A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”


EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

77 replies
  1. scribe says:

    [A] “It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal.”
    [B]”It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in.”
    [C]”It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.”

    I’ll opine the order of likelihood of the 3 sentences quoted above, from most likely to least likely, are [C], [B], [A]. Moreover, the existence of [C] makes [B] almost inescapable. And I’m sure the DC prosecutors are holding their plans on sedition closely, having the “wanted” notices sent out with as little information as is sufficient to support an arrest.

    Moreover, your note that both motions are true is something people have to keep in mind. Judges only rule on the facts and argument placed before them. You, as a lawyer or party, could have all the evidence in the world to support your motion but, if you don’t put it before the judge, the judge won’t be able to rule on it. All the usual chicanery aside, courtrooms are still the ultimate fact-based world. But they are also a black-box theater where the only information in the room is that presented by the parties to the judge.

    This doesn’t argue for TN prosecutors pulling their punches (they don’t, anywhere) so much as it does for them putting what information they had before the judge, but also that they didn’t have ALL the information. And, remember, this surely was all done in a hurry, which further limits the information available to present, and the presentation.

    • emptywheel says:

      Technically, there was a second prosecutor in TN (unclear whether he was from DC or TN) who tried to put in the Turton threat when it was clear they were going to lose on bail, but Frensley rightly said they had missed their chance. So in that case, there was, in fact, a prosecutor in the room who knew of more, but they chose not to present it when they could.

      All other points are right on, though.

      • scribe says:

        Which reinforces my point about the “Black Box”.

        I once represented on post-conviction relief a client who’d been charged with driving without insurance, a serious offense in the jurisdiction. 2 years’ suspension and massive surcharges and fines. She had insurance. She had been discombobulated after the accident and couldn’t find the card, so the cop charged her. She went to court, with the insurance card and her lawyer. Her lawyer rested without moving the insurance card into evidence. She was found guilty, even though the card was lying on the counsel table in the plain view of everyone. The judge, whom the lawyer had pissed off for multiple reasons, refused to allow the lawyer to reopen the defense case once the client reminded the lawyer of her error.

        There was more – enough for a chapter in a book of what not to do – but the gist of it is, if it isn’t before the court “in evidence”, it doesn’t exist and the judge will not (or should not) incorporate it in his decision

        • scribe says:

          Yes, in a manner of speaking. It took over a year.

          She’d been hit with 7 tickets: DWI, DWI-refusal, careless driving, leaving the scene-property damage (hit the guardrail when her tire blew), leaving the scene -injury (she’d chipped one of her own teeth) (she left the scene to go call the police at a nearby house, in the days before cellphones), failure to have insurance, and something else I don’t remember.
          She’d had one beer with dinner at a local place with a girlfriend and enroute home hit a guardrail when a front tire blew. It was late in the month and the state trooper responding (who hadn’t appeared at her trial) was both a prick and behind on his quota.

          She’d been convicted on all counts and the judge, notorious for slamming DWIs after a family member was killed by a drunk, stacked her penalties, suspensions and such. She even got community service. Something like 5 years’ worth of suspensions, and going on $10k of fines, penalties, assessments, and insurance surcharges.

          We got the no insurance rolled down to the minor violation of failure to exhibit papers (no points!) and everything else rolled into a DWI refusal (1st offense, 6 months suspension). This meant that while she couldn’t get her community service time back, she left the courtroom with a check for several thousand dollars in fines she’d paid and her driver’s license free and clear. And the judge was smiling at me.

        • Chris.EL says:

          Years ago, in propria persona, in court for a traffic ticket (so long ago I can’t remember what it was for) — I learned that if the cop doesn’t show at hearing — you can ask for case to be dismissed:
          State’s witness not present!
          ONE BEER should never give anyone a DWI/DUI…
          Anyway, congratulations for helping your client and *prevailing*!!

        • P J Evans says:

          Depends on the person. My limit is one: one beer, one glass of wine, one shot of whiskey – and I can feel the effects at that level. It’s weight-related.

        • JMC says:

          Why does she have to prove that she has insurance? Isn’t the burden of proof on the state to show that she doesn’t have insurance if she’s being charged with a crime? I know it’s all over and done with and you weren’t her original lawyer, but couldn’t the original lawyer have rested and said that the state didn’t check with every insurance company to prove that she didn’t have insurance?

        • bmaz says:

          Lol, no, that is not how it works. You are new here, aren’t you? Welcome, but that was not a good question.

        • @pwrchip says:

          LOL, this is one of many reasons l love this blog, even Qs require a semblance of conscious thought behind them with credible resources to back them up.
          Reminds me of the movie ‘I Robot,’ where the holographic image of the dead scientists insisted that the detective (Will Smith) to rephrase the Q to its relevance pertaining to the current case.
          Thanks bmaz.

  2. bloopie2 says:

    Wonderfully cogent explanation, thank you.

    I assume that the penalty for seditious conspiracy (up to twenty years) is stiffer than the one for mere rioting on Federal property, and I assume that jurors will be at least informally aware of that fact. So I’m guessing that prosecutors will also have to, in effect, make a case that a twenty year sentence is merited. Because a defense lawyer might say, “Okay, she did some bad stuff – but twenty years for THAT?” The prosecutor then would have to say, “Yes, twenty years –her goal wasn’t just to loot the place but to overthrow the government, and the goal is what’s important here, because deterring that type of action is more important, in America, than is deterring looting.” It’s a bit of an “intangibles” argument, appealing to honor, and to love of country, and to love of being an American. (Something that seems not to ring true with the MAGA types.) So, will we need a “Jimmy Stewart as Mr. Smith” level of oratory to prevail?

    • scribe says:

      Actually, mentioning the potential sentence is out of bounds, likely to get the defense lawyer sanctioned or worse.

    • bloopie2 says:

      I agree wholeheartedly with the replies below (above?), thanks for pointing that out. Still, it’s hard to believe that a juror won’t know that sedition carries a lengthier sentence than unlawful entrance, or destruction of Federal property. There’s a qualitative leap involved from one action to the other, not just quantitative, and the prosecutor may need to pry into the state of mind of the defendant. Hope they have good prosecutors.

      Always entertaining and enlightening to be here.

      • bmaz says:

        No, they do not know, and are specifically instructed that any such personal thoughts must not rise in deliberations as to guilt.

        • J R in WV says:

          In Donald Blankenship’s trial after his coal mine, running with little attention paid to safety requirements, exploded, the jury didn’t know which charges were felonies, and which were misdemeanors. As a result, they acquitted Don on the felonies (stock-related charges) and convicted him on the misdemeanors, the fatalities. To them, living in a coal-mining community, charges relating to the value of stock were of no importance, but killing over two dozen miners through negligence of well-understood safety measures seemed like way the most serious charges.

          So a (billionaire) guy who killed 29 of his employees by “saving” money by not controlling explosive coal dust isn’t a convicted felon at all. Just a wimpy misdemeanor kind of guy. Sad. But how the legal system works, all wrong in so many ways.

        • bmaz says:

          It is not wrong in the least, in fact it is necessary. You cannot hav e the jury deciding charges on anything but facts. Considering the potential punishment would be a catastrophically horrid idea.

        • J R in WV says:

          I try to imagine how the jurors felt when they discovered that the only felonies charged were the stock market manipulation charges… but I can’t get there at all. Who does that?

          How does that happen?

          Hope we do better with the insurrectionists! Is it treason yet?

          ETA: When, How does the status of crimes as to which are felonies and which are misdemeanors not be facts?

          I’m sorry that’s a poorly written sentence, best I can do right now.

        • bmaz says:

          Listen, you are barking up the wrong tree. Sentencing considerations are NEVER “facts” for purposes of determination of the guilt on the elements of crimes being tried. Never. And they never should be, that its one the worst suggestions imaginable.

          AND, NO, IT IS NOT TREASON. I thought people here had gotten past that foolish nonsense.

        • bmaz says:

          Comparing different trials on different charges in different jurisdictions is pretty much always a bad idea. Even I get tempted into doing it occasionally, and always regret it. People all over the internet were howling that Williams got bail, when Sandra Bland and Kalief Browder did not. But that is bogus, federal court is night and day on such things from state courts. It drove me nuts.

  3. PeterS says:

    Indeed this reader agrees with the emergency motions, and definitely agrees about the threat the insurrection posed to democracy.

    You say “defense attorneys will argue … that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol”. I am probably missing some of the complete legal picture with these two, but there seems to be an ambiguity from the government in what is alleged as regards violence. 

    For both individuals there is a statement that the “evidence supports the conclusion” that they “intended to contribute to chaos, obstruct the Electoral College certification, and sow fear”. So not “engage in violence” (though I guess “sow fear” means much the same as “threaten violence”).

    Violence is certainly mentioned elsewhere in the submissions, but is it that “evidence supports” language which is key?

  4. Vinnie Gambone says:

    …”he intended to contribute to chaos.”

    Now, every time I see the word “chaos”, which is used a lot by both press and politicians, I immediately think of Stone’s comment,
    “I am an agent of chaos, and you know what, chaos is fair.”
    I so hope they get this POS Stone.

    • PieIsDamnGood says:

      He borrowed this from the Joker in Dark Knight.

      The comparison between Stone and the Joker feels less frivolous now.

      • Stacey says:

        Regarding Stone or anyone else claiming dissociation from the riot by being in their hotel room or wherever else, the Zello walkie-talkie app was apparently in use and people were directing and encouraging rioters in a command and control position from several different places directing several different teams.

        Not claiming Stone was one of them, only that distance does not equal innocence with this crowd. Nor for Stone, although we don’t know what else he did in furtherance yet, I’d bet the farm he didn’t give his little speech and then go back to his room to catch some zzzz!

    • gmoke says:

      Agent of Chaos is a science fiction novel by Norman Spinrad who wrote another book, Bug Jack Barron, which has been unconsciously (probably) plagiarized by QAnon.

      Writers of imagination like Spinrad and Alan Moore have affected modern political culture in profound ways which remain unrecognized. It would be good if more people knew them and their works as it might be helpful in navigating routes away from chaos and confusion.

  5. Chris.EL says:

    One of Trump’s core beliefs, taken to heart and “religiously” put in practice by seditious insurrectionists, rioters, proud boys, oath keepers, wolverines, etc. amounts to: … “the strong should survive, the weak perish.” …

    Sound familiar?

    HERE, NOW, in The United States of America, in the year 2021 A.D. our Congress has the opportunity to stop the resurrection of the most dangerous political beliefs and rhetoric: impeach and banish Donald J. Trump.

    If you could go back in history and speak to Germany’s leaders — isn’t that what you would tell them???

    So do it; do it NOW!
    From an interesting article on Tabletmag.com:

    Titled “A Zek Remembers Stalin’s Camps”
    A new foreword to Julius Margolin’s stunning, recovered memoir of the gulag
    SEPTEMBER 30, 2020″
    … “A young German Jew who feared Nazi terror found his nightmares realized in a Soviet camp. Jews who had been in Dachau said that Soviet servitude was worse. Margolin also noticed that young fascists with whom he was imprisoned admired the camp structure. They agreed with its basic organizing principle: the strong should survive, the weak perish.” …

  6. BobCon says:

    “As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal.”

    What is the likelihood of sentencing in these cases including longterm or permanent bans on firearms?

    I assume that is more likely for someone found guilty of sedition, although I don’t know whether that is true.

    And is there much likelihood of some kind of restriction on firearms being part of plea deals on lesser charges?

    • scribe says:

      Every conviction where the sentencing exposure – not the actual sentence given by the judge but rather the maximum set by statute – is more than one year carries with it a ban on possession/acquisition of firearms. That’s a part of the federal Gun Control Act of 1968, as amended, etc., since then. That’s a lifetime ban. While there is a provision in the law whereby someone could get their ban lifted (I won’t go into the details) Congress has since 1992 forbidden the use of any government funds to carry out the government’s side of that procedure.

      So it’s a lifetime ban. It’s a big deal. It is a given in every conviction. It is not negotiable with any US Attorney.

      Look at it the other way, though. These folks doubtless knew about this ban. Even a cursory reading of the form you fill out when you go through an instant background check to buy a gun from a dealer (form 4473) tells you about it and the dealer (who’s not going to prison for you, thank you) will make sure you understand. Having guns is very important to these folks, almost existential.
      Knowing that, these folks still went up the steps the way they did.

      Y’think they might capital-B believe in what they were doing?

      • bmaz says:

        Heh, “You Mr. Defendant, are charged with a crime that involves a sentence of at least a year and a day!”

        • scribe says:

          Prosecutors love that stuff.

          Martha Stewart can’t have a gun. For being less than totally honest with the FBI. (Another iteration of the lesson “don’t talk to the police – let your lawyer do the talking.”)

          Actually, there are a couple of cert petitions before the S.Ct. now where just those sorts of non-violent, paperwork crimes took place and they’re saying “I’d like my gun rights back, please.”

          FWIW, Prof. Berman’s Sentencing Law and Policy noted, during the pardon flurry last week, that approximately half of the very many (thousands of them) applications for pardons piled up in some DoJ inbox are there because the applicant wants to get their gun rights back. So they can hunt again. A substantial number are nonviolent paperwork crimes or old pot convictions, the one mistake in an otherwise law-abiding life kind of thing.

        • bmaz says:

          Long ago I assisted a friend/client, on an interstate phone violation, in trying to get a pardon (from Bush the elder) precisely because he wanted his gun rights restored so he could keep doing his yearly deer hunt with friends and go pheasant hunting back in Iowa with his father. And, yeah, I got paid for it, it is not an easy process even when done through normal protocols. And, yeah, we were denied. People have always paid big money to attempt this, through regular channels or approaching the President. I think a rule where after a period, maybe 5 years or so of perfect behavior, you get voting and firearms rights back.

        • scribe says:

          Prior to the 68 GCA, there was an enumerated list of crimes that got your gun rights suspended. Stuff like murder, extortion, kidnapping – all violent stuff. The mail frauds and tax evasions, they’d sometimes have the government giving them their guns back on the way out the prison gate. (I exaggerate but only a little.) Then Sen. Dodd Sr. decided that was not a broad enough brush and wrote the current law into effect.

          Being a medical MJ user is also enough to get your gun rights suspended though it’s not clearly a lifetime ban. Having a medical MJ card will trip you up.

          You almost have to be a lawyer to be a hunter/shooter/gun owner these days, which is largely the point of a lot of the laws. They don’t stop crime and they don’t stop criminals, but they do make it such a pain in the ass for law abiding citizens that they just say the hell with it.

        • bmaz says:

          Part of the problem is that there is no federal expungement process, as there is after full completion of sentences, like there is in many states (including AZ). That too should be enacted.

        • scribe says:

          Agreed. Congress allowing funding for 18 USC 925(c), the provision that allows for restoration of gun rights, would be an easy start.
          But that won’t happen any time son, if at all.

      • BobCon says:

        Thanks for the detail.

        Can a gun ban be part of the plea deal for lesser crimes? Is there much chance that they will offer people a misdemeanor and fine and no prison time if they agree to give up firearms?

        Thst kind of tradeoff seems worth considering as far as some of the lower level criminals.

        • bmaz says:

          As Scribe says, it usually comes per se. Could it be imposed on a misdemeanor with less than a year? I don’t know, never faced that (I suppose so, judges have a LOT of leeway in sentencing, I just don’t know specifically). Misdemeanors rarely happen in federal court other than as pleas down from higher felonies that would have carried such a penalty.

      • Ginevra diBenci says:

        Thanks, scribe, and bmaz for the information about gun possession. Yes, they do believe in what they were/are doing–they believed they would triumph. Another foundational belief among many hardliners: the government has the ultimate goal of taking their guns. That paranoia has animated the Infowars fringe since before Sandy Hook, which they argue was a false flag op, and I expect it to resurge with another Democratic administration. The law may be clear, but handling this won’t be easy.

        • madwand says:

          To show the power of this propaganda, I had a friend in the same industry as me and I had always believed him to be a straight shooter who told the truth absolutely and spoke truth to power. One day he asked me about Sandy Hook and if I thought it was all put on, I looked at him in a new way then and said “are you f***ing kidding me?”

    • drouse says:

      I’m not surprised in the least. Back during the Malheur standoff, once the dust settled, it came out that a significant percentage of the occupiers were either undercover or informants. I wonder if they used leverage against Tarrio or if he was an infiltrator from the start.

    • rg says:

      “Special treatment”? Makes me wonder if the advice: “stand back and stand down” was a message to not be involved in the break-in that was planned, both to protect his allies and to protect the president from association with that support group and any subsequent crimes.

      • PeterS says:

        Wasn’t it “stand back and stand by”? If you mean the presidential debate, it was more blurted out than sounding like a planned message.

        • AndTheSlithyToves says:

          It was “Stand back and stand by,” and it was Trump’s signature seditious and inciteful both-sider blarney.
          Tarrio was arrested on January 5th for damage at the AME Church the last time he was in DC for the previous Trump rally.

        • Stacey says:

          Yeah, the thing about that whole request from Joe Biden for Trump to tell them to “Stand DOWN” was that Trump couldn’t get his little A-hole mouth to even form the words he’d just been handed by Joe Biden to repeat: stand DOWN.

          Watch him struggle to say anything BUT that and still sound like he’s rebuking them. It was like watching someone struggle against a Freudian Slip they know they’re about to make. Then he very quickly did his Whataboutism schtick with Antifa bad mouthing.

          Yeah, no plan beyond walking the fine line of staying on the line, which isn’t a plan for Trump. That’s just breathing for him!

        • rg says:

          I do think it was “stand by”. And I did not mean in the debates;if I’m wrong about that too, just chalk it up to a mushy memory.

  7. Zinsky says:

    Wow! Impressive legal analysis – this should stand as the definitive treatment of what constitutes seditious behavior.

  8. Ed Walker says:

    It seems to me that a crucial piece of evidence is T****’s behavior before the election, after it and then the speech inciting the violence. The mob chanted his lies and directions throughout the entire invasion. There’s a tape put together by one of the news services, maybe Bloomberg, intercutting Trump’s incendiary language with chants of the mob.

    Looks to me like evidence of intent to do just what they did, and more evidence that T is a guilty POS.

  9. CD54 says:

    Any chance this is somewhat of a soft freeze-out of Trump DA’s by DC especially with respect to closely held information?

  10. Fran of the North says:

    Addressing the title of this post, less protest, more insurrection.

    Not OT per se, but a slight detour. Ran across this interesting analysis (two posts) from David Leibowitz on Medium, which may be a new resource to some. Leibowitz spent quite a bit of time analyzing a number of video feeds to get a better understanding on how the day unfolded at the Capitol.

    His assessment is that there were a small number of individuals who distinguished themselves by their actions – exhorting their compatriots and facilitating others rather than focusing on suppressing police or penetrating the Capitol itself themselves.

    His first post analyzes the behaviors at one end of the capitol. His latest identifies how that small number of instigators returns again and again to be where the action is.

    It is really chilling to see how the actions of this small group amplified and directed the mob. Definitely worth the time for a deep dive.


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