Latex Gloves Hiding Evidence of Conspiracies: On the Unknown Adequacy of the January 6 Investigation

Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

Update, 6/2: As this post lays out, Hodgkins’ plea was indeed just a garden variety plea. During the hearing he explained the latex gloves. He carries a First Aid kit around all the time and saw Joshua Black’s plastic bullet wound (though he didn’t know Black and didn’t name him in the hearing) and put gloves on in preparation to provide medical assistance. After Black declined his help, he took the latex gloves off.

On Wednesday, June 2, insurrectionist Paul Allard Hodgkins will plead guilty, becoming just the second of around 450 defendants to publicly plead guilty (particularly given the number of people involved, there may be — and I suspect there are — secret cooperation pleas we don’t know about).

NOTICE OF HEARING as to PAUL ALLARD HODGKINS: A Plea Agreement Hearing is set for 6/2/2021, at 11:00 AM, by video, before Judge Randolph D. Moss. The parties shall use the same link for connecting to the hearing.(kt)

This could be the first of what will be a sea of plea deals, people accepting some lesser prison time while avoiding trial by pleading out. But there’s one detail that suggests it could be more, that suggests Hodgkins might have knowledge that would be sufficiently valuable that the government would give him a cooperation deal, rather than just a plea to limit his prison time.

Hodgkins is one of the people who made it to the Senate floor and started rifling through papers there, which by itself has been a locus of recent investigative interest. But he is an utterly generic rioter, wearing a Trump shirt and carrying a Trump flag. According to an uncontested claim in his arrest affidavit, he told the FBI he traveled to the insurrection from Florida alone, by bus. Because the only challenge he made to his release conditions — to his curfew — was oral, and because the prosecutor in his case hasn’t publicly filed any notice of discovery (which would disclose other kinds of evidence against him), there’s nothing more in his docket to explain who he is or what else he did that day, if anything.

But one thing sticks out about him: before he started rifling through papers in the Senate, he put on latex gloves.

It’s not surprising he had gloves. During the pandemic, after all, latex gloves have been readily available, and I’ve wandered around with gloves in my jacket pocket for weeks. But he did show the operational security to put them on, when all around him people were just digging in either bare-handed or wearing the winter or work gloves they had on because it was a pretty cold day.

There’s just one other instance I know of where someone at the insurrection showed that kind of operational security (though there is one person identified by online researchers by the blue latex gloves he wore while playing a clear organizational role outside the Capitol). When one of the guys that Riley June Williams was with started to steal Nancy Pelosi’s laptop, Williams admonished him, “dude, put on gloves” and threw black gloves (which may or may not be latex) onto the table for him to use.

There’s no reason to believe there’s a tie (as it happens, Williams had a status hearing last week where her conditions were loosened so she can look for work). There is a cybersecurity prosecutor, Mona Sedky, who is common to both cases, which sometimes indicates a tie, but she is also on cases against defendants who have no imaginable tie to Williams. But Hodgkins exhibited the kind of operational security that, otherwise, only other people who seemed to be operating from some kind of plan exhibited.

My point is not that there’s a tie, but that we don’t know whether there’s something more interesting about Hodgkins, and we might not even learn whether there is on Wednesday, in significant part because if there is one, prosecutors may not want to share that information publicly.

And I think, particularly in the wake of Republicans’ successful filibuster of a January 6 Commission and discussions of whether there will be any real accountability, that’s a useful illustration about the limits of our ability to measure the efficacy of the investigation right now. Paul Hodgkins could be (and probably is) just some Trump supporter who hopped on a bus, or his latex gloves could be the fingerprint of a connection to more organized forces.

With that said, I’d like to talk about what we can say about the investigation so far, and where it might go.

Last week, when I read this problematic and in several areas factually erroneous attempt to describe the attack in military terms, I realized that readers new to my work may not understand what I do.

I cover a range of things, but when I cover a legal case, I cover the legal case as a means to understand what prosecutors are seeing. That’s different than describing the alleged crime itself; particularly given the flood of defendants, I’m not, for example, reading through scraped social media accounts from before the attack to understand what was planned in the semi-open in advance. But reading the filings closely is one way to understand where the criminal investigation might go and the chances it will be successfully prosecuted and if so how broadly the prosecution will reach.

I’m not a lawyer, though I’ve got a pretty decent understanding of the law, especially the national security crimes I’ve covered for 17 years. But my background in corporate documentation consulting and comparative literature (plus the fact that I don’t have an editor demanding a certain genre of writing) means I approach legal cases differently than most other journalists. For the purposes of this post, for example, my academic expertise in narrative theory makes me attuned to how prosecutors are withholding information and focalizing their approach to preserve investigative equities (or, at times, hide real flaws in their cases). Prosecutors are just a special kind of story-teller, and like novelists and directors they package up their stories for specific effects, though criminal law, the genre dictated by court filings, and prohibitions on making accusations outside of criminal charges impose constraints on how they tell their stories.

One of the tools prosecutors use, both in a legal sense and a story-telling one, is conspiracy. The problematic military analysis, linked above, totally misunderstood that part of my work (as have certain Russian denialists looking for a way to attack that doesn’t involve grappling with evidence): when I map out the conspiracies we’re seeing in January 6, I’m not talking about the overarching conspiracy that made it successful, how the entire event was planned. Rather, I’m observing where prosecutors have chosen to use that tool — by charging four separate conspiracies against Proud Boys that prosecutors are sloppily treating as one, and charging (as of yesterday) sixteen members of the Oath Keepers in a single conspiracy — and where they haven’t, yet — for a set of guys who played key roles in breaching the East door and the Senate chamber who armed themselves and traveled together. As that set of guys shows, prosecutors aren’t limited to using conspiracy with organized militias, and I expect we’ll begin to see some other conspiracies charged against other networks of insurrectionists. It’s virtually certain, for example, that we’ll see some conspiracies charged against activists who first organized together in local Trump protests; I expect we’ll see conspiracies charged against other pre-existing networks (like America First or QAnon or even anti-vaxers who used those pre-existing networks to pre-plan their role in the insurrection).

Conspiracies are useful tools for prosecutors for several purposes. For example, a conspiracy charge can change what you need to prove: that the conspiracy was entered into and steps taken, some criminal, to achieve the conspiracy, rather than the underlying crime. It can used to coerce cooperation from co-conspirators and enter evidence at trial in easier fashion. And it’s the best way to hold organizers accountable for the crimes they recruit others to commit.

If Trump, or even his flunkies, are going to be held accountable for January 6, it will almost certainly be through conspiracy charges built up backwards from the activities at the Capitol. I am agnostic on whether they will be, but it’s not as far a reach as some might think. This handy guide to conspiracy law that Elizabeth de la Vega laid out during the Mueller investigation provides a sense of why that is.

Conspiracy Law – Eight Things You Need to Know.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

We know that Trump and his flunkies shared the goal of the conspiracies that have already been charged: to prevent the certification of the vote. Trump (and some of his flunkies) played a key role in one of the manner and means charged in most of the conspiracies: To use social media to recruit as many people as possible to get to DC. Arguably, Mike Flynn played another role, in setting the expectation of insurrection.

What’s currently missing is proof (in court filings, as opposed to the public record) that people conspiring directly with Trump were also conspiring directly with those who stormed the Capitol. But we know the White House had contact with some of the conspirators. We know that organizers like Ali Alexander and Alex Jones likewise had ties to both conspirators and Trump’s flunkies (an Alex Jones producer has already been arrested). We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6). Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob. If Trump or his flunkies are held accountable, I suspect it will go through conspiracies hatched in Florida, and the overlap right now between the Oath Keeper and Proud Boys conspiracies are in Floridians Kelly Meggs and Joe Biggs. But if they are held accountable, it will take time. It’s hard to remember given the daily flow of new defendants, but complex conspiracies don’t get charged in four months, and it will take some interim arrests and a number of cooperating witnesses to get to the top levels of the January 6 conspirators, if it ever happens.

This post, which is meant to be read in tandem with this one, assesses developments in the last week or so in the Oath Keepers conspiracy case.

27 replies
  1. Joseph Andrews says:

    This (from the piece):

    We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6).

    And this even more:

    Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob.

    If my 63 years of life experience on this planet has taught me anything, it has taught me that courtiers (such as Roger Stone) LIVE to share exciting details of how they are aiding their king…with the king himself.

    There’s your conspiracy (caveat: IANAL).

    But sadly for all involved (except the king), a true courtier will fall on his sword in order to save his king.

    More than Stone is needed.

    • emptywheel says:

      I think people overestimate Stone’s loyalty, or maybe underestimate his self-preservation. He took notes of all his conversations with Trump during 2016, and had a meeting, probably with the notes, in early December 2016. He invoked those conversations when he extorted commutation.

      • Leoghann says:

        Stone’s statement during an interview with (co-conspirator) Alex Jones this weekend that he expects Trump to be indicted soon gave a good teaser of where his ultimate loyalties lie. He’s been fucking rats and getting away with it for a long time.

  2. Hoping4Better_Times says:

    One of those indicted conspirators (16 names are listed) is blacked out. The charges and names of the remaining 15 names are described in detail. Did someone flip? Stewart Rhodes, the head of the Oath keepers was directing the activities of the Invaders from outside the Capital. I believe he has not been charged to date.

    • emptywheel says:

      That’s addressed in the next post. It’s not Rhodes. I think the person may have either flipped or not been arrested yet.

      • bmaz says:

        I’d bet on the not arrested yet part, but who knows? On the flip side, by putting everything else out into the wild, may be almost as likely to tip him off as just naming him, so maybe it is something else.

  3. Ken Haylock says:

    A lot of people (well, specifically me in this case) will be very gun-shy about trusting any process that is hidden from public view to even be attempting to hold Trump & his crew of co-conspirators to account for… well… anything.

    For a long time during the Trump presidency, Mueller was supposedly ‘playing 5 dimensional chess’ & would indict a laundry list of the obviously extremely guilty ‘real soon now’, & at the end… nothing, followed by the technical dismantling of any possibility of future accountability for the crimes Mueller identified but was convinced he couldn’t indict for, based on OLC reasoning that could be so outrageous as to guarantee that all future presidents will be habitual criminals who will loot the treasury, take huge bribes to conduct foreign & domestic policy, & leave scot free after 8 years of mafia state action having sold the job to their successor, but that we’ll never get to see if teh DoJ get their way. I notice no charges arising from the outrageous behaviour that got him his first impeachment either, & it’s not hard to imagine none from his second either. The crimes that Cohen went to jail for, at the behest of Trump, were apparently too mysteriously complicated for Trump to be indicted for immediately after the Biden inauguration, even though they weren’t too complicated for Cohen to be locked up for them, & there’s a littany of blatant crooks & grifters that came & went from the Trump administration who have also apparently been given a free pass. Scott Pruett, was it? Why isn’t he under indictment already? Rick Perry & the Ukrainian energy advisory panel or whatever… crickets… etc etc.

    I guess if the DoJ under Garland is like the Trump DoJ there will be lots of harrumphing & hopeful sounding leaks & punditry, during which people are told to wait… wait… wait… it’s coming… justice is just around the corner… etc… followed by all of Trump’s crimes being literally de-facto legalised, & the US having quietly become a de-facto corrupt kleptocracy, with the only question remaining being whether it’s going to be an elective kleptocracy or a fascist kleptocracy…

      • Ken Haylock says:

        I understand that those rules can/can be deliberately used to conceal action… and to conceal inaction. When the news from the US contains lots of exciting spoon fed stories in papers of record stating breathlessly that [Trump acolyte] who committed at least one blatant felony, if not many, is ‘under investigation’, one once would have assumed that 1. They are, actually, being investigated, & that 2. They will in due course be indicted for the things we all saw them do that are obvious crimes.

        Neither assumption is valid these days.

        • bmaz says:

          There are reasons for rules and processes, and, no, it is not always “concealment”. And, yes, most of it is “still valid”.

        • Ken Haylock says:

          And yet, they all walk free, untroubled by law enforcement, bothered only by rumours of pending come-uppances that never come, that shrivel & turn to dust, then blow away, never again to be mentioned & the excruciating details of crimes they have committed, so well described that you are tempted to think for a moment that _this time_ there’s no way the f****** can get away with it yet again, sit instead as giant monuments to their magnificent gilded impunity, also as a propaganda opportunities for MAGA world who can claim that the fact nobody could hold Trump or his favoured minions accountable is proof that as Trump claimed, the whole thing was an illegal witch-hunt
          foiled by ‘patriots’…

          Now we are saying that Trump’s first attempt to violently overthrow democracy & seize power to rule as god-emperor is something he _will_ at last be held accountable for, but I see all the co-conspirators & fellow grifters carrying on stoking up the _next_ violent coup attempt, as the wheels of justice are said to be turning in secret, & it occurs to me that if anybody wanted to hold Trump accountable for anything, they could indict him _now_ for the ‘easy’ & morally-if-not-legally treasonous stuff we all know & can prove beyond reasonable doubt that he did, like the Ukraine call, or the stuff his minion went to jail for doing at his orders, & then you could flip Trump himself on all the grifters who participated in his seditious conspiracy to hold on to power, & short circuit the whole ‘we will spend 3 years ‘investigating the Jan 6th attack while telling people to just be patient then stop when Trump runs for re-election, then Bill Barr 2.0 can shut all the investigations down when Trump wins again’ inevitability.

          TLDR: The fact that Trump hasn’t already been indicted for the shocking crimes everybody can see he committed in plain sight proves to a cynic like me that he’s never going to be held accountable for anything he has done or is about to do at least at the federal level, & his magic impunity spell is as yet not proven to fail him at state level; I await those cases somehow failing for implausible reasons as well…

          A corollary of all that is that when Emperor Orange rides triumphantly back into Washington DC atop a gold plated M1 tank after the military coup his flunkies are now openly proposing, the US will have thoroughly deserved it.

        • bmaz says:

          Well, the rules, procedures and laws are to protect all people, not to be just blithely waived to go after people you don’t like or agree with. Do that, and you and I may be subject to it next time.

        • Ken Haylock says:

          The unfunny truth is that a young African American man who had flipped the bird at some easily offended federal officer during a BLM protest would be in custody on any inflated charge they thought they could get away with arresting him for, however sketchy the novel legal interpretation they used to justify themselves. An Orange seditionist who has once tried & would still like to violently overthrow the US government & install himself as Emperor & has 20% of the country believing he is the legitimate president cannot get arrested &/or indicted for the major crimes he has been caught & publicly exposed at length across all truth based media for committing.

          Maybe after he succeeds with his coup, & ordinary Americans find themselves forced to chose between subjugation & having to restore legitimate government by use of violence in the horrific & bloody re-run of the civil war that would surely trigger, whatever comes after the justice department in the smoking ruin of the shining city on the hill might consider slapping Trump’s wrist a little…

        • bmaz says:

          Well, no, you do not get prosecuted for flipping a bird, it is protected speech under the First Amendment pursuant to Duran v. City of Douglas, a case I am extremely familiar with.

          There is never going to be the coup you contemplate, and further contemplating violence is as disgusting as what the nutters so fervently talk about. People should chill out and let the courts and DOJ do their work.

        • Ken Haylock says:

          He’d be in jail for fail to follow police instructions or resisting arrest or obstructing the highway or disorderly conduct or not having a valid fishing licence. Obviously he shouldn’t be, but that doesn’t seem to have much to do with anything. Similarly, Trump _should_ be in jail pending trial, but he conspicuously isn’t. He’s restarting his rallies where he can tell the Fox & OANN & Newsmax audiences live that the election was stolen from him & that the deranged CyberNinja audits he has demanded will prove it, and then patriots will need to rise up & ‘stop the steal’.

          I doubt that _everybody_ will ignore him. The only question is, will anybody be killed as a result?

        • Silly but True says:

          If DoJ seeks to indict Trump because his policy preferences on arming or not of foreign states with US weaponry differed from his predecessor, then get ready for every US President to be retroactively indicted by their successors every time the party changes sides.

          Senate needed to convict on Trump’s impeachment.

          This was Mueller’s very clear, blinking-lights direction.

          This was not particularly any fault of Mueller, but rather a designed feature of our democracy.

        • Ken Haylock says:

          To state the obvious, it’s not the ‘arming or not’ that’s the problem, it’s the ‘If you smear my political opponent you can have the arms, otherwise best brush up your Russian, comrade’ part that got him impeached. I think the ‘Lend Jarred Kushner billions or we’ll let the Saudis behead you all’ vibe was also corrupt AF…

  4. timbo says:

    On or about the 16th paragraph there is the following grammatical error:

    “It can used to coerce cooperation…” should read “It can be used to coerce cooperation…” (or something similar towards clarity).

  5. Leoghann says:

    As if to leave no doubt that he is a continuing conspirator, Mike Flynn openly advocated a violent coup, invoking the recent one in Myanmar, to his adoring audience during a talk at the Q Club confab in Dallas this weekend.

    • P J Evans says:

      Apparently it wasn’t public enough, and he wasn’t calling for doing it now, or on any specific date, so they’re not going to do anything. Yet.
      I did end up telling several people that it’s sedition, not the t-word.

      • Leoghann says:

        Because overheated right-wing ridiculons have been shouting [rhymes with reason] since the Fifties, normal people with normal brains now seem to think it happens on the regular, in everyday administration of the government. I’ve been informing people about the whole “enemy . . . in time of war” issue for years, it seems like. But definitely more in the past few years.

    • Nord Dakota says:

      What I read is that he said “No reason. . . a coup should happen. No reason.”

      that sounds like saying there’s no reason to think a coup should happen.

      • Ravenclaw says:

        It may *read* that way (or at least, it can be red that way). But it did not *sound* that way, and it was a spoken statement.
        Q: Is there any reason why this should not be done?
        A: No reason. It should be done.
        The full stop is crucial here.

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