A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

40 replies
  1. David Anderson says:

    Is the implication of your last sentence:

    “this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.”

    be translated to:

    “this conspiracy aspires to get co-conspirators to flip by credibly threatening very long (and unpleasant) federal prison sentences…..”

    • Ken Haylock says:

      If I understand her correctly, _somebody_ is going to jail for 20-30 years, probably several somebody’s, & if somebody flips on Stone, Rudy et al to save themselves, they will likely die of old age in prison. But of course maybe there is somebody _they_ can flip on…

    • emptywheel says:

      To be fair, a 20 year max sentence would translate into a 7-9 year sentence for someone who is found guilty at trial and has no prior convictions.

      But ALL conspiracy prosecutions are an attempt to flip people (though the USG is doing really interesting things with the PB charging, with some conspirators in and some out, that may be designed to drive them all nuts). This is just one to ensure that those sowing violence are on the same hook as those who occupied the Senate.

    • Ginevra diBenci says:

      Aren’t these fated to fuse together, resulting in one over-arching conspiracy (with perhaps some factional disputes)? In other words, once Parler and theDonald.win chats–and maybe someone coughing up Kash Patel or Stone or Flynn’s participation–get factored in, aren’t prosecutors able to charge the whole mess under 18 USC 1512(k)?

  2. BobCon says:

    “that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.”

    I like the little twist of knife there.

    It would be great to eventually see Cruz, Hawley and company explicitly named as such even though the chances of criminal charges on top of that are very minor.

  3. Silly but True says:

    Does anyone know if there is anything to make of the (apparently) only four cases to not yet be docketed with DC federal court number after arrest?

    Warngiris (violent entry & assault, etc.): no activity since May 13

    Ken Thomas (assault, violent entry, engaging in violence in restricted area, engaging in violence in Capitol, etc.) no activity since May 27

    Jacob Clark (violent entry, engaging in violence in restricted area, etc.) no activity since May 3

    Odd man out looks to be Matt Loganbill: arrested for violent entry, unlawful entry and obstruction; no assault or engaging in violence. No activity since Mar 29.

    • bmaz says:

      Not really released at all, just shifted to halfway house. There is a difference even if the press can’t suss it out. Still, a good thing for her.

        • Silly but True says:

          Should I be more happy than cynical that standard federal incarceration rules are cause for her early release for good behavior, or more cynical than happy that her early release wasn’t due to judicial, prosecutorial, or Biden Executive Branch action?

        • bmaz says:

          BobCon, where the hell do you think she should have been held to keep her alive? Seriously?? You ever been to one of these facilities? Do you have any idea what they are like? I have, and most lay people have no idea.

          • BobCon says:

            A booking cell in Baker County Jail in Mcclenny Florida where she was put in solitary pretrial was the only option in the entire US?

            • bmaz says:

              Seriously? Trying to keep someone accused of violating the interests of the US in a freaking county jail alive?? Have you ever been in gen pop?? Obviously, you have never been even close thereto.

              • Silly but True says:

                “Interests of the US” is doing some very heavy lifting here.

                US national security apparatus & DoJ aren’t the only or ultimate arbiters of what constitutes US interests.

                We know the report she leaked. And there remains great contention in our society whether even having a NGO corporation like Pluribus International Corp, much less a global corporation like Pluribus International Corp in such role is in US interest, whether the report was inappropriately classified, or whether it better served US interests being available to US citizens, or whether her prosecution and penalty ever served US interests to begin with.

      • Leoghann says:

        As I’m sure you know, for someone who has been imprisoned (with the possible exception of the “country club” minimum security facilities), a federal halfway house feels a lot like freedom. I’m happy for her.

  4. Molly Pitcher says:

    Putin has a new pet.

    From Daily Beast just now: “On Sunday, Russian state TV aired an interview with insurrectionist Richard Barnett—notoriously pictured with his feet up at on a desk in Nancy Pelosi’s office on Jan. 6—and his attorney, Joseph McBride. Barnett, a self-proclaimed white nationalist, was introduced as a “colorful” individual, the same expression Putin frequently uses to describe Trump. McBride welcomed Rossiya-1 special correspondent Valentin Bogdanov into his office and FaceTimed his client, who appeared cheerful and at ease at his Arkansas ranch, flashing a big smile and showing off his car collection. ”


    • Rugger9 says:

      FWIW, Barnett is on release pending trial on conditional home confinement and electronic monitoring based upon a circuit court ruling overturning keeping these jamokes in jail. This was done 26 APR, overruling Beryl Howell’s ruling of 28 JAN after Barnett said he’d die for the cause and tried to get rid of evidence. I do not know the conditions for home confinement, but I cannot imagine the judge (Christopher “Casey” Cooper) would be happy about Barnett’s interview with Putin’s network. After all, he said this:

      “The notion that the events of Jan. 6 were a legitimate or excusable social protest against ruling elites or worse yet a reaction to some people in society feeling that they have been unfairly scapegoated for racism is, in a word, absurd,” Cooper said.

      Remember that the WaPo has a counter.


        • Rugger9 says:

          WaPo and the NYT (among others) will limit the number of free articles per month (or year, or forever…) after which a paywall appears. That’s the counter.

            • bmaz says:

              This is still true, although both have lowered their threshold of free, so it may be more often you have to do that. I subscribe to both, the WaPo pretty reasonable, NYT less so, but okay and I write them off.

  5. gmoke says:

    Another thread to pull on, courtesy of Micah Sifry’s The Connector:
    “Earlier this week, the California Voter Foundation released a new report, “Documenting and Addressing Harassment of Election Officials,” (https://www.calvoter.org/sites/default/files/cvf_addressing_harassment_of_election_officials_report.pdf)
    written by Grace Gordon. The cover of the report comes with a trigger warning, noting that ‘the content described in this report is violent and may be disturbing.’ Wednesday, CVF put on a webinar about the report with Gordon joined by Matt Masterson of Stanford, Tiana Epps-Johnson of The Center for Tech and Civic Life, and Amber McReynolds of the National Vote at Home Institute discussing its import. Here are a few topline conclusions:

    “For all the attention given to election security leading up to the 2020 election, the actual security of election officials was not a priority. Even when local officials reported serious death threats from people believing disinformation spread from The Former Guy on down, the response of local law enforcement was lackluster. Only now, as hundreds of January 6th insurrectionists are getting indicted, are we discovering that many of these people were also involved in harassing local election officials before they went to Washington to try to stop the election.

    “More than 75% of local election officials are women, and a great deal of the threats against them are gendered….”

  6. timbo says:

    It looks like DOJ is fiddling around with stuff to see what federal judges are going to buy and what they ain’t. Overall though, I’m hopeful that we’ll get to some clearer understandings of who said what to whom here. There certainly is enough evidence to charge a lot of folks with conspiracy, the problem being getting to proving it beyond a reasonable doubt, particularly for those who ginned attempt to intimidate the Congress but who then ran back to the White House to watch from the comfort of their TV.

  7. d4v1d says:

    True to my over-tuned linguistic radar, I tuned into the word ‘corruptly,’ due both to its inherent vacuity as well as its abverbiness. Is there a precise legal definition of ‘corrupt’? I admit here to knowing nothing, but I feel that the Potter Stewart standard of treating ambiguity as dispositive is rather unsatisfying.

    • Silly but True says:

      FWIW, in Arthur Anderson, SCOTUS determined the _wrong_ definition of “corruptly” was: “the term “corruptly” means ‘having an improper purpose’ ‘to subvert, undermine, or impede the fact-finding ability of an official proceeding’” and that for an act to be corruptly influenced, it requires proof that accused believed that some particular “official proceeding” was likely to occur in the near future.

      Because the jury instructions failed to convey the requisite consciousness of wrongdoing, the entire case against Arthur Anderson (largely prosecuted by Mueller investigation attorney Weissman) was dismissed.

      Now, “official proceeding” itself is a frought, loaded term too which Jan. 6 defense attorneys are exploiting.

      And that’s partially why things are rolling out the way they have been.

    • Rugger9 says:

      That very definition was how Admiral Poindexter got off for his foray into authoritarianism. The court said it had no legal definition of “corrupt” which meant that Poindexter’s crimes could not be specified and so on those grounds dismissed the case. In CA, demurrers for failure to state a cause of action also use this principle in the civil world because it’s hard to defend against what cannot be defined.

  8. @pwrchip says:

    OT: I’m wondering during questioning the terrorists, were they questioned about, “what if they succeeded, was there a bonus in cash or gov. contract for product or service on the other side?”
    I’m sure some were interested in simply stopping the certification, or hanging Mike Pence & Pelosi, or both to reinstall T***p. Although, some terrorists had businesses, some were in the military, LE, etc. & could have been motivated beyond the obvious election.

    So, if there were promises made by Individual1 to some terrorists for some sort of gain, wouldn’t that make them mercenaries? I would include R-Senators in that group as well, if one thinks this through, the gain for overthrowing the government, could have been for more donations from dark money or a chairman position for a committee of choice. I just can’t accept the thought that all these terrorists were patriotically motivated.
    After all, they were attacking the United States Government, that is BIG.

    • earthworm says:

      it has frequently occurred to me that the many selfies were going to be used as photographic evidence of presence in the operation to qualify for a later pay-out or stipend.
      otherwise, why on earth would you document your participation in an illegal activity?

      • @pwrchip says:

        Good point! When it comes down to it, the only reason to take a selfie during an insurrection is for bragging rights, but as to your point, it would confirm to whoever would pay out would need proof, as to verify their participation for a payout.
        I had read somewhere weeks ago about a QAnon devotee that had bought a new truck to go to the J6 attack, thinking that someone of the many groups that participated, OK, PB, QAnon or someone else would pay it off.
        But I can’t find that article, I imagine that implanted the idea I had about payouts of something of value. The only thing that motivates T***p, is money, and many of his supporters are the same. So it won’t surprise me, if true, that could have added an extra incentive to do it; otherwise it makes no sense for normal people to attack a nation based on a lie.

        • Salt of the Earth says:

          There is evidence surfacing that the FBI infiltrated the white supremacist organizations prior to January 6 and may have helped instigate the violence. It is something worth investigating especially because of the unindicted co-conspirators.

          • bmaz says:

            This is absolute garbage. If you have “evidence” that the FBI “instigated” anything, put it up, or you are just full of shit.

          • Rayne says:

            I’m with bmaz on this. This is a disinfo operation pushed by the GOP and Fox News along with the rest of the wingnut ecosphere intended to muddy public opinion about the insurrection and its perps. The perp who benefits most is the Inciter-in-Chief.

            Troll this crap someplace else.

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