A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation

In preparation for a post about how DOJ might or might not make the move beyond prosecuting pawns who breached the Capitol to those who incited them to come to the Capitol, I want to describe a taxonomy of the January 6 “crime scene” investigation — which I mean to encompass the investigation as it has worked up from the people who actually stormed the Capitol. This is my understanding of how the many already-charged defendants fit together.

DOJ has arrested close to 700 people (probably more than that once you consider cases that haven’t been unsealed). Those defendants generally fit into the following categories, all of which are non-exclusive, meaning lots of people fall into more than one category:

  • Militia conspirators and militia associates
  • Assault defendants
  • Mobilized local networks
  • Other felony defendants
  • Misdemeanants
  • Organizer inciters

In my discussion below, these are all allegations, most of the felony defendants have pled not guilty, and are presumed innocent.

Militia conspirators and militia associates

The most newsworthy prosecutions, thus far, are the militia conspiracies, though not all militia members have been charged as part of a conspiracy.

There are 17 people facing charges in the Oath Keeper conspiracy, plus four cooperators, as well as another cooperator and two more Oath Keepers not charged in the conspiracy.

There are 17 Proud Boys currently charged in various conspiracies, including four, thus far, charged in what I call the Leader conspiracy. I suspect in the near future there will be consolidation of the core Proud Boy cases. In addition, there are a significant number of Proud Boys charged either in group indictments (such as the five men who followed Joe Biggs around that day), or individually, some with assault (such as Christopher Worrell, David Dempsey, and Dan “Milkshake” Scott), and some with just trespassing (such as Lisa Homer or Micajah Jackson).

There is one conspiracy indictment against mostly 3%ers, along with Guy Reffitt, who was individually charged, and a few others whose 3% ties are less well-established in charging papers.

All of which is to say that a small but significant minority of the January 6 defendants have some tie to an organized militia group.

That’s important, because the government is very close to showing that there was a plan — led at the Capitol by the Proud Boys, but seemingly coordinated closely with some members of the Oath Keepers. The plan entailed initiating a breach, surrounding the Capitol, opening up multiple additional fronts (of which the East appears to be the most important), and inciting the “normies” to do some of the worst violence and destruction, making the Capitol uninhabitable during the hours when Congress was supposed to be making Joe Biden President. Until about 4PM — when cops began to secure the Capitol and DOD moved closer to sending in the National Guard — the plan met with enormous success (though I wouldn’t be surprised if the conspirators hoped that a normie might attack a member of Congress, giving Trump cause to invoke harsher measures).

People complain that DOJ has been doing nothing in the 11 months since the riot. But this has been a central focus of DOJ’s effort: understanding how this plan worked, and then assembling enough evidence and cooperating witnesses to be able to lay out several intersecting conspiracies that will show not just that these groups wanted to prevent the certification of the vote (what they’re currently charged with), but pursued a plan to lead a mob attack on the Capitol to ensure that happened.

Proving these interlocking conspiracies would be vital to moving up from the militias, because it shows the premeditation involved in the assault on the Capitol. DOJ hasn’t rolled this out yet, but they seem to be very very close.

Assault defendants

Close to 150 people have been charged with assault (DOJ has a higher number but they’re tracking two different crimes, 18 USC 111, assault, and 18 USC 231, whereas I’m tracking just the former). The assaults charged against these defendants range from pushing a cop once to tasing someone and nearly killing him. Much of this amounted to mob violence, albeit at times the mob violence was pretty finely coordinated.

That said, there are a handful of defendants charged with assaults that were tactically critical to the plan implemented by the Proud Boys (again, these are just allegations and all have pled not guilty and are presumed innocent):

  • After speaking with Proud Boy Joe Biggs, Ryan Samsel kicked off the riot by storming over the first barricade, knocking over a female cop
  • Ronnie Sandlin and Nate DeGrave helped open both the East Door and Senate gallery doors
  • Jimmy Haffner allegedly sprayed something at the cops trying to stave off the crowd on the East side
  • George Tenney pushed cops away from the East door and opened it (he is charged with civil disorder, not assault)
  • Active duty Marine Chris Warnagiris kept cops from closing the East door after Tenney had opened it

It’s important to understand whether those defendants who committed tactically critical assaults were operating with knowledge of the larger plan.

For most of the rest of the assault defendants, though, it’s a matter of identifying them, assembling the video and other evidence to prove the case, and finding them to arrest them.

The FBI has posted close to 500 total assault suspect BOLOs (Be On the Lookout posters, basically a request for help identifying someone), which means there may be up to 350 assault suspects still at large.

I expect assault arrests to continue at a steady pace, perhaps even accelerate as the government completes the investigations required with people who either used better operational security or fled.

Mobilized local networks

Something DOJ appears to be investigating are key localized networks through which people were radicalized.

This is most obvious for Southern California. The 3%er indictment is geographically based (and as I’ll argue in a follow-up, is investigatively important for that geographic tie.) In addition, after months of contemplating what seemed like it might be a larger conspiracy indictment, DOJ recently charged Ed Badalian and a guy nicknamed Swedish Scarf, in a conspiracy with one of the people accused of tasering Michael Fanone, Danny Rodriguez.

Recent arrest affidavits, most notably that of Danean MacAndrews, also show that FBI shared identifiers from the various geofence warrants obtained targeting the Capitol on January 6 and shared them with regional intelligence centers to identify local participants in the mob.

There have been recent case developments, too, which suggest DOJ is letting people from Southern Californian plead down in an effort to obtain their testimony (which I’ll explain more in my discussion of misdemeanants).

Some of this localized investigation feeds back into the larger investigation, as evidenced by the two conspiracy indictments coming out of Southern California. But it also shows how these various radicalized networks fit together.

While it is less visible (and perhaps because there’s not always the same terrorist and drug war intelligence infrastructure as LA has, potentially less formalized), I assume similar localized investigations are going on in key organizing hotspots as well, including at least PA and FL, and probably also the Mountain West.

Other felony defendants

There are other defendants charged with a felony for their actions on January 6, most often for obstruction of the vote count (under 18 USC 1512c2) and/or civil disorder. As of November 6, DOJ said 265 people had been charged with obstruction. A number of those obstruction defendants have been permitted to plead down to a trespassing charge, usually the more serious 18 USC 1752.

It’s hard to generalize about this group, in part because some of the mobilizing networks that got these people to the Capitol would not be visible (if at all) until sentencing, particularly given that few of them are being detained.

But the group includes a lot of QAnoners — which, I have argued, actually had more success at getting bodies into place to obstruct the vote count than the militias (which were busy opening multiple fronts). The PodCast Finding Q revealed that the FBI started more actively investigating QAnon as a mobilizing force in the days after the insurrection. So the FBI may well be investigating QAnon from the top down. But it’s not as easy to understand as — for example — investigative steps targeting QAnoners as it is the militia networks, in part because QAnon doesn’t require the same kind of network ties to radicalize people.

These defendants also include people mobilized in other networks — some anti-mask, some military, some more directly tied to institutional right wing organizations, and some who simply responded to the advertising for the event. Understanding how and why these people ended up at the Capitol is a critical step to understanding how the event worked. But it is harder to discern that from the court filings available.

Aside from better known right wing personalities, it’s also harder to identify potentially significant defendants from this group.

In the days ahead, a number of DC judges will be ruling on DOJ’s application of obstruction. Unless all rule for the government (which I find unlikely), it means DOJ will face a scramble of what to do with these defendants, especially those not otherwise charged with a felony like civil disorder. And until judges rule, there will be a significant number of felony defendants who are deferring decisions on plea offers, to see whether the felony charge against them will really survive.

The fact that most of the least serious felony defendants are delaying plea decisions creates an artificial appearance that the vast majority of those charged in January 6 were charged with trespassing. It’s not that there aren’t a huge number of felony defendants; it’s just that they’re not making the news because they’re not pleading guilty, yet.


The most common complaint about the January 6 investigation — from both those following from afar and the judges facing an unprecedented flood of trespassing defendants in their already crowded court rooms — the sheer number of trespassing defendants.

It is true that, in the days after the riot, DOJ arrested the people who most obviously mugged for the cameras.

But in the last six months or so, it seems that DOJ has been more selective about which of the 2,000 – 2,500 people who entered the Capitol they choose to arrest, based off investigative necessities. After all, in addition to being defendants, these “MAGA Tourists” are also witnesses to more serious crimes. Now that DOJ has set up a steady flow of plea deals for misdemeanors, people are pleading guilty more quickly. With just a few exceptions, the vast majority of those charged or who have pled down to trespassing charges have agreed to a cooperation component (entailing an FBI interview and sharing social media content) as part of their plea deal. And DOJ seems to be arresting the trespassers who, for whatever reason, may be useful “cooperating” witnesses for the larger investigation. I started collecting some of what misdemeanant’ cooperation will yield, but it includes:

Video or photographic evidence

Hard as it may be to understand, there were parts of the riot that were not, for a variety of reasons, well captured by government surveillance footage. And a significant number of misdemeanor defendants seem to be arrested because they can be seen filming with their phones on what surveillance footage does exist, and are known to have traveled to places where such surveillance footage appears to be unavailable or less useful. The government has or seems to be using evidence from other defendants to understand what happened:

  • Under the scaffolding set up for the inauguration
  • At the scene of Ashli Babbitt’s killing (though this appears to be as much to get audio capturing certain defendants as video)
  • In the offices of the Parliamentarian, Jeff Merkley, and Nancy Pelosi
  • As Kelly Meggs and other Oath Keepers walked down a hallway hunting for Nancy Pelosi
  • Some of what happened in the Senate, perhaps after Leo Bozell and others rendered the CSPAN cameras ineffective

In other words, these misdemeanor arrests are necessary building blocks for more serious cases, because they are in possession of evidence against others.

Witness testimony

TV lawyers seem certain that Trump could be charged with incitement, without considering that to charge that, DOJ would first have to collect evidence that people responded to his words by invading the Capitol or even engaging in violence.

That’s some of what misdemeanor defendants would be available to testify to given their social media claims and statements of offense. For example, trespasser defendants have described:

  • What went on at events on January 5
  • The multiple signs that they were not permitted to enter whatever entrance they did enter, including police lines, broken windows and doors, loud alarms, and tear gas
  • Directions that people in tactical gear were giving
  • Their response to Rudy Giuliani and Mo Brooks’ calls for violence
  • Their response to Trump’s complaint that Mike Pence had let him down
  • The actions they took (including breaching the Capitol) after Alex Jones promised they’d get to hear Trump again if they moved to the East front of the Capitol

Securing the testimony of those purportedly incited by Trump or Rudy or Mo Brooks or Alex Jones is a necessary step in holding them accountable for incitement.

Network information

Some misdemeanor defendants are being arrested because their buddies already were arrested (and sometimes these pleas are “wired,” requiring everyone to plead guilty together). Other misdemeanor defendants are part of an interesting network (including the militias). By arresting them (and often obtaining and exploiting their devices), the government is able to learn more about those with more criminal exposure on January 6.

Misdemeanor plea deals

In its sentencing memo for Jacob Hiles, the guy who otherwise would probably be fighting an obstruction charged if he hadn’t helped prosecute Capitol Police Officer Michael Riley, the government stated that, “no previously sentenced defendant has provided assistance of the degree provided by the defendant in this case.” The comment strongly suggests there are other misdemeanor defendants who have provided such assistance, but they haven’t been sentenced yet.

This category is harder to track, because, unless and until such cooperation-driven misdemeanor pleas are publicly discussed in future sentencing memos, we may never learn of them. But there are people — Baked Alaska is one, but by no means the only one, of them — who suggested he might be able to avoid obstruction charges by cooperating with prosecutors (there’s no sign, yet, that he has cooperated). We should assume that some of the defendants who’ve been deferring charges for months on end, only to end up with a misdemeanor plea, cooperated along the way to get that charge. That is, some of the misdemeanor pleas that everyone is complaining about likely reflect significant, completed cooperation with prosecutors, the kind of cooperation without which this prosecution will never move beyond the crime scene.

Organizer inciters

In this post, I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

In fact, DOJ has made moves towards doing this for months — though at the moment, they seem woefully inadequate. For example DOJ charged Brandon Straka, who had a key role in inciting violence both before and at the event, in January; he pled guilty to a misdemeanor in October (his sentencing just got moved from December 17 to December 22). DOJ charged Owen Shroyer, Jones’ sidekick as the Pied Piper of insurrection, but just for trespassing, not for the obvious incitement he and Jones did. The one case where DOJ has already moved to hold someone accountable for his role in inciting violence is Russell Taylor, who was charged in the 3%er conspiracy, but that conspiracy indictment will test DOJ’s ability to hold those who incited violence accountable.

Back in August, when these three developments were clear, I noted that DOJ had only barely begun to unpack what happened on January 5 (to say nothing of events in DC in December), which played a key role in the success of January 6. It has provided scant new detail of having done so (though there are signs they are collecting such information).

The investigation at the crime scene is not the only investigation into January 6 going on. Merrick Garland made it clear DOJ was following the money. The FBI conducted investigative steps targeting QAnon just days after the riot. Daily Beast broke the news of a grand jury investigation into Sidney Powell’s grifting, an investigation that may be assisted by recriminations between her, Mike Flynn, and Patrick Byrne.

But the investigation building off of the crime scene will proceed, or not, based on DOJ’s ability to build cases against the organizer inciters.

70 replies
  1. Peterr says:

    I like this taxinomy which is based on what people did to further the Jan 6 insurrection, and at the same time, I think it is valuable to look at other ways to slice this group (as well as the expanded group of those not-yet-indicted):

    military and former military
    LE and former LE
    politicians and political ratfkers
    education levels (nice catch on this one, Marcy!)
    geographic home base
    religious extremists (Xian Identity folks, for example)
    explicit white supremacists
    anti-vaxxers/anti-govt folks (fellow travelers with the Bundy’s, for instance)

    Laying your groups over groups like these could expose some interesting connections.

  2. Gee says:

    This classification is very much aligned with my thinking. It’s useful to break things out in terms of who provided cover, and who were more actively involved with the operation. I mean, you can’t just have a few white nationalists and ex-marines, etc, do a little ten person operation at the Capitol to stop the certification. Not even multiple teams of 20 or 30 would do. What you need is a few smaller teams, but a LOT of chaos going on around that operation to keep it from being focused on at the time. Without the mob, it’s a piece of cake to counter that attack. It would be laughable. And it couldn’t just be a bunch of peaceful protestors surrounding a few violent hit teams – too obvious. The violence had to be spread into the crowd enough to get more of it to happen. So the ones that incited violence in the crowd are a close link to the actual assault teams.

    So you know from Nov 3 on, everyone recruited to that scene played their role, be they MAGA tourists caught up in the mob and egged on to violence via the violence in play, or because they came intent on violence, even without directly understanding their role in the operation. You have to split things along the lines of which people knew of the role that they were playing. I think Marcy is generally addressing this, just in a more specific way.

    Bit player or not, anyone who understood this, even if they knew they were just cover for the heavies to do the dirty work, well, those people are far more problematic IMO. Alex Jones knew exactly what he was doing, and Ali Alexander knew exactly what he was doing getting permits for the cover crowds. Those are obvious direct conspiracists, the ones that organized the needed crowd cover. And some in the crowd knew they were cover – it would be good to expose that knowledge eventually if possible. Perhaps many didn’t.

    I think the general strategy is correct, working backward from the plan design, to what was necessary to carry it out, and who was involved in what capacity. If you are going to stop the certification by force, you know you can probably only directly work with a small team on the plan, but you can certainly recruit many others to assist. It has to be made clear just how the plan worked, why each person arrested for whatever seemingly minor offense (just walking in) is just one more piece of the puzzle of what was required to execute this plan. Every single one of these people are part of the problem, and rolling up from the bottom has to be done to really ultimately understand how important each role is in the bigger picture.

  3. Bardi says:

    Thank you, Ms. Wheeler.
    It is apparent to me, thanks in part to your posts, that each group was seemingly delegated different plans and goals, not unlike a military commander might do with his battalion, this group does this, that group does that. Certainly it was not an undirected “mob” of rioters. The success of the overall operation for the “first several hours” is duly noted.
    IANAL, but, to me, translating this into something the judges will use remains up in the air. Doable, but, difficult to do well.
    If I have not said it before, many thanks to Ms. Wheeler as well as the commentators here.

    • Zirc says:

      “that each group was seemingly delegated different plans and goals” — Maybe. Maybe not. I’m wondering how organized and delegated this had to be. Yes, the overarching goal of interfering with the certification of the goal was apparent. But once you’ve established a time and place to gather, you can do a lot of winking and nodding. You know the proclivities for violence of some of the folks you’re working with. They’ll be violent or instigate violence regardless of what you say. You have stoked the anger of a sizable segment of the population. If enough people show up, they’ll be easily led to where they’re “needed.” You know that there are some with military or law enforcement experience among the crowd you’ve been inciting ever since election night. You know that some of them can and will organize on the fly and direct the “normies” to vulnerable places.

      The Trump administration was known for a lot of things, but logistics and planning wasn’t one of them. I sense this could have been more like a potluck, wherein once the idea was hatched, people just assumed roles in much the same way the various responsibilities for needs of the potluck lunch are snatched up by eager volunteers. I actually hope I’m wrong about this because the more “organized” the insurrection was, the easier it will be to find, charge, convict, and punish them it will be. However, I suspect that while “leaders” among the groups Marcy lists in this post can be found, parsing the winking and nodding between the groups and identifying who might have “directed” the insurrection from above will be very difficult.


      • Gee says:

        One important distinction here – it wasn’t the Trump administration doing the planning and logistics most likely. The planning was the dark artists, Bannon and more importantly the ratforker, Roger Stone. Remember, Stone had stop the steal as a pre-formulated idea for when he expected Trump to lose in 2016. Then he had four more years to refine it if needed in 2020. Sure enough, it was, and after Nov 3, the plan was set in motion. Along with the many legislative and judicial acts of treachery that tried to undermine the vote counting process and the plan to replace the electors, the final plan was violence. It was a by any means necessary, but if it came down to the last resort, their had to be a cover story in place. The protest was the cover. As I said before, many unwittingly went to this not realizing they were pawns in a much more sinister plot. But also many had their marching orders. The trick is making sure you distinguish each and show the important of each bit. The plan cannot feasibly work without a critical mass of MAGA tourists on top of the white nationalist and other surly violent prone types. How would you plan this without planning cover? Even a minor force of police would have no problem taking out small obvious attack teams.

      • matt fischer says:

        Plausible deniability is at the dark heart of effective ratfucking ‪— a primary consideration in ratfuckers’ guilty-minded scheming ‪— but in this case their web of conspiracy may prove too large not to inevitably reveal many incriminating strands. Gleeful apologies for the mixed metaphors.

  4. JohnForde says:

    Last paragraph “not the only investigation”
    DOJ follows thew money
    FBI investigates QAnon
    Grand Jury looks at the Sidney Powell et al grift
    ….what entity is investigating Col Matthews charge that generals Flynn and Piatt helped the insurrection by restraining the response of our military?

    • timbo says:

      re: Who is investigating the Matthews allegations?

      Obviously some in the press are interested now. The allegations include perjury before Congress…so one would expect various Congressional Committees on the Hill to be interested in that. In general, I would guess that one or more Congressional Committees would have to ask the DOJ to look into instances of possible perjury…and whether or not there are investigations into that sort of thing currently ongoing, both from the DOJ side (more likely) and/or CID/IG side (less likely at this time) is not clear at the moment.

      • matt fischer says:

        From the conclusion of Matthews’ memo:

        Given the glaring deficiencies with respect to the DoD IG investigation, and given that his name was unfairly besmirched, MG Walker requests an independent review of the investigative findings of the DoDIG report and most importantly, the Army Report that was created at LTG Piatt’s direction should be publicly released, independently reviewed and substantiated.

      • Leoghann says:

        I have to believe that either Matthews or Walker, or both, made phone calls to DOJ before Matthews read his memo to Congress. We may not know about any DOJ investigations into these matters for awhile, but surely they are going on.

      • skua says:

        ” … they are normally unbiased, independent, contain careful analysis of facts and
        circumstances, and because they make determinations as to the credibility, veracity and biases of
        particular witnesses, based on the preponderance of the evidence. Unfortunately, the DoDIG
        report on its investigation into DoD actions leading up to and during the 6 January attack was
        marked by few of these characteristics.” E.G.M.
        This allegation of failure by DoGIG is very concerning.

        • harpie says:

          Hi skua! [I spend three days off line and then two days catching up! OY!] But this memo is actually about the Report written by the Inspector General of the Department of Defense…DOD IG.

          CapitolHunters did an informative thread on it here:

          9:37 AM · Dec 6, 2021

          #SeditionHunters – three weeks ago the DoD Inspector General released a Jan 6 timeline so discrepant with former statements that it couldn’t fit in our timeline. Now a bombshell memo call Lt. Generals [General] Charles Flynn and Lt. General Walter Piatt “unmitigated liars”. [POLITICO link] 1/ [THREAD]

          The National Guard deployment in that timeline was based off a memo issued by the DoD on January 11. 7/

          Here’s the new DoD IG report of Nov 18. Among the odd changes: events in the crucial period from 4-4:40 PM are moved earlier by 5 minutes. Originally the 4:18 PM verbal authorization of state NG came 1 minute after Trump’s “go home” Tweet at 4:17 PM… 8/ [MORE]

  5. BobCon says:

    “The investigation at the crime scene is not the only investigation into January 6 going on. Merrick Garland made it clear DOJ was following the money. The FBI conducted investigative steps targeting QAnon just days after the riot. Daily Beast broke the news of a grand jury investigation into Sidney Powell’s grifting, an investigation that may be assisted by recriminations between her, Mike Flynn, and Patrick Byrne.”

    The another piece is the Congressional 1/6 investigation, which is heavily focused on parts which will almost certainly never be part of a criminal investigation, but bringing both pieces together for a fuller story has the potential to matter.

    There may be some criminal referrals from the 1/6 Comission. However, simply drawing out a full picture of the ways corporate donations to supposedly mainstream GOP orgs got laundered into potentially criminal activities could help dampen corporate-GOP donation networks, for example.

    Prosecutors can’t build an overall narrative that incorporates a lot of the noncriminal activity swirling around 1/6, but the Commission may be able to fill in a lot of gaps which makes both the criminal and non criminal pieces clearer in context.

    • Geoguy says:

      Thanks for mentioning corporate donations. From ProPublica: “Texts Show Kimberly Guilfoyle Bragged About Raising Millions for Rally That Fueled Capitol Riot”
      Messages reviewed by ProPublica represent the strongest indication yet that members of the Trump family inner circle were involved in financing and organizing the Jan. 6 “Save America” rally.
      by Joaquin Sapien and Joshua Kaplan, Nov. 18, 11:05 a.m. EST

    • Ravenclaw says:

      In a way, the Congressional investigation is proceeding “top down” and without the constraint of needing near-certainty of conviction before going public – though also without the vast investigative resources available to DOJ, and one hopes with a keen sense of what NOT to say prematurely lest it impede the DOJ investigations. So while the crime scene starts with the useful idiots (“normies”) and militia foot soldiers, trying to build up links with inciters and commanders, Congress can focus directly on mid-to-upper-level conspirators. Like building a bridge from both banks of the river. And some day the two spans will meet. Or at least, one hopes it will work out that way.

      • timbo says:

        Hmm. It seems to me that the J6 Committee isn’t going top down at all. It wasn’t formed until DOJ was significantly into their investigation, meaning that some substantial amount of the “bottom” was already being explored in full swing prior to the Committee even sitting for the first time. Next, we got a lot of middle people requests for info on the rallies of the 5th and 6th from the Committee, and then subpoenas for some of the higher middle folks like Meadows and Bannon. It’s true that the J6 Committee is looking at the previous year of conniving by Twitler and his GOP supporters to create the Big Lie mind-space in which to build a coup from…and are better positioned politically to look into that than DOJ seems capable of doing on its own so far.

      • emptywheel says:

        Yes. I tried to explain it in my NPR interview the other day, but it got cut.

        Congress doesn’t need probable cause. DOJ does. May they find a sweet spot in the middle.

        • Peterr says:

          Or Congress may unearth something the DOJ can use as probable cause.

          Unless they screw things up like the Iran-Contra hearings, where they provided immunity to witnesses that ended up screwing the DOJ’s prosecutions. My sense is that the folks running the Jan 6 committee have learned that lesson and aren’t going down that path.

          • Dmbeaster says:

            Well, when they provided the immunity, the law at the time would not cause the prosecution to be screwed up. On appeal, Justice Laurence Silberman invented a new rule that required the prosecution to establish that as to each witness before the grand jury and at trial, none of their testimony was influenced by North’s immunized testimony. “That inquiry must proceed witness by witness; if necessary, it will proceed line by line and item by item.” For each witness, prosecutors must show “by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the Office of Independent Counsel in questioning the witness.”

            If the prosecution fails to do this “with respect to any item or part of the testimony” of any grand jury or trial witness,” Gesell must then consider whether that failure is “harmless beyond a reasonable doubt.”

            It was an impossible standard, and freed North. It was a big extension of the law in favor of criminal defendants by a very government friendly judge. I guess it was just a coincidence that he found it is his conscience to create a break for this defendant.

    • Charles says:

      The Commission is shaking the upper branches of the tree to see what falls out. Thanks to Brad Raffensperger, they already have pretty good evidence of a conspiracy to fraudulently alter the vote count. They also have evidence of a conspiracy to have Mike Pence corruptly block the counting of Electoral College votes. And they have one indictment, with more to follow, for failure to respond to a congressional subpoena.

      If they can get cooperation from a few people at the upper levels who know about communications between Trump and the conspiracists described by Marcy, then it could connect the two levels. Alternatively, some of the lower-level conspiracists could volunteer information on what the higher-level conspiracists were telling them. As I–not a lawyer– understand it, that’s what would be necessary to get into sedition territory.

      Congress doesn’t have strong tools to compel testimony, but they have some. DoJ has good tools, but they take time, and time is what this country doesn’t have a lot of. As I see it, the problem with conspiracies of this kind–as in Watergate–is the need for a character like Judge Sirica, willing to maximize the coercive tools in order to break key defendants. If Dems lose the House, congressional investigations will cease, and DoJ will be under scrutiny and, very likely, active interference by people willing to abuse their powers, like Devin Nunes (though not him, personally, of course).

      If the bad guys run the clock, they probably win.

    • Leoghann says:

      Since Daily Beast broke that story about the Sidney Powell grand jury, there has been more information. The Houston Chronicle and Austin American-Statesman have both reported that there is a second Sidney Powell grand jury, in Texas, investigating her finances. This is based on Brandon Johnson’s statements in a deposition he gave in August, in Eric Coomer’s defamation lawsuit against Powell. Johnson is Defend the Republic PAC’s treasurer and its public representative. He stated, under oath, that when DTR PAC was incorporated in Texas and began its operations, on 01 December 2020, it did so with no money in its accounts. He knows where all their money has come from since then, but no money Powell raised in the name of the organization was there.

      And BTW, there’s a good article in Texas Monthly about Eric Coomer, his lawsuit, and his attorneys.

  6. Zinsky says:

    Just an outstanding compilation and summarization of the January 6th defendants and great analysis of likely next steps. The links alone are worth bookmarking this post forever. I hope there is a Pullitzer for on-line journalism because you certainly deserve it for your work on the insurrection.

    I know this has been discussed on other threads but I found the thread on Just Security about the pre-planning and coordination on the former subReddit called The Donald prior to 1/6 to be fascinating. I wonder which of these groups used or were most used by this website? Here is the link: https://www.justsecurity.org/79446/the-absence-of-the-donald/

  7. Benton says:

    It’s worth emphasizing that Marine Chris Warnagiris is a major with nearly twenty years of service as a commissioned officer. Maj. Warnagiris could be charged under the Uniform Code of Military Justice. Yet, this hasn’t happened from what I can determine. As of June, he was still on normal duty in Quantico, but “closely supervised”.

    More recently, U.S. District Judge Paul Friedman granted permission for Maj. Warnagiris to possess firearms while awaiting trial.

    Lately, I’ve been wondering what impact this case has on the good order and discipline in the military. Then, Politico dropped the news about Colonel Earl Matthews accusing Gen. Charles Flynn and Lt. Gen. Walter Piatt of giving “perjured testimony before the House Oversight Committee” regarding their actions at the Pentagon on J6. Gen. Flynn is currently Commanding General, United States Army Pacific and, of course, Michael Flynn’s brother. Col. Matthew is a member of the Judge Advocate General’s Corps and Harvard Law grad (i.e., someone not likely to use the word “perjured” lightly).
    Col. Matthew’s memo: https://www.politico.com/f/?id=0000017d-8aca-dee4-a5ff-eeda79e90000

    • harpie says:

      Here’s a TIMELINE [also posted by POLITICO]
      written by the DC National Guard on 1/7/21:

      NGDC – CG 7 January 2021
      SUBJECT: Civil Unrest on 6 January 2021 timeline of events for National Guard

      1. The following is a timeline of events that occurred on 6 January 2021. This timeline was transcribed from numerous calls, video calls, and audio and visual observations by 1LT Timothy E Nick. Due to the situation being fluid, the timeline was transcribed effectively as possible. […]

    • harpie says:

      Marcy’s twitter thread is also really enlightening, and
      it begins by recollecting that DOD IG Glen FINE resigned on 5/26/20:

      7:33 AM · Dec 6, 2021

      Thinking about this today. [> Glen FINE resigns, May 26, 2020 CNN]
      During this precise period, [between 4:05 PM and 4:30 PM] the two main militias were considering a second assault on the Capitol. And then Proud Boy Charles Donohoe learned about the Guard deployment before top DOD figures. […]

      • bmaz says:

        Keep in mind that Fine was initially the confirmed IG for DOJ for a pretty long time (and was, overall, pretty good at it). He was only “Acting” IG for DOJ, and was appointed by Obama shortly before Trump came in. It is amazing that Trump took so long to boot him.

    • harpie says:

      Some dates from our original crowd-sourced TL:

      11/25/20 Michael Flynn pardoned by Trump
      11/30/20 Trump submits a nomination for elevation of Lt. Gen. Charles Flynn to full general. Flynn began his current and ongoing role as Deputy Chief of Staff G3/5/7 in June 2019
      12/20/20 Charles Flynn‘s elevation to full general from lt. general confirmed by the Senate by voice vote

        • harpie says:


          From MATTHEWS 12/1/21 Memo:

          [p16] It’s unclear from the DoDIG Report whether Secretary McCarthy is asserting that he told Walker the things that Piatt, Flynn, LaNeve and others associated with McCarthy are now falsely asserting, or whether Piatt and LaNeve (and McCarthy’s former retinue are merely stating these lies because they believed it will help McCarthy). McCarthy and Matthews are friends. They were among the first Trump political appointees at the Pentagon together. […]

          However, the lies being told by Piatt and Flynn would pit Matthews against McCarthy. Matthews would be forced to say under oath that he was on the 2:30PM call, that he knew Piatt and Flynn quite well, and that both were absolute and unmitigated liars. Matthews had actually helped to revive Flynn’s career a few years ago when no less than Marguerite Garrison, the same DoDIG official that had inexplicably allowed the flawed report about MG Walker to be issued, had once had her sites on Flynn. […]

          Matthews could prove that without Matthews’ personal actions a few years ago, Flynn would not even have been eligible for promotion to his 3-star rank. Flynn did not know this. He does not know Matthews. Piatt does. […]

    • bidrec says:

      When I was in the service members who had their own firearms had to keep them in the base armory. They owned them but when they had custody of them it was logged.

      • Benton says:

        It’s hard to understand what the prosecutor and judge are thinking by allowing this. It’s possible that they don’t want him to be in legal jeopardy while occasionally carrying a pistol on duty or a rifle during annual qualification.

        For me, someone who has a good amount of firearms training and who swore an oath to “support and defend the Constitution of the United States”, and then was filmed assaulting police officers during a violent insurrection against Congress, is precisely the type of person who shouldn’t be allowed near firearms.

        • bmaz says:

          If you cannot be around weapons, your military career is pretty much over. This comes up a lot in state level domestic violence cases. So the release order is not that surprising.

          • Benton says:

            I suppose the thinking is that a career will be impacted if the person is unable to train and qualify with with weapons as normal while awaiting trial. Otherwise, if he is acquitted, I assume firearms restrictions would be immediately dropped and his career could continue on. If convicted, well then….

            It seems like non-judicial punishment would be on the table for his commanding officer. DOD Directive 1325.06 lays out the restrictions for off-post demonstrations by service members. They are prohibited when the “activities constitute a breach of law and order” and when “violence is likely to result”. This fits Article 134 of the UCMJ where his “conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.”

            I experienced many enlisted personnel who faced non-judicial punishment for lesser offenses. With resulting punishments being confinement to barracks, being prohibited from deployment, or being sent to disciplinary units. Obviously, all things that impact a career. Complicating this though, is the likelihood that Maj. Warnagiris would request a court martial.

        • mospeck says:

          Taking the oath is a wonderful tricky thing, since over here we have a tradition, a lot like the running of the bulls, where the Constitution says we have to let our seditionists have their run through the halls of congress.

          Over there they give you 3 years for throwing snowballs.

          Not to worry, vlad, poor kid probably had too much Christmas spirit and Russian Standard.
          “Konstantin Lakeyev, 18, was accused of being part of a group of Moscow demonstrators who damaged a Federal Security Service (FSB)-owned Toyota Camry, first by throwing snowballs at it and then by kicking it and jumping on its hood..”
          tis the season to be jolly, vlad. It’s Christmas time, time for Beach Boys with the Little Saint Nick and Don’t Worry Baby. 2021, and not like it’s 1917 when the jungle drums stopped and things didn’t go so well for the Tsar. Now things are different and like Randy Newman says, you are virtually a Norse God, and the West is weak. So just bide your time and in the Spring send in the flying monkeys to save the Ukraine ..don’t worry baby, things will be alright ..hey you know those cymbal crunchers right there at the end, they even sound like an FM-148 coming in. But they’re just snowballs, vlad. All we got is snowballs. Set the beast on fire.

    • harpie says:

      And now, Kash PATEL uses that propagandistic DOD IG report to say:
      SEE? #KashPATELdidnothingwrong

      4:32 PM · Dec 9, 2021

      New: Former DoD official Kash Patel’s interview with Jan. 6 committee has ended. He did not answer any of our questions as he left, including whether he took the 5th or spoke to Trump about the interview beforehand.

      5:02 PM · Dec 9, 2021 Kash Patel now issues a statement. Obtained by @AnnieGrayerCNN.

      […] Though I have had major concerns about the fairness of the proceedings, I appeared to answer questions to the best of my ability. The DOD Inspector General, under the Biden Administration, found no wrongdoing in its report on Jan. 6, as I shared with the Committee. […]

  8. Tom R. says:

    This taxonomy helps bring the big picture into focus, but there is an even bigger picture that we need to keep in mind. The object of the conspiracy was not to assault USCP officers just for fun. It was not to murder Mike Pence just for fun. The object was to overthrow the government of the United States.

    As Deep Throat wisely said, “In a conspiracy like this, you build from the outer edges and go step by step.” Even so, the overall conspiracy involved crucial overt acts that didn’t take place on Capitol Hill or on Jan. 6th. There are a lot of edges — important edges — that aren’t adjacent to the MAGA trespassers.

    If things go badly, we might see tangible results from the DoJ on the overall conspiracy fairly soon, but if they go well we won’t. That is:
    * If we get indictments tomorrow of, say, Mark Meadows and/or some of the “lawyers”, there would be howls of outrage: why are you prosecuting the flunkies rather than the Donno di tutti Donni? There is a good answer to that question (“step by step”), but the howlers who demand answers rarely listen to the answers.
    * OTOH, ideally the DoJ obtains quiet cooperation from a broad swath of witnesses, in which case we might not see leaks or indictments until very late in the game. DoJ leaks tend to be highly selective. The Mueller investigation did not leak. Other investigations have leaked like crazy.

    Luke Broadwater just reported that “multiple” people from Pence’s VP office are actively cooperating with the House committee. And in this case, everything the House sees the DoJ sees also.

    • Peterr says:

      If you worked for That Guy the mob was shouting that they wanted to hang and you were with him that day, chances are the mob was more than ready to harm you in order to get to That Guy.

      Sounds like a good reason to actively cooperate to me.

      • Vinnie Gambone says:

        Odd that Secret Service are sworn to protect the constitution, but are not permitted to testify about actions they witnessed intending to negate it.

        • bmaz says:

          Don’t know that “not permitted” is correct. Their ethos is that they do not comment on their protection details, but they are certainly subject to process when necessary.

          • Peterr says:

            And the one time that someone tried to assert a blanket “protective privilege” argument, it got slapped down by the DC Court of Appeals. As the opinion noted,

            We think it significant that the Secret Service does not require its agents to sign confidentiality agreements as a condition of employment; without such an agreement (or statute or rule), the Secretary of the Treasury would find it difficult by invoking the proposed privilege to prevent a former Secret Service agent from testifying, for at least two reasons. First, a former agent who is not bound by any agreement or rule will suffer no adverse consequences by cooperating in an investigation of the President; second, the Secretary of the Treasury has no way of knowing when such a cooperative former agent is about to testify. If preventing testimony is as critical to the success of its mission as the Secret Service now claims, it seems anomalous that the Service has no better mechanism in place to discourage former agents from revealing confidences or at least to alert the Secretary when testimony is about to be given. . . .

            We note also that Secret Service agents have given testimony in the past about the functioning of the tape recording system in the Oval Office and that some Secret Service agents have disclosed observations from their protective experiences in books, apparently without causing Presidents to distance themselves from their protectors.

            That was in 1998, and Treasury may have changed their internal policies since then, but the one time Congress tried to enact a privilege like this through a bill introduced by Pat Leahy, it went nowhere.

  9. Leoghann says:

    Another interesting facet of DOJ’s investigation is that, besides a fair portion of the insurrectionists being organized horizontally, in mobilized local networks, some of whom traveled together in buses, etc., there was an onlay of vertical organization on some of these. For example, Jessica Watkins and Donoval Crowl, through their interest and involvement in Oath Keepers, had close connections with people in North Carolina, and through that connection, other people in Florida. Those were almost completely separate from their involvement with other local Ohioans.

  10. RWood says:

    I have a question.

    Madison Cawthorn. Yes, he’s nothing more than a loudmouth and obviously weak in character, but he was on the same stage as the others and his words that day were just as inciting. Yet I don’t see his name listed when it comes to possible charges?

    If I were an investigator looking for the weakest link in the political group Cawthorn would be my number one pick. What’s the status of his participation in all this?

      • RWood says:

        Giuliani, Trump, Donald Trump Jr., and Mo Brooks are all being sued by Swalwell.

        I’m just wondering why Cawthron is not when he was on the same stage saying basically the same things?

        • Troutwaxer says:

          I’d guess due to worries about Faux Noise headlines reading “Loser Cop Suing Handicapped Congressman.”

          • RWood says:

            I don’t think it’s that, Cawthorn himself cancels that out. So does a certain governor of Texas.

            Cawthorn is the lowest common denominator. He’s fathom’s in over his head. Knows nothing other than how to fail up. Has a bad habit of running his mouth and then putting his foot in it. Combine all that with his ties to Meadows and the lack of any real money backing him and he’s an interrogator’s dream target.

            When dealing with a group of criminals it’s SOP to go after the youngest and dumbest first, so I find myself wondering why he’s getting a pass.

  11. Dutch Louis says:

    Great taxonomy, thanks.

    So the FBI has – as might be expected – a large amount of cell tower data concerning cellular devices that were present in the vicinity of the Capitol on Jan. 6. That way they can find devices that were switched off some time before and on again a while after the pipe bombs were planted. I would not be surprised if the knowledge they derived from that analysis is the real cause why they are investigating the mobilized local networks.

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