Zip Tie Guy Eric Munchel Gets a Second Chance at Release

The DC Circuit just remanded the case of Zip Tie Guy Eric Munchel and his mother Lisa Eisenhart for reconsideration of their bid for release. Robert Wilkins wrote the opinion, joined by Judith Rogers; Gregory Katsas dissented in some but not all of the opinion.

I wrote here and here about how this was a close case. As such, this opinion will provide important guideposts for other January 6 making similar arguments.

The opinion agreed that January 6 posed an urgent risk to our democracy, generally presenting a broad authority to detain people. But it also emphasized that only some of the participants in the insurrection pose enough of a danger to afford exceptional authority to detain people.

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)). But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.

In the case of Munchel and his mom, the opinion found that the analysis of the danger that Munchel and his mom present to the community was not forward looking, and because they had not done a number of things — actually broken through barricades, assaulted cops, planned the operation, or abetted that process — their dangerousness was not sufficient to make their unwillingness to follow release conditions a factor. In particular, without the special circumstances of the vote certification and the violent mob, the mother and son likely would not pose the same threat to our country.

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. 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.


The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand.

I suspect mom, at least, will get bail on remand. And I suspect other defendants will try to argue (some with likely success) that they fit the same categories as Munchel and his mom — willing participants in an insurrection, but not key enough players to detain awaiting trial.

Among the principles it lays out:

January 6 was a Constitutional risk, but some defendants were only a threat on that day with that mob

As noted, the Circuit agrees that January 6 presented such a risk to the country that extraordinary detention authorities may be necessary. It included a list of circumstances — similar to the ones that Beryl Howell laid out — that reach this heightened level of risk. Some defendants (particularly the far right lone actors who did not engage in violence personally) will likely be able to ask for review of their own detention. But others — including some of the Oath Keepers — will have the case for their detention reinforced because of their role aiding and abetting a concerted attack on democracy.

DC District judges can review detention remotely

While dicta, a footnote complains that it took so long — until they had been transported to DC — for the two to have a detention review in DC. It asks why a District judge could not have conducted the review remotely.

While COVID-19 issues caused a delay in the appellants’ transport to the District of Columbia, the record does not indicate why a D.C. District Judge could not have heard this matter prior to February 17, even if the appellants were in another location. Ultimately, this issue, while troubling, is not presented as a ground for reversal in this appeal.

This is something that has come up in other cases, repeatedly. This panel, at least, seems to agree that a DC District judge can review detention remotely.

DC District judges don’t have to defer to the local Magistrates’ decisions if there’s new evidence

Munchel and his mother argued that once the Magistrate in Tennessee judged them not to be a danger, the District had no authority to review that determination. The Circuit disagrees, but only with regards to the circumstances of this case, where the government provides new evidence to the District.

The statute concerning review of a Magistrate Judge’s release order says nothing about the standard of the district court’s review, see 18 U.S.C. § 3145(a), and we have not squarely decided the issue.3 We need not break new ground in this case, because as the appellants maintain in their briefing, Munchel Reply Mem. 8, n.3, the government submitted substantial additional evidence to the district judge that had not been presented to the Magistrate Judge, including the 50- minute iPhone video, a partial transcript of the video, and several videos from Capitol CCTV.4 As a result, this was not an instance where the District Court made its dangerousness finding based on the same record as was before the Magistrate Judge. Here, the situation was more akin to a new hearing, and as such, the issue before the District Court was not really whether to defer (or not) to a finding made by the Magistrate Judge on the same evidentiary record.

3 This court stated long ago, in dictum, in a case arising under the predecessor Bail Reform Act that district courts review such prior determinations with “broad discretion.” Wood v. United States, 391 F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck.”).

Before we’re done, I wouldn’t be surprised if the DC Circuit is asked to weigh in directly on the standard of review here.

DC District judges can consider whether a defendant will abide by release conditions

Munchel and his mother had tried to limit when a District judge can consider whether they will abide by release conditions, not to reconsider bail but only to revoke it.

Second, we reject the argument that the District Court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The District Court’s finding as to appellants’ potential compliance is relevant to the ultimate determination of “whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(f) and (g). Indeed, other courts have found a defendant’s potential for compliance with release conditions relevant to the detention inquiry.


While failure to abide by release conditions is an explicit ground for revocation of release in 18 U.S.C. § 3148(b), it defies logic to suggest that a court cannot consider whether it believes the defendant will actually abide by its conditions when making the release determination in the first instance pursuant to 18 U.S.C. § 3142.

This has come up with other defendants. That said, this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone. This part of the ruling will be particularly impactful for those detained because either a belief in QAnon or Nazism suggests a general disdain for our existing government.

A taser counts as a weapon

Munchel and his mother also argued that their alleged crimes don’t merit detention because the taser Munchel brought with him is not a weapon. Not only did the Circuit disagree, but it also readily applied the analysis to Eisenhart’s abetting exposure.

Third, we reject Munchel and Eisenhart’s arguments that the charged offenses do not authorize detention. Under 18 U.S.C. § 3142(f)(1)(E), detention is permitted if the case involves “any felony . . . that involves the possession or use of a . . . dangerous weapon.” (emphasis added). Two of the charges in the indictment meet this description: Count Two— entering a restricted building “with intent to impede and disrupt the orderly conduct of Government business . . . while armed with a dangerous weapon,” in violation of 18 U.S.C. § 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting charge for Eisenhart); and Count Three—violent entry or disorderly conduct, again “while armed with a dangerous weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform Act thus explicitly authorizes detention when a defendant is charged with committing certain felonies while possessing a dangerous weapon, as is alleged in this indictment.5

5 Eisenhart’s argument that a taser is not a dangerous weapon— which Eisenhart raises for the first time in reply, and which Munchel seeks to adopt in his reply—is without merit. The relevant statute, 40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to include “a device designed to expel or hurl a projectile capable of causing injury to individuals or property. . . .” While the record contains no evidence or proffer as to how Munchel’s taser operates, a taser is commonly understood as a device designed to expel a projectile capable of causing injury to individuals. See Cantu v. City of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the taser by insulated wires—toward the target at a rate of over 160 feet per second. Upon striking a person, the taser delivers a 1200 volt, low ampere electrical charge. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” (internal alterations and quotation marks omitted)). Thus, at this stage, the evidence sufficiently demonstrates that Munchel’s taser is a dangerous weapon under the statute.

This ruling matters specifically for Richard “Bigo” Barnett (who also brought a taser with him), but also holds that the weapons enhancement on the 1752 and 5104 charges that other defendants face will merit detention. The Circuit also readily approved Eisenhart’s exposure on account of Munchel’s taser. That matters because many defendants are charged with abetting certain conduct that merits detention.

Detention analysis remains individualized

Munchel and his mom, like virtually all defendants arguing for release, have compared their own case to that of others who got released. Because Munchel only raised this in his reply, the Circuit didn’t address the comparison per se. But said that the District Court is in better position to review such claims.

Finally, Munchel and Eisenhart argue that the government’s proffer of dangerousness should be weighed against the fact that the government did not seek detention of defendants who admitted they pushed through the police barricades and defendants charged with punching officers, breaking windows, discharging tasers at officers, and with planning and fundraising for the riot. See Munchel Reply Mem. at 9–12. Appellants did not raise this claim before the District Court and the government did not substantively respond to it on appeal because Appellants raised it for the first time in Munchel’s reply. Whatever potential persuasiveness the government’s failure to seek detention in another case carries in the abstract, every such decision by the government is highly dependent on the specific facts and circumstances of each case, which are not fully before us. In addition, those facts and circumstances are best evaluated by the District Court in the first instance, and it should do so should appellants raise the issue upon remand.

As several people watching the hearing for Connie Meggs’ attempt to get release, every detention fight going forward will have to account for this one. With its broad support for holding conspirators accountable for the violence of others, it may not help Meggs all that much. But it will crystalize these ongoing detention disputes.

Update: I’m wrong. Judge Amit Mehta just released Meggs.

129 replies
  1. Silly but True says:

    Both sides on the long and ongoing taser debate have acted in bad faith in detailing the dangers posed by tasers.

    Governments have had to be drug kicking and screaming against their will to the recognition that tasers, in a multitude of conditions, absolutely constitute lethal force. Hence finally and only relatively recently have US police departments come to classify police taser use as “less lethal” force [than gun] and no longer “nonlethal force,” with many of their criteria for taser use shared with lethal force procedures.

    There can be no pulling back from public’s side from this realization; the legacy of the victims of police taser use who paid the price to get to this point deserve nothing less.

  2. Max404 says:

    OT but I would like to hear an opinion from one of the lawyers here present.

    WaPo headline:

    Bannon criminal probe in N.Y. includes embedded investigators from state attorney general’s office



    The New York attorney general’s office has partnered with Manhattan’s district attorney to investigate Stephen K. Bannon for the alleged fundraising scam that prompted his federal pardon in the waning hours of Donald Trump’s presidency, according to people familiar with the matter. The move adds prosecutorial firepower to a criminal case widely seen as an attempted end-run around the former president’s bid to protect a political ally.


    Is this going to run afoul protection against Double Jeopardy or do the prosecutors have their bases covered ?

  3. harpie says:

    This paragraph helps me out a lot:

    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.

    Maybe C. MEGGS wasn’t involved in the over-all insurrection planning, coordinating and recruiting like K. Meggs was, or at least the Government didn’t show that she was, [even though she obviously planned and prepared for the family excursion with her husband.]

    • harpie says:
      4:56 PM · Mar 26, 2021

      Kelly Meggs will remain in jail.

      Judge Mehta — who earlier today granted bond to Meggs’ wife Connie and to Donovan Crowl — just denied Meggs’ request for release saying he’s troubled not just by what Meggs has done but by “what he’s capable of doing.”

      Mehta’s tone was measurably different with Meggs than with other Oath Keepers defendants he’s ruled on lately. He pointed to Meggs’ role as a “team leader” in the events of Jan 6; his apparent willingness to take future action; the possibility he may have destroyed evidence.

      • Ginevra diBenci says:

        Thanks as ever, harpie, for pursuing this potentially loose/threatening end.

        Mehta seems to me like he’s trying to balance on a razor’s edge with these distinctions based on what defendants “are capable of.” He faces risks either way (release/reoffend versus detain/appeal/precedent) and they are non-trivial, slippery slopes indeed.

  4. Peterr says:

    this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone.

    scratching head

    Check me on this: so the appeals court is saying that if the defendant refuses to accept the release conditions, then the district court has to release the defendant?

    “Wearing an ankle monitor chafes my skin, so I’m not going to wear one.”
    “You’re asking me to pay too much cash bail, so I’m not going to pay it.”
    “You are preventing me from traveling to my favorite golf course, so I’m not going to abide by that.”
    “Prohibiting me from getting together with my regular “concealed carry poker club” buddies, who happen to be my co-defendants, is not acceptable.”

    Where, pray tell, is the limit beyond which a defendant’s refusal to abide by pre-trial release conditions is grounds for detention?

    IANAL, and God knows IANA judge, but I thought the whole point of pre-trial release CONDITIONS meant that if you don’t agree to abide by them, you get returned to custody.

    Joseph Heller would be proud.

    • BobCon says:

      I may well be misreading this, but I don’t think the argument is over whether they will accept the release conditions.

      I think it is whether they will abide by them after they are released.

      The prosecutors were arguing the risk of breaking the agreement was too great. The defense was saying the accused weren’t risks of dodging the trial or otherwise violating the agreements.

      • Peterr says:

        That’s not how Marcy characterized the entire opinion in the sentence I put in the blockquote.

      • bmaz says:

        Yes, exactly. And, Peterr, pre-trial release should, with appropriate terms and conditions under §3142, always be granted. The DOJ are acting like idiots on this. I assume they are trying to flip defendants, but this is just bogus. That is easier done with defendants on the outside with easy access to counsel.

        • Peterr says:

          Does the accused not also have an obligation to assent to the terms and conditions before release is granted?

          Marcy’s statement is pretty damning, and if I’m reading it wrong, could someone please spell out what she means when she says the opinion as a whole puts forward that idea that “a refusal to abide by release conditions by itself is not enough to detain someone”?

          • bmaz says:

            Um, please review the terms “may”, “special circumstances”, and the difference between “detention” and “revocation” thereof.

      • earlofhuntingdon says:

        Logically, it would seem to be about whether someone agrees to be bound by conditions in order to obtain release from pre-trial detention. Otherwise, they would not continue to be detained for violating them, but re-arrested for violating those conditions.

        The issues are safety – would the defendant pose a danger to themselves or others, if released – and the likelihood that they would appear for trial and other compulsory process. Holding a defendant to coerce cooperation is not an officially valid purpose. Nor, it is finally being recognized, is holding them because they are too poor to put up a bond.

            • BobCon says:

              IF I am reading the opinion correctly (big if) by refusal they aren’t talking about upfront defiance. I think they were detained before they had an opportunity to accept anything. Instead this is like a scenario if they are released upon acceptance of conditions and later the person doesn’t report a contact they’re supposed to, that won’t be grounds in and of itself to send them back into detention — the prosecutors would still need to demonstrate that it makes the person dangerous, a flight risk, etc.

              I think someone else would need to weigh in on how the response to a violation of conditions would work — what standard of evidence is needed, where the burden of proof lies, what happens with repeat cases, etc.

              • Peterr says:

                OK, but those initial conditions are predicated on some sense of such things as risk of flight or danger to the community. When prosecutors ask for a certain amount of bail, they have to justify why it’s $5M versus $5K, for example. If prosecutors can’t justify their request, the judge (in theory) shoots them down.

                Similarly, doesn’t the judge ask the defendant “are you willing to abide by these conditions?” before granting the prosecution’s request? If the judge says “You’ve got to turn over your passport,” you don’t get released until that passport is delivered. But Marcy’s comment that the court is saying “a refusal to abide by release conditions by itself is not enough to detain someone” seems to say that if the defendant says “no” they are not automatically going to end up detained.

                Given that, why would any defendant say “Yes”?

  5. e.a.f. says:

    At some level this is funny. Son and Mom outing, to participate in an attempt to over throw the American government. You could almost make a 70’s sit com out of it. On the other hand, they were part of an unlawful event and people died because of it. Just because they didn’t break down doors and windows they only followed, they might get bail. Gee when I look around North American and we’ve had riots, the people who follow into the stores to loot are treated about the same as those who broke the windows and doors to start with. Of course we’re not big on bail in Canada and most are released on their own..

    It might be a fine distinction in law, that the mother and son duo are different from those who broke down the doors and windows, because they only followed, but we’ve all seen enough situations where the person sanding around or sitting in the car were arrested, held in jail, tried, and convicted for the same crime as those who actually did the crime. . if I’ve mixed up the difference in laws, I’m sure I’ll be corrected.

    The judges making these decisions are way out of my league when it comes the law. What would interest me is, if they are less harmful or dangerous to society or the american democracy, how high would their bail be set. For that matter if they aren’t going to be all that dangerous, why set bail at all, just let them go on their own recognizance.

    Tazers, not as lethal, tell that to the relatives of those who have been tazered to death by cops. In B.C. we have a rather infamous case where Robert Dziekanski was tazered to death at YVR by 4 RCMP officers. They are only slightly less lethal than guns, depending upon the gun or the heart condition of the person being tazered.

    I’m sure we are going to hear and read a lot of interesting arguments in these cases. If the question is whether these insurecitionists are going to be a danger to the country and others, its hard to say. Will they obey their bail conditions? If they’re committed to the cause, most likely they won’t. Those people are usually few and far between, based on my experience with this type of thing in Canada. In a crowd of enviornmental protesters you only usually have one or two who will defy injunctions and refuse to leave a site. Those have gone to jail.

    When I think back on the news coverage of the riots/insurrection all of those people looked dangerous. They had gained entry through violence, if not of their own, of others. Ought they all to be kept in jail? It could get expensive if all of those who participated were in jail and then what purpose would it serve, given people are presumed innocent until proven guilty. There will be those who were clearly in leadership positions and then there are those who will be in “follower” positions. Is there really a difference if their goal was to over throw the American government? Is there a difference between followers and leaders in this case given a number of people were killed or died by their own hand, because of what happened? I don’t know if the courts would look at that. In the end, I guess they’ll look at whether they will be a danger to society at large and the various levels of government.

  6. BobCon says:

    I understand the analysis that there weren’t sufficient grounds for saying the charged people would violate release conditions.

    I’m not clear what happens next, though, to ensure that release conditions are met. In cases like this, are they subject to government monitoring? Or is it a matter of self-reporting and tips from other people?

    I’m also curious if government claims of violations of release conditions are generally swiftly enforced, or if they typically involve lengthy review by the courts.

  7. harpie says:

    The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests.

    Trump et al. created that unique opportunity specifically in order to obstruct democracy.

    • GJT says:

      I think it’s pretty fair to say anyone bold enough to storm the Capitol is bold enough to trespass on others property if they feel that person is a political enemy. This reasoning by these Dem appointed judges is why the entire judiciary is full of it. “Well, your honor, I only needed to rob that bank once to be financially secure, of course it’s no longer necessary for me to rob another bank. It was just the series of events that unfolded.”

      • P J Evans says:

        I think you wanted to make a right turn when you got on the intarwebz. You don’t have any idea what the judges’ politics are – and you *shouldn’t*.

        • GJT says:

          I think you’re too uninformed to say anything informative or intelligent, but at least you keep trying. You might luck into it some day

          • bmaz says:

            I agree with PJ. And you need too mind your manners. You are relatively new here and off to a very inauspicious beginning.

      • harpie says:

        Well, if YOU think that, then clearly these three judges of the United States Court of Appeals for the District of Columbia Circuit are mistaken!

      • harpie says:

        Some facts:

        1] Robert Leon WILKINS [b. 1963]
        a] Judge United States District Court for the District of Columbia
        December 27, 2010 – January 24, 2014; Appointed by Barack OBAMA
        b] Judge United States Court of Appeals for the District of Columbia Circuit
        Assumed office January 15, 2014; Appointed by Barack OBAMA

        2] Judith Ann Wilson ROGERS [b. 1939]
        a] Associate Judge District of Columbia Court of Appeals
        September 15, 1983 – March 11, 1994; Appointed by Ronald REAGAN
        b] Chief Judge District of Columbia Court of Appeals
        c] Judge United States Court of Appeals for the District of Columbia Circuit
        Assumed office March 11, 1994; Appointed by Bill CLINTON

        3] Gregory George KATSAS [b. 1964]
        a] Judge United States Court of Appeals for the District of Columbia Circuit;
        Assumed office December 8, 2017; Appointed by Donald TRUMP

    • harpie says:

      [This will make more sense…I HOPE…once my second comment is out of moderation]

      As Zoe Tillman says:
      9:15 AM · Mar 26, 2021

      In a 2-1 decision, [WILKINS wrote the decision, KATSAS dissented partially.] the court found that the district court judge “did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community” […]

      Judge Greg Katsas had a partial dissent — he agreed with his colleagues that the lower court judge failed to justify the detention order, but he would have reversed outright and released Munchel + Eisenhart, instead of kicking it back for more proceedings. […]

      • harpie says:

        Further in that thread, Tillman:

        […] But it’s also important to note that setting aside the political context of these specific cases, it would make sense to see more liberal-leaning judges side with a defendant in this sort of situation, and interesting to learn more about Katsas’ views on pretrial detention. […]

        • harpie says:

          KATSAS is the shortest serving member of the Federal Judiciary of these three judges…by a long shot.

          Katsas had served in the GW BUSH DOJ and was in the WH Counsel’s office for TRUMP from January 20, 2017 until December 2017, when he was appointed to his present position. He clerked for THOMAS.

          It wouldn’t surprise me if “Katsas’ views on pretrial detention” would differ, depending on who is being evaluated for pre-trial detention.

  8. Lawnboy says:

    Once released, lets not forget that these “fellers” are back in the FBI domain! Looking over your shoulder cant be that fun.

    • bmaz says:

      Yes. And, given expected release terms and conditions, totally amenable to any and all monitoring, electronic and otherwise. That is okay.

    • Leoghann says:

      That’s something that’s been on my mind since the first arrests and pre-trial releases. I know that some investigators viewpoint on releasing arrestees is that it allows the investigators to continue to observe methods and contacts. In the case of the Capitol insurrection, there are still bad actors who haven’t been identified, and connections that haven’t yet been made.

  9. harpie says:

    A couple days ago, Marcy retweeted this from Josh Gerstein:
    8:24 PM · Mar 27, 2021

    NEW: Feds defend use of ’68 anti-riot law critics say is racist. Justice Dept boasts of charging 80+ cases in response to last year’s #BLM protests & #CapitolRiots

    Earlier: [Link to:] Biden Justice Department wields controversial Trump-era legal tools Federal prosecutors are invoking a 1968-era statute to pursue rioters, spurring accusations of racism. [From 3/15/21]

    New doc: [Link to Government’s 3/26/21 Response to Tia PUGH’s Motion to Dismiss, in ALABAMA ] [link in next comment]

    • harpie says:

      Politico/Gerstein first [3/15] calls the law “controversial” and then, on 3/27, use the phrase “critics say is racist.”

      Maybe it’s NOT the law itself, but the way in which the law has been wielded,
      including by the TRUMP/BARR DoJ, that’s “controversial” or “racist”.

      Those people never imagined that law might be used against them.

    • harpie says:

      From the 3/15 article:

      […] While the historical roots of the 1968 statute are clearly rooted in backlash to the civil rights movement, the Capitol riot cases might not suffer from the main legal infirmity defense lawyers are complaining about in the cases stemming from last year’s protests.

      That’s because the Capitol cases rely on language in the statute aimed at preventing interference with “any federally protected function,” but the cases from last year’s unrest establish federal jurisdiction by claiming the crimes took place during protests that interfered with interstate commerce. […]

      But PUGH’s case is evidently not like the others from
      the MAY 31, 2020 unrest in Mobile, Al. From the 3/26 Government filing:

      […] However, only one individual – – defendant Tia Pugh – – was charged with violating 18 U.S.C. 231(a)(3). This is because Pugh, through her violent actions, intentionally obstructed, interfered with, and impeded the Mobile Police Department’s ability to quell the dangerous civil disorder occurring on the on-ramp.

      Pugh was charged with violating 231(a)(3) because she chose to use a metal baseball bat she brought from home to shatter the window of a police vehicle with the intention that her attack would obstruct the officers on the scene who were in the midst of dealing with a situation involving an immediate risk of injury and death. Contrary to her suggestions in her motion, Pugh was not charged with violating this statute because she was protesting law enforcement, nor was she charged for refusing to leave the on-ramp. Furthermore, her claim that “[t]his prosecution arises from the demonstrations in support of racial justice” is highly misleading. […]

      • harpie says:

        [p18] At various points throughout her motion, Pugh alleges that Section 231(a)(3) is “seldom-invoked.” This claim is misleading.

        Currently, Section 231(a)(3) is being used to prosecute many of the insurrectionists who attacked the U.S. Capitol on January 6, 2021, as well as those who participated in the civil unrest that occurred during the summer of 2020. As of the date of this response, the United States has charged over 80 people with violating Section 231(a)(3) in connection with these events. Thus, while this statute may not have been frequently used in the past,9 it is currently being used to prosecute the criminal conduct engaged in by Pugh and others. […]

        [footnote] 9 Since its enactment in April 1968, this country has experienced relatively few instances of civil disorder the likes of which were witnessed during the summer of 2020 and at the U.S. Capitol on January 6, 2021. Thus, it should come as no surprise that Section 231(a)(3) has been infrequently charged in the past.

    • harpie says:

      This is from the case Gerstein wrote about in the 3/15 article:

      [p1] The riots that took place in Portland last year were violent. Dozens of police officers and protesters were injured. Local businesses suffered millions in losses. These violent activities took place during, and sometimes after, peaceful protest activities. And it is this violence – not the peaceful protests – that underlie the government’s prosecution of approximately 15 individuals for violating 18 U.S.C. § 231(a)(3). Each person charged with violating Section 231(a)(3) assaulted a police officer during the course of that officer’s efforts to quell the violence. The statute is constitutional, and it was employed in this district in a constitutional manner. […]

      [p5] Phomma was arrested around 11 p.m. the night of August 26, 2020, after police had declared an unlawful assembly and gave multiple warnings to disperse. In addition to the can of bear spray, which Phomma said he had purchased for the sole purpose of bringing it to the protests, Phomma was also carrying a three inch dagger in a sheath strapped to the left side of his hip. […]

      • harpie says:

        Something else I found interesting about the PHOMMA filing.
        [ARRGG I don’t know what to call it. :-/ ]

        [p7] A. Civil Disorder is Properly Regulated Under the Commerce Clause […]
        Section 231(a)(3) is one of many statutory provisions enacted by Congress to protect the flow of interstate commerce from unwarranted interference. Where a civil disorder is “obstruct[ing], delay[ing], or adversely affect[ing]” interstate commerce or the movement of an item in interstate commerce,1.

        [footnote]1 The term “commerce” in Section 231(a)(3) is defined to mean “commerce (A) between any State or the District of Columbia and any place outside thereof; (B) between points within any State or the District of Columbia, but through any place outside thereof; or (C) wholly within the District of Columbia.” 18 U.S.C. § 232(2). The first two prongs of this definition define commerce as interstate commerce and implement Congress’ Commerce Clause power. The third prong, which relies on Congress’ plenary power to legislate over the seat of government, is not at issue in this case.

      • harpie says:

        More from that report:

        […] [p9]
        […] Paid and Out-of-State Protesters [p13]
        A common trend observed by major city law enforcement agencies was the large number of visitors from out-of-state who participated in the protests. Nearly all agencies (90%) [61 of 68] experienced protest events with persons that came to the event from another state. Additionally, many agencies reported that violence seemed to spike on days where out-of-state protesters were present.13 The days that levels of violence were lower were days when local protesters remained, and fewer numbers of out-of-state participants were observed.

        While less common, over a quarter of major city law enforcement agencies (29%) [20 of 68] reported situations with participants that were paid to partake in the protest. [CHART]

        [footnote]13 Reported during the ICG After-Action Review in Washington, D.C. and/or Dallas, Texas.

      • harpie says:

        [p13] Nationwide Coordination
        The weekend of May 29th to the following Monday, June 1st was by far the most violent for many major city law enforcement agencies. These events had thousands of people in attendance including groups with suspected violent extremist ideologies. “Prepared and coordinated resistance” was reported by some agencies and similar tactics such as the use of arson, looting, barricades, caravans, and specific types of weapons were seen in major cities nationwide. Protesters seemed to coordinate their movements and actions on these days as if the violence and tactics were pre-planned. For example, across the U.S., major city law enforcement agencies reported peaceful protests beginning in the early to late afternoons and violence beginning once it became dark. […]

        • harpie says:

          From the conclusion:

          […] Some cities experienced a level of sustained and relentless violence and civil unrest during this time while other cities reported experiencing peaceful and lawful assemblies with minimal criminal or violent activities. It has not yet been determined why certain cities experienced larger crowds or higher levels of violence when others did not. […]

          What I’d like to see:
          a discussion comparing the level of violence in certain cities to the content of TRUMPs/BARRs tweets/speeches/interviews.

    • harpie says:

      May 29th to June 1st
      “by far the most violent for many major city law enforcement agencies”

      5/25/20 George FLOYD is killed by Minneapolis police officer Derek CHAUVIN
      5/30/20 BARR lays blame for violence:

      it appears the violence is planned, organized, and driven by anarchic and left extremist groups, far left extremist groups using Antifa like tactics… it is a federal crime to cross state lines or to use interstate facilities to incite or participate in violent rioting [VIDEO]

      5/31/20 TRUMP tweets:

      The United States of America will be designating ANTIFA as a Terrorist Organization.

      5/31/20 TRUMP tweets:

      Law & Order in Philadelphia, NOW! They are looting stores. Call in our great National Guard like they FINALLY did (thank you President Trump) last night in Minneapolis. Is this what voters want with Sleepy Joe? All Dems!

      6/1/20 TRUMP and BARR violently clear protesters at Lafayette Square for Trump’s bible photo-op
      6/2/20The Lincoln Memorial is occupied by masked men dressed for battle

      • harpie says:


        6/1/20 Viral Facebook post by a man in Emmet Idaho, and
        shared and added to by Idaho Three Percenters :

        At least a dozen males got off the plane in Boise from Seattle, dressed head to toe in black.
        Be ready for attacks downtown and residential areas
        [one passenger has] a tattoo that said Antifa America on his arm.

        9/1/20 TRUMP to Ingraham:

        we had somebody get on a plane from a certain city this weekend, and in the plane it was almost completely loaded with thugs, wearing these dark uniforms, black uniforms, with gear and this and that.
        [It’s] under investigation right now. […] They’re people that are on the streets. They’re people that are controlling the streets
        8:53 AM · Sep 1, 2020

          • harpie says:

            Well, it was, but that never matters! According to the story, the local sheriff even debunked it when it was quite new…
            [PS: Thanks for all your support above!]

          • Ginevra diBenci says:

            For the record, the “planeload” of protestors never existed. The hotly anticipated “threat” in Idaho never materialized, except in the sense that over-eager self-deputized counter-protestors created a ruckus when someone located a vehicle of outsiders in a rural area. When you’re itching for a confrontation, it turns out you can create one if you try.

      • harpie says:

        Call and Response

        1] At the debate:

        WALLACE: Are you willing, tonight, to condemn white supremacists and militia groups and to say that they need to stand down…

        TRUMP: Proud Boys, stand back and stand by! But I’ll tell you what, somebody’s got to do something about antifa and the left.


        Joe BIGGS: Proud Boys Shout at at the Presidential Debate!
        President Trump told the proud boys to stand by because someone needs to deal with ANTIFA…well sir! We’re ready!!

        Enrique TARRIO: Standing by sir

        BIGGS: Trump basically said to go fuck them up! this makes me so happy

        1/6/21 12:08 PM
        [link in next comment]
        Proud Boys march down Constitution Ave. chanting Where’s ANTIFA? [screenshot]

      • harpie says:

        1] CARAVAN of TRUMP THUGS tries to run BIDEN campaign bus
        off the road in TEXAS.
        2] FBI says they are investigating that
        3] TRUMP tweets:

        In my opinion, these patriots did nothing wrong. Instead, the FBI & Justice should be investigating the terrorists, anarchists, and agitators of ANTIFA, who run around burning down our Democrat run cities and hurting our people!

      • harpie says:



        After deadly shootings in Kenosha, Wis., and Portland, Ore., Rhodes declared in tweets that antifa and the Black Lives Matter movement are terrorists engaged in an “open communist insurrection.”

        He called on President Trump to declare the current unrest a “nationwide insurrection” and to federalize the entire National Guard to oppose it, adding, “Civil war is here, right now” and that the “street assassination of a Trump supporter in Portland” was the “first shot.” He contended that this man was murdered in cold blood by “a member of an international terrorist organization — Antifa.

        9/10/20 TWITTER bans RHODES
        9/12/20 TRUMP [on what he’ll do if there are
        threats of riots on election night:]

        We’ll put them down very quickly … it’s called insurrection.

        1/6/21 1:38 PM Stewart RHODES writes on
        OATH KEEPER Signal chat “DC OP: Jan 6 21”:

        All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.

        • harpie says:

          Six hours later:

          7:41 PM RHODES on Signal chat “DC OP: Jan 6 21”

          We are actually in a far more deadly situation given the FACT that enemies foreign and domestic have subverted, infiltrated, and taken over near every single office and level of power in this nation. We have one FINAL chance to get Trump to do his job and his duty.

          Patriots entering their own Capitol to send a message to the traitors is NOTHING compared to what’s coming if Trump doesn’t take decisive action right now. It helped to send that message to HIM. He was the most important audience today. I hope he got the message.

          • Ginevra diBenci says:

            Ah, Stewart Rhodes. So deft at supplying the code words (those liberals are “communist” insurrectionists) for Trump to employ in public. And of all the labels applied by the coalition formed by White nationalists and the current GOP, “communist” has the most sticking power. It no longer means what we always thought it did. Instead it has become a grab-bag of connotations: BLM, destroyers of so-called Southern heritage, AOC, threats to your “freedom” to pretend everyone is a Protestant just like you, and people who wanna take your guns.

            • harpie says:

              “Communism” is a big Roger STONE bogey man as well, probably since Nixon.
              He had a brain fart in 2016 and said “soviet” instead:

              8/1/16 Stone to Frank Morano:

              “Maybe the Russians are acting in their own best interests in this sense. It is the policies of Clinton and Obama that have brought us right now to the brink of nuclear war in the coldest relationship we’ve had with the Russians in decades. Trump would like to, I think, enter a period of détente in which we use hardheaded negotiations to get a peace agreement with the Soviets so that we could work together to pursue and destroy ISIS, which frankly they’re doing a better job of at this point than we are.”


          • Savage Librarian says:

            That’s right, Ginevra. Communism is simply a word Rhodes uses in a grab bag fashion to instill fear and motivate people to react. But I think Biden has a handle on redirecting the narrative. The media needs to pay attention if they care about democracy. Here’s an interesting observation:

            “Biden’s revolution is not being televised” – John Stoehr, 3/29/21

            “Reporters are missing the biggest political story of their lives.”
            “This is what the president said: “I want to change the paradigm. I want to change the paradigm. We start to reward work, not just wealth. I want to change the paradigm.”
            “While Reagan’s brand of conservatism was broadly attractive during an age in which Russian Communism was still a potent threat in the world (a waning threat but still potent), Biden’s brand of liberalism may end up being equally attractive during an age in which autocracy is on the rise. Biden said: “It is clear, absolutely clear … this is a battle between the utility of democracies in the 21st century and autocracies. If you notice, you don’t have Russia talking about Communism anymore. It’s about an autocracy. Demand decisions made by a leader of a country—that’s what’s at stake here. We’ve got to prove democracy works.”


          • harpie says:

            Kelly MEGGS said he had never had military training, but he took classes [with Connie and their son] with a former Marine.
            There’s a photo in this thread of that guy [Andrew Smrecek] wearing a t-shirt that says:
            7:18 PM · Mar 24, 2021

            In his request for bond Kelly Meggs, an Oath Keeper from Dunnellon, FL, claimed (through his lawyer) he should be released, in part, because “he had never served in the military nor has he undergone any paramilitary training.” […]

            Kelly Meggs did security for Roger STONE after that.

            Marcy wrote about MEGGS / STONE here:

  10. harpie says:

    New today from Jane MAYER:
    [This meeting about House Resolution 1 and Senate Bill 1 took place on January 8]

    Inside the Koch-Backed Effort to Block the Largest Election-Reform Bill in Half a Century On a leaked conference call, leaders of dark-money groups and an aide to Mitch McConnell expressed frustration with the popularity of the legislation—even among Republican voters.
    Jane Mayer March 29, 2021

    • harpie says:

      Naming names:

      […] Coördinating directly with the right-wing policy groups, which define themselves as nonpartisan for tax purposes, were two top Republican congressional staffers: Caleb Hays, the general counsel to the Republicans on the House Administration Committee, and Steve Donaldson, a policy adviser to McConnell. […]

      Zoe Loefgren is Chairperson of that committee:

      • P J Evans says:

        Yeah, right, those policy groups are “nonpartisan”. It’s too bad there’s no legal consequences to that kind of activity.

    • harpie says:

      […] They admit the lesser-known provisions in the bill that limit secret campaign spending are overwhelmingly popular across the political spectrum. In private, they concede their own polling shows that no message they can devise effectively counters the argument that billionaires should be prevented from buying elections. […]

  11. harpie says:

    The number of federal cases against individuals involved in
    the Capitol Hill Siege jumped overnight from 336 to 349.

    The average age of individuals was 39-years-old.
    Individuals came from 40 states and the District of Columbia.
    Cases have been brought against 301 men and 48 women.

  12. harpie says:

    Capitol Police provided more than 14,000 hours of Jan. 6 footage to lawmakers Thomas DiBiase made the disclosure in connection with a criminal case.

    […] Capitol Police General Counsel Thomas DiBiase, who made the disclosures in a sworn affidavit he submitted in one of the criminal cases stemming from the Jan. 6 riot.
    [>>> United States’ Motion for Protective Order Filed 3/29

    […] DiBiase’s comments to the court are the first known acknowledgment from the Capitol Police of the extent of its cooperation with lawmakers investigating the attack. The notoriously secretive agency has said little about the extent of its cooperation with other entities and whether it had shared its materials with lawmakers until now.

    DiBiase said the department also provided more than 14,000 hours of surveillance camera footage — encompassing the hours of noon to 8 p.m. on Jan. 6 — to two key committees investigating the Capitol assault: The House Administration Committee [Zoe LOEFGREN again] and the Senate Rules Committee. […]

    • harpie says:

      I wonder if this first bit might be a reference to the bombs:

      […] And it has shared a “very limited number” of video clips from Jan. 5 to assist the D.C. police with “potential … incidents.”

      Despite the disclosure, DiBiase is silent on one crucial question: Whether the department has preserved a broader swath of Jan. 5 footage and shared it with lawmakers who have raised fears about potential “reconnaissance” efforts by would-be rioters the day before the Capitol breach. Democrats leveled the charge in the immediate aftermath of the attack, suggesting Republican lawmakers or aides may have aided the rioters, but have said little to back up their statements since. In his affidavit, DiBiase revealed that the security footage is “automatically purged” within 30 days under normal circumstances. […]

  13. harpie says:
    12:24 PM · Mar 30, 2021

    WILL RIOTERS WALK? A lot of those arrested for #CapitolRiot may get little or no jail time. A judge said last week he expects prosecutors to recommend no time or maybe 30 days in many cases of people facing Jan. 6 charges. @kyledcheney & I unpack here: [LINK] [thread]

    Marcy writes about that article in a thread here:
    12:56 PM · Mar 30, 2021

    These are both great reporters, but this is a frustrating story that could help both right and left understand the nuances of the defendants but instead obscures. […]
    But what’s equally important to convey (and bc this only focuses on that 1/4, as far as I can tell), is the relationship between those who planned an assault and those who got caught up and those who trespassed.

    The Proud Boys were explicitly letting “normies” do their crimes for them. And even the trespassers, those engaging in civil disobedience, played a key role in the obstructive efforts of those who had a premeditated intent to prevent vote certification. […]

    This seems to be what NORDEAN is doing in his new filing…pretending they were disorganized and surprised about the insurrection.

    • harpie says:

      There were TWO CHANNELS set up.
      The one for the leaders/planners had maybe 12 members.

      What the superseding indictment said was that [my capitals]:

      CERTAIN Proud Boys PRIVY to plans for the event discussed their hope to turn the “normies,” or “normiecons”6 loose on January 6, 2021—to incite and inspire them to “burn that city to ash today” and “smash some pigs to dust.”

      [footnote: 6 This appears to be a reference to Trump supporters who are not otherwise affiliated with the Proud Boys or a militia group.]

      • harpie says:

        From the superseding indictment:

        39. On January 4, 2021, shortly after Proud Boy Chairman’s [TARRIO] arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairman’s phone. DONOHOE then created a new channel on the encrypted messaging application, entitled “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

  14. Molly Pitcher says:

    I am shocked, shocked I say!!

    From the NYT:
    The Justice Department is said to be investigating Rep. Matt Gaetz of Florida over a possible sexual relationship he had with a 17-year-old girl.
    Tuesday, March 30, 2021 5:47 PM EST

    Mr. Gaetz, a Republican and a close ally of former President Trump, is being investigated over whether he had a sexual relationship with a 17-year-old and paid for her to travel with him, according to three people briefed on the matter.

    Investigators are examining whether Mr. Gaetz violated federal sex trafficking laws, the people said. A variety of federal statutes make it illegal to induce someone under 18 to travel over state lines to engage in sex in exchange for money or something of value.

      • harpie says:

        It was not clear how Mr. Greenberg knew either Mr. Gaetz or Mr. Stone. He posted a selfie with both in 2017, tweeting, “Great catching up.” [photo]

    • Savage Librarian says:

      It’ll be interesting to hear who the ex-DOJ official is who Matt Gaetz claims is extorting his family.

      I first started commenting about Joel Greenberg on ew in early 2019. At first I thought he might have connections to Henry Greenberg (aka Oknyansky), the Russian who Caputo arranged to meet with Stone in 2016. I couldn’t find any links between Joel and Henry. But they both did have a connection with Stone. And Matt Gaetz had connections with both Stone and Joel Greenberg.

      Some months later I became concerned about Joel Greenberg’s use of blockchain when he was Tax Collector in Seminole County, Florida. 
      So, I commented about that on ew. I think I also mentioned something about Stone’s suspicious connections to cryptocurrency.

      Then, in the summer of 2020, I commented about Joel Greenberg being suspected of sex trafficking. I also thought he might have been in a photo with Stone and Proud Boys. Since then, I’ve been wondering if Matt Gaetz or Roger Stone would eventually factor into the sordid tale.

    • P J Evans says:

      Apparently he was implicated by a Florida tax collector who got busted. (Also this started last summer, so it’s not on Biden.)

  15. Molly Pitcher says:

    This day just keeps getting better.

    From The Hill (I know, I know):
    Ethics upholds Gohmert’s $5,000 metal detector fine
    The House Ethics Committee said Tuesday that it is upholding the $5,000 fine levied against Rep. Louie Gohmert (R-Texas) for bypassing a security screening to enter the House chamber.

    Gohmert had appealed the fine issued by the House sergeant-at-arms on Feb. 5, days after House Democrats voted to enact the punitive measure to enforce compliance with the metal detector screenings established in the wake of the Jan. 6 insurrection.

    • Molly Pitcher says:

      Oooo, Roger Stone will be running his finger around his shirt collar today. His hero bites the dust and the wolves are circling closer and closer. As I said the day keeps getting better, for us, not Stone. Or Gaetz. Or Gohmert.

  16. harpie says:

    Two Capitol Police officers sue Trump for ‘physical and emotional injuries’ suffered in riots
    March 31, 2021 at 6:17 a.m.

    […] In a federal suit filed Tuesday in D.C., Officers James Blassingame and Sidney Hemby allege that for months, Trump rallied the insurrectionists with baseless election fraud claims that eventually culminated in the breach of the Capitol that left five dead, including a Capitol Police officer. About 140 police officers were injured, according to the police union, and two officers who had been on duty at the Capitol that day later died by suicide. […]

Comments are closed.