate Shroyer further).

But what these three arrests together show is that those involved as speakers on January 5 seem to have had advance knowledge of what would happen the next day.

One of the other mentions of January 5 rallies thus far appears in the filings for Josiah Colt, Ronnie Sandlin, and Nate DeGrave, three random guys who hooked up on the Internet and armed themselves for violence in advance of January 6. Though they have no ties to any organized militia, the day after they went to a January 5 rally, they seemed to know there would be a second front opening at the East door, and Sandlin and DeGrave were among those charged with forcibly ensuring that door was opened.

The How of Owen Shroyer’s Arrest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SHROYER traveled to Washington, D.C. in January 2021, and in advance of January 6, 2021, spoke of stopping the certification of the Electoral College vote. In a video1 posted to the Infowars website on January 5, 2021, SHROYER gave an address in Freedom Plaza in Washington D.C., during which he stated: “Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!”

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

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

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

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

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

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

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

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

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

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