Government Moves to Dismiss Its First January 6 Case: Christopher Kelly

In a first among the January 6 cases, the government has moved to dismiss the trespassing and obstruction charges against Christopher Kelly, a New Yorker whose arrest documents quoted Facebook postings saying that he was going to the riot with a former NYPD cop believed to be his brother and some Proud Boys.

The Kelly Facebook Account also shows that on January 4, 2021 another Facebook user (User 2) asked KELLY, “How are things there?? Gonna be crazy on the 6th eh?” KELLY responded, “Yea Im leaving tomorrow in the afternoon to gey there early.” He added, “Yea driving its only 250miles.” User 2 stated, “Enjoy the occasion, hope it all goes to plan. Stay safe, Antifa will be out in force.” KELLY responded with, “No worries, I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life (emphasis added).”

And unless there was a horrible mistake, his Facebook posts also show that he entered the Capitol and was enthusiastic about the results.

At 2:22 pm EST Chris Kelly posted the photograph in Figure One. A chat participant asked, “You’re there, @Chris Kelly? What’s really going on?” At 2:25pm EST, KELLY responded, “MAGA is here full on. Capitol building is breached.” At 2:30pm EST KELLY added, “Tear gas, police, stopped the hearing, they are all headed to the basement,” and, “Fuck these snakes. Out of OUR HOUSE!” (emphasis added).”

One possibility is that he didn’t enter the Capitol, his brother did, and that because Kelly sent the picture the government believed he had been inside.

I had pointed to his case back in April as one where the defendant, by proximity to the Proud Boys but not one of them, might have enough to offer to get a cooperation agreement.

As of less than a month ago, his excellent attorney, Edward McMahon, was still discussing a plea, not outright dismissal.

Since that time, counsel have engaged in substantial plea discussions that would, if successful, render moot the current hearings. Both parties agree that a continuance of the preliminary hearing and status conference date is warranted to allow for the continuation of plea discussions with an eye towards a resolution of this case.

But instead, his case will be dismissed and his record will remain clear.

There are a couple of things — aside from any cooperation he already provided — that might explain the dismissal.

First, as noted, the former NYPD he was traveling with was his brother, and no one resembling his brother has shown up in arrest records. If his brother had ties to the Proud Boys, then it might be more important to pursue him than Kelly. So maybe that’s what’s happening in lieu or prosecuting Kelly.

A far more interesting possibility would involve the established informant who first provided the tip turning Kelly in.

On or about January 9, 2021, CS-1 identified a Facebook account as being utilized by “Chris Kelly.” CS-1 provided to the FBI screenshots containing content posted to and sent and received by this account. The materials provided by CS-1 included a screenshot of the account’s profile picture.

1 Since in or about 2019, CS-1 has provided information to FBI in exchange for monetary compensation. CS-1 has no criminal record and the information provided by CS-1 has been proven to be reliable in the past.

There were maybe five established informants involved in the original tips out of all the January 6 defendants (and the case of one of the others, Timothy Hale-Cusanelli, also has problems). But informants in the vicinity of the Proud Boys pose particular problems, because there are reports that a whole slew of them were feeding tips to the FBI before January 6. And if one of them had his own involvement in January 6, but decided to narc out Kelly for cash or to divert attention from himself, that would make a case against Kelly unsustainable.

Another possibility, again, is that he didn’t enter the building. The pictures he posted of himself show him well outside the boundary of the restricted zone.

Whatever it was, the government wants to dismiss the case without prejudice.

The defendant was arrested on a Complaint in this matter on January 20, 2021, and he had his initial appearance before this Court on February 9, 2021. The matter has been continued several times and the next date is June 2, 2021 for preliminary hearing and status conference. The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice. The defendant consents to this motion to dismiss the Complaint without prejudice.

By dismissing the case “without prejudice,” the government could bring it back if circumstances change. But for now, Kelly becomes the first charged January 6 defendant to walk.

Update: Josh Gerstein gets confirmation that DOJ dismissed this because they have no evidence that Kelly entered the Capitol.

However, subsequent inquiries indicated that Kelly never actually entered the Capitol, according to a law enforcement official.

Prosecutors maintain that breaching the police lines outside the building is illegal, but few if any people have been charged in federal court solely for that.

“Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,” the official said.


17 replies
  1. CO says:

    Throw ’em all in prison. Our DOJ will toss in prison and throw away the key for pot, But sedition, insurrection, treason?

    Snore. Yawn. Nothin’ happening here, folks. Just keep movin’.

    I’m a firm believer you charge ALL people who entered the Capitol that day with the same charges, as a conspiracy. And include the Orange One as the puppeteer.

    The Ivory Tower protects its own though, doesn’t it?

    [Welcome back to emptywheel. This is a second request to use the same username each time you comment so that community members get to know you. This is your fifth user name; the username under which you have the most approved comments to date is “ackack.” Pick one and stick with it or end up stuck in moderation. Thanks. /~Rayne]

    • bmaz says:

      What a load of garbage. Please explain your vast experience on this subject other than bloviating in blog comments.

      • scribe says:

        Hear, hear.

        Someday we might see just how enthusiastic commenter CO is to lock people up and throw away the key, if a different corner of the political spectrum (that CO likes) winds up in the crosshairs of DoJ. I suspect CO would be considerably less enthusiastic, perhaps even bleating like a lamb at the pain and wrongness of prosecutions.

        The beauty of law – sometimes – is in the fact it is a set of neutral rules (or principles) that, ideally, should be applied evenhandedly regardless of the politics of the parties. Doesn’t happen as much as it should, but that’s the ideal people aim for. Commenter CO, well, CO’d would do well as a member of a lynch mob.

        My thoughts on the dismissal without prejudice are that DoJ views this as an opportunity, to toss this defendant back in the hope he goes back to his buddies, says or does something stupid and then they can really hit him. No doubt they’re cultivating people to snitch and looking for that to pay off. This defendant’s problem is his representation is likely going to end now that he’s been dismissed and he is likely to promptly forget the advice he got to shut up, keep a low profile and get or go back to his job.

    • earlofhuntingdon says:

      How Red Queen of you: Sentence first, verdict afterwards, evidence optional. Lynchings, and Texas justice – one of the great oxymorons – aside, particularized evidence beyond a reasonable doubt for each person and each crime tends to be a requirement.

      • Alan Charbonneau says:

        We need the rule of law, not the rule of monarchs:

        …’there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’

        ‘Suppose he never commits the crime?’ said Alice.

        ‘That would be all the better, wouldn’t it?’ the Queen said…

    • Silly but True says:

      Great that you want to waste taxpayers’ money on your frivolous prosecutions. Americans are innocent until proven guilty. Prosecutors should make decisions to initiate or maintain criminal prosecutions based primarily on presence of evidence of a crime (seriousness of crime committed, public interest in prosecuting, etc.). If their investigation of criminal trespassing into Capitol establishes that no trespassing into Capitol occurred then there’s no such crime and no reason to prosecute.

    • timbo says:

      Or perhaps we should lock up all anonymous commentators to this website as some sort of conspirators in a conspiracy? The horse pucky is now back in your court.

      As for our courts, let’s hope your brand of the horse pucky stays far away from holding any sway there.

  2. BobCon says:

    “if one of them had his own involvement in January 6, but decided to narc out Kelly for cash or to divert attention from himself, that would make a case against Kelly unsustainable.”

    What is the reason for that? Is it a sign that the tip is all of the substance they have, so they know they don’t have a case? Or does relying on an informant like that inherently damage a case no matter what other information they have?

  3. greengiant says:

    Maybe the fog of insurrection but quite timely to post at 2:30 PM “they are headed for the basement” which is the same minute police ordered everyone out of the Senate.
    “A veteran Capitol Police officer tried to calm the senators, telling them the report might not be accurate. But at 2:30 p.m., police ordered everyone out” IANAL does this clear the way for using Christopher Kelly as a witness because he won’t be taking the 5th.

    • Leoghann says:

      Kelly’s charges were dismissed without prejudice, which means he’s still technically in jeopardy of having them refiled. So if he were to testify, and be asked about criminal acts that he himself was a party to, he would want to avoid self-incrimination. Also, his charges were pretty garden-variety. If he were to be a witness, and admit to being part of something more serious, he could still be charged for that.

  4. subtropolis says:

    Thanks for confirming that Kelly’s ex-NYPD brother has not been charged. I’ve been wondering about that since I’d first read about this earlier today. I’m thinking that the brother might be cooperating and, due to the paucity of evidence against Chris, his brother was able to convince the Feds to drop his charges in return for that cooperation. Doing so without prejudice would, of course, be the government’s way of warning the former cop to play straight with them.

    • FL Resister says:

      This is a plausible explanation.
      Wasn’t it mentioned maybe a month ago that someone in their vehicle may have been an informant due to release of details from that group?

  5. Greg Hunter says:

    I learned a lot from this tweet.

    1. Bing does not search as well for this story by Pete Williams et al as Google
    2. Pete Williams writes for NY NBC as well as NBC DOJ beat, if the same person
    3. I love the FOIA process and Josh Gerstein
    4. Trolling is an art form
    5. I think of Liz and Dick Cheney
    6. I need to donate.

  6. Lisa Blanck says:

    I do hope this doesn’t give the other seditionists, especially Seditionist #1, a roadmap for a get out of jail free card.
    Groupthink is one of the tenets of being in the Trumpbrigade.

    • timbo says:

      lol. The roadmap here is to cooperate, give the DOJ all your exculpatory evidence, and then see how nice the DOJ will be… or a host of other less nice reasons are possible in this particular defendant’s case…

      Maybe they’re still listening in on his devices? Perhaps they’re using him as leverage against his brother? I mean, they can drop charges without prejudice and reapply them later… So, for all we know, it’s just a demonstration, in court, of how far the DOJ will go to get a cooperating witness that furthers their investigation…to the point of dropping charges maybe?

  7. CJ-FL says:

    I’ve been following these articles that cover the insurrection, sometimes reading the actual court documents. Very interesting- but what I so want to know is how these defendants view their actions, now that they’ve paid a price.
    Did their arrest inspire research into actual laws and factual events regarding the election?
    Do they admit to being duped? Any of them?
    After this particular information comes out, I sure hope you report on it.
    I know, if I looked to republicans doubling down on “widespread election fraud”, what the answers to my questions would look like. But these politicians are the charlatans, still using their base in this circular propaganda.
    Will there be no regrets from defendants?

Comments are closed.