Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

  • Nordean (4 defendants)
  • Pezzola (2 remaining defendants after Greene’s change of plea)
  • Chrestman (6 defendants)
  • Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
  • Hughes (2 defendants)
  • Pruitt
  • Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.

95 replies
  1. Rugger9 says:

    One wonders how long the DCC will take on the appeal. As noted several times in many threads, the claims really do not have much legal merit, but if the idea is to get this to Kavanaugh I’m not sure that SCOTUS will be so receptive except on grounds of political hackery.

        • Rugger9 says:

          Perhaps the upcoming DJT appeal will open the door, because if SCOTUS says they won’t stop release, the PBs, OKs and III-percenters will know the gig will be up. They did the dirty work and I would guess that they know the first ones to plead get the best deals.

        • P J Evans says:

          0.5% milk. Just enough fat so it isn’t blue. (In west TX, you could find 0.5,1.1.5 and 2% milk, but not non-fat. It was odd.)

        • punaise says:

          As Bowie famously sang:

          Is it any Wonder Bread
          You are too cool to fool
          Fame (fame)
          Fame bully for you chilly for me
          Got to get a rain check on pain

        • bmaz says:

          Also Bowie:

          “And in the death
          As the last few corpses lay rotting on the slimy
          The shutters lifted in inches in Temperance Building
          High on Poacher’s Hill
          And red, mutant eyes gaze down on Hunger City
          No more big wheels
          Fleas the size of rats sucked on rats the size of cats
          And ten thousand peoploids split into small tribes
          Coverting the highest of the sterile skyscrapers
          Like packs of dogs assaulting the glass fronts of Love-Me Avenue
          Ripping and rewrapping mink and shiny silver fox, now legwarmers
          Family badge of sapphire and cracked emerald
          Any day now
          The Year of the Diamond Dogs”

        • Knox Bronson says:

          While we are in the neighborhood (thank you Bmaz) …
          “We’re today’s scrambled creatures, locked in tomorrow’s double feature
          Heaven’s on the pillow, its silence competes with hell
          It’s a twenty-four hour service, guaranteed to make you tell
          And the streets are full of press men
          Bent on getting hung and buried
          And the legendary curtains are drawn ’round Baby Bankrupt
          Who sucks you while you’re sleeping
          It’s the theater of financiers
          Count them, fifty ’round a table
          White and dressed to kill
          Oh caress yourself, my juicy
          For my hands have all but withered
          Oh dress yourself my urchin one, for I hear them on the stairs
          Because of all we’ve seen, because of all we’ve said
          We are the dead”
          R.I.P. Mr. Bowie, O prescient One, we shall not see your likes again.

        • punaise says:

          Well that got cheery in a hurry, fellas… :~)

          Fascism, turn to the right
          Fascism, turn more to the right
          Ooh fascism
          We are the goon squad and we’re coming to town
          Beep-beep, beep-beep

  2. bmaz says:

    “The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Tim McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.”


  3. Peterr says:

    “Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers.”

    The key word here being “visible.”

    • Peterr says:

      Also, one wonders how much damage Oath Keeper defections could do to the Proud Boys. Something like “Yeah, we agreed we would do X and the Proud Boys would do Y” would put the Proud Boys in a world of hurt.

      One would think that the lawyers for the Proud Boys might take that into account when considering whether to flip or not.

      • emptywheel says:

        The Oath Keepers have kept the liaisons with the Proud Boys loyal too. Two hierarchies, enforcing loyalty by different means, with only the top ~8 who have real operational contact with Roger Stone and his bosses. We know there WAS operational contact. Just not what it entailed.

        • Peterr says:

          If the folks right below those top ~8 decide to cooperate, however, they may be able to describe what they were told, which may include details about what the other group would be doing at the same time.

          Those folks could give the DOJ a lot more leverage with the ~8.

  4. BobCon says:

    Am I reading this correctly that the relative speed and lack of complications of this ruling aren’t good for the conspiracy?

    That is, if they were going to lose, this isn’t the way they’d want to lose?

  5. Badger Robert says:

    I suspect the judges want some of these cases resolved by plea. They may be putting pressure on the defendants, because the defendants have very weak grounds. Trial time could be a precious commodity in the DC district.

    • bmaz says:

      Lol, that is a feature of every court, state and federal. There is nothing unique here. In fact, the various 1/6 judges have bent over backwards to entertain lame arguments. So, not so much.

      • Badger Robert says:

        True. However Ms. Wheeler is pointing out that the judges are putting more pressure on the defendants. And she alludes to the possibility of super ceding indictments. The lawyers will sense that pressure even if the defendants are oblivious. The clerks responsible for initial drafts are sharing boiler plate, and the judges are rolling with it.

        • bmaz says:

          But there is always such pressure. Is it notable because of Lamberth’s phrasing? Yes, maybe I guess, and other judges may be starting to do the same. But this is normal. Once a case has been going on a bit, it is quite common for the court to inquire “has the defense had discussions with the government as to resolution? That is always useful to both parties!” Is it more pronounced here? Maybe, I dunno. There is no question but that the court would like to keep wrapping these cases up, but I don’t read too much into it overall. To give you an idea, some courts demand a written answer to that question, and others, as part of a joint pre-trial status report. More common in state courts (at least here), but also sometimes in federal courts too.

      • Leoghann says:

        Do you think this agreeability toward lame arguments could be, in part, an attempt to avoid arguments of the courts being part of the infamous Deep State?

  6. Spencer Dawkins says:

    “That’s because eventually Kavanaugh will get to weigh in on this issue” -I thought I’d heard that recusal for Supreme Court justices is up to the individual justice, but if Kavanaugh doesn’t recuse on this, that’s got to be a tough sell, doesn’t it?

    • skua says:

      I think a hip-flask or two will see the belligerent entitled drunk emerge to make that pitch.
      Tough sell? They tell me that once all shame and self-respect has left then everything like that gets much easier.

    • Pallas_Athena2 says:

      “That’s because eventually Kavanaugh will get to weigh in on this issue,”

      The rejection of the comparison to the protesters at the Kavanaugh hearing has nothing to do with Kavanaugh being on the Supreme Court and able to have his say on this case.

      What the Defendants are arguing is that protesters to Kavanaugh’s nomination (whom Defendants allege were similar to the Jan 6 protesters) were not arrested but that they were arrested. If the Kavanaugh protesters were not arrested then we (the Jan 6 protesters) should not have been arrested.

      As you can see, their claims have nothing to do with Justice Kavanaugh himself. The court has 2 responses:

      1) You’re comparing apples and oranges. The Jan 6 protesters are not similar to the Kavanaugh hearing protesters.
      2) Even if they were similarly situated, the fact that LE used its discretion in one situation to not arrest and charge protesters does not mean the LE has no ability to arrest other similarly situated protesters.

      Outside of illegal discrimination *e,g., racism courts will not second guess law enforcement decisions. There may be a whole host of factors that law enforcement has to consider and that the courts are not aware of. This is true in cases all over the use that involve police discretion. It has nothing to do with Kavanaugh.

      That’s what the following means:

      * argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). *

  7. RMD says:

    I was reminded of Marcy’s explanation to those critical of the supposed lack of progress in the investigation…and oft-expressed concerns about “why these little guys?…or minimizing riffs from apologists, “they’ve got a handful of nobodys”…”big deal!”….
    —– reminded of the strategy as I watched Frontline’s investigation into the Opioid crisis.. Mitch Kapoor and Insys…

    Fred Wyshak, renowned for prosecuting mob kingpins like Whitey Bulger, was brought on to the case.

    FRED WYSHAK, Chief, Public Corruption Unit, U.S. attorney’s office:

    The racketeering statute RICO was passed in about 1970, directly aiming at organized crime, the Mafia. Now we were able to indict the whole organization. For example, The Winter Hill Gang in Boston. We did a classic investigation. We started at the bottom of the pyramid and we started taking out the bookies, and the loan sharks, and the drug dealers. Get those individuals to cooperate, and that was a key to our success.


    Now they would try with Insys, methodically moving up the organizational chart, closing in on John Kapoor.

  8. Leoghann says:

    Only slightly OT, I noted that Marcy was name-checked by Will Sommer in today’s Daily Beast, in an article about Pennsylvania Proud Boy Jackson Voynick’s links to James O’Keefe and Project Vituperous. His article also linked to Marcy’s post about the same topic, and described it as the first writing on the topic.

  9. Peterr says:

    Long and convoluted sentences are a feature of almost every court opinion, and in such documents, short sentences stand out like flashing red lights.

    p. 9 “The Court is not persuaded.”
    p. 19 “They are wrong on all counts.”
    p. 20 “The Court disagrees.”
    p. 28 “The Court easily concludes that it is not.” [referring to the Defendant’s claim that a given law is unconstitutional]
    p. 31. “The Court disagrees.”
    p. 36 “Defendants’ overbreath argument fares no better.”

    By the end, I was expecting an “Oh, please” from Kelly.

  10. CAROL ANDERSON says:

    OT and I’m not in the legal field but I was looking at the GW Program on Extremism Capitol Hill document list (https://extremism.gwu.edu/Capitol-Hill-Cases) and saw that Joe Biggs only has one charging document listed and Enrique Tarrio is missing completely. Is this list incomplete or are these guys cases being shielded somehow? They both had a lot to do with the J6 event.

    • harpie says:

      Joe BIGGS is one of the four people listed in the Ethan NORDEAN indictment, with Zach REHL and Charles DONOHOE. See the first link in Marcy’s list of Proud Boy conspiracy cases, above. [It seems like it would make sense for GWPE to place that document under each name…there’s probably a good reason they don’t…I’m not knowledgeable enough.]

      At this point, DOJ is working on the actual people who were at the Capitol on J6. TARRIO was not in DC on J6.

    • emptywheel says:

      Tarrio has not been arrested in the Federal case yet. He’s harder to arrest bc he wasn’t present. They need proof he was coordinating from afar.

      But he’s in jail now for his attack on a Black Church last December.

  11. Benton says:

    OT: Re. Department of Defense Cover-up?

    One of the mysteries I’ve struggled with is: why has former Acting SecDef Christopher Miller been so forthcoming about conversations he had with Trump in the days leading up to Jan 6? Why did the cherished principle of executive privilege suddenly not matter when it came to these Trump and Miller conversations? Part of the answer was revealed yesterday when BobCon remembered a Vanity Fair article published on Jan 22 (linked below). It turns out that Miller and his chief of staff, Kash Patel, had already revealed too much to the press.

    Read carefully this passage from the article where Patel reflects on Jan 6:

    “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

    First notice the “We”. I take this to mean that he’s talking about both himself and Miller. Next, he says that they talked to Trump “in person the day before” (i.e. Jan 5), “on the phone the day before” (i.e. again on Jan 5), and “two days before that” (i.e. Jan 3).

    More details of this in person meeting at the White House on Jan 5 are given earlier in the article. From the article:

    “On the evening of January 5… the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me”.

    To be clear, as of Jan 22, 2021 there were these three meetings on the record: 1) Jan 3 meeting with Trump (presumably in person), 2) Jan 5 in person meeting with Trump, and 3) Jan 5 phone call with Trump.

    Why then is the Jan 5 in person meeting with Trump disappeared from Miller’s May 12 House testimony and also from the Nov 16 DoD IG report? Also, why doesn’t Kash Patel ever make an appearance in the DoD IG report?

    What is the likelihood that this disappeared meeting has something to do with this item from the Dec 13 Select Committee Report (linked below, p.9):

    “Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to “protect pro Trump people” and that many more would be available on standby.”

    This is an email that was reported to have been sent on Jan 5.


    • Peterr says:

      I’ll take “Low Hanging Fruit” for $100:

      “Why did the cherished principle of executive privilege suddenly not matter when it came to these Trump and Miller conversations?”

      Simple: it’s spin.

      Patel and Miller were trying to (a) make things look ordinary and not criminal, so it looked like Trump’s hands were clean, and (b) make their own hands look clean. “Nothing to see here. Move along, move along.”

      It’s only when lawyers and other pesky people started asking difficult questions that the two of them realized that talking to the press was not in their best interests.

      • BobCon says:

        One of the things I pretty strongly suspect was going on in late December and early January was a lot of essentially scripted encounters for the purposes of cover stories.

        We’ve seen it in particular with Meadows and accounts in his book that he was horrified by the violence at the Capitol and pleaded with Trump to stop it. There were obvious collabators in Congress who are said to have demanded that the White House intercede when the attackers moved in.

        But while I suspect these things happened, they were designed to be ignored. I suspect the Miller-Trump conversations were there simply to build the defense that the 1/6 attack just blew up spontaneously, in the same way that I think the Eastman memo that Meadows released was designed to make the case that the plan never went beyond pushing legal boundaries and never included violence.

        Miller was there for three purposes. One was to swamp the DOD response in process and complex layers of approval. The second was to hand over a lot of authority and intel to stooges like Patel. And the third was to create a case for plausible deniability for the larger conspiracy.

        One thing that deeply bothers me is what kind of planning was going on for post 1/6 — if the attackers had somehow grabbed Pence and leaders of Congress, then what? What was the Stone plan after that?

        Assuming Miller did keep DOD neutralized, what was stage 2 of the coup? Was it simply state legislatures launching nonsense measures to overturn results, or was there actual force planned to back up declarations overturning the election, such as an order to the National Guard to suppress supposed Antifa attacks as suggested by that Meadows email? I don’t think Miller was a driving part of that piece. But I think he can shed some light on what Trump loyalists below him were up to.

        • rip says:

          These are some of the deeper questions that need to be answered. Was there a screenplay for the lead-up to the riot/insurrection? And how many alternative scenarios post-insurrection had the conspirators constructed?

          Somewhere there are some interesting documents talking about people, places, stage left/right, disposing of bodies, etc.

        • JohnJ says:

          While watching in real time I thought to myself, these guys think that if they capture or kill some congressmen, and capture the capitol building, the whole government is going to turn and take commands from whoever holds the building? Commerce Department the FAA the FCC and the >>Mint<< and Parks department and the Pentagon will burn their rule books and wait for orders from the capitol building?

          They had the Orcs playing capture the flag with the US capitol.

          A couple of weeks ago Bannon said something about needing to train up 1000 specialists to go in and run these departments after the take over. I really am not convinced these people thought that far ahead, if he is just now thinking of that.

        • skua says:

          Evidence here that they do think longer term:
          “Steve Bannon loses battle to set up rightwing political academy in Italy” – The Guardian

        • JohnJ says:

          You are absolutely right, I totally missed that connection.

          You just removed my security blanket. I just figured all the Gov’t employees would just go home and say “here, you run it. Good luck”.

          Aww, I still don’t think it would work. Isn’t the U.S. Government the largest and most complex organization on the planet? Maybe the best of the best with a LOT of training from very experienced teachers, but where loyalty is a replacement for talent and experience, it would be hard to find that many capable people. And 1000? You couldn’t take over and run the capitol building maintenance department with that few people. The biggest natural road block is of course, if you want people to get paid so they will come to work, you have to deal with the irritable behemoth; The Civil Service Commission. Good luck telling them what to do.

          The French tried lopping off the heads of their Gov’t once, didn’t work all that well for them.

        • skua says:

          ” … don’t think it would work.”
          Yep, having government not work seems consistent with 45’s admin – failing regulations and failing rule of law allows brigands and rascals to profit.

        • skua says:

          Also see Lawfare 8 Deceber 2020: Trump’s Plan to Gut the Civil Service.

          “… , the executive order allows agency heads to move current political appointees into these newly created Schedule F positions without competition and not based on merit—in essence, creating a new category of political appointee.”

          I’d rather be writing that America will be ok no matter who 47 is.

        • P J Evans says:

          “1000 specialists”?
          (I worked at a utility company that covered about 50K square miles, and we had 11K people spread across that area, with several hundred just in the building where I worked.)

        • Leoghann says:

          There are two strong beliefs I have that color my view of the testimony and reporting on the problems encountered in getting reinforcements in place on Jan 6. First, the glaring errors and omissions in the report of the DOD IG tell me that it’s at least 50% commissioned misinformation. Trump and his cronies had been attempting to subvert the activities of various inspectors general from the first day of his term. It looks like to me that he managed to castrate at least one office, at Defense.

          Second, Chris Miller’s testimony and his statements in media interviews all give me a strong taste of CYA. Sure, he may have been appalled, and he may have wanted to do some things to thwart the insurrection, whether or not he knew it was planned. But methinks he doth protest too much.

          I don’t think there is a way to figure out just what the situation was, based on just the evidence that’s now available to the general public. More details will surely come out. When it comes to testimony, just as we can learn from Watergate, Iran-Contra, and other major investigations, each individual has a personal threshold when it comes to parroting the company line. At some point, someone will reach theirs in this investigation, and will begin to tell what they know, like what we’re seeing among the physical participants of the insurrection.

          I definitely think that a post-sixth game plan existed somewhere. Planning ahead certainly was never the orange guy’s strong suit. But he had people in place who would have been putting that together almost as soon as the planning began for the events on the sixth.

        • skua says:

          I imagine prosecutors would love to have evidence of post-6Jan plans.
          Having the plans for how the crime will be furthered greatly strengthens the case for how the crime started.

    • matt fischer says:

      Acting SoD Miller may have alluded to his Jan. 5 meeting with Trump in his written testimony before the House Committee on Oversight and Reform:

      Because the District of Columbia is not a state, its mayor needs Presidential approval to use the D.C. National Guard, unlike state governors who can unilaterally mobilize their National Guard forces. The President had delegated his authority in this regard to the Secretary of Defense.

      He specifically addressed a phone call with Trump that same day:

      On the afternoon of January 5, I received a call from the President in connection with a rally by his supporters that day at Freedom Plaza. The President asked if I was watching the event on television. I replied that I had seen coverage of the event. He then commented that “they” were going to need 10,000 troops the following day.

      As to Trump’s involvement with the deployment of DCNG:

      I also want to address questions that have been raised in regard to the President’s involvement in the response. He had none with respect to the Department of Defense efforts on January 6.

        • Benton says:

          Yeah, I don’t know about Just Security’s take. I could lean either way at this point. I agree that there’s still unrevealed information out there and we can’t draw conclusions yet. I’ve got more coming that will reflect on Miller’s credibility. Also, TalkingPointsMemo has some counter-argument to Just Security’s piece. I’m not a paid member so I haven’t been able to read it.

        • matt fischer says:

          David Kurtz’s post is largely supportive of Just Security’s take:

          From the get-go, TPM’s coverage has been more circumspect about the decision to involve the military in the response to the attack…

          What the delay suggests is that the civilian and military leaders at the Pentagon were trying to thwart, undermine, and do an end run around the President…

          But it’s not the way things should work in the chain of command. And it reveals that things were pretty well busted in the final days of the Trump presidency.

        • matt fischer says:

          I should add that Kurtz didn’t describe Miller entirely favorably:

          Miller doesn’t emerge as a saint exactly. While he may have been concerned about avoiding misuse of the military, he couched it in terms of “irresponsible narratives” and “hysteria,” including about his own role as a so-called Trump stooge who would facilitate a coup.

        • BobCon says:

          I’d want to read the Just Security piece more carefully, but my first impression is that they are far too credulous in ascribing motives and methods to Trump and his camp based on his public statements and actions.

          I think they are essentially trying to look at the limited set of what we know about 1/6 and then reason forward from these things toward what framework Trump was operating under.

          I think that’s a questionable approach.

          I think it may be far more productive to assume the worst from the beginning and then fit the available evidence into that framework.

          Assume Trump was staging a coup attempt. Then ask how the visible elements fit. Don’t assume everything Trump, Meadows etc. said was on the level, but ask how contradictory indications may have served as distractions and defenses.

          I suspect Milley probably was trying to maintain control of the military, but I am far less sure about Miller. I don’t know if he was at the level of someone like Kash Patel, but I am very open to the potential that he was a willing useful idiot.

          Part of the concern I have with the JS approach is they seem to place a lot of credibility in Leonnig and Rucker’s account of that period, and their account seems deeply flawed by their use, Woodward-style, of a narrow set of sources attempting to control the narrative, in particular Meadows. JS also leans heavily on the DOD IG report, and I think there’s good reason to look at that with a much more jaundiced eye than JS does.

          I think a much more skeptical analysis is needed. I think I’m seeing too much credulousness on the part of JS and Kurtz on a narrow duality of either giving Trump easy control over the DC National Guard or else blocking all action by the Guard. I think that’s far too restrictive of the third option which is what eventually happened — letting the Guard operate under its traditional role of supporting a local police force.

          An obvious disaster scenario could be DOD stalls NG deployment for long enough to let the Stone forces take over the Capitol, and after that happens Trump eventually takes control of the NG — say on 1/7 –on the pretext of restoring order.

          The analysis of DOD preventing the invocation of the Insurrection Act seems to focus entirely on the afternoon of 1/6. But the plan may have been thinking after that — there are hints from Meadows that the call would have been to forestall a counterattack by imaginary leftists.

          It seems to me JS is narrowing their framework much too far, and they are excluding a lot of possibilities by not allowing for the possibility Trump was pursuing the worst case scenario.

        • Benton says:

          “JS also leans heavily on the DOD IG report, and I think there’s good reason to look at that with a much more jaundiced eye than JS does.”

          I agree completely with your opinion (and others) on the DoD IG report. There is a building amount of evidence indicating that the report is incomplete and biased. I’m sure you’re already familiar with COL Matthews’ memo obtained by Politico. But, for the benefit of anyone coming up to speed, I’ll link it here. COL Matthews was the Staff Judge Advocate for the DC National Guard on Jan 6 and worked closely that day with the Commanding General of the DCNG, MG Walker.

          Article: https://www.politico.com/news/2021/12/06/jan-6-generals-lied-ex-dc-guard-official-523777
          Memo: https://www.politico.com/f/?id=0000017d-8aca-dee4-a5ff-eeda79e90000

          I’ve also been examining the DoD IG report from a little different angle than COL Matthews. Here are my first two posts in that chain:


        • matt fischer says:

          Flawed though the JS piece may be, the authors’ explicit goal was to present a third plausible explanation for the delay in the deployment of the National Guard, based on the available evidence. It succeeded in that goal and provided new insights, thus challenging our assumptions, expanding the conversation, and likely getting us closer to the truth, even if there remains a long way to go. I think that’s a good thing.

        • BobCon says:

          That’s fair, and I think the approach I’m talking about of assuming Trump wanted a coup and working backwards could certainly lead to a lot of problems too.

          Realistically it’s an iterative process which works the problem from both directions.

          I’m inclined to be more trusting of the JS conclusion on Milley than Miller, at any rate. Milley has the background to have earned some trust as a steward of the armed services, but the post-election naming of Miller who had an extremely thin resume and apparent close ties to Patel should have gotten more doubt. We’ll see what turns up.

        • chum'sfriend says:

          Christopher Miller memo of Jan 4 2021, limiting ability of National Guard to respond to attack on the Capitol;


          “Without my subsequent, personal authorization, the DCNG is not authorized the following:
          To be issued weapons…
          To interact physically with protestors…
          To employ any riot control agents.
          To share equipment with law enforcement…
          To use Intelligence, Surveillance, and Reconnaissance (ISR) assets…
          To conduct searches, seizures, arrests…
          To seek support from any non-DCNG National Guard units.”

        • matt fischer says:

          We know Miller put very unusual restrictions on the DCNG for J6. The question is why? For example, In his written testimony Miller cited

          …fears that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner…

          The Just Security piece addresses the question in more detail.

      • harpie says:

        I had to look up who Secretary BERNHARDT is.

        From 2019:
        Trump to speak at Lincoln Memorial during Fourth of July celebration
        https://www.washingtonpost.com/local/dc-politics/trump-to-speak-at-lincoln-memorial-during-fourth-of-july-celebration/2019/06/05/1575588e-87b2-11e9-98c1-e945ae5db8fb_story.html June 5, 2019

        President Trump plans to address the nation from the Lincoln Memorial on July 4 as part of an overhauled celebration of the nation’s Independence Day, D.C. city officials and U.S. Park Police said Wednesday. […]

        Trump’s appearance is likely to bring with it a host of new security and logistical challenges and reshape a decades-old, nonpartisan celebration that annually draws hundreds of thousands of visitors to the city’s monumental core. […]

        [Mayor] Bowser has opposed Trump’s efforts to take over the July 4 celebration and inject himself into the program, citing security and logistics concerns. Trump, however, wants to refashion the event as “A Salute to America,” the culmination of two years of attempts to hold a grand patriotic display centered on him and his supporters. […]

        An overhauled Fourth of July celebration is among the top priorities for new Interior Secretary David Bernhardt. […]

      • Benton says:

        I agree, those tweets look very relevant. Do you happen to know with your timeline from other sources whether Trump could have had both an in person meeting and then a separate phone call on Jan 5 with Miller/Patel? Also, have we heard if Miller provided any information or testimony to the Select Committee yet. Thanks harpie!

        • dwfreeman says:

          In Peril, Bob Woodward and Robert Costa’s book on the final days of the Trump White House and transition, they report several scenes in which Miller’s testimony to Congress on DOD’s coordination of National Guard response to security preparations for 1/6 appears open to debate.
          Shortly after 4 pm that day, Miller got a call from Vice President Mike Pence. He had been moved from the Senate chamber for the Electoral College certification vote to a secure location in a basement parking area, to avoid blood lust insurrectionists angrily calling and seeking him out.
          On the phone, an upset Pence didn’t mince words. “Clear the Capitol,” he instructed Miller. The acting secretary of defense assured him he was indeed on it and things were moving.
          Yet it would be another hour before the Guard would get the official Pentagon go-ahead to relieve Capitol Police.
          Meantime, at the White House, tensions were also running high even if the president wasn’t reacting to the emerging situation.
          Deputy National Security Adviser Matthew Pottinger, a former journalist, came by. Trump’s chief of staff unloaded on him, insisting the Guard was moving too slowly. “God dammit. Where’s the Guard?,” Meadows bellowed. Pottinger, who was in touch with contacts at the Pentagon, noted that Miller was reluctant to act aggressively, using Guard force to put down the riot seemed too militarized.
          Meadows didn’t care, he wanted action not excuses; get the Guard moving, he directed, pushing Pottinger to call Miller’s chief of staff, Kash Patel.
          But it was Pence’s national security aide, ret. Lt. Gen. Keith Kellogg who next reached Patel, “What the hell are you guys doing? Meadows is furious that the Guard is not moving,” he charged.
          Patel assured otherwise, “Oh, they’re moving now, they’re moving now,” he said.

          But four months later, testifying in a House hearing on the Capitol attack, Miller would acknowledge under questioning by D-NY Rep. Alexandria Ocasio Cortez, that he didn’t approve an operational plan to deploy the DCNG force of 340 and another 40 as a quick reaction force until 4:32 pm, more than three hours after learning Trump rioters had breached the Capitol perimeter. The troops didn’t arrive on the scene until an hour later at 5:30 pm.
          In that May 12 hearing, Miller denied getting a direct order from Pence to clear the Capitol.
          Pence wasn’t in the chain of command, Miller testified. “He did not direct me to clear the Capitol. I discussed very briefly with him the situation. He offered insights based on his presence there. And I notified him or I informed him that by that point the District of Columbia National Guard was being fully mobilized and in coordination with local and federal law enforcement to assist in clearing the Capitol.”

          On 1/6 at about 3:29 pm, D-MI Rep. Elissa Slotkin, a former CIA analyst who had worked at the Pentagon during the Obama administration, called National Security Adviser Mark Milley. She knew him well. They had a bond of trust and then a stern conversation.
          “Mark, you need to get the the Guard down here,” she said sharply. Congressional colleagues were hiding in their offices. “I know it. We’re working on it,” Milley said.
          When Trump had wanted Lafayette Park cleared June 1 for a photo op at nearby St John’s Church, a complete military presence was ordered and deployed to assist horseback police with hovering helicopters overhead. Police used rubber bullets and tear gas to assist the crowd clearing effort. Nobody wanted a repeat of that, but now Slotkin was urging Milley to authorize another all-out military response.
          “Congresswoman, we’re going to get there with as much stuff as we can, as fast as we can.” Slotkin was curious, though, did Trump say no to the National Guard to protect his people, the possibility was flying around Capitol Hill. “I purposely didn’t go to Trump,” Milley told her. “I went to Pence. I informed Pence we were sending the Guard. Pence welcomed that.”
          Milley explained that several days earlier, at an unrelated national security meeting, he had told Trump they were going to be sending some Guard to support Capitol and DC police on Jan. 6. Trump had reportedly been in favor of that. “Good, good, do what you need to do,” Trump was quoted as saying in response.
          But now, Milley wasn’t sure, “I think he wanted this,” he told Slotkin. “I think he likes this. I think he wants that chaos. He wants his supporters to be fighting to the bitter end.” After making this contention, he qualified it, saying, “I don’t know.”

        • harpie says:

          No, I have only a phone call from TRUMP to MILLER in the afternoon [or evening] of 1/5/21. That timing led me to highlight the TRUMP texts between 5 and 6 pm. [above], especially the one referencing Antifa.

          I don’t know if Miller has spoken with the committee yet.

        • Benton says:

          Thank you harpie! You’ve done incredible work here. Your timeline – when published – will be an awesome resource.

        • Benton says:

          Thank you harpie! You have done incredible work here. Your timeline – when published – will be an awesome resource.

    • harpie says:

      [I’m trying to keep this o/t discussion all in one place, so…]

      1] “We Are Oversight” got DOJ call logs from J6 a while ago.
      Here’s a link to one place we talked about that:

      For purposes here, I’ll reproduce all of the calls to/from Acting AG ROSEN that mention DOD and/or SecDef. Except for one, all are in his handwritten notes.

      [I’m not going to format them all again…the handwritten notes are marked [h-w] and are in quotation marks. It IS easier to read if you go to the link, but that’s ALL of the ROSEN calls.]

      “2:01 PM” ROSEN [h-w] “DOD/SecDef” [Acting-Christopher MILLER]
      “2:44 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “4:53 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “5:00 PM” ROSEN [h-w] “5:00pm DOD/SecDef”
      “5:01 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “5:53 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “6:00 PM” ROSEN [h-w] “6:00pm DOD et al”
      “6:44 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “6:45 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “6:59 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “7:00 PM” ROSEN [h-w] “7:00pm DOD, House/Sen/VP call”
      9:06 PM ROSEN call from (b)(6) per DOD [Alexandria VA] [3m]

      2] Here’s a VIDEO from the ProPublica PARLER compilation [their time stamp]
      2:52 PM “Near the Capitol” https://d2hxwnssq7ss7g.cloudfront.net/QHORzN1dKMRY_cvt.mp4

      My notes from the video:

      Looks like [~10] Federal LE, black vans, Southeast of the CAPITOL[?]

      [0:34] Woman: [???]
      Man1: No, they’re against us.
      Woman: Well, they shouldn’t be. [0:38] The FBI?

      [0:41] LE: “Let’s go.”
      “I dunno.”
      “[…] inside the Capitol. Over.”
      [0:43] LE begin to move on sidewalk toward and to the right of camera.

      [0:51] Man1: If you shoot people, it’s on your conscience.
      Man2: Yeah, you start a war.
      Man1: You’re gonna start a war!
      Woman: “…start a war! Resign from the FBI.”
      Man1: [yells] THAT’s the FBI!!
      [Crowd seems to be yelling at these LEO’s?]

      [1:05] LE walking in file toward the Southeast corner of the CAPITOL, they turn left at the SE Carriage Entrance [some try the stairs but turn around] and file along the SOUTH Side of the bldg., [1:40 SIRENS] and into the SOUTH Entrance area.

      • harpie says:

        DONOGHUE – FBI calls around this time:

        2:53 PM DONOGHUE call from (b)(6), (b)(7)(C) per FBI [1m]
        2:55 PM DONOGHUE call from (b)(6), (b)(7)(C), (b)(7)(E) per FBI [1m]

      • harpie says:

        Here are the other calls that mention FBI or [Deputy Director] BOWDICH:

        3:18 PM ROSEN [h-w] “3:18pm Bowdich – no answer”
        3:30 PM ROSEN calls (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [5m]
        3:38 PM ROSEN calls (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [2m]
        3:38 PM ROSEN call from (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [1m]
        9:52 PM DONOGHUE call from (b)(6), (b)(7)(C) per FBI [1m]
        9:55 PM DONOGHUE calls (b)(6), (b)(7)(C) per FBI [5m]
        10:36 PM DONOGHUE calls (b)(6), (b)(7)(C) per FBI [1m]

      • harpie says:

        It seems to me that Goodman and Hendrix make a compelling argument at:
        Crisis of Command: The Pentagon, The President, and January 6
        https://www.justsecurity.org/79623/crisis-of-command-the-pentagon-the-president-and-january-6/ 12/21/21

        I think the information I’ve added above may support their assesment:
        11:33 AM · Dec 21, 2021

        The Pentagon likely restrained National Guard on #January6th because of concerns Trump would invoke Insurrection Act, @rgoodlaw & I assess. […]

        I think there was some confusion [possibly created by TRUMP], about who would be the “lead Agency”. In a situation like J6, I’m pretty sure DOJ [>and FBI] would normally fill that roll, but they would coordinate with the other Agencies, like DOD [NG] I know it’s very possibly I’m wrong, but that’s what I think was happening with the timing of those phone calls.

        • Benton says:

          In case you haven’t seen it, we’ve been having some good discussions about that article in this thread and at least one other. matt fischer and BobCon make good points above. I think it is an excellent article and has good analysis of what we know. The problem is that some of what we know is actually lies and cover stories. And, there is much that is still hidden. The conclusions in the article depend upon an IG report that is full of holes and the IG report depends on people like Miller that have given testimony full of holes. And that’s not even getting into SecArmy McCarthy, Generals Piatt, Flynn, etc.

        • harpie says:

          Yes, I had seen and have tried to follow those discussions. […only have so much time…] I definitely agree that all those people are NOT to be trusted to tell the truth. I believe they are making up stories to cover their asses, and that we don’t have all the information yet, and may never have all the information.

          [rant] The rules around using the DCNG were obliterated by TRUMP and his lackeys on and before J6, and I want that ALL laid out in plain view for We the People, sooner rather than later. There was a lot of what really looks to me like dereliction of duty on that day, and DOJ / J6 Committee really need to get to the bottom of that, and publicly PUBLISH their findings as much as possible.
          [/ rant]

        • harpie says:

          […guess that wasn’t the end of the rant, after all…]

          TRUMP thought the DCNG should be his OWN LITTLE ARMY [just look at that article above about Interior Secretary David Bernhardt, who TRUMP tagged in that 1/5/21 5:43 PM tweet]

          I believe TRUMP must have sent that tweet just after his call with MILLER. [the one we know about so far…]

          I believe that [mob-boss style] he had cajoled and/or threatened every other person/entity he tagged in that tweet, and was expecting them to do everything in their power to support his CLAIM to the THRONE.

        • harpie says:

          That tweet looked like a threat to “Antifa”, but was also a call to battle to TRUMP’s followers. “Antifa” was going to be their excuse for violence.

          The entities tagged:


        • harpie says:

          TRUMP could hear “his people” gathering at Freedom Plaza from the WHITE HOUSE
          AT the time he sent that tweet. [5:43 PM 1/5/21]

        • Benton says:

          You’re identifying some good information that would take some time to absorb. However, I fear we’ve hit the point that “Lester Holt” does between :56 and 1:40 in this classic SNL Cold Open. Where Trump is replaced with Christopher Miller and his possible perjury instead of Trump’s obstruction of justice.


        • Benton says:

          Sorry to break into your rant :-)

          Regarding the article’s explanation “that senior military officials constrained the mobilization and deployment of the National Guard to avoid injecting federal troops that could have been re-missioned by the President to advance his attempt to hold onto power.” …

          It occurred to me that there is a variant of this which feels more plausible:

          Some of these DoD officials were more than happy to assist a coup plot along. Their reluctance to inject military forces on Jan 6 wasn’t so much a concern for the Constitution and democracy, but rather that they were seeing chaos at the White House in the days prior. They were seeing various amateurs and lunatics advancing divergent plots and realized everything was doomed for failure. They held back the DCNG to avoid being tainted by it all. Nevertheless, they watched closely to see which way the wind would blow. Now they are pursuing PR campaigns and covering up evidence.

          An alternative still seems equally plausible to me. Here the officials intended to hold back the DCNG unless they were needed for use against counter-protesters. Thus letting the mob’s pressure campaign against Congress move forward. This fits the Meadows protect pro-Trump people scenario.

          I recommend this opinion piece by retired generals for anyone who thinks all this sounds far-fetched:

  12. Peterr says:

    I’ll take “Low Hanging Fruit” for $100:

    “Why did the cherished principle of executive privilege suddenly not matter when it came to these Trump and Miller conversations?”

    Simple: it’s spin.

    Patel and Miller were trying to (a) make things look ordinary and not criminal, so it looked like Trump’s hands were clean, and (b) make their own hands look clean. “Nothing to see here. Move along, move along.”

    It’s only when lawyers and other pesky people started asking difficult questions that the two of them realized that talking to the press was not in their best interests.

  13. Rugger9 says:

    OT, but interesting for a couple of reasons: Popehat retweeted Ghislaine Maxwell’s jury verdicts. The score:
    Count 1: Guilty
    Count 2: Not Guilty
    Count 3: Guilty
    Count 4: Guilty
    Count 5: Guilty
    Count 6: Guilty (this was a conspiracy count, the biggest threat for jail time)

    One thing I find interesting as well was the judge’s admonition to finish deliberations apparently concerned about a COVID intervention. All in all, some accountability but frankly not enough yet. Now, time for the johns, so to speak.

    • bmaz says:

      Naw, that is plenty of “accountability”. Especially as she was a stand in for the real defendant, Epstein, and where she could not even defend herself against the empty chair at the defense table where he should have sat. And after a half ass Allen charge from the court during a holiday season? Meh.

      • Rugger9 says:

        Well, Maxwell will spend the rest of her life in prison which is something she earned given her activities for Epstein. She’s not alone in her guilt with this horror and I would not be surprised in the least that she’s the one who pays any price. It’s not a direct comparison, but I thought of the DC Madam case where the incriminating black book vanished after her demise in jail.

        Perhaps with MeToo in recent memory, we as a society will do better this time with the other “players”. The victims deserve it.

        • Rugger9 says:

          I don’t think so, but her defense team strove mightily to make Ghislane another victim of Epstein but the evidence showed otherwise (remember these are 12-0 verdicts). Ms. Maxwell willingly played her very important part in the recruitment and grooming of the real victims here, and so she’s going to be sentenced on charges that can make it to 65 years.

          It does make me wonder whether the prosecution is going to try to trade years for information on the other players. It may be difficult to haul them in to face trial, for example Prince Andrew is not accepting US jurisdiction and I wonder whether his status as a royal creates a de facto diplomatic immunity. HM the Queen has diplomatic immunity as head of state, but I don’t know how far down the succession list that DI protection goes.

  14. skua says:

    @P J Evans
    (skua: “1000 specialists”)
    “ROFLMAO! … ”

    A thousand S. Mnuchins, C. Millers, J. Kushners, B. DeVoss, B. Carsons, W. Barrs, S. Pruitts, E. Chaos, Flynns, S. Bannons, L. DeJoys in top positions don’t cause you concern?

    • P J Evans says:

      Specialists in grift and theft…yeah. Specialists in running government departments – only if you mean “running them into the ground”.

      • skua says:

        fortune.com 26 Feb 2017
        “Steve Bannon Says Trump’s Cabinet Picks Are Intended to ‘Deconstruct’ Regulation and Agencies”

        The nightmare option is often the better guide to Trump’s intentions.

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