237 Days: Cooperation in Criminal Investigations Takes a Long Time

Earlier this week, I pointed out that the complaints about Merrick Garland’s approach to the January 6 investigation simply don’t account for how long competent investigations take. On Twitter, I noted that it took almost a full year after the Russian investigation was opened for George Papadopoulos to be arrested and another two months before he pled guilty, making 14 months for a simple false statements charge in a lightning fast investigation. With a purported cooperator like Mike Flynn, it took 15 months to plead guilty and another year for the cooperation, and that, again, was considered lightning fast (and was assisted by the criminal exposure Flynn had for secretly working for Turkey).

In the January 6 investigation, prosecutors got their first public cooperating witness on April 16, when Jon Schaffer entered into a cooperation agreement. Since then, four additional Oath Keepers (Graydon Young on June 23, Mark Grods on June 30, Caleb Berry on July 20, and Jason Dolan on September 15), Josiah Colt (on July 14), and Klete Keller (on September 29; and no, I have no clue against whom he’d be cooperating) also publicly entered into cooperation agreements. That’s what DOJ has formally revealed, though there are several cases where the government clearly has gotten cooperation from other defendants, but hasn’t shared that formally.

But even with cooperators, investigations take time. There are three recent developments that provide a sense of how time-consuming that is.

Jon Schaffer’s still unresolved cooperation

As I previously noted, the four main Oath Keeper cooperators have a harmonized status deadline for December 17. I had been waiting to see whether Jon Schaffer, who has ties to the Oath Keepers and communications with whom were noticed to Oath Keeper defendants, would be put on that same reporting schedule.

He hasn’t been.

In fact, a recent status report in his case suggests the main Oath Keeper conspiracy may not be the primary focus of his cooperation. That’s because two details in it are totally inconsistent with the progress of the Oath Keeper case.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

As Judge Mehta well knows, four of the Oath Keepers already have “explor[ed] case resolutions.” And Mehta has set the first trial date for April 19, 2022.

So unless Schaffer’s attorney is entirely in error, it seems there’s some other multiple defendant case in which Schaffer is cooperating.

Swedish Scarf still at large?

Earlier this month, Gina Bisignano may have pushed the government to indict a conspiracy in which she’s a key witness earlier than they might have.

On November 4, she filed a motion to modify her release conditions, to get out of home arrest so she can try to salvage her salon business. In it, her lawyers revealed that back in July, Bisignano had entered into a sealed plea agreement.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

12. On September 16, 2021, a Zoom hearing was held before this Court, and Your Honor advised that you would entertain the Defendant’s motion in three (3) weeks to see whether the Defendant had any infractions during that time.

The only reason to seal the plea would be to hide a cooperation component.

There has long been chatter about a conspiracy indictment against members of the Southern California anti-mask community that traveled to the insurrection together. In response to Amy Berman Jackson’s questions about why Danny Rodriguez was not charged with three other defendants for assaulting Michael Fanone, prosecutors kept giving her vague answers for months, until they filed what must have been a sealed update on November 5. And a transcript of Rodriguez’ FBI interview at least suggested that the FBI had spoken to Bisignano before Rodriguez’ March 31 interview.

Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

Videos of this interview, which are engaging TV, are here.

In mid-November, the government finally rolled out the long-awaited conspiracy indictment, which was more narrowly tailored than originally expected, charging Rodriguez, his estranged friend Ed Badalian, and someone referred to in the online community as “Swedish Scarf,” but whose identity remains sealed. The indictment charges two objects of the conspiracy: to halt the vote count on January 6, but also to “mutilate or destroy photographs and videos taken by” Bisignano (who is referred to as Person One in the indictment).

But there’s still no sign of an arrest of Swedish Scarf.

That could mean several things, one of which is that he’s on the lam.

The minute order from Judge Carl Nichols granting Bisignano some but not all of the release conditions she requested revealed that the government opposition to that request, which was due on November 24 (and so after the indictment against Badalian was unsealed) remains sealed.

There’s something else going on with this case. What, it is not entirely clear.

That said, what the public record suggests is that Bisignano had at least one interview prior to March 31, she pled guilty in August, but it still took three more months to obtain the indictment against Badalian and Swedish scarf.

Indicting a cop for fun and probation

Meanwhile the sentencing memos (government, defense) for Jacob Hiles reveal that not all cooperation comes with a cooperation agreement.

As the government describes, Hiles’ actions on January 6 include a number of the factors that would normally lead them to ask for a sentence including jail time: calls for revolution in advance, mockery of police efforts to defend the Capitol, and long boasts posted to Facebook after the fact.

But those Facebook posts play a key role in a more important prosecution, that of former Capitol Police Officer Michael Riley, who friended Hiles on Facebook before the insurrection and tried to protect him afterwards. After they first initiated contact, Riley warned Hiles to delete his posts, but he did not.

On January 7, 2021, a sworn U.S. Capitol police officer, Michael Angelo Riley, sent the defendant a private direct message on Facebook—the first message between the two, who had never met but shared an avid interest in fishing. The message stated as follows:

“Hey Jake, im a capitol police officer who agrees with your political stance. Take down the part about being in the building they are currently investigating and everyone who was in the building is going to be charged. Just looking out!”

Hiles responded to this message with a shorter version of the narratives posted on his public page and detailed above. He further stated, in part, “Investigate me however youd like and thank you for the heads up. . . . If what I did needs further investigation, I will gladly testify to this. There are some people who were violent. They attacked officers. They destroyed property. They should be fully prosecuted.”2 In the course of an extended conversation that ensued between the two, Hiles also said, “I don’t think I did anything wrong at all yesterday and I am very sorry things turned out the way that they did. I dont like the way that a few bad apples in a massive crowd are making the entire crowd be portrayed as violent terrorists,” and “I think when the fbi gets to investigating, they will find that these terroristic acts were committed in false flag attacks by leftists.”

The government’s investigation revealed that these communications between Riley and the defendant had been deleted by Riley, but not by the defendant, from whose Facebook account they were recovered. The communications included further corrupt conduct by Riley, as detailed in part in the Indictment, ECF No. 1, in United States v. Michael Angelo Riley, 21-CR-628 (ABJ). Indeed, according to Hiles, and consistent with the evidence recovered in the government’s investigation of Michael Riley, Hiles deleted no information in response to Riley’s suggestion that he do so.

And when FBI Agents interviewed Hiles after they arrested him on January 19, he told them enough about his contact with Riley such that they knew to look for those communications once they exploited his phone. That led to another interview and, ultimately, to the indictment of Riley.

Hiles further indicated that following the riot he had become friends with a Capitol police officer, although he did not at that time describe the content of then-Officer Riley’s initial contact. Later, a search of Hiles’ cell phone revealed a screenshot of the Facebook message detailed in the government’s Sentencing Memorandum from Riley to Hiles on January 7, 2021. Upon discovery of the message, the government requested through counsel that Hiles participate in a debrief with prosecutors and federal agents. Through counsel, Hiles agreed to do so and appeared for the debrief (held virtually) within 24 hours, and with no promise of any benefit from or agreement of any kind with the government.3

After his initial interview, Hiles told Riley that the FBI had expressed an interest in their communications. That led Riley to delete his own Facebook communications with Hiles.

15. RILEY and Person 1 continued to exchange friendly messages until January 20, 2021. On that date, Person 1 sente RILEY Facebook direct messages regarding having turned himself in to the FBI, including telling RILEY, “The fbi was very curious that I ha been speaking to you if they havent already asked you about me they are gonna. They took my phone and downloaded everything.” RILEY responded, “Thats fine”.

16. On January 20, 2021, RILEY deleted all his Facebook direct messages to and from Person 1.

Because of this cooperation against Riley (and because he offered up that he had gone to insurrection with his cousin, James Horning, who was arrested on obstruction and trespassing charges a month later), the government recommended probation.

Indeed, without the defendant’s significant, useful assistance to the government with respect to two felony prosecutions, the factors would require the government to recommend a sentence involving incarceration. Yet, upon consideration of the defendant’s exceptional cooperation with the government, the scale tips in favor of probation.

Hiles is due to be sentenced on Monday.

Hiles’ role in the prosecution of Riley is instructive for several reasons. First, these misdemeanants are not just defendants, but they are all witnesses to a crime. And some of them are going to provide important testimony without the formal trappings of a cooperation plea those indicted with felonies would have (even assuming those cooperation pleas were made public).

But the Hiles sentencing also gives a sense of the time necessarily involved. Riley’s indictment reveals how long even simple cooperation prosecutions can take. While union protections and internal investigations probably delayed things somewhat, it still took over 235 days between when the FBI first learned of Hiles’ communications with Riley and Riley’s arrest.

That’s for a cop. You can be sure it would take longer to indict those close to Donald Trump, even assuming the FBI has identified cooperators with useful testimony directly pertaining to those in Trump’s orbit, rather than identified those once or twice removed from Trump’s closest aides.

The government is getting more cooperation from January 6 defendants and witnesses than is publicly admitted. But that doesn’t mean we’ll see the fruit of such cooperation anytime soon.

Update, December 23: Adding the cooperation agreements for Gina Bisignano (August 4) and Matthew Greene (December 22).

41 replies
  1. Ebenezer Scrooge says:

    There are two key questions. The first is whether Merrick Garland is truly willing to go to the top, if the evidence warrants. If Garland plays by the rules, we’ll have no way of knowing, unless indictments ultimately issue. The second question concerns ability, not will. Did Trump create a sufficient evidentiary firewall between himself and the goons on the ground? Roy Cohn taught him well, and Trump–like any smart CEO–has always avoided e-mails. I’m pessimistic on outcome–the “rule of law” favors the rich and well-counseled.

  2. emptywheel says:

    Trump did not firewall himself.

    As it is, several of the Oath Keepers have ties to Roger Stone. There’s another cooperator who can get to someone else in Trump’s immediate neighborhood.

    • Rugger9 says:

      Indeed, this has all of the earmarks of a Stone operation from Nixon days through the Brooks Brothers riot and “turn in the barrel” to J6. Stone was usually able to keep his fingerprints off the events, but he always seems to be well-informed of non-public details.

      Perhaps those communications are part of the docs that DJT is trying to hide from Congress.

  3. joel fisher says:

    Are we aware of any DC grand jury handing out subpoenas to the principals, not the small fry, but Stone, Trump, Meadows, etc? I just can’t seem to get my mind around the lack of subpoenas. Stone in particular has an interesting story to tell, he has less 5th Amendment protection, and seems knowledgeable about how a massive riot/insurrection/crime came to pass. In a rightly ordered world he’d be answering some questions. Garland has a long way to go before he usurps John Dunham as the least productive lawyer in the history of law enforcement, but, lordy, he looks like he wants the title.

    • bmaz says:

      No. But then you would never know what a grand jury is doing unless a defendant or witness told you. People really need to chill on this stuff. Let the professionals work.

    • emptywheel says:

      Given the way Schiff responded to a question about DOJ the other day, there’s good reason to believe that not only IS the Jan 6 investigation sharing leads with DOJ, but that DOJ set it up that way. I’ll write up later but it’s a very good way to deal with privilege issues that otherwise might undercut actual prosecution.

      • joel fisher says:

        I’ll be looking forward to that. Meanwhile, I wish the discussions of executive privilege would always include a disclaimer: “Executive privilege does not extend to criminal activity.”*

        *I seem to be aspiring to the job of Executive Writing Scold; the person who makes people put stuff in their writing that I think is important.

      • gmoke says:

        I have a feeling that the J6 Committee is being very careful not to screw up any case for DOJ that may come out of their investigations as well. I’d like to believe that J6Com and DOJ are working hand in glove to follow up the ladder until they can put the (orange) cherry on top away for good.

        But then, I’m an optimistic person.

  4. The Old Redneck says:

    Besides Trump not firewalling himself, there might be self-preservation issues that come up for his flunkies. If they are facing prosecution, some of them might start singing. I’d expect that for the ones who aren’t true believers, and worked for the administration to advance their careers. Those are not the kind of people who like the idea of jail time in the federal pen.

  5. BobCon says:

    I think one thing that would also alleviate anxiety is a better sense of the resources going to 1/6 investigations and prosecutions. People don’t have a sense of how this compares to cases like Enron, the college admission fake credential cases, or a major organized crime case.

    I think a lot of journalists just assume readers can judge whether this is small, medium or large, and others just don’t bother to find out. It’s understandable that reporters aren’t able to provide details on how high up DOJ is aiming, but it’s pretty shoddy to fail to provide more context on the overall size and resources relative to other cases, even if a portion of the scope is under wraps.

    It’s not unlike Mueller’s team — I don’t recall any major outlets bothering to scope out the size and personnel of his team, which is something MW of course covered.

      • bmaz says:

        They did. And, frankly, that they did and people still have these questions kind of exhibits that most people can’t suss this out in the first place.

      • AndTheSlithyToves says:

        Cheri Jacobus @CheriJacobus
        Jan 6th Cmte has nothing to do with Merrick Garland and the DoJ and are not “cover” for Garland’s inaction. As well, the Jan 6th Cmte has NOTHING to do with the many non-insurrection-related Trump crimes Garland is ignoring, including obstruction of justice in The Mueller Report
        9:37 PM · Dec 2, 2021·Twitter Web App

        • joel fisher says:

          Labradoodles are pretty smart. In fairness to the dolt is there even a hint–by anyone–of a return to the unprosecuted crimes Mueller identified?

        • bmaz says:

          That is unknown. But FWIW, I am not aware of anything going that far back. And keep in mind that most of the Mueller investigation centric acts would fall within the five year general statute of limitation, so are aging off.

        • joel fisher says:

          One can grudgingly agree with Mueller’s conclusions that the Trumps were too stupid to understand that cooperating with the Russkies was wrong and that the value of the services and info that were provided were too difficult to determine; OK, I get that and yes, the 5 year statute is looming. But, the cover-up occurred in 2017 and 2018. Half of Mueller’s report–Vol. II–is devoted to obstruction of justice and is not in public discussion. I see Garland and Durham as two aging, retired farmers down at the country bar drinking one draft beer in an afternoon.

      • Leoghann says:

        I think part of the reason for that is CNN’s general reputation. Some of their people are excellent, and some of their projects have been exhaustive and informative, but a larger part of their content is bullshit and sensationalism. And unfortunately all articles get the same type of clickbait headlines. I tend to look past CNN articles by habit, until I’ve seen several recommendations for one.

  6. Peterr says:

    Riley’s indictment reveals how long even simple cooperation prosecutions can take. While union protections and internal investigations probably delayed things somewhat, it still took over 235 days between when the FBI first learned of Hiles’ communications with Riley and Riley’s arrest.

    That’s for a cop.

    The fact that Riley is a cop is probably another reason for the delay in his indictment.

    If I’m the FBI guy who learns about Hiles’ information, the first thing going through my head is “who else might Riley be connected with and who else might he have tipped off?” At that point, I’ve got one of two choices: (1) nab Riley fast before he can dispose of any evidence and sweat him to come clean, or (2) let him be while the FBI pokes around elsewhere in this broad investigation to see if Riley’s name come up in other contexts. Given how fast Hiles’ told Riley about his chat with the FBI, option (2) looks a lot more likely.

    The delay looks to me like a decision to wait and watch (perhaps with a court order allowing them to watch his phone and other devices), to see if Riley does something stupid like talk with other January 6thers, and in the meantime dig around in the broader investigation to see if they can tie him to other conspirators.

    Don’t discount the likelihood that the delay in seeking the indictment was a deliberate investigative decision.

  7. Nehoa says:

    Many thanks to you and bmaz for providing some perspective on the processes going into the Jan 6 investigations. Like many others, I would like a quicker resolution, but appreciate how fast (and probably how carefully) things are actually moving.

  8. WilliamOckham says:

    I’ve mentioned this before and I’ll probably bring it up again. Let’s assume the Justice Department manages to build a conspiracy case against Donald Trump based on his contacts with various folks directly involved in the events of January 6. At the moment that happens, the conspiracy will also include sitting U.S. senators, dozens of U.S. Representatives, and hundreds of state and local officials. Their involvement will, from a legal standpoint, look exactly like Trump’s, Meadows’, Clark’s, and Navarro’s. What do you expect the Justice Department to do? Indict them all? Ignore the current office holders? Sweep it under the rug? There’s no good answer here.

    • bmaz says:

      Right. And the First Amendment issues are far bigger than most think, especially for the Congress critters that putatively also have Speech and Debate defenses. Not saying that any of the above should not be charged, but it is far more complicated than a lot of people seem to think, especially given DOJ charging protocols.

      • P J Evans says:

        We can at least [try to] shame them for speaking against the government of which they’re a part, and denying the validity of the election/ballots which put many of them in office.

  9. OldTulsaDude says:

    I remind myself daily that both democracy and the rule of law move slowly. Totalitarians can move rapidly because democracy and the rule of law are not present to stop their whims . If we try to rush to imprison without due process we are allowing ourselves to adopt totalitarian tactics and once that has replaced the rule of law democracy is lost.

    • emptywheel says:

      Precisely. It is not satisfying that it is this slow. But that slowness is what we’re trying to preserve.

    • Troutwaxer says:

      Just for myself, I don’t have an objection to the speed at which stuff is happening – we’ve got at least three more years to get it done. I do have an objection to the lack of prosecutions for “sedition” and other treacherous* activities, and the shortness of the sentences being proposed.

      Has nobody studied the Beer Hall Putsch?

      *Note for Bmaz, “treacherous” rather than “treasonous” – I do understand the legal issues around treason charges.

      • bmaz says:

        And, as explained many times, conspiracy prosecutions work from the bottom up, and sedition and related charges, if they are to be brought, are at the top. I am not sure they are as clear cut as people think.

  10. obsessed says:

    >complaints about Merrick Garland’s approach to the January 6 investigation simply don’t account for how long competent investigations take

    But that doesn’t take into account that Trump and his predecessors back to Iran Contra have shown repeatedly how to use the length that competent investigations take under the current system to completely obstruct justice and accountability. The complaints aren’t driven by a misunderstanding of how impossible it is to achieve justice under the current system. They’re driven by the failure to play the same games of manipulation that the crooks use every time to thwart DOJ. The system and the institutional norms followed to work within that system simply don’t work to achieve anything remotely resembling equal or fair justice under the law. The GOP is the Harlem Globetrotters and Garland & Co. are the Washington Generals. They always lose, they know they’re going to lose, they get paid anyway, and they go out night after night anyway to go through the motions.

    It’s like calling 911 and they come a week later. The system simply doesn’t account for rich powerful people being able to avoid accountability by (among other things) running out the clock. So there’s a high chance that the 1/6 committee’s clock will run out in 2023 and a horrifyingly high chance that Trump or someone worse will be back in the WH in 2025 to shut down everything pending and pardon any conviction or indictment that somehow snuck in. Why isn’t one of the other two branches working on way to punish and deter the corrupt use of pardons, or Barr’s many manipulations, or the memo that prevents prosecution of a blatantly criminal president? Why aren’t they working on ways to allow for investigations that are timely as well as competent? Trump thoroughly and conclusively stress-tested the system and showed it to be a joke. Instead of repairing it and punishing him for his treachery they’re just playing along and letting the clock run out as he laughs in everybody’s face. The most maddening thing is the frequent statements by Biden and Garland about “restoring faith in DOJ and the rule of law”. They’re just re-demonstrating how broken and corrupt it is in case there was still anyone left who had a drop of faith in it or in them.

    • bmaz says:

      You continue tp post overly long run on and uninformed comments on this. There is a way these investigations work, and it is not on your hysterical internet rage timeline. Take a seat please.

    • P J Evans says:

      So, clearly, you want the Dems to do the same thing the Rs have been doing. Most people don’t want that; it’s contrary to what we think is decent behavior.

    • Ken Muldrew says:

      If your complaint is that in a 2 party system, 1 party has decided to game the system rather than pursue policies that can attain enough consensus to win elections, then you cannot solve that problem through juridical means. You absolutely cannot use the dept. of justice to fix a deficit in the means of determining the democratic sovereignty of the nation.

  11. Bay State Librul says:

    I suffer from a heavy dose of despondency.

    Just for openers, a writer in the Paris Review Daily describes the train wreck

    “Some say it happened in January 2017, when Trump was sworn in by Chief Justice Roberts. Some say it happened in the fall of 2019, when the virus went from the bat to the pangolin, or when the pangolin was carried into the wet market, or—to hell with the pangolin; forget the pangolin!—some say it happened when the virus escaped the lab, but I’d set the date earlier, back in 2009. After all, when you get on the wrong train, you usually don’t know it right away. As much as an hour can go by before you look out the window at the smoking wreckage and ask yourself, Where the hell am I?”

    Add the Roe v Wade “sure-to succeed” arguments to the mix, and voila I’m still convinced our hopes will end badly

    P.S. I am heartened that the 1-6 Commission will hold public hearings. A bright light in the road to nowhere?

  12. Frank Probst says:

    I agree that seeing Klete Keller on that list is a head-scratcher. Is it possible that he’s cooperating on a totally different investigation?

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