January 6: The Trespasser Testimonials

The other day, when accepting her first misdemeanor January 6 plea, Chief Judge Beryl Howell expressed dismay that Jack Griffith was getting such a lenient plea for taking part in a violent mob that terrorized Congress and the Vice President. In response, his attorney Heather Shaner and the prosecutor Mitra Jafary-Hariri defended the deal, in part, by talking about how cooperative Griffith was. In response, Judge Howell distinguished simple cooperation from a cooperation deal, which requires extended work with prosecutors to indict others.

Howell is not wrong.

But this post has convinced me of something I already suspected: DOJ is using even misdemeanor plea deals to build their larger case. As I noted, the statement of offense to which Eliel Rosa pled guilty described that before he entered the Upper West Terrace door at 2:35PM and passed cops who had not put up much resistance to rioters, he had witnessed “people with megaphones shouting, ‘Go, Go, Go'” and smelled pepper spray which made it clear to him that “law enforcement was present and in front of the advancing group.” This sworn allocution will make it harder for people like Ethan Nordean to claim that, when he entered the same door minutes later, he had no way of knowing that he was trespassing.

Reviewing a good percentage of the misdemeanor pleas so far, it seems most provide one or another kind of support (or both) for the larger case. Some of the defendants pled to details about their own participation that will support the violence of the day. In addition to Rosa (whose testimony will be detrimental to Nordean and others who are claiming because guards didn’t resist he wasn’t trespassing), Kevin Gallagher’s statement of offense will probably be useful in prosecuting Jason Buteau. Some of the other statements of offense describe defendants witnessing other assaults or destruction.

The other way misdemeanor pleas likely will help prosecutors is in validating the video they took during the riot or other testimony such that it will more easily be entered into evidence against other defendants. I’ve long believed that the FBI is focusing some of their arrests of trespassers on those it believes have useful video against more dangerous rioters, and that’s true even of the handful who have pled guilty already. For example, Andrew Bennett’s video must be among the video evidence shared with defendants who broke open the window through which Ashli Babbitt tried to enter. Dona Bissey and Anna Morgan-Lloyd between them took a picture that shows several rioters who stole a sign from Nancy Pelosi’s office (and the government seems very interested in Bissey’s pictures of rioters on the scaffolding). For defendants with useful video, the government needs to ensure the video they collected can be validated to be used against other rioters. In some statements of offense, then, trespassers end up describing taking video and even (sometimes) that they took selfies as part of that video.

Trespassers witness the violence

Bruce Ivey:

After the police line and metal barricades were breached, IVEY walked towards the Senate Wing Door, where he watched another rioter break through the window immediately adjacent to the Senate Wing Door using a riot shield.

Thomas and Lori Vinson:

After the rally, the defendants marched to the U.S. Capitol building, where they entered the first floor at around 2:18 p.m. Cell phone video recorded by the defendants shows broken glass and alarms blaring as they entered. They were present in a first-floor corridor barricaded by law enforcement officers at approximately 2:31 p.m.

Danielle Doyle:

Danielle Nicole Doyle entered the U.S. Capitol building on January 6, 2021, at approximately 2:20 p.m., by climbing through a broken window located next to the Senate Wing Door.

Edward Hemenway and Robert Bauer:

8. On January 6, 2021, after the “Stop the Steal” rally, Robert Bauer and Edward Hemenway, who are cousins, followed a crowd to the U.S. Capitol. As Bauer and Hemenway entered the U.S. Capitol grounds, Hemenway saw a green plastic sign that said, “Do Not Enter,” but continued anyway. As they walked toward the U.S. Capitol building, they saw officers in S.W.A.T.-style gear standing near the scaffolding outside the building. Bauer and Hemenway linked-up with a group walking toward a door into the building. They entered the U.S. Capitol building together with the group at around 2:10 p.m. E.S.T. They then made their way into the Crypt. As they entered the Crypt, Hemenway believed members of the crowd were fighting with police officers.

9. While inside the U.S. Capitol, Bauer and Hemenway chanted, “Stop the Steal!” Bauer also took pictures and videos, and chanted, “Our house! Our house!”

Derek Jancart and Erik Rau:

JANCART and RAU watched from the West Lawn while rioters broke through the police line and rushed up the stairs of the Capitol. RAU video-taped that moment, stating on the video, “We made it up to the Capitol. … We have the police surrounded! We have you surrounded!” In the background, rioters can be heard yelling, “get him!” and “traitors gonna hang!” When the rioters broke through the police line, RAU can be heard screaming, “Yeah! They just pushed through the guards!”

JANCART and RAU then entered the Capitol Building through the Senate Door. JANCART and RAU then traveled through the Crypt. After exiting the Crypt, JANCART and RAU took the stairwell south of the Crypt to the second floor of the Capitol and walked towards the Speaker’s conference room. RAU stepped inside of the Speaker’s conference room while JANCART stayed outside and took a photo.

JANCART posted a photo of the door to the Speaker’s conference room to Facebook with the caption, “We’re in.”

Jack Griffith:

Griffith attended the Stop the Steal rally and then walked to the U.S. Capitol. Griffith unlawfully entered the restricted Capitol grounds, arriving near the North West Scaffolding and Stairs at approximately 2:14 to 2:16 p.m. on January 6, 2021. Griffith spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd attacking law enforcement repeatedly as they tried to keep the crowd away from the building. Griffith then went up the northern set of stairs underneath the scaffolding to the north west terrace near the Senate wing of the building.

Griffith entered a door to the Capitol which had been broken open. Griffith entered the Capitol with his Co-Defendants Eric Chase Torrens and Matthew Bledsoe at approximately 2:18 p.m. The fourth Co-Defendant Blake Reed entered shortly behind Griffith, Torrens and Bledsoe. Griffith’s entrance is captured in surveillance footage and in a selfie-stye video that his Co-Defendant Matthew Bledsoe shared on social media. The selfie-style video shows them immediately outside of an exterior door of the Capitol. An alarm can be heard blaring in the background. Co-Defendant Torrens said, “We’re going in!” The camera then pans to Griffith who screamed in excitement.

Michael Curzio:

Shortly after 2:30 p.m., video surveillance captured Curzio walking inside the Capitol Visitors Center (“CVC”), which is part of the Capitol building. Curzio and others gathered in a CVC corridor at the end of which U.S. Capitol Police officers had formed a defensive line. The officers issued commands for the rioters to leave the building. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Curzio. Curzio admitted he refused to leave the premises after being ordered to do so.

Curzio was compliant following his arrest, and later cooperated with law enforcement by providing the Federal Bureau of Investigation (“FBI”) his swipe code so the FBI could search his phone.

Matthew Mazzocco:

During the time relevant to the above described events, the defendant entered the U.S. Capitol and walked around the building. The defendant entered and walked around at least one conference room type-area and walked through various hallways. While doing so, the defendant told others not to take or destroy anything, and that they were probably going to get in trouble for what they were doing.

Kevin Gallagher:

Shortly after 2:30 p.m., video surveillance captured Gallagher walking in the Capitol Visitors Center, which is part of the Capitol building. At one point, Gallagher appeared to admonish another rioter not to throw a chair.

The rioter in question is likely Jason Buteau, who threw a chair in CVC between 2:29 and 2:31, but the moment he actually threw the chair was not caught on camera.

Boyd Camper:

Camper subsequently admitted to law enforcement that he “picked the right hole” to get himself to a stairway area. He saw that the police lines had been broken, as well as persons getting tear gassed and pushing to get inside the building. Camper stated that he believed he was in the frontline of the situation, and that “in my mind, we were going to take the Capitol steps.” Camper also admitted that he went inside the U.S. Capitol building.

Eric Torrens

Torrens spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd throwing items at law enforcement.

Mark Simon

As Simon filmed the video he approached the doorway to the U.S. Capitol, law enforcement officers inside the U.S. Capitol could be seen attempting to remove individuals from the building. Broken glass windows could be observed on two of the doors of the U.S. Capitol, including one that was directly next to Mark Simon while he was taking the video.

Once Mark Simon was in the doorway of the U.S. Capitol building, he turned the camera on himself and said, “In the Capitol baby, yeah!” Shortly thereafter, Mark Simon turned the camera on himself again and said, “2021 Donald Trump!” A screenshot from the portion of the video in which Mark Simon turned the camera on himself is below, along with an image from the video provided to the FBI by a member of the public. A broken glass window is visible directly behind Mark Simon in the first image.

Then-Houston cop Tam Pham

The defendant walked over fences on the Capitol grounds that had been previously knocked over, and saw police officers as he approached the U.S. Capitol Building with a large crowd of people. He continued to walk past a broken or torn down fence, and he passed other barricades on his way to the U.S. Capitol Building

Anthony Sirica:

As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

SCIRICA entered the U.S. Capitol on January 6, 2021. He entered through a Senate wing door at approximately 2:24 p.m.


While inside the Capitol, SCIRICA walked through the Rotunda at approximately 2:26 p.m., and he walked through Statuary Hall at approximately 2:27 p.m. He took photos and videos as he proceeded through the Capitol.

While inside the Capitol, SCIRICA saw law enforcement officers inside, but he continued to walk around inside the Capitol. He also saw a man push a law enforcement officer while inside the Capitol.

Trespassers validate their own video

Andrew Ryan Bennett:

9. On January 6, 2021, Bennett made his way to the Capitol grounds and began livestreaming video to his Facebook page from outside the building at approximately 1:00 p.m. Bennett eventually unlawfully entered the Capitol along with hundreds of other individuals. At approximately 2:17 p.m., 2:37 p.m., and 2:42 p.m., Bennett livestreamed three videos from inside the building to his Facebook page. During one point in one of those videos, Bennett admonished others not to be destructive inside the Capitol. At multiple points, Bennett turned the camera on himself and captured himself inside the building, wearing a hat with the letters “FAFO,” an abbreviation of a slogan popular among the Proud Boys, a far-right group. There is no evidence Bennett was violent or destructive on the grounds of or inside the Capitol.

10. On January 11, 2021, the Federal Bureau of Investigation (“FBI”) obtained a search warrant for Bennett’s residence in Columbia, Maryland. During the execution of the warrant, the FBI recovered the hat bearing the “FAFO” slogan that Bennett wore inside the Capitol. Following the search, Bennett voluntarily interviewed with the FBI, and admitted that he unlawfully entered the Capitol on January 6, 2021. He also provided the unlock code of his cellphone to the FBI so FBI could search the device, and has been entirely cooperative with the government’s investigation since his arrest on January 26, 2021.

11. Upon further investigation, the FBI found while Bennett attempted to contact a Maryland chapter of the Proud Boys about becoming a member, it did not find evidence that Bennett is a member or associate of any organized chapter of the Proud Boys.

Dona Bissey:

11. After arriving at the Capitol and ascending the steps, the DEFENDANT participated in the protest and took photos of the other protestors, including those in or around the scaffolding on the western front of the building.

12. The DEFENDANT and Morgan-Lloyd then entered the Capitol building and walked through a hallway. While inside the Capitol building, the DEFENDANT appeared in a photo with Morgan-Lloyd and two other individuals, one of whom is holding a Trump campaign flag. The DEFENDANT later posted the photo on Facebook with the caption “Inside the Capitol Building.” The DEFENDANT also posted a picture of an elderly woman with a “Make America Great Again” hat and wrote “This is Our Warrior Linda. We stayed with her and her daughter Stacey all day. They are somewhat locals. When we Marched to Capitol she said “I’m going in” and she lead the way. We went in [] This photo taken at Capitol entry right before[.]” The Defendant also posted a screenshot of a Twitter post which stated “This is the First time the U.S. Capitol had been breached since it was attacked by the British in 1814” and wrote “We were inside for reals! Linda led the way!! She is a True Patriot and Warrior!!!”

13. On January 7, 2021, the DEFENDANT posted a photo on Facebook, tagging Morgan-Lloyd and another individual, and wrote “We are home. Thank You to ALL that messaged checking in and concerned. It was a day I’ll remember forever. I’m proud that I was a part of it! No Shame. BTW turn off the #FakeNews.”

14. On January 8, 2021, the DEFENDANT posted two photos from the western front of the Capitol building. The photo included images of protesters climbing the scaffolding and another other with a protestor holding a stolen and broken sign that read “Speaker of the House.” The DEFENDANT wrote on the post “This really happened! Anna Morgan-Lloyd took the photo.”

15. On January 11, 2021, the DEFENDANT posted a photo on Facebook which showed individuals walking down the steps of the Capitol building. The DEFENDANT wrote “On our way down” and tagged Morgan-Lloyd.

16. On February 24, 2021, the DEFENDANT was interviewed by law enforcement. The DEFENDANT admitted that she had entered the Capitol and remained for less than ten minutes. The DEFENDANT also admitted that she had a photo taken of herself within the building.

Anna Morgan-Lloyd:

On January 6, 2021, in response to a post by L.L.T.P, the DEFENDANT wrote, “I’m here. Best day ever. We stormed the capital building and me and Dona Bissey were in the first 50 people in.”


The DEFENDANT also admitted that she used her phone to take photographs in and around the Capitol building and had a photograph taken of herself, Bissey, and two other individuals.

Valerie Ehrke:

At approximately 2:09 p.m. on January 6, 2021, the defendant entered the U.S. Capitol Building with a crowd. The defendant entered one of the hallways of the Capitol Building and took a video from the first-person perspective while she was there. She then uploaded that video to her Facebook page, with a caption reading, “We made it inside, right before they shoved us all out. I took off when I felt pepper spray in my throat! Lol.” A screengrab of that video is attached hereto:

Valerie Ehrke

Jordan Stotts:

11. At approximately 2:45 p.m., STOTTS entered the Capitol building through a door located to the left of the main entrance

12. Once inside the Capitol building, STOTTS walked to the Capitol Rotunda and stayed inside for approximately one hour.

13. While in the rotunda, STOTTS celebrated with other rioters and used his cell phone to take a video.

Robert Reeder:

10. On January 6, 2021, from the steps of the Capitol grounds, the DEFENDANT recorded a video in which he stated: “We’ve been getting tear gassed…thousands of people.” The DEFENDANT then appeared to chant: “Fight for Trump!”

11. As the DEFENDANT approached an open door of the Capitol, a high-pitched alarm can be heard in the background. Capitol Police Officers are seen standing along the wall in the entrance. At the threshold of the building, the DEFENDANT approached Capitol Police Officers and asked: “Is there anywhere where I can get water?” An officer responded: “We don’t have any water in here, sir. There’s some outside.” The DEFENDANT then walked past the Officers, opened an interior door, and proceeded into the Capitol building. From inside the Capitol, the DEFENDANT took numerous photos and videos from various rooms, hallways, and balconies.

12. Although the DEFENDANT briefly left the Capitol building, he then turned around and returned to it. At that time, the DEFENDANT recorded a video of himself chanting “USA!” with the crowd as he approaches the open doors to the Capitol building.

13. The DEFENDANT then recorded another video in which he appears to be within and near the Capitol rotunda near confrontations with Capitol Police Officers. The DEFENDANT recorded an assault on a Capitol Police Officer. The DEFENDANT seemingly told the Officer: “You need to retreat!”

14. After leaving the Capitol building, the DEFENDANT recorded a video from the Capitol grounds in which he stated: “I’m leaving now… I got tear gassed at least four times inside the Capitol…I saw the lady they say got shot, I walked right past her in a pool of blood. And it’s just…completely crazy in there.” The DEFENDANT also stated: “Just left the Capitol, I was one of the last people out. I was in there for over half an hour. I got gassed several times inside the Capitol, many times outside the Capitol. Got shot with pepper balls. It was fucking nuts. We had to do…ah… battle with the Police inside. It was crazy…absolutely insane.”

Jenny Cudd:

While inside of the U.S. Capitol building, Jennifer Ryan took numerous videos and photos from the Rotunda.

Michael Stepakoff:

The defendant can be seen on CCTV video entering the United States Capitol Building at approximately 3:00 PM on January 6, 2021 through a door marked “EXIT” on the interior of the door. While inside the U.S. Capitol Building, the defendant walked past a wooden structure that had been knocked to the ground. He can be seen taking approximately eight photographs using his cellular phone. The defendant exited the Capital Building approximately five minutes after he entered.

Reeder’s arrest affidavit suggests the exchange as he entered the Capitol took place around 2:40, so this may verify that the cops at the West Terrace Door who weren’t fighting protestors — raised in defense by a significant number of defendants — did instruct at least one to go outside.

Trespassers move in interesting ways

Jennifer Parks and Esther Schwemmer:

On January 6, 2021, after the “Stop the Steal” rally, Jennifer Parks and Esther Schwemmer, friends who traveled together from Kansas to Washington, D.C. to attend the rally, followed a crowd to the U.S. Capitol grounds. When they arrived on the Capitol’s grounds, they saw people running up to the doors of the Capitol and took pictures of themselves and others. They relocated to the east side of the Capitol and entered the building through an entry where the doors were broken and open. They went up a round staircase to the second floor and walked around for approximately 15 minutes. They took pictures inside the Capitol. They eventually left the Capitol when they were told to exit the building by a United States Capitol Police officer.

While I’m sure I’ve lost track of some of these misdemeanor guilty pleas, this post shows a good percentage of those who’ve pled already have offered testimony that in one way or another would be useful for further prosecutions. One of the only exceptions is Joshua and Jessica Bustle whose statement of offense largely focuses on their phones, video surveillance, and subsequent social media posts. Perhaps relatedly, in sentencing memos for the Bustles submitted last week, the government recommended three months of home confinement for Jessica (who called Mike Pence a traitor and called for a revolution after the riot) and one month of home confinement for Joshua.

66 replies
  1. What Constitution? says:

    Thank you for laying this material out in one place for all to easily find and see. Here’s hoping it also gets repeatedly circulated to the Republicans who continue to laud the “tourists”.

  2. Zirc says:

    Thank you for laying this out. It does seem that the Feds are setting up a case against more serious offenders, by using witnesses and video to/from events as they transpired.

    I have been wondering lately about what various people knew or thought they knew leading up to the sixth. The letter by all living Secretaries of Defense warning Trump not to use the military and the imposition of martial law to change the result of the election is especially interesting. Dick Cheney is supposed to have started this effort. What did he know or think he knew was about to happen? Could he be a witness, if not for someone’s criminal trial then for the House Committee?


  3. NVG says:

    Out of curiosity, ‘his swipe code so the FBI could search his phone.’
    Is ink still used by law enforcement officers to take the fingerprints of arrested individuals or is it now done using the technology that the iPhone provides? Swipe. As to which digit is used (Sir, are you left handed or right handed?) or perhaps videos would have captured that already with throwing a punch, or carrying a flag.

    Two chances to scan, one for the left thumb, and if it doesn’t work, its the right.

    • subtropolis says:

      By “swipe code” I’d assumed they meant the unlock pattern like what is on my mobile, which has nothing to do with fingerprints or anything else biometric.

  4. chicago_bunny says:

    This is really interesting. I am a lawyer, but civil not criminal matters. Can you or another informed poster explain how the pleas are used in subsequent matters? Do they simply work together to build a tougher statement of offense against others, or proffers of what the evidence will show? Or do these statements actually constitute established facts that can be offered into evidence at trial without the need to present the plea-er as a witness to give live testimony?

    • bmaz says:

      Eh, there are several ways to get it in. Of course via stipulation, but also as a certified court record (there are pitfalls that way though). Were it me, I would always call the prior defendant and have him testify as to his prior statements.

  5. mfrancis718 says:

    While I completely understand the strategy of testimony for further prosecutions, what is the deterrent? Knowing, ah, I could be part of a huge plan, but not really participate would lead me to a misdemeanor charge. I believe, in my opinion, anyone arrested in this incident should be charged with a felony and no plea option to a misdemeanor. Evidence or testimony towards another would benefit the prosecutor toward larger and more violent people, but the insurrection as a whole should be held to a certain degree, which is a felony in my opinion. Not only, but video from the building cameras should also and have shown more than from the cell phones, etc. Felonies hold a lot of weight in personal lives and I get that some people other than from January 6th shouldn’t deserve it, but trespassing on federal property and entering the United States Captial building trying to influence the election of a United States President is shameful. That description of shame equals a felony in my book.

    • bmaz says:

      Thank you mfrancis for your first comment at Emptywheel, welcome and participate more often. But this comment, in and of itself, is ludicrous. I take it you do not practice criminal law in any way, shape or form. Because putative defendants do NOT just get overcharged because of the outrage and fee fees of people out in the public or on the internet. There are actual charging standards and principles, especially in the federal system as to DOJ.

      This type of comment is literally stomach churning. Not only is it wrongheaded, it would violate the DOJ charging and prosecution standards, not to mention ethical canons for prosecutors. And, yes, a misdemeanor conviction along with a probation term of up to 5 years (the range for probation sentence is between 0-5 years) is more than sufficient deterrence. And, just in case you don’t know, any substantive violation of probation would lead to another case with exacerbated sentencing guidelines.

      Seriously, this is soooo frustrating to keep having to respond to.

      • Rugger9 says:

        I hear you on that. Probation is its own opportunity to be hauled in and if I read the tea leaves correctly on our local “celebrities” busted on probation violations it appears to be effective. It depends upon the details such as whether probation could be conditional on testifying against others, or possession of weapons or associating with other PBs (for example) much less attendance at incitement spectacles put on by Individual-1.

        It seems to be routine practice as well to allow LEOs to perform warrantless searches without warning, but that would be in the probation details. That by itself would be a powerful incentive to play nice knowing there’s a criminal case waiting if the terms are violated.

        It might be worth the trouble to document the legal rakes waiting in the plea deals’ probation terms as we get a few more to plead. Whap!

      • russell penner says:

        Ludicrous. Great word. I appreciate the kinder,gentler treatment of first time commenters. But what frustrates many of us is knowing that if we are pulled over for an expired inspection sticker, and climb out of our pickup with a fire extinguisher, pole,or bear spray to “protest “, we’ll be facing a whole different level of pain than we’ve seen handed down so far. If we survive, that is.

      • skua says:

        Your approach of both lighting a candle AND cursing the darkness
        is both informative and exciting.

        The stuff of effective education.

      • Rusty Austin says:

        Our Capitol was attacked, breached for the first time since 1812, for gods sake a gallows was erected on the mall, we came within 10 minutes of having Senators assassinated, and you have the nerve to insult us about our “fee fees”?!? Every last one a them traitors deserves nothing less than a felony. Were it up to me I’d have them all shot or hung. Like what would happen in 90% of other countries.

        • bmaz says:

          We try to engage in the law and relative fundamental fairness here. So far you do not seem to have a good grasp of that.

      • pasha says:

        in the 1860s and 1870s, the Grant administration DOJ effectively put an end to KKK violence by using a similar tactic: suspended felony sentences with long probationary terms, putting defendants on notice that they were going to prison if caught engaging in klan terrorism. if the terms of probation are extensive, probation can prevent future bad behavior


    Valerie Ehrke’s Statement of Facts and consequently the Statement of Offense do not correct for the time zone difference on her phone. She is from Sacramento, CA, a 3-hour time difference. In the Statement of Facts, she posts at 1157h “on the way to the breached capitol building.” That does not happen until 1413h ET. Then, at 1409h she posts, “We made it inside right before they shoved us all out.” In other words, she entered the building some time after 1457h and was shoved out of the building sometime around or after 1709h.

  7. joel fisher says:

    IKIAFI*, but to what extent is a plea allocution admissible in another defendant’s case? Perhaps useful in front of a grand jury, but won’t the feds have to produce the actual prior defendant to get that information before a jury?

    *I know I’m asking for it (recently coined by yours truly).

    • Leoghann says:

      To add to joel’s question, since it’s something I’ve seen on TV, including in televised congressional hearings, is it possible to call convicted defendants and ask them to read their allocutions as evidence in the trial of another?

      • joel fisher says:

        The key thing is getting the live witness in front of the court/jury. If their testimony changes, the allocution is there to impeach. But without the witness, I’m struggling to see why the defense attorney wouldn’t object unless there was something exculpatory in the statement and they wanted it in evidence. As far as calling the prior defendant as a witness, troubles abound, especially when there is still a 5th Amendment issue. LSS: it ain’t easy.

        • bmaz says:

          Not that hard. Just subpoena the person and put them in the chair. They have no 5A privilege as to any proffer, statements or allocution and related conduct contained in the plea once it is merged into sentencing.

  8. earlofhuntingdon says:

    It’s hard to believe defense counsel could argue with a straight face that any of these rioters imagined they were not trespassing when entering such a normally highly-secure building on the day Congress was supposed to certify the national vote. It was a melee in and outside the building, causing all normal business to be suspended. The argument seems fraudulent, even for a rube from the sticks.

  9. Robert Gerrity says:

    My query: Just how do you all access these documents online? Can one also access the allocutions (if that is correctly used), the Probation Service Reports, the judge’s statement at sentencing, and any details on what was referred to above as “legal rakes” or are those so standard within the Sentencing Guidelines Manual that they simply get stapled to the pile of paper the convicted person takes home, after the government spells it out in a pre-sentencing meeting? If so, where would I find that explanation of future jeopardy?

    Next, to bmaz: clearly, you understand the premises and processes to your fingertips. But when even chicagobunny seeks clarification because they are a civil attorney (i.e., unknowlegeable on this specific field), then mfrancis’ splenetic post need not “churn your stomach.” An oh vey and a slap of the forehead, perhaps. But as a member of the overall voting part of the American populace, my functional ignorance of these day-in, day-out court premises and processes is profound–and I have taught American history, I have taught SCOTUS decisions, and I damn well know who Story and the 1st Harlan are/were. And i was ignorant, until now, of a lot of this. Did I feel like mfrancis? Watching it live from before the mob gathered, my anger was fierce and I thought oh through 1st barrierers, not good, misdeamors at least, then, into the building? Gotta be a felony. But there are too many of them. Gonna have to let reformed DOJ and reformed FBI just do their jobs (and neither is truly reformed yet in the spirit of Edward Levy and Robert Mueller). Ignorance is the problem, but educating good, solid American citizens up to some level of understanding what you know without thinking has me stumped. At the least, when the next mfrancis expresses his/her frustration, please provide a link to the simplest explanation that MUST be out there, and I do not mean the USSC Manual PDF. I could use such a link. Thank you in advance. Keep up the good work. Because of it, I know more.

  10. Eureka says:

    Insurrection generica w/ pre- and postgame notes:

    Marcy rt’d a thread by Chad Loder where he identifies a bunch of actors with IMDB profiles and without visible means of support at anti-vaxxer/masker events (they’ve got the time…). One of them is Siaka Massaquoi.


    I identified Massaquoi role-playing in December with Alan Hostetter in a video here (scroll up, he enters at bottom of preceding comment):


    What a treacherously boring day for an under-five or so, subjecting oneself to Hostetter’s anti-dulcet drone.

    And speaking of Hostetter, his newly COVID-positive pal Joseph Flynn (brother of…) got suspended from twitter for peddling ivermectin [quite frankly, I’m more suspicious that he prefers the *lemon-lime* flavor of airborne (photos in thread)]:


      • Leoghann says:

        It should be noted that Ivermectin is extremely effective at combating the variants of Covid that are caused by skin mites or mosquito larvae.

        [This really needs a snark tag because we do NOT want any reader to come away believing the anti-parasitic drug ivermectin is a valid therapy (it is NOT) or prophylactic (it is NOT) for COVID. / ~Rayne]

        • P J Evans says:

          It would also require a reader who doesn’t know COVID is caused by a virus that’s airborne. But point taken.
          It’s really fine snark, though.

  11. Dutch Louis says:

    IANAL. Quite a lot of the Statements of Offense refer to the the fact that the defendants first attended the “stop the steal” rally planned by Donald Trump and then went to the Capitol. Is the repetition of that fact in the different statements meant to be seen as a collective of causal connections and thereby also part of “building a larger case”?

  12. harpie says:

    DOJ officials rejected colleague’s request to intervene in Georgia’s election certification: Emails The DOJ officials rejected the request from another department official. https://abcnews.go.com/US/doj-officials-rejected-colleagues-request-intervene-georgias-election/story?id=79243198
    August 3, 2021, 2:56 PM

    Top members of the Department of Justice last year rebuffed another DOJ official who asked them to urge officials in Georgia to investigate and perhaps overturn President Joe Biden’s victory in the state […]

    • harpie says:

      MARCY asks on twitter:
      https://twitter.com/emptywheel/status/1422660109499518986 4:46 PM · Aug 3, 2021

      Can someone distinguish what Clark was asking for here and what State legislatures have been trying to slow-walk, starting with AZ, ever since? [screenshot]

      It’s the EXACT same thing.
      Jane Mayer wrote about it in detail in this link:

      The Big Money Behind the Big Lie
      Donald Trump’s attacks on democracy are being promoted by rich and powerful conservative groups that are determined to win at all costs.
      Jane Mayer August 2, 2021

      It’s been going on since at least Bush v. Gore:
      Cleta Mitchell is heavily involved.
      [She was on the 1/2/21 Trump/Raffensperger call]

      • bmaz says:

        For anybody that has not read the Jane Mayer piece Harpie links to, it is truly outstanding. Quite long, but very much worth your time.

    • harpie says:

      This was a 1/28/20 draft letter which Jeffrey Bossert Clark tried to get Rosen and Donoghue to send to Raffensperger/Georgia. They declined.

      Part of the unsent draft letter:

      “While the Department of Justice believe[s] the Governor of Georgia should immediately call a special session to consider this important and urgent matter, if he declines to do so, we share with you our view that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for [t]he limited purpose of considering issues pertaining to the appointment of Presidential Electors.”

      • harpie says:

        That letter was from DECEMBER, not January [OY!]

        1] 12/27/20 Trump call to Donoghue
        [He muses about putting Clark in charge at DOJ]
        2] 12/28 20 Bossert Clark draft letter rejected
        3] 1/3/21 Drama at DOJ

        1] https://www.emptywheel.net/2021/07/28/doj-unimpressed-by-mo-brooks-kickass-conspiracy-defense/#comment-898780
        2] [link above]
        3] https://www.emptywheel.net/2021/06/08/the-hole-in-the-senate-january-6-report-created-by-dojs-non-cooperation/#comment-893899

        • harpie says:

          TRUMP to Raffensperger, 1/2/21:

          The ballots are corrupt, and they’re brand new, and they don’t have seals, and there’s a whole thing with the ballots. But the ballots are corrupt.

          And you are going to find that they are — which is totally illegal — it is more illegal for you than it is for them because, you know, what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based on what I’ve heard. And they are removing machinery, and they’re moving it as fast as they can, both of which are criminal finds. And you can’t let it happen, and you are letting it happen. You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state. […]

        • Eureka says:


          ? date(s):

          Donoghue shut down an attempt by then-EDPA USA William ‘Bill’ McSwain to (quoting Bill Barr) “flap his gums” about unsubstantiated election fraud in PA (Philadelphia).

          Story is convoluted, I’ll leave here Matt Zap’s thread and one of the Inquirer articles about it from July 13, 2021 (coverage started earlier, following a Trump rally statement July 3rd; McSwain wanted to make the claims closer to election day than year-end IIRC the _impression_; don’t recall that dates of proposed ratfuckery/shutdown were revealed):

          Bill Barr says Bill McSwain wanted to ‘flap his gums,’ not investigate 2020 election fraud

          *Matt Zapotosky: “McSwain also alleged he was given a “directive” to pass along an allegation to the state AG, a Trump critic. Barr told me he confronted McSwain on that, and McSwain told him the directive actually came from Richard Donoghue, a different Justice official in the deputy AG’s office” […thread…]

          Meant to mention this then; story is also *precious* for how Bill Barr besmirches McSwain for writing to Trump a “very deceptive” letter to curry Trump’s favor “that is intended to convey [a false] impression” about all this.

          *PA AG’s office issued a statement saying that **no referral was ever made** by EDPA re what McSwain claimed was at issue.

    • harpie says:

      From Mayer’s article:

      […] Few people noticed at the time, but in that case, Bush v. Gore, Chief Justice William Rehnquist, along with Antonin Scalia and Clarence Thomas, hinted at a radical reading of the Constitution that, two decades later, undergirds many of the court challenges on behalf of Trump. In a concurring opinion, the Justices argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors. Today, the so-called Independent Legislature Doctrine has informed Trump and the right’s attempts to use Republican-dominated state legislatures to overrule the popular will. […]

      • P J Evans says:

        I think they should be required to accept the tallies from the precincts/counties, as counted, not whatever they think the results should be.

    • harpie says:

      ABC has embedded the documents at the article:

      DOJ_docs Uploaded by ABC News Politics Description: DOJ Emails
      [7 pages]

      p1] Pre-Decisional & Deliberative/Attorney-Client or Legal Work Product
      Georgia Proof of Concept [Letterhead]
      [To: Gov. Kemp, Speaker of the House David Ralston, President of Senate Butch Miller] 12/28/20

      p5] From Rosen to Donoghue // RE: Two Urgent Action Items // 1/2/21 7:13PM

      p5] From Donoghue to Clark [cc Rosen] // RE: Two Urgent Action Items // 12/28/20 5:50PM

      p6] From Clark to Rosen and Donoghue // Subject: Two Urgent Action Items // 12/28/20 4:40PM

    • harpie says:

      9:55 PM · Aug 3, 2021

      What Clark’s (insane) draft letter lays bare is what so many long suspected: This was never about *good* legal (or factual) arguments; it was about using patently meritless legal and factual contentions as a thinly veiled cover for overturning the result of a democratic election. [THREAD]

      It’s evidence of just how far lawyers *inside* the administration were willing to go to effectuate a coup (yes, it would’ve been an “autogolpe,” but you get the gist). […]

  13. Leoghann says:

    This is only peripherally on topic, but the subject of lenient vs. harsh sentences in pleadings has come up here. I usually am pretty calm about the sentences handed out thus far, and have avoided the OMG! OMG!! DEATH PENALTY FOR ALL OF ‘EM!!! reaction to the insurrection. However. This morning the first thing I saw upon arising was a tweet that said Scott Fairlamb plans to plead guilty tomorrow to one charge of obstruction, and I nearly lost it. This man had a metal baton, which he used on police officers. He has expressed no remorse, but rather pride in what he did, and the desire that he could have done more damage. He’s charged with conspiracy, and has said that he’s not finished trying to bring down the government. He’s a Q-head who has advocated violence against all the people and institutions that are involved with their conspiracy theories. I’ll stop there, but WTF? Although I’m ranting, this is an honest question. Allowing him to plead to the same charge that others have received home confinement and/or probation seems completely off the rails to me. Is it possible that his Secret Service brother intervened? I just don’t understand this particular agreement.

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