Anatomy of a Potential January 6 Cooperation Agreement

I’ve written in passing about Jon Ryan Schaffer, the front man for the heavy metal band Iced Earth who was arrested for involvement with spraying bear spray during the January 6 insurrection, several times. In this post I noted that there must be something more to his case because Schaffer had been sitting, uncharged, in jail for months.

Jon Ryan Schaffer: The front man for the heavy metal band Iced Earth and an Oath Keeper lifetime member, Schaffer was arrested for spraying some police with bear spray. But two months after his arrest and detention, he has not been (publicly) indicted and only arrived in DC on March 17. The government has not publicly responded to his motion to dismiss his case on Speedy Trial grounds. All of which suggests there’s something more there that we can’t see.

Yesterday I included Schaffer among those likely to get cooperation agreements (rather than straight guilty pleas), then updated the post with yet another data point suggesting I was correct.

[A]t least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

[snip]

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

So the signs suggesting the government was pursuing a cooperation agreement in this case have been pretty clear.

But yesterday, DOJ made that even more clear by posting a filing to PACER — which was supposed to be sealed — making such negotiations explicit.

As stated in the Consent Motion to Continue, the government and counsel for the defendant have conferred and are continuing to communicate about this matter. This has entailed a series of debrief interviews with the defendant that began on March 2, 2021. Based on these debrief interviews, the parties are currently engaged in good-faith plea negotiations, including discussions about the possibility of entering into a cooperation plea agreement aimed at resolving the matter short of indictment. Among the contemplated plea terms upon acceptance of a plea are the defendant’s release pending sentencing.

[snip]

[T]he parties request that this filing be docketed under seal. Such an order is appropriate because the filing relates to sensitive information about the defendant’s cooperation with the government and ongoing plea negotiations that are not public. Accordingly, disclosure may reveal the existence, scope, and direction of the ongoing and confidential investigation. If alerted to this information, investigation targets against whom the defendant may be providing information about could be immediately prompted to flee from prosecution, destroy or conceal incriminating evidence, alter their operational tactics to avoid future detection, attempt to influence or intimidate potential witnesses, and otherwise take steps to undermine the investigation and avoid future prosecution. Accordingly, these facts present an extraordinary situation and a compelling governmental interest which justify sealing of this filing pertaining to this investigation that is being submitted at this time. [my emphasis]

You’ll recall that PACER was one of the targets of the Solar Winds hack, which raised concerns that sensitive documents detailing things like cooperation agreements and investigative targets might have been compromised. The Courts’ efforts to respond have bolloxed up PACER ever since, which has contributed to an unacceptable delay in postings of non-sensitive documents as the flood of January 6 filings hit.

One of the few things that DOJ has managed to post in timely fashion is this filing, which was supposed to be sealed.

This disclosure may make it harder to negotiate a cooperation agreement (or who knows? it might make it easier!). Certainly, it may present security concerns for Schaffer when he is released, whether or not he cops a plea, because he would get such a plea deal in exchange for testimony against a highly skilled armed militia, and they’ll assume he got a deal if he is released pre-trial.

Aside from the very real concerns about how this might affect the investigation into the Oath Keepers, however, the release of the filing is useful for the details it provides.

First, this cooperation deal, if it happens, will be the first of all 350+ defendants.

The government’s ongoing plea negotiations with this defendant are the first and most advanced plea negotiations involving any of the over 300 Capitol Riot defendants.

That would mean that others — like the cooperating witness with damning information on Dominic Pezzola and the un-indicted co-conspirator in the Proud Boys conspiracy — have not been charged at all (as descriptions of them in filings imply). It also suggests that for all the reporting about imminent deals, the cooperation agreements, at least, are two weeks or more away. Every other potential cooperation deal I named in this post follows the same pattern of filings that Schaffer’s does, but they have later deadlines for their continuance, though Ryan Samsel is the only other one who is in custody for January 6 (as opposed to other things), which adds urgency to any plea deal:

  • Bryan Betancur (in MD state custody): April 27
  • Ryan Samsel (in federal custody): May 7 (after being extended from April 1, moving to swap his attorney, then unmoving to do so, though currently he is represented by both)
  • Christopher Kelly (not in custody): May 10
  • Riley June Williams (not in custody): May 28
  • Kash Kelly (in Federal prison for gang-related drug crimes which he also cooperated on): indefinite

It looks like Samsel might have been the first plea deal, but an aborted swap of lawyers suggests he may have gotten cold feet. (Recall that Rick Gates did something similar before he flipped in the Mueller investigation; because of his criminal record, Samsel faces a stiffer prison sentence than Schaffer regardless of what happens).

Schaffer’s filing explains why cooperation agreements will be weeks away, too: First, plea deals are being reviewed “at various levels of government.”

Plea terms have thus required extensive review and approval at various levels of government necessitating more time than usual to approve and negotiate.

Given that Biden doesn’t have a confirmed US Attorney in DC, this likely means that at least Acting Deputy Attorney General and former National Security Division head under Obama John Carlin is reviewing these deals, if not Merrick Garland himself. Lisa Monaco should be confirmed as Deputy Attorney General imminently, and she’s likely to be interested in all this, too. That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.

Perhaps one of the most damaging disclosures by the release of this document is that Schaffer’s attorneys have admitted, non-publicly, things they’ve argued against publicly. In a filing asking for pre-trial release, Schaffer’s lawyers argued that merely possessing bear spray did not make Schaffer enough of a threat to require pre-trial detention.

The Government sought “detention based on [Mr. Schaffer] carrying a dangerous weapon inside a restricted ground.” Reporter’s Transcript of Detention Hearing, p. 7: 8- 10.2 Magistrate Judge Faruqui detained Mr. Schaffer “Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1).” (Doc. 12, p. 1)

Mr. Schaffer cannot be detained pursuant to 18 U.S.C. § 3142 (f)(1)(E) because the Government’s allegation Mr. Schaffer simply possessed bear spray does not support a finding his case involved a dangerous weapon. The Government cannot establish a can of bear spray is dangerous weapon when it is simply possessed.

Schaffer’s arrest warrant affidavit described him to be “among” a group of “rioters who sprayed” USCP with bear spray, but didn’t say he personally had used the bear spray to assault the cops, nor did it charge him with doing so.

SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves.

According to this filing, however, Schaffer’s lawyers conceded during a closed session that he could be charged, presumably including assault for spraying the bear spray, right away.

The parties agree that maintaining the current detention posture, as well as the government forestalling return of a grand jury indictment against the defendant1 , are necessary at this stage to facilitate good-faith plea negotiations.

1 As acknowledged by the defense during the sealed portion of the April 2, 2021 status hearing, the government is in a position to rapidly obtain an indictment against the defendant should plea negotiations fail.

But the filing also suggests that the grand jury may be posing another bottleneck to this process.

Additional time may also be necessary in the event plea conditions require completion of certain requirements before entering into a formal agreement before the court, such as the defendant testifying before the grand jury.

That is, if and when a plea deal is agreed, they still may require Schaffer to provide any testimony to the grand jury before they finalize the plea and release him.

As noted, the unintentional release of this filing may undermine that process from the start. But it least it provides some clarity on how this process is working for Schaffer and others.

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169 replies
  1. Peterr says:

    Another aspect to this failure to seal the motion is the effect it will have on other insurrectionists. Lawyer after lawyer is probably pointing to this motion and telling their client some version of “With cases involving multiple defendants, the first ones to make a deal usually get the best deal. If we’re going to go that route, now is the time to get the best deal we can. The longer we wait, the more likely it is that the government will get what they need from other defendants, and there’s no deal for you to be had.”

    • emptywheel says:

      And also that the government is likely to have these cooperators. Given the size of these conspiracies, I expect a certain kind of dam-breaking might happen, as one after another person realizes they can’t expect loyalty from others.

      • Peterr says:

        And if you wait for the dam to break before you try to get out of the way, it is usually too late.

      • TimH says:

        Is it permissable to play games such as filing with the statement “[T]he parties request that this filing be docketed under seal.” but behind the scenes ensuring that it won’t be under seal, to scare more parties into deals?

    • harpie says:

      Maybe this is dumb because I don’t really understand the nuances of how all this works, but I wonder what the comparative probabilities are, that this became public because:
      1] Solar Winds hack and/or remediation attempts
      2] Deliberate sabotage by someone who does NOT want OK’s to sing
      3] unforced DOJ error [but with possible benefits, like you say]
      4] deliberate DOJ nudging of other possible singers [might they do that?]

      • Spencer Dawkins says:

        I should let someone smart answer, but intentionally nudging 350 people under various stages of investigation at the same time seems like an awfully blunt instrument. I’d be surprised if your Number 4 explanation turns out to be the winner.

        But I am surprised every day by the events of the January 6th insurrection and subsequent investigation …

        • Alan says:

          Also possible DOJ was intentionally trying to alarm the other defendants to gather intelligence from whatever communications might result, although again, there would seem to be other ways to accomplish that…

      • Tom R. says:

        The sneaky/deliberate hypotheses are not plausible.
        1) Prosecutions are a team sport. If you can’t be trusted to keep private stuff private, nobody will want you on the team. This includes plain old mistakes, unless they are very rare.
        2) It also includes screwing up on purpose. If there is no consensus within the team about ending this negotiation, then going against the team is a career-ending move, even if the judge doesn’t find out about it. And if the judge does find out you said it needed to be sealed and deliberately didn’t seal it, that’s a whole nother layer of hurt.
        3) If there is consensus, there is no need to be sneaky about it. Just file on the public docket a statement that the negotiations have broken down. This has all the same upsides with no downside.
        4) There have been other instances lately where filings that should have been sealed briefly showed up on the public docket, in situations where it was clearly disadvantageous to the filer. So we know such things /can/ happen inadvertently.

        • bmaz says:

          Yes. Also, number 4 is almost certainly exacerbated greatly by everybody working during a pandemic, often from home.

        • ThoughtMail says:

          Yep. Personally, I like door number 3.

          But what’s left out of this conversation is the quality and quantity of information that this individual can offer. At this point, that’s unknown.

          If it’s as good as our much-speculative opinions would have it, would he really wish to be “at large” with his armed “friends” looking for him? If it’s *really* good, might he negotiate for an FBI squad for protection (assuming that incarceration for his protection wouldn’t be as good)? Or, witness protection until trial, and afterward?

          Whatever this is, it isn’t good for him. How it complicates prosecution is another matter. How it complicates proceeding to prosecution (if only of the others) is pregnant.

      • John Lehman says:

        ….”other possible singers” …not…ehamm..being prejudicial…or …cough…cough…ehemm….biased or anything..

        but with this group there should be enough singers to organize a rendition of the “Hallelujah Chorus” equal to the Mormon Tabernacle Choir’s

        …no..no..not being prejudiced

  2. Inspector Clouseau says:

    A true prisoner’s dilemma is playing out here. I’ve been waiting to see who takes a deal first and what route they go. I imagine at the low/mid level the information is all the same so those defendants have barely anything to trade once the first one makes the deal, the question is what limb of the tree does the DOJ shake next to see who falls out after the initial deals go out. This case is going to put quite a few heads on the wall and make some careers if done correctly.

    • Peterr says:

      In this case, I think the low-level folks actually have a fair amount to offer: the names/descriptions of those who directed their attack, and the more of these folks who point to the same person, the better. If a prosecutor gets five people that identify Person A as a commander of some sort, and five more that name Person B, and seven others that point to Person C, you’ve got 17 witnesses naming three probable organizers to go after. A, B, and C weren’t just caught up in the emotions of the day, but a bunch of folks named them as people who turned a protest into an insurrection.

      That could be very valuable, and what happens next would be very interesting.

      How will A, B, and C react to having the sky land on them like that? I can hear the prosecutor now: “So, there are three of you and I’ve got two deals. The first to tell me what I want to know gets deal #1 — and a very nice deal it is. The second to tell me what I want gets deal #2 — not quite as good, but still a good deal. The third one of you gets whatever is behind Door #3, which opens into a federal prison cell.”

      You don’t want Door #3.

    • punaise says:

      what limb of the tree does the DOJ shake next

      “The tree of liberty must be refreshed from time to time with the blub of patriots and tired rants. It is its natural manure.”

    • Lulymay says:

      As a Canuck lurking just north of the 49th, may I add my appreciation of the work here at Emptywheel. Marcy’s KSA with respect to your legal system is amazing and has given me a better understanding of (at least for me) the very complicated and varied agencies that operate within it. Thank you so much to all of you.

  3. gulageten says:

    Because of his profession, Schaffer may have been a lot more motivated than other defendants to take this path. I assume any criminal conviction would make it much more difficult for him to rebuild his musical career (already a longshot but not impossible) — particularly if his international travel is restricted by such a conviction. His record company had asked retailers to pull his albums already a few days before he turned himself in, but that income is a trickle anyway, compared to what the band earns on the European festival circuit.

  4. Fran of the North says:

    Edit:
    Last sentence of para under Call Out:”Plea terms have thus….”

    Perhaps an orphan left over from a rewrite or ‘getting’ moved earlier in sentence:

    “That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.”

  5. Rick Ryan says:

    Probably a dumb question, but: If a plea agreement has been in the works for so long, why did they file the motion to dismiss for violating the Speedy Trial Act?

    Did he change his mind about cooperating after that, or was that a tactic to ensure the process keeps moving forward? Or something else?

    Personal aside: as someone who was kind of a fan of this band back in high school, seeing Schaffer become a central figure in one of the most momentous events in modern history has been very weird.

    • Peterr says:

      The key words in your opening sentence are “has been in the works”. The deal is not yet finalized, and the motion to delay a speedy trial was made on March 9th was likely filed in order to push the prosecution into making a better offer.

      In the “Update” in the second blockquote, Marcy notes that yesterday the parties agreed to postpone a scheduled detention hearing for another two weeks, telling the court (in the linked filing) “both parties at the status hearing held on April 2, 2021, requested the court to toll Speedy Trial and to hold in abeyance the defendant’s motion to dismiss (ECF 4) that was filed on March 9, 2021.”

      IOW, negotiations are continuing and nobody wants to rush this to trial as long as they are making progress.

  6. subtropolis says:

    I think the speculation that this screw-up might be good for prosecutors might be a little too optimistic. I suppose that it’s possible that it might spur others to cooperate, but I imagine that the prosecution team is not at all happy that this got out.

    In other news, I finally understand why none of the ~40 OKs from North Carolina, who were expected to come up on a bus, had disappeared from view. It turns out that they watched the beginning of the assault on the Capitol as they approached from the rally location and left in disgust. The article was published feb. 9 but this is the first I’ve seen anything about them.

    “It became pretty obvious even at that distance that this was something else. We stood and watched…and I said, ‘This is it, we ain’t going no further,’ and we stood there probably 45 minutes and we turned around and got on the bus,” Smith said. “Never in my wildest dreams did I think people would get up there fighting with Capitol police and entering the Capitol.”

    More here: https://nrcolumbus.com/local-oath-keepers-split-from-national-following-jan-6/

    Source: https://www.rawstory.com/thomas-caldwell-oath-keepers/

    • Leoghann says:

      That reported reaction flies in the face of all the verbiage on social media between 25 November and 05 January about “let’s shut this shit down.” If Doug Smith is telling the truth, then good on him. If he isn’t, I guess we’ll find out at some point. His disclaimers read a lot like CYA to me.

      • FL Resister says:

        Thanks for that dose of skepticism.
        We tend to think what we want to believe.
        And that is not always the truth.

        • subtropolis says:

          That old saw about “what we want to believe” cuts both ways. A dispassionate examination of the evidence, rather than a reliance on preconceived notions, is a skeptic’s best approach, imho.

      • subtropolis says:

        Their actions speak louder than any words. They purportedly stopped their approach to the Capitol and, after observing what was going on for some minutes, decided to board their bus and leave. If you’ve any evidence that conflicts with that narrative please do share.

        • Dutch Louis says:

          My observation (and humble maidenmail after following EW for years now) as an outsider from the other side of the ocean. Probably stimulated and stoked by some stonecold cynics the self proclaimed patriots entered the Capitol. Under the illusion of a dangerous fight their pride was to act – life on the national stage – as professional soldiers thereby following their ‘commanders intent’. And then, somewhere around four o clock in the afternoon it turned out there was only their intent, but no commander. There was an old man in a partytent who regarded his power as a personal privilege, not as a duty; an overaged and spoiled child longing for maximum pleasure and avoiding every bit of burden. And at the end of the day all the proud boys and girls understood they had been conned by the calculated vagueness (a phrase coined by Katie Tur in 2016) of their leader. A fact he will never admit nor will they. Hopefully the – pardon my french – farce they participated in will not one day be followed by a real drama.

      • Leoghann says:

        I said I’m skeptical of the story that the NC Oathkeepers saw what was going on at the Capitol, were disgusted, and left. I have no preconceived notions, except for those which are based on what I’ve seen with my eyes of the insurrection event myself, and what I’ve learned in a lifetime of dealing with people, and a few psychology-related degrees. As I said above, Doug Smith, the leader of the group formerly(?) known as the North Carolina Oathkeepers, may be just a nice old man who would never tell a lie, and who certainly wouldn’t want to engage in any felonious behavior. Having been a part of the nationally organized Oath Keepers (which he now says he’s renounced), he would have to be a veteran of the military and/or law enforcement. If that’s law enforcement, the reputation of rural southern NC says a lot about his belief system.

        The main things that lead to my skepticism are that there were a number of messages in late December and early January on Oath Keepers channels to the NC group. Watkins and Crowell both mentioned having stayed with their leader in December. They were purported to be training new members of out-of-state chapters. Then, according to Rhodes, they were going to comprise the QRF, which was described as a number of OKs with an arsenal of weapons who would wait just across the border in Virginia and would rush in if “things start[ed] to go sideways.” The leader of that group was quoted in another message as not wanting to be there for the rally, because he was “too broken down to stay on his feet that long.” That pretty well describes Smith. It’s also pretty clear from all the verbiage that was exchanged in numerous messages that we’ve seen quoted in filings that everyone privy to those message boards fully expected to be involved in an uprising of some sort, not just a couple of rallies. (All this has been discussed at length here, but some of us seem to have forgotten.)

        Now, we have Smith, in an interview with his small-town local paper, which is basically an advertising rag (serving a county of 10,000), denying even knowing most of those people, and asserting that he had no idea there was going to be any violence or a rush on the Capitol. And saying his group is no longer a part of the OK national organization. (Columbus County chapter only? North Carolina state org?–he said both things in the same interview.) His story also varies in regard to the current name of his organization, which he states is still organized and meeting. Other people in other organizations deleted their Facebook and Twitter accounts. Doug Smith just (says he) deleted his membership in OK. If anyone has any confirmation that the group did indeed actually turn around and go home (they said earlier they’d drive up and back on the 6th), that’s not based on this one interview, or statements by Smith, I’d like to see it.

    • RLHall says:

      I read these comments a little differently, agreeing that they are self-serving. Seems like the NC OKs may have gotten the idea that the cause was lost as they marched up. There’s an old saying, “Better to live and fight another day.”

      It makes me think of something bigger. It seems obvious that there was a coordinated effort to attack the Capitol on Jan. 6. There is a question which has gone begging for the most part, specifically: What was the larger plan?

      I don’t think they were just some “good old boys” out to raise some hell and go home with a good story. (Though there were clearly some “insurrection tourists” and “normies” in the crowd.) As someone commented a day or so ago, the wind seemed to go out of the paramilitaries’ sails when they realized the politicians had escaped into the tunnels and safe rooms.

      Though there may well have been a measure of magical thinking, I think that someone had a concrete plan to use these groups to achieve the goal of keeping Donald Trump in power. That is the history that will be important 50 or 100 years on.

      Slightly, OT, but I read this blog almost every day. I’m grateful for the insightful posts and thoughtful and civil commentary.

      • madwand says:

        And why risk raising hell and a good story in exchange for a felony rap? It makes no sense to me either. That is why I am interested in what caused these guys to stop. What was it, a wall of automatic weapons in the tunnels that the insurrectionists were unable to counter. IMHO the plan was to take capitol unarmed and then have hostages to parade around, it was the only leverage they had which could force a cancellation of the vote and they were unprepared to mount a defense of the capitol without hostages. Failing to take hostages meant the mission failed, hence the 4pm meeting and Trump’s 4:17 go home we love you message. Mounting an armed defense of the capitol without the leverage to change events was abandoned if that was indeed the plan at 4pm.

        As far as the QRF was concerned, there is evidence it exists in the transmissions, however whether it was armed or not is still a question. IMHO again it was not armed and was meant to counter any antifa who showed up and they did not.

        • subtropolis says:

          That is my impression, as well — that the knowledge that legislators had left gave them pause. They no longer saw any good* outcome now the potential hostages had escaped.

          However, that does not appear to be the case with the NC group, unless they did not begin approaching the Capitol until around 4pm, when things were winding down. Until I see evidence to the contrary, my working assumption is that they backed out well before the other militia peeps began regrouping and leaving the scene.

          * I’m not suggesting that “good” was either realistic or sane, mind.

  7. Eureka says:

    This is another case in point why we love you, EW: all of your expertise (with an occasional side of June Bug).

  8. Molly Pitcher says:

    From Digby:
    https://digbysblog.net/2021/04/shocked-i-tell-you-shocked/

    “When the political scientist Robert Pape began studying the issues that motivated the 380 or so people arrested in connection with the attack against the Capitol on Jan. 6, he expected to find that the rioters were driven to violence by the lingering effects of the 2008 Great Recession.

    But instead he found something very different: Most of the people who took part in the assault came from places, his polling and demographic data showed, that were awash in fears that the rights of minorities and immigrants were crowding out the rights of white people in American politics and culture.

    If Mr. Pape’s initial conclusions — published on Tuesday in The Washington Post — hold true, they would suggest that the Capitol attack has historical echoes reaching back to before the Civil War, he said in an interview over the weekend.”

    Digby includes part of the op ed which has a very interesting break down of the demographics of the insurrectionists and a link to a study by the Chicago Project on Security and Threats https://www.uchicago.edu/research/center/the_chicago_project_on_security_and_threats/ .

    • harpie says:

      Those places are awash in fears that the rights of minorities and immigrants were crowding out the rights of white people in American politics and culture ARE that way beCAUSE the GOP POG [Party of GRIEVANCES] have for decades [at least], DELIBERATELY STOKED those fears FIRES in order to maintain their power.

    • Tom says:

      “… has historical echoes reaching back to before the Civil War”. I just finished reading “Journal of a Residence on a Georgia Plantation in 1838-1839” by Frances Anne Kemble. She describes her first night in Charleston, S.C., and how unusual it was for her, as an Englishwoman, to hear “the ominous tolling of bells and beating of drums” as the 9:00 pm curfew was signaled, after which hour no slaves were permitted to be abroad in public. Ms. Kemble wrote that the enforcement of a nightly curfew was “obsolete” in England and “made me almost fancy myself in one of the old fortified frontier towns of the Continent [i.e., Europe].” She went on to explain: “In Charleston, however, it is not the dread of foreign invasion, but of domestic insurrection [slave revolt], which occasions these nightly precautions”.

      Ms. Kemble also observed during her visit to the South that “every Southern woman to whom I have spoken on the subject has admitted to me that they live in terror of their slaves”, and that men as well, though they might deny it, “live under a habitual sense of danger”. I would think that such mental habits die hard and are passed on from generation to generation, especially when promoted by unscrupulous politicians and other civic leaders.

      • Ginevra diBenci says:

        Except that Pape’s superb report indicates that most of the insurrectionists did *not* come from the South. I think it is dangerous for us to stereotype them, or southerners, that way. If anything, what he portrays as their fear of the Great Replacement seems to signal a kind of pan-national Lost Cause nostalgia. This has been stoked and weaponized by GOP talking points scripted by Steven Miller et al. The insurrectionists seem demographically like a microcosm of Trump voters: personally financially stable (relative to national average) but malleable to the message that their very identity hangs in the balance. As Pape notes, the group that stormed the capitol was 95% white and 85% male. The tacit underlying threat, emasculation, strikes terror in those middle-aged hearts.

        • Rugger9 says:

          Prop 187 passed in CA in 1994 with 59% of the vote, and was a particularly offensive piece of work championed by Pete Wilson (who was otherwise considered to be a liberal GOP person). In some ways it was the culmination of the CA history that included bouts of xenophobia and worse.

          Prop 187 opened the eyes of CA citizens to the GOP plans and since then the GOP has declined (except for occasional events like recalling Gray Davis) to where it is today, a shrill minority.

          It is probable that Kemp’s power grab in GA will have the same effect, as will Abbott’s grabs in TX. That the GOP is (ahem) “selective” in their concerns will factor in for voters as well, and who wouldn’t get mad if someone yanked away voting rights?

          We shall see, but until the GOP or its successor renounces Trumpism their only hopes are gerrymandering and voter suppression. That’s why HR 1 and SB 1 are so important, to prevent gerrymandering in federal elections among other GOP sins. It becomes harder for the states to have two classes of election rules if for no other reason than the expenses needed to run them.

        • Rugger9 says:

          The other component to this is to address the single-source messaging from the likes of the Sinclair Group, Faux, OANN, Newsmax and their ilk. I would not be in favor of banning them but there has to be a return of the Fairness Doctrine in some form to prevent the RWNM from having control in a lot of these places to the level of the KCNA in the DPRK (North Korea) or just about any dictatorship in the world. I remember the famous print ads about “Experts agree, censorship works” featuring Hitler, Stalin, Khomeini and one current event villain.

          The word can succeed if it is heard.

          • bmaz says:

            Heh, back in the day, we used to commonly refer to the RWNM as the “Grand Wurlitzer”. I’ve been around all this way too long I think, because that seems almost like a lifetime ago.

            • Rugger9 says:

              Yep, I remember that as well, and it still applies. The Paramount Theater in Oakland has a rather famous one (and is a CA historical monument).

            • person1597 says:

              Brings back memories of FDL and the neocon scourge…
              “Mighty Wurlitzer” was the metaphor Frank Wisner, the first chief of political warfare for the Central Intelligence Agency, used to describe the C.I.A.’s “array of front organizations.” They were, he said, “capable of playing any propaganda tune he desired.”

        • J R in WV says:

          White supremacists, racists, haters of Catholics and Jews have spread across the United States over the past 150 years. There are CSA battle flags on trucks in every state of the Union. While Southron men founded the KKK to combat Reconstruction in the 1870s, the KKK has re-emerged at least twice since then, to lynch, burn and kill randomly with bombs.

          That’s who supports The Former Guy and today’s GQP. Haters of people of color, non-Theocratic religionists, schools and education, medical care for poor people [of color, or just poor] and everything modern and good in America.

          They want to return to about 1830 in every way, including epidemics, poisonous drinking water and ignorance. If state legislatures in GQP controlled states get their way we’ll be there before you can say KKK.

      • Eureka says:

        Great thread (generally) below which also includes info specific to why SC in particular institutionalized (and spread) such rules and attitudes about enslaved Blacks post-1739.

        To the content you shared, I’ll add that Ms. Kemble seems to be uncritically reporting statements of protest identity (i.e. reflecting the rules that Whites, esp. women, must “officially” fear Blacks to be accepted by their own culture. I’d bet that Ms. Kemble’s informants’ behavior in private, mixed spaces was often quite different):

        Michael Harriot: “I love this tweet. Always remember the technical term for cowboys like Wyatt Earp and Wild Bill is: “white cowboys.” The first cowboys were Africans in South Carolina… Until white South Carolinians panicked. A thread:”
        https://twitter.com/michaelharriot/status/1378451760939945988
        4:58 PM · Apr 3, 2021

    • Valley girl says:

      I’d read elsewhere about this historian’s surprise as to the issues motivating the attackers. I thought ??surprise?? – hasn’t he been paying attention to what’s been going on in this country- at the very least since Charlottesville ? The white supremacist movement, given fuel (or a blowtorch) by Trump?

      • TooLoose LeTruck says:

        Fuel… OR… a blowtorch?

        Why does it have to be one or the other?

        As far as I can tell, Trump and his cronies were quite busy stacking up fuel for the fire for months, even years, before Donnie finally lit a match…

        I’ve never seen a more blatant, deliberate arson job in my entire life…

    • Ginevra diBenci says:

      That Pape study has sent me on a deep dive into the women who made up 15% of the crowd. Pape and his group found that the mob was 5% non-white, but I can’t recall seeing any women of color in photos or videos. (I can still hear my mom: “Don’t be a damned fool!” I know I’m not alone in this.) Despite their smaller numbers, however, women were 40% of the deaths. An investigation is underway into how Ashli Babbitt ended up getting shot.

      Roseanne Boyland, 34, was reportedly “trampled”; this never made sense to me, given the size, age and what I assumed to be general sobriety of the Capitol crowd. I had just started researching her when I found this, which came out yesterday:
      https://www.thedailybeast.com/capitol-rioter-rosanne-boyland-died-from-acute-amphetamine-intoxication
      Boyland had been described in previous reports as a recovering addict who aspired to become an addiction counselor before (according to family) she got caught up in QAnon and related conspiracies. Her sad story just got even sadder. But I wonder if she is an isolated case, whether as an addict relapsing under the influence of internet conspiracy-mongering or as an intoxicated 6 Jan participant. How did she get the drugs she overdosed on? Who, if anyone, is investigating her death?

      • subtropolis says:

        I saw that story yesterday. I never once considered that the trampling was suspect, though. Shit like that happens within a rowdy mob, especially on unfamiliar, uneven ground. Watch the crowds around the doors in the videos. That someone could be inadvertently trampled seems obvious. One needn’t OD in a crowd like that to find oneself suddenly underfoot.

        And, why you assumed the crowd was sober is lost on me. I know that I’m not the only one who’s wondered whether many in the mob that day were jacked up on amphetamines. And that they were perhaps being passed around freely.

        Not that it would be difficult for someone to come across some. Nor, that a recovering addict might relapse.

        • PieIsDamnGood says:

          Proud boy leadership felt the need to remind their members to only get drunk after the day was over. Would not be surprising if most of the violent ones were intoxicated.

        • Ginevra diBenci says:

          I assumed general sobriety as contrasted, say, to the horrific stampedes at the Who concert and soccer stadium, where intoxication made the situations much worse. These people were older, it was earlier in the day, and they had (I thought) been exhorted not to alter their consciousnesses, at least until later, for the sake of maintaining military-esque discipline.

          Plus, they at least claimed to care for each other.

          The main reason trampling seemed questionable to me was simply that this was a smaller crowd and, IIRC, Boyland was in a relatively open space.

      • skua says:

        I had a client who was finding it difficult to get away from drug-use.
        I suggested 2 weeks on a youth-education-focused sailing training ship. He had no doubt that he’d be able to find a supplier even there. Wasn’t long after that that he didn’t attend for over a year..
        More generally, experienced users in this nation claim they can reliably score within 20 minutes of arriving in any town.

        • bmaz says:

          Yes, that is exactly right. I had a client, and friend, that I put in one of the best facilities possible here, as part of a process of walking him from any criminal penalties. Went to visit him after work one day, and they could not find him. Turns out he was on the roof of the joint getting high.

        • P J Evans says:

          I remember back in the early 80s, taking a bus to college , and being in the back with some early teens, who were trying to get a rise out of me by showing me a bag of green stuff they said was pot (I don’t know whether it was or not, but it was obviously easily available then.)

        • Leoghann says:

          The only way around that is to find some sort of enterprise that makes being clean, with an ongoing commitment to staying clean, a condition of employment. This is most often found in small businesses whose owner-operators are themselves recovering addicts of some sort, and who are involved with a recovery program. Addicts have a sixth sense, similar to the “gaydar” that many gay and lesbian people claim, that tells them if someone else is a heavy user, or even a non-using addict who’s in a rough spot.

    • Rugger9 says:

      Because the Roberts court hasn’t had a ruling that would be so fundamentally wrong and in violation of precedent (remember that Citizens United and Shelby, et al were sold on the idea of interpretation more than a flat rejection of the relevant precedent), Breyer isn’t angry enough yet.

      Reform is needed, but it will take something spectacular to get Breyer’s blessing (as if that matters anyhow), something like overturning Griswold on top of Roe.

      • earlofhuntingdon says:

        There’s nothing sacrosanct about having nine justices. Nada. Zip. Zero. Apart from being institutionally conservative, I suspect Breyer is simply convinced that the GOP, when it controls the WH and Senate, will seek to change the court every time it doesn’t like a single judgment.

        Justice Breyer doesn’t seem to have noticed a) in its present incarnation, the GOP will do that anyway, b) it won’t need need to do that for a generation – long after he and his present colleagues are gone, or c) the damage his esteemed colleagues on the right are already doing to the Court and the laws and country it is meant to serve.

  9. Zinsky says:

    The wheels of justice turn slowly but it is quite fulfilling to see smug right-wing assholes like Ryan Samsel, Dominic Pezzola and Richard “Bigo” Bennett ground to dust as the mechanism of justice grinds along. It is still astounding to me that these assholes thought they could beat up and bear spray cops, smash their way into the U.S. Capitol, take a few selfies and go home as if nothing had happened. Its a good thing for us that they are so stupid they had no idea what to do once they were in. Kudos to EW for identifying the outlines of the conspiracy charges early and explaining this very complex case in an understandable and pertinent way for the non-lawyers among us.

    • bmaz says:

      Tell me Zinsky, how fulfilling is it to see the rules, presumptions and Constitution shit on as to mere detention issues when the presumption of innocence and (at least rebuttable anyway) presumption of release, blithely set aside so blog commenters can get their jollies? Is that “fulfilling” for you? How much are you willing to shit on presumptions and law?

      When your friend or family member is detained/remanded pre-trial, before any real evidence is presented, will YOU still feel the same way? Because a lot of people do, right up until it touches on them. And it often does, sooner or later. So, keep that in mind. It is not just these mopes, it is accepted precedent and practice. Law is bigger than just this case. Keep that in mind the next time you bitch about law.

      • FLwolverine says:

        This argument reminds me of a quote from “A Man for All Seasons”:

        Roper: So now you’d give the Devil benefit of law!

        More: Yes. What would you do? Cut a great road through the law to get after the Devil?

        Roper: I’d cut down every law in England to do that!

        More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d like to give the Devil benefit of law, for my own safety’s sake.

        • TooLoose LeTruck says:

          Boy, I love the movie version of that…

          I’ve seen it, like, 8 or 10 times…

          They used to run it in a double bill w/ Lawrence of Arabia at the old, long gone, and much missed UC Theater in downtown Berkeley.

          For years and years, I’d go to that double bill every time they ran it.

      • subtropolis says:

        None of the scores of videos are “real” evidence? Ditto, the many statements posted online, and in texts? What kind of “real” evidence do you demand?

        Don’t get me wrong — I have misgivings about people being remanded for absurd periods before they can begin to defend themselves. In fact, it scares the shit out of me. I am aware that multitudes have needlessly suffered in that way.

        But I pose the question in all seriousness: is none of that “real” evidence?

        • bmaz says:

          Naw, not really. Real evidence is that which is admitted after the laying of a full and complete foundation, including the witnesses who took them or participated in them, at least a proper custodian of records, has been laid, and is subject to competent cross-examination thereon. This detention nonsense is NOT a freaking trial, and should not be treated like it is.

  10. punaise says:

    Maybe late to the party, but I just saw this headline

    (CNN)At least one of the Capitol riot defendants has flipped against the Proud Boys, agreeing to provide information that could allow the Justice Department to bring a more severe charge against the group’s leadership, according to an attorney involved in the case.

    • bmaz says:

      Good grief, why is any atty in this case talking to anybody before his/her client is pled and/or sentenced? And why does Tankleff and his direct partner have more than one 1/6 client when they would all have disparate specific interests?

      • punaise says:

        Hmm, now that you mention it that does seem…. odd, even unprofessional?

        Speaking of Jon Schaffer, scorched Ice(d Earth) is just water in the end.

      • Leoghann says:

        Upon reading that article, it clearly is referring to Schaffer. (“Wearing an Oath Keepers hat,” “prosecutors have revealed.”) CNN is using some obfuscation and click-bait, by referring to the Proud Boys, to hide that they’re actually a day or two late to the party.

      • subtropolis says:

        Maybe I’m naïve but I’d be pretty upset if my lawyer waited until after I’d been sentenced to bring up the deal that I’d wanted to work out in the first place.

        • bmaz says:

          Then you’d be a fool. The government does not want you or your lawyer running their mouthes, quite the opposite. You shut up and cooperate quietly and as requested. Full stop.

          • Rugger9 says:

            Perhaps the idea is to burnish the “street cred” in the militia movement by letting his boys know the feds tried but couldn’t get him to talk. Or, perhaps this is something his defense attorney is planting to create an appeal point later. Or, perhaps this is a signal to his boys about where the feds are looking. Real negotiations would be in secret if for no other reason than to keep from tipping off the other targets.

            The next filings will tell the story behind this plan, especially from the defense.

            • bmaz says:

              Or perhaps it is just dumb bullshit. Even if the govt screwed up, never chatter. Never. Not until your agreement is lodged to be entered.

              • earlofhuntingdon says:

                Popping the champagne before the last lap at Zandvoort or with a furlong to go at Churchill Downs: self-defeating, at best.

                • Rugger9 says:

                  Agree with both of you on the responses here, but not all GOP lawyers can be as idiotic as the Kraken Powell, Larry Klayman, et al. Then again, maybe they are. I was grasping at straws for why this was done.

                  Many years ago I was on a jury for a DUI case when on break I saw a defense lawyer on break from another courtroom basically pin his client to the wall to tell him “Don’t ever say that again!”, proving bmaz’s point.

            • Leoghann says:

              I’m still interpreting CNN’s report that “prosecutors have revealed” that someone is flipping as obliquely referring to the 2-hour window in which the prosecution’s filing about the cooperation negotiations was public. They’ve just conveniently omitted the fact that the revelation was inadvertent.

  11. Eureka says:

    Below is an article — which is also interesting as pure biography — outlining a new DOJ program in EDPA to head-off mass violence:

    After a career shaped by extremist violence, Philly’s acting U.S. attorney launches network to defuse risk
    https://www.inquirer.com/news/jennifer-arbittier-williams-us-attorney-terrorism-tips-network-20210402.html

    I described some of this initiative from DOJ’s flyer here*:

    https://www.emptywheel.net/2021/03/09/fbis-seems-confident-in-the-granularity-of-their-capitol-cell-tower-dumps/#comment-885581

    The topics need nuanced attention for a variety of civil liberties and civil safety reasons. IDK if other districts are pursuing similar programs, but it strikes me that this could expand into a general way that DOJ tries to forestall domestic terrorism.

    I don’t really know what to make of if besides that it’s more social-services-via-law enforcement; seems itself to be an expansion of how some institutions (e.g. schools, hospitals) interact re threat assessments to include anyone in the community (District) and a more bi-directional relationship; Acting United States Attorney Jennifer Arbittier Williams seems to have the best of intentions (and a history of similarly trying to extract a young man from the clutches of foreign terrorists in a pretty infamous case) — but what problems or unintended consequences might arise, especially in less-ethical hands?

    We — as a society — have to do something(s), and any of us with beloveds who spend time in places subject to high levels of school-/work-place violence would appreciate efforts to reduce risk. But I want to hear your feedback. One of my criticisms is that domestic violence garners no mention as an exemplar in the flyers despite the fact that mass violence events are domestic violence events half or more of the time. True, it’s too “common” and people like to focus on more exotic-seeming potentials. But that’s the problem.

    Nothing is easy these days.


    *that mass-_domestic_-violence arrestee I’d mentioned here has since _claimed_ to have killed 16 people.

    • Silly but True says:

      The increasing reliance on digital device tracking also opens door to all manner of obstructive shenanigans by resist-minded protesters with even small inkling of operational security.

      Imagine a “designated alibi” plants who stay out of area with selected others’ digital devices, while loaning out their own cell phones or those of others who then have ironclad alibi proof they were physically not present. Loaning a cell phone to “a stranger to use” isn’t against the law.

      Also, in our world of digital vanity today, how about setting up an entire new Geolocation Tourism industry: offer to bring someone’s digital devices to locations or events of significance! “I couldn’t make it to Joe Biden’s inauguration, but my personal digital device geolocation code was geolocated there!”

  12. punaise says:

    OT: via TPM

    In an extremely significant shift, Sen. Dianne Feinstein (D-CA), long one of the more traditional members of the caucus in her support of keeping the filibuster, signaled Tuesday that she would be open to a “carveout” to pass HR1 with a simple majority.

    Lemme guess: DiFi Inc. and Man-chin worked out a deal: the same day he goes on record against filibuster reform, she gets to do a Susan Collins to try to stem the tide urging her to pack it in and the honorable thing.

  13. earlofhuntingdon says:

    An essential 10-minute primer on the filibuster by @AJentleson. Republicans are lying about its history and purposes. So is Joe Manchin.

    The filibuster is a Jim Crow era tool of obstruction. It has been used overwhelmingly to oppose progress and reform, especially extending civil rights to Black Americans. The tell is that its default position is Doing Nothing. Get rid of it.

    https://twitter.com/scootdogster/status/1379873079048994818

    • earlofhuntingdon says:

      Breyer’s statement that the public’s trust in the court is dependent on its adherence to “legal principle, not politicis,” is accurate. But it is superficial and incomplete, in the way a Cliff Note misses the depth and subtelty that would allow you to understand how life works

      Cases that make it to the Supreme Court are complex. They have been decided by an out-of-step circuit court. Or they are filled with contentious politics and disputes among several lower courts. Sometimes, the law has grown moldy, is out of step with majoritarian thinking, and needs a new interpretation to be fair and relevant. The current majority also goes out of its way to solicit cases that might give it a chance to make new law – by putting its own minoritarian views into effect.

      How the justices work is based on their knowledge of the law, AND by their experience and priorities. Politics is an essential part of it. That’s one reason the FedSoc carefully screens candidates for their politics. One reason the Senate confirmation process, which avoids discussion of political views, is so flawed. And why Joe Biden is finally acknowledging that the federal courts – filled as they are with straight white male former prosecutors and corporate lawyers – need more women and people of color, and more lawyers experienced in defendants’ and civil rights.

      https://www.msnbc.com/opinion/i-m-convinced-justice-stephen-breyer-should-retire-supreme-court-n1263399

  14. Tom says:

    OT but sounds like Wayne LaPierre has learned from personal experience that the only thing that can stop a bad guy with a gun is a good guy with a yacht.

      • Tom says:

        Yes, I see that. Missed it by three days it looks like. Well, it was an obvious quip to make and I thought I might be the first.

      • earlofhuntingdon says:

        No worries. I’m just sensitive to the MSM not citing Marcy’s and other independent journalists’ work.

        • Tom says:

          I agree. After I heard about Dr. Wheeler’s website on NPR a few years ago and checked it out, I realized how superficial most MSM news coverage is. Much of the MSM’s coverage of the Trump administration over the past four years seemed to consist of expressions of outrage over his latest tweet, scrum with the press, job appointment, etc.. Here is where I came–internet connectivity permitting–for Marcy’s in-depth information and analysis plus the insightful comments from the moderators and knowledgeable community members such as yourself.

  15. earlofhuntingdon says:

    Admittedly haven’t seen a lot of the Chauvin trial telecast, but his defense counsel seems ineffective and out of his depth.

    • vvv says:

      He has, IMO, a near impossible case, made worse by his client being apparently totally without support even within his former employing police department.

      IMO, it’s the kind of case that an attorney might take for money, or publicity, or the belief that everyone is entitled to legal representation, or perhaps some combination thereof.

      Here, he is actually provided by and paid for by the police union, with a lot of behind the scenes support.
      https://heavy.com/news/eric-nelson-derek-chauvin-attorney/

      But it does not seem the kind of case you take expecting to “win”.

      And if the guy kinda lacks charisma and presence, I think he’s exhibiting massive balls even as looks like he’s struggling to be effective.

      But, “Michael Brandt, another Minnesota attorney, told The Post, ‘Sometimes you don’t see him coming. He’ll lull folks into a false sense of security, but the wheels are spinning, and he’s thinking three or four moves ahead.'”
      *ibid*

      • Leoghann says:

        Nelson seems to be working a two-pronged defense:
        1) Chauvin was just doing his job and being a good cop.
        2) Floyd’s death was self-inflicted, and besides, he’s no loss.

        The prosecution seems to have destroyed his first point. On the second, it would be hard for him to come up with anything against George Floyd that the right-wing press hasn’t already flogged to death. So if Nelson is four moves ahead, he’ll have to come up with a real surprise.

      • bmaz says:

        The defense is exactly what it was always going to be: 1) use defense experts to counter the prosecution’s experts (several of which were not experts in the least and never should have been allowed to give ultimate opinion testimony), 2) argue reasonable doubt, and 3) rely and argue on a Graham v. Connor jury instruction.

        This almost always works in trials of police officers. The fact that pretty much the entire MPD has testified against Chauvin, and allowed to improperly serve as opinion witnesses instead of simply lay witnesses, is going to make it all very difficult in this trial. Chauvin’s best hope is almost certainly a hung jury. Even that seems uphill at this point, but far too many bloviators on TV news have entered the guilty verdict before the defense even starts its case, which is a mistake. We shall see how it turns out.

        • vvv says:

          Being local (and knowing someone in the then chief’s family), I paid attention to the Laquan McDonald case, where the “unreasonable force” part was the main issue. (FWIW, my daughter’s college undergrad law class instructor was one of Van Dyke’s training officers, and told his class that Van Dyke operated there out of “tunnel vision”.)

          Here, the defense also seems to be attacking the “proximate cause” part.

          I think that the prosecution’s use of experts has been pretty effective on both parts.

          • bmaz says:

            I thought the LAPD training and police procedures expert was good, and the forensic pulmonary guy, Tobin, excellent.

            But I also think that most of the other “prosecution expert” testimony (including that of the pompous “MPD Chief”, who was blithely allowed to parade in in full dress blues with a giant super polished badge) was not from “experts” at all, and was really police and city employee fact witnesses that the prosecution used highly improperly, and highly cumulatively improperly, and the court should be ashamed and castigated for allowing it. That alone is sufficiently appeal error should there be a conviction. It may not be a winning appellate argument, as trial courts are given huge latitude on evidentiary rulings at trial, but it was erroneous and it was straight up asinine for the court to permit that willy nilly.

            I also think folks ought to await the defense case, and understand how police defenses use and argue them, before leaping onto the shiny prosecution bandwagon of manifest guilt. That is what the breathless jackasses on TV are doing, be a little more circumspect and patient. Turns out both sides get to argue their case, not just the over-amped prosecution.

            PS for vvv: Van Dyke is no longer in Fed custody at BOP-Otisville, not sure if in a halfway facility, just released, or in some IL state facility. He will be eligible for full release soon anyway.

            • vvv says:

              Re the “cumulative”, while I understand an appellate court could consider that issue on its own if the case goes up on some other ground(s), isn’t that waived as an appellate issue for the defense by their failing to object to same? It would be here, in civil court …

              I read Van Dyke was transferred to an IL state prison after being in Fed prison for his protection; I believe he gets out in early 2022. I will say that his demeanor was absolutely flat affect at all times – like Chauvin’s has been (I’m sure on advice of counsel) during this trial, but Van Dyke’s was any time I’ve seen him, such that I think the rumors of a possible PTSD defense seemed well reasoned.

              • bmaz says:

                I would imagine Nelson moved to strike or limit most all of what I complain of as cumulative or inappropriate in motions in limine well before the trial actually started. So that is why it is not repeatedly objecting at trial where you can see it easily. If he did not it would be a HUGE case of malpractice.

                • vvv says:

                  Ah, that makes sense, thanks. It’s just that, doing mostly civil trials, I’ve never seen a trial witness list that would call for such a mot/limne – it didn’t even occur to me.

    • graham firchlis says:

      The defense just pounced. The prosecution’s forensic pathologist (and as so many other witnesses so far a mind reader) is being taken apart through her own experience. Her rehearsed testimony isn’t “the whole truth” and reasonable doubt abounds as to mechanism and cause of death.

      Long long ago when I was a very young aspiring clinician I was involved in a study collecting phsiological data from dying patients, all cardiac deaths with a wide range of pathologies. I sat bedside taking data by hand, with the objective of discerning a pattern that could be employed as an early warning of death for cardiac patients expected to recover, and perhaps others.

      Over the course of three months I watched more than 100 individuals die in minute detail. In followup I attended many of their autopsies. I’ve seen many more cardiac deaths and autopsies since.

      Mr. Floyd, IMH but informed O, died of right heart failure. It is a slower death than we think of for heart attacks, several minutes of decline to an hour or more. Mr. Floyd had three critical cardiac artery obstructions; once his myocardial cells’ oxygen demand exceeded oxygen delivery his death came in minutes.

      By the time he was taken out of the vehicle and restrained on the ground he was already dying. To him it felt like he was suffocating, and while he was sitting upright in the vehicle he kept repeating “I can’t breath.” No one was sitting on him then.

      On thier own, there was nothing the officers could do. Had the ambulance arrived sooner with O2 and drugs his chances of survival were still slim.

      He was a heart attack waiting to happen, and the physical struggle was too much stress. A homicide, with procedural violations, but I don’t see criminalty.

      [ I can expand in more detail or STFU, as directed. ]

      • Rayne says:

        I think you need to STFU on this because Chauvin still denied aid to Floyd when it was offered, preventing anyone from knowing with absolute proof that Floyd died of an MI versus suffocation by cop.

        The denial of aid to a restrained Floyd was a conscious decision by Chauvin — that was the point at which he truly murdered Floyd.

        Adder: and I am really unhappy my first comment back in the bullpen is about a medical question ignoring the rest of the facts in the case.

        Adder-2: right here, this is when it was murder:

  16. earlofhuntingdon says:

    On the hundreds of voter suppression laws the GOP is promoting after its 2020 election loss: “Republicans are terrified of any voting they can’t rig.”
    — Nicolle Wallace, MSNBC, 8 April 2021

    Rather than change their policies toward those a majority of voters might support, the GOP is doubling down on racism, misogyny, and authoritarian rule. Governance and democracy be damned.

  17. harpie says:

    New OATH KEEPER filing [via Marcy]:

    https://twitter.com/alanfeuer/status/1380471256085069826
    6:42 AM · Apr 9, 2021

    Pure gold. The overnight filing in the Oath Keepers’ case contains a photo of 2 teams of OK’s speeding toward the Capitol in golf carts. “Fucking war in the streets right now,” one of them says, according to the filing. “Word is they got in the building . . .let’s go.” [PHOTO]

    I wish Feuer would link to the document…

  18. harpie says:

    From Katelyn Polantz [CNN] [via Laura Rozen]:

    https://twitter.com/kpolantz/status/1380366473210830848
    11:46 PM · Apr 8, 2021

    [THREAD] Breaking tonight: DOJ has now given the greenlight for plea deals in at least some of the lower-profile Capitol riot cases. Expect some of the 350+ cases to start moving now in court […]

    Next steps:
    Indictments and criminal complaints will turn into “information” filings, where charges could be rewritten/softened.
    Judges will hold plea hearings.
    Sentencing dates will get on the calendar.
    And we’ll learn if DOJ is signing up cooperators. […]

  19. VinnieGambone says:

    “… security concerns for Schaffer when he is released,…”
    What are they going to do, run him over with a golf cart?

  20. Savage Librarian says:

    Cascade

    First in line to spill the beans
    may be a sign of better genes,
    Just as taking the vaccines
    is smarter than QAnon Maga-zines.

    Who’ll tell tales out of school
    to help with the best evidence rule,
    As the stories now unspool
    with glimpses of a jaded crown jewel?

    Some who want to bend our ear
    might soon reveal their puppeteer,
    If we listen well we might overhear
    who is up front or in the rear.

    Some will sing just like a canary
    as friends become their adversary,
    We know it can be legendary,
    First a scramble and then Hail Mary.

    Who will let the cat out of the bag,
    What’s the price tag of a time lag?
    What’s the coefficient of the drag,
    in waving that infamous white flag?

  21. mass interest says:

    This from AP:

    https://apnews.com/article/capitol-siege-army-racial-injustice-riots-only-on-ap-480e95d9d075a0a946e837c3156cdcb9

    “The timeline adds another layer of understanding about the state of fear and panic while the insurrection played out, and lays bare the inaction by then-President Donald Trump and how that void contributed to a slowed response by the military and law enforcement. It shows that the intelligence missteps, tactical errors and bureaucratic delays were eclipsed by the government’s failure to comprehend the scale and intensity of a violent uprising by its own citizens.”

    Methinks the “government” knew exactly what was going on. “…failure to comprehend…” doesn’t cut it.

    • harpie says:

      AP writes that:

      The Trump administration and the Pentagon were wary of a heavy military presence, in part because of criticism officials faced for the seemingly heavy-handed National Guard and law enforcement efforts to counter civil unrest in the aftermath of the police killing of George Floyd in Minneapolis.

      Why does AP take the “Trump administration and the Pentagon”‘s word for it?

      TRUMP et al. CREATED that problem for illegitimate reasons…
      maybe even IN ORDER TO be able to use it as an excuse in the future.

    • harpie says:

      At the Pentagon, officials were discussing media reports [Don’t they have better sources of information?!?!?!] that the mayhem was not confined to Washington and that other state capitals were facing similar violence in what had the makings of a national insurrection.
      […]
      By about 4:30 p.m., the military [SAYS its] plan was finalized and Walker had approval to send the Guard to the Capitol. [In his testimony, WALKER SAID he did not RECEIVE the approval until 5:08 PM] The reports of state capitals breached in other places turned out to be bogus. [WHICH media reports? It seems like they worked well as an attention DIVERSION…and an EXCUSE for the DERELICTION of duty.]

      This article was an infuriating read. Maybe it’s a good thing that my previous comment is in moderation. :-P

      • harpie says:

        The fact that they sent troops to guard THEIR OWN HOMES in the mean time is just icing on the cake.

        By 3:37 p.m., the Pentagon sent its own security forces to guard the homes of defense leaders. No troops had yet reached the Capitol.

        • ceebee says:

          The term ‘defense leaders’ elides the ‘civilian control of the military’ distinction. Curious.

          • bmaz says:

            You have any explanation for your vague BS? I have checked every one of your seven comments on this blog, and it is hard not to categorize you as a troll, even if a light and impertinent one.

    • harpie says:

      Take a look at THIS timeline, mostly from the “We’ve Lost The Line” NYT VIDEO investigation.
      [The bit I reproduce here is just what happened beFORE anything from that day in the AP TL]:

      https://www.emptywheel.net/2021/03/20/there-were-60-proud-boy-boots-on-the-ground-on-january-6-around-23-have-been-arrested/#comment-886750

      1:10 PM TRUMP’s speech ends
      1:11 PM MPD arrives at the west front of the Capitol after being requested by USCP
      [NYT calls it a BRAWL]
      [3:12] 1:16 PM GLOVER is already calling in multiple injuries
      [5:00] 1:44 PM

      [Crowd: Stop the Steal! Stop the Steal!]
      NYT: It’s been almost an hour since Glover and his team were called to the scene. The help they need isn’t arriving. But the crowd keeps coming. The crowd penetrates the scaffolding.
      GLOVER “Cruiser 50. They are behind our lines! If I give this up, they’re gonna have direct access. We gotta hold what we have!”
      1:49 PM SUND requests URGENT aid from WALKER
      […much more at link…]

  22. harpie says:

    HA!
    1] April 10, 2021 at 12:56 pm
    harpie:

    I wonder if that lawyer [on 3/15 interview with RHODES][Kellye SoRelle] is the person standing next to RHODES at the meeting northeast of the Capitol, whom I asked about here: [Link]

    2] 2:22 PM · Apr 10, 2021

    yes, definitely him! [RHODES] they’ve [KELLYE SORELLE] been together for at least 4 interviews since Jan 6th, and cowrote open letters before
    1] he’s “Person One” in court filings for Oath Keepers conspiracy charges [screenshot]
    2] SoRelle is with a black/white head covering to the left of Rhodes [photo]

    1] https://www.emptywheel.net/2021/04/05/how-did-the-proud-boys-have-better-lines-of-communication-about-national-guard-reinforcements-than-the-national-guard-did/#comment-888404
    2] https://twitter.com/bennybryant17/status/1380949439137861636
    [scroll up for VIDEO]

    • Eureka says:

      Meant to tell you I thought that was her from other interviews, glad you got confirmation. More important, this gets into possibly backdating the conspiracy(ies) if you will, of the OKs goading +/- making themselves needed and allegedly interfering with — or trying to — the vote counting with various hoaxes (or claims to pursue them), incl. Philadelphia and Detroit. I’ll add links in a minute.

      • Eureka says:

        Philadelphia, see emphasis following players & texts:

        Nearly 280 miles from Philadelphia, in Virginia Beach, Va., a 61-year-old named Antonio LaMotta — who drew cartoons about government conspiracies and shared them on Twitter, and wrote on his website about using tanks to take over “law-less cities like New York and Seattle” — texted a man he knew, Joshua Macias.

        “What’s going on in Pa.? You need me there?” LaMotta wrote.

        “On standby,” responded Macias, the cofounder of a group called Vets for Trump.

        “Is it a problem? … What kind? We need arms?” asked LaMotta.

        “For each of us,” Macias responded.

        He and LaMotta loaded 150 rounds of ammunition and an AR-15-style rifle into a silver Hummer. On its rear window was a red Q — for QAnon, a conspiracy movement that attracted scores of followers who bought a mind-bending message: Trump was single-handedly fighting a cabal of Democrats and celebrities enmeshed in a child sex trafficking ring, many of whom would be rounded up and arrested on Jan. 20, 2021.

        Macias and LaMotta drove to Philadelphia. They planned to raid a “truckload of fake ballots.” Instead, they were arrested Nov. 5 outside the Convention Center, armed with Beretta handguns, amid a crowd of demonstrators who’d gathered under the night sky.

        Conspiracy Land
        QAnon is the latest in a long line of conspiracy theories that feed on hatred and inspire violence. Can the U.S. uproot these movements?
        Sandy Hook, Oklahoma City, Pizzagate, and a decade of conspiracies all unraveled on Jan. 6
        https://www.inquirer.com/news/a/qanon-conspiracy-theory-trump-voting-philadelphia-20210407.html
        by David Gambacorta, Updated: April 8, 2021

        (also this article covers topics of general national interest wrt hx rw conspiracy theories)

      • Eureka says:

        Detroit TCF:

        Fact check: Video shows journalist’s filming gear in red wagon, not ballots | Reuters
        https://www.reuters.com/article/uk-factcheck-video-journalist-detroit-ba-idUSKBN27L2UN
        November 5, 20204:30 PM Updated 5 months ago

        Social media users have been sharing posts online saying a video shows a person loading or unloading ballot boxes with a red wagon and a white van. This claim is false: it actually shows a local journalist’s filming equipment.

        The video shows a person near a white van with a red wagon holding a dark case. The video does not explicitly show any ballots, ballot boxes, or anything related.

        Some posts say that the video was captured by Kellye SoRelle, a Texas lawyer, and released to Texas Scorecard, a conservative publication covering state and local government ( here , here and here ).

        (emphasis added; internal links omitted)

        Reuters quotes:

        Rudy Harper: “An actual photo of the wagon and box that carries a device that allows us to go live. It’s not ballots. #wagongate [photo]”
        https://twitter.com/RudyHarperNews/status/1324353956202643456
        9:12 AM · Nov 5, 2020 from Detroit, MI

        Harper QTs this w link to texasscorecard article:

        Ross Jones: “A conservative “news” site reports catching a man wheeling in “suspicious” equipment to the Detroit convention center, implying it was used to steal ballots. The “ballot thief” was my photographer. He was bringing down equipment for our 12-hour shift. [link]”

      • Eureka says:

        January 5th: pre-Capitol OKs & allies broadcast: memory lane re Phila and Detroit as gas / justification / prelude to 1/6. Really there’s pieces of all of it here (Tarrio, too!): like the ad copy says, It’s In There!:

        Goad Gatsby Twitter thread:
        1:18 PM · Jan 6, 2021
        https://twitter.com/GoadGatsby/status/1346883837964541952

        “Last night Virginia State Senator Amanda Chase made a 40 minute video with Steward Rhodes of the Oath Keepers, Joshua Macias of Vets4Trump who was recently arrested in Philly, Kelly Sorrell of Lawyers for Trump, and Bianca Garcia of Latinos for Trump. [screenshot]

        “I am going to try and condense it into 5 minutes but here is the full video [fb link]

        “Chase starts off by providing her own alternative facts by recommending propaganda outlets like Epoch Times and OANN. She then interduces Joshua Macias who was arrested for illegal gun charges in Philly outside of the convention center where votes where being counted. [embedded video here and for each remaining tweet]

        “Macias refers to his time in a Philadelphia jail before his bond was posted as a “gulag.” Macias went to the same jail that people in Philadelphia are sent to everyday. Also refers to Larry Krasner as a Soros D.A.

        “Kelly Sorrell of Lawyers for Trump recalls her experience in Michigan filming out of context events in the vote counting. She claims that the process has been taken over by the communist Chinese.

        “Macias says that veterans and soldiers can be called in and used by Trump. Steward Rhodes of the Oath Keepers agree and cites the militia.

        “Bianca Garcia, President of Latinos for Trump is the only person not going on a Q Anon rant. Latinos for Trump also claims Enrique Tarrio as an organizer.

        “Amanda Chase nears the end of the video and says she will take up issues that are important which is apparently fighting against socialism by overturning election results.”

      • Eureka says:

        On this long-standing vote-count-disrupting activity (including Jones & Alexander’s militia “theater” in GA November 18th, discussed elsewhere) and how that mixes with storming Capitol(s) and other potential outcomes:

        There’s a lot of ‘If you build it, they will come’ – ‘If you come, they will build it’ tension with Trump, adjacents*, militias & their insurrection hopes & dreamz wrt who’d pull what trigger first to keep Trump in power.

        After Marcy’s recent comments on Judge Mehta’s recent comments, I figure she’ll be writing again about how DOJ is bumblefucking the conspiracy charges.

        emptywheel: Prosecutors didn’t argue this before Mehta with Caldwell and they have been swimming upstream ever since. He read a Caldwell misrepresentation of the charges, and it stuck.
        4:44 PM · Apr 9, 2021

        QTing:

        Rachel Weiner: Prosecutor argues that charge isn’t conspiring to breach the Capitol but to obstruct the vote count, and that messages — including from Oath Keepers founder Stewart Rhodes — show that broader intention [scroll up for rest of thread]

        emptywheel continues:

        On March 12, I noted that Ahmet Mehta is misreading the conspiracy charged against Oath Keepers, and USG is not noticing that they’ve charged the wrong conspiracy. That’s even more true now. [links the below]
        https://twitter.com/emptywheel/status/1380624726645686274
        4:52 PM · Apr 9, 2021

        Thomas Caldwell’s “Storming the Castle” Ploy Succeeds
        https://www.emptywheel.net/2021/03/12/thomas-caldwells-storming-the-castle-ploy-succeeds/


        *e.g. M. Flynn, Powell, Byrne (and others) exhorting Trump to declare “Insurrection Act!” “Special Prosecutor Powell!”

    • Eureka says:

      harpie, I’m, going to go ahead and add that direct link for the video of her FB livestream. It’s interesting, soothing commentary:

      Mendi Tackett: “@BudKennedy I’m fairly certain Stewart Rhodes is the man walking with/in front of her at the insurrection. The man in the sand colored puff jacket and cowboy hat. You can see his eye patch from the side. [embedded video from Capitol 1:11 length “Kellye Crump SoRelle was live” “1d”]”
      https://twitter.com/mentack/status/1380938916900052996
      1:41 PM · Apr 10, 2021

      From the video [double check accuracy for yourself]:

      I wanna show y’all somethin. Probably one of the coolest damn things I’ve ever seen in my entire life.

      I’m tellin you right now, Government. People are pissed!

      But you guys need to watch.

      They broke the line, guys.

      People are goin’.

      This isn’t a bad thing and you can’t be scared.

      This is whatcha do.

      Otherwise you end up assss [pause] – communist, little peasants. And little societies where you have no ability, no voice, no vote. You’re basically slaves.

      But this is what happens when the people are pissed and when they rise up.

      So you know what guys? It’s pretty amazing.

      You guys should enjoy it, they broke the barrier. They got up there.

      They may end up inside before it’s all said and done, and that’s OK too.

      It’s how you take your goverment back. Ya literally take it back!

      [sigh] Arright good luck everybody.

      Enjoy.

      Have fun.

      God bless.

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