DOJ’s Approximate January 6 Conspiracies

Amid the clamor for Merrick Garland to say something about the January 6 investigation, DOJ has announced he will give a speech, tomorrow, to mark Thursday’s year anniversary of the assault on the Capitol.

Meanwhile, late last year, DOJ released a one-year summary of the investigation. It’s similar to periodical reports the DC US Attorney’s Office has released before, including that its numbers generally skew high. It includes DC Superior Court arrests, in addition to federal arrests, to come up with “more than 725 defendants;” (GWU’s count, which those of us tracking this closely consider the canonical list, shows 704 arrests). DOJ appears to mix assault and civil disorder arrests to come up with 225 in some way interfering with cops; my own count, while low, counts fewer than 150 people charged with assault. DOJ’s summary boasts that 275 people have been charged with obstruction, a number that includes those who’ve been permitted to plead down to misdemeanors.

One number, however, is low: DOJ claims that,

Approximately 40 defendants have been charged with conspiracy, either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three.

By my count, this number is at least 25% off the known count. There are 39 people currently charged in the top-line militia conspiracies, plus five people cooperating against them.

There are at least another 13 people charged in smaller conspiracies (though the Texas “Patriot” conspiracy has not been indicted yet), with two more people cooperating in those cases.

It’s most likely DOJ got this number so badly wrong because it is overworked and some of these (like the Texas one and the status of Danny Rodriguez co-conspirator “Swedish Scarf”) aren’t fully unsealed.

But it’s also likely that these numbers are not what they seem.

That’s because in (at least) the larger conspiracies, there have been a lot of plea discussions going on behind the scenes, if not hidden cooperators. Certainly in the wake of five decisions upholding the obstruction application (including in the main Oath Keeper conspiracy, in the Ronnie Sandlin conspiracy, and by Tim Kelly, who is presiding over three of the Proud Boy conspiracies), we should expect some movement. I expect there will be some consolidation in the Proud Boy cases. The Texas case and some other Proud Boy defendants have to be indicted.

Importantly, too, these conspiracies all link up to other key players. For example, Roger Stone, Ali Alexander, and Alex Jones coordinated closely with the Proud Boy and Oath Keeper conspirators. The state-level conspiracies are most interesting for local power brokers and the elected officials with whom these conspirators networked — like Ted Cruz in the case of the Texas alleged conspirators or Morton Irvine Smith in the SoCal 3%er.

The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.

And so while DOJ is undoubtedly overwhelmed, it may also be the case that DOJ would like to keep potential co-conspirators guessing about what’s really behind them.

25 replies
  1. Spencer Dawkins says:

    I know that “be careful what you ask for” is sound advice, but I’m enjoying this part more than I should.

    “The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.”

    “Presumed innocent until proven guilty”, and all that, of course.

    • tony in san diego says:

      presumption of innocence is merely a procedural rule. I means the courts cannot treat still unconvicted person according to the specific rules pertaining to convicts. It has nothing to do with pretending he didn’t do it, or acting as though nothing had happened.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve used “Tony Prost” in your previous five comments at this site. Pick a name and stick with it. Thanks. /~Rayne]

      • bmaz says:

        No, you dumb first time interloper, it means there is a right to be presumed innocent until adjudicated guilty and sentenced. Do NOT roll in here with such garbage ever again. It is not just a “procedural rule”, and never pull that garbage here again; if you do, you will be bounced immediately.

        • Rayne says:

          Tony has been here before at least six times. I was just checking comment history and will now insert the sock puppet warning.

    • Christopher Rocco says:

      Yes, it’s the old “Prisoner’s Dilemma” game that tests rational decision making in the face of uncertainty and large rewards/penalties. Two bank robbers are caught, but the cops have no direct evidence, so they put them in isolated cells and, through paranoia and incentives, induce them to rat on one another. The usual outcome is that both rat the other out. Silence, which would guarantee they both walk, isn’t likely. In this case, if conspiracy and a terrorism enhancement adds up to 210 + months, the incentive to squeal is huge. It’s perverse to say, but thank dog for gangsters and game theorists!

    • bmaz says:

      I am hoping and praying that people that don’t inherently know or understand the federal investigation and prosecution process shut up and let the professionals do their job, which they clearly have been doing.

      • Jim O'Neill says:

        Are there any MSNBC shows you or Rayne or EW would go on to help more of us understand all this, bmaz? It could really help reduce our anxiety and the heat on the DOJ.

        • bmaz says:

          No. Not whatsoever. Don’t seek to be informed by only one channel, Watch and read across the spectrum and then draw your own conclusions.

        • Jim O'Neill says:

          I do read and watch across a good part of the spectrum – I learned of Marcie and this site from her interview w/Josh Marshall. I think many of the people you’re upset with (like me) take their cues from the likes of Neal Katyal and Lawrence Tribe, who both have serious bona fides along with numerous personal contacts w/ Merrick Garland. Both are on MSNBC and other widely-viewed outlets. If you wish their influence to be reduced (and I think you guys have made a great case for same), you might consider similar outlets.

        • bmaz says:

          Well, gosh Jim, that is swell. First off, her name in Marcy, not “Marcie”.

          As to the rest of your dump, the facts and law count, not appearances on a cable channel.

  2. Peterr says:

    “Prosecutors love to use secrecy and paranoia to increase that utility.”

    Absolutely. And when the folks you are dealing with are already amped up on secrecy and paranoia, it makes them that much more vulnerable to what the prosecutors are doing.

    Meanwhile, I keep coming back to the message sent by Oath Keeper Kelly Meggs on Dec 19, 2019, cited in this post from last March (spelling and punctuation from the original; screen shot in the post at the link):

    Well we are ready for the rioters , this week I organized an alliance between Oath Keepers , Florida 3%ers , and Proud Boys . We have decided to work together and shut this shit down

    Note also this from that March post (internal links omitted, with emphasis added):

    Yesterday, prosecutors in this case had to get chewed out because former Acting US Attorney Michael Sherwin blabbed his mouth (completely inappropriately) on 60 Minutes, discussing what at that point had been merely a suggestion, that DOJ’s conspiracy case would integrate three different militia groups.

    And the bulk of those cases are federal criminal charges, and significant federal felony charges. Five, 10, 20-year penalties. Of those 400 cases, the majority of those, 80, 85%, maybe even 90, you have individuals, both inside and outside the Capitol, that breached the Capitol, trespassed. You also have individuals, roughly over 100, that we’ve charged with assaulting federal officers and local police officers. The 10% of the cases, I’ll call the more complex conspiracy cases where we do have evidence, it’s in the public record where individual militia groups from different facets: Oath Keepers, Three Percenters, Proud Boys, did have a plan. We don’t know what the full plan is, to come to D.C., organize, and breach the Capitol in some manner.

    By the end of the day (having had their secret blown), DOJ showed that not only had the guy in charge of the Stack been thinking in terms of “insurrection” for over a week, but was also thinking about coordinated action among the different militia.

    Maybe this time they will get the secrecy thing right.

    • matt fischer says:

      Past blabs like Sherwin’s also don’t help curb the unrealistic expectations building around Garland’s speech tomorrow afternoon.

      • bmaz says:

        There are are no real expectations for Garland tomorrow. To think that there are, and that he must blab everything, is beyond silly.

  3. Leoghann says:

    The day that Mark Mazza’s arrest was announced, the cascade of tweets and comments bitching about why it took so long got me to thinking of potential benefits. It’s not like DOJ didn’t know who and where he was; they had traced the gun ownership and his location (more public than most because he’s a business owner who advertised) by the end of January. They notified him in March that his gun had been recovered in the Capitol, an unlikely place for it, since he had reported that it was stolen on 05 January in Cincinnatti.

    But now the FBI has record, from his phone, of who he has spoken to, and some of what was said, in the eleven months after the insurrection. Since many of the most recent arrests have been for more major players, I suspect DOJ is working to fill in some of the conspiracies with participants not in attendance at the Capitol, whether they were in Washington or elsewhere, along with potential third-party communications.

    From both his statements and actions, Mazza appears to be an asshole and loose cannon similar to Guy Reffitt. I have to admit to getting a kick out of thinking what his level of paranoia must have been, and still may be.

  4. graham firchlis says:

    Wonder how many of those castigating the Garland DOJ for failing to wrap up conspiracy charges for Trump and the gang have ever had a hand in working up a conspiracy indictment? Not many, I think, or they would be far more understanding.

    Time ago, I was foreperson on a special federal grand jury, special meaning we had a particular focus – organized crime – and we could be kept empanneled until the judge let us go – 22 months, mostly twice a week.

    In all we true-billed 16 indictments, most of which were domestic organized crime. But 5 of them were complex international cases, with multiple individuals and businesses named, and the possibility of extradition from 5 different jurisdictions. The most challenging was a superseding indictment merging two previous smaller indictments.

    Those two, plus another we superseded, came out of our immediate past GJ, apparently a very fun social club and rubber stamp. They were all John Durham quality, which explained the judge’s emphasis when he charged me in chambers. I was to only bring him indictments supported with admissable evidence, sufficient to support conviction and without superfluous content.

    First thing I shared with the jury, and got their buyin on the seriousness of our task. We had 3 lawyers on the jury, chosen by the judge, and they were immensely helpful. Lead AUSA was taken aback at our resistance to being bamboozled, and the first two months were tense.

    He and the others finally got a grip, and we got to work assessing evidence including what exculpatory they had. That one case, a dozen or so named defendants from two associated gangs, took a full 18 months to disembowel the earlier indictments and build a new one.

    Compared to what the Garland DOJ has to deal with, our work was simple. Haste should not be encouraged. The only thing worse than the Jan6 ringleaders going uncharged would be a not guilty verdict because the prosecution was hurried.

      • bmaz says:

        Yeah, there are some serious issues with what he described, so take his comment with a grain of salt.

        • graham firchlis says:

          Shortened and condensed, to be sure, but “serious issues”?

          If I am in error or unclear, l want to know. Please clarify your critique.

      • graham firchlis says:

        I did not enjoy it. The targets were horrible people doing horrible things. Victim witness testimony was the stuff of nightmares, many breaking down into tears over what was done to them and fear of retribution on themselves and family.

        The FBI witnesses were uniformly credible, polite, clear, concise and responsive under questioning. I expected less, so that was a plus.

        Dragging anyone into the maw of the justice system is not to be done lightly. The worst part was discovering how far the government was willing to go to skirt and stretch the law. Deeply troubling.

        I am unalterably opposed to the death penalty, regardless of the crime. Signing an indictment, as I had to as foreperson, where the charges carried a potential death sentence, was required by law and my oath. I still find it disturbing.

  5. Thomas says:

    The Jan 6 cases will continue to roll along. It’s heartening to me to read Marcy’s rundown on the conspiracy cases.
    Literally NO ONE ELSE in the media is keeping track of this and reporting on the cases.
    My tea leaves say that the Jan 6 Committee will hold public hearings over the next month linking the currently indicted conspirators to organizers, donors, and on-the-ground coordinators.
    Some of them will be names we haven’t heard a lot, who coordinated the rally, the sedition inciters, the coup plotters, and the on-the-ground insurrectionists.
    Others will be names we have heard, like Alexander, Epshteyn, Jones, Stone, Flynn, Bannon.
    We will also hear more about 1st Praetorians and Qanon activists.
    We will probably see another set of hearings in March, linking the above people to House members and Senators and coup plotters.
    Maybe after this, and after more of the currently charged conspirators plea or are convicted, we will see criminal referrals for the likes of Bannon et al.
    But after that comes the really heavy lifting. Linking Trump and the sedition incitors to the coup plotters, House members, Senators, War Roommates, organizers, donors, etc.
    That may take until June, and involve two sets of public hearings. When can we expect criminal referrals for those people? Aug? Sep?
    My tea leaves also say that we are not done at that point.
    Two other issues must be examined: The military response issues, and the wire fraud and racketeering schemes of Trump, the Republican Party, Fox News and fellow travelers.
    My tea leaves say the hearings on the military issues happens in the summer, and the final hearings take place in September (The Big Lie racketeering)
    The Final Report, and the final criminal referrals happen in early October.
    The only unfinished business will be the Recommendations for Hearings on changes to the Electoral Count Act, which I think will happen after the election.
    If the Republicans win the next election, you can expect this legislation to pass in the lame duck session. But they won’t win.

Comments are closed.