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.