DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.


To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

104 replies
  1. Peterr says:

    I’ve been wondering for quite a while whatever became of the folks who built the gallows that stood outside the Capitol on January 6th. When I first saw it, I was struck by the fact that it was not simply slapped together 2x4s with a platform and a crossbeam. It was much much more substantial, crafted with heavy beams. Was it capable of actually hanging someone? I don’t know, but it sure looked like that was a possibility.

    It also was something that took time to assemble, even if the parts had been shaped and prepped well in advance. Similarly, it had to take time to disassemble, for the same reason.

    As we’ve seen, the insurrectionists put a whole lot of their activities on January 6th on their social media feeds or otherwise publicized what they were doing. I know there were people who took photos of themselves at the gallows. But have the Sedition Hunters or other groups been able to find photos and/or video of the gallows being assembled or taken down? Have any of the court filings been made against people accused of setting them up?

    Absent the shouting of “Hang Mike Pence!” the gallows *might* be seen as a particularly vivid prop in a political protest. Given how stoutly it appeared to have been built, and the fact that those chants were actually chanted, the gallows seem much more ominous. I *really* want to know more about the folks who built them, and I suspect the FBI and DOJ share that as well.

    • P J Evans says:

      That was clearly planned well in advance. Somebody – or several somebodies – had to be involved. It’s also not something easily moved in pieces without at least one truck.

      • obsessed says:

        Aside from the pipe bombs, that’s one of the biggest mysteries for me. Since it had to have been pre-constructed, isn’t that powerful evidence for conspiracy? Or is “hanging in effigy” considered free speech? Could the builders credibly claim that the gallows were only a symbol? But practically speaking, with all the video and photos, isn’t there documentation of the actually assembling of the gallows?

        [later:] Who’s this dude?

        • Lady4real says:

          I do believe the gallows was on purpose and was meant to terrorize along with chanting ‘hang Mike Pence’. Someone knew the people being terrorized were also seeing that visual via the televised events going on outside the building. It wasn’t an effigy.

          We also now know Mike Pence refused to leave the Capital by way of the waiting SS vehicles. For a good reason. He was definitely sent a message.

        • Anonymouse says:

          I think it was Senator Grassley that said matter of factly on January 5th that Mike Pence was not going to be available the next day for the vote certification and that he was going to be his replacement. It really sure does look like the SS taking Pence for a ride and using the security situation at the capitol as the justification was part of the plan.

    • Bobby Gladd says:

      I share your concerns. Maybe for a lot of these people, it was just gross political theater schtick, but there appear to have been many insurrectionists among them Who took “hang Mike Pence” and “shoot Nancy” literally.

    • Savage Librarian says:

      I thought that I had seen a specific name last week (or so) that was associated with the gallows. But I can’t locate it now. There is this, though:

      “How Christian nationalism drove the insurrection: A religious history of Jan. 6: Fanatical, extreme religious faith wasn’t incidental to last year’s Capitol assault: It was a central driving force” – Kathryn Joyce, 1/6/22

      …”on the sweatshirt of a man helping construct the rough gallows
      erected on the Capitol lawn, “Faith, Family, Freedom.” (The gallows itself was quickly covered in handwritten notes — “as if it were a yearbook,” observed lawyer and author Andrew Seidel — reading “Hang them high” and “In God We Trust.”)”

      • madwand says:

        And then this from Katherine Stewart on the same subject.

        “A critical precondition for Donald Trump’s attempt to retain the presidency against the will of the people was the cultivation of a substantial population of voters prepared to believe his fraudulent claim that the election was stolen —

        The role of the faith-based messaging sphere is less well appreciated. Pastors, congregations and the religious media are among the most trusted sources of information for many voters. Christian nationalist leaders have established richly funded national organizations and initiatives to exploit this fact. The repeated message that they sought to deliver through these channels is that outside sources of information are simply not credible. The creation of an information bubble, impervious to correction, was the first prerequisite of Mr. Trump’s claim.

        Secondly “The coup attempt also would not have been possible without the unshakable sense of persecution that movement leaders have cultivated among the same base of voters. Christian nationalism today begins with the conviction that conservative Christians are the most oppressed group in American society. Among leaders of the movement, it is a matter of routine to hear talk that they are engaged in a “battle against tyranny,” and that the Bible may soon be outlawed.

        Thirdly “A final precondition for the coup attempt was the belief, among the target population, that the legitimacy of the United States government derives from its commitment to a particular religious and cultural heritage, and not from its democratic form. ”

        So, I’m wondering what sort of heavenly nirvana do they have planned for the rest of us once they gain power?

    • Raven Eye says:

      Honest…In all my years living in DC I have NEVER seen a tourist wandering around the National Mall with Smithsonian shopping bags and dragging timbers (6x6s?).

      The closest thing was at an Iraq War peace march in 2007 where I saw a guy carrying a cross (made of 4x4s) on his shoulders down Pennsylvania Ave. He said he’d been carrying it up the Eastern Seaboard.

      • bmaz says:

        Lol, I remember one time was there and there were two dudes with life-size cutouts of Kirk, Spock and Picard, and Mrs. bmaz and I talked her father into taking pictures with them. They had kind of a T wood thing holding them up. Other than that, not so much wood on the mall.

      • earlofhuntingdon says:

        One of the problems with carrying lumber around the Mall is the distance involved. It’s a helluva long way in any direction. A long walk with a day pack, with lumber, it would be like dragging a cross along the Via Dolorosa. The space is heavily surveilled 24/7, so somebody saw this and did SFA about it.

        • LaMissy says:

          Speaking of crosses, I vividly remember seeing on live tv coverage a large cross erected on January 6th in addition to the gallows. Anyone else?

    • BobCon says:

      It’s an area that was well covered by press photographers and I’m sure there is a lot of evidence of who built it. The FBI have the actual noose, for what it’s worth, although the journalist who handed it over says he didn’t think the gallows was really usable:

      To my eye the location would reinforce that — it looks like it’s on the far side of the reflecting pool to the West of the Grant memorial on the edge of the Capitol grounds, basically right where US Park Service jurisdiction ends and Capitol Police jurisdiction starts.

      Having said that, it does raise a lot of questions, in particular about what the US Park police, Capitol Police and DC police were doing. Typically you can’t bring a half inch dowel to hold a sign to a demonstration, so how this got constructed with big lumber is really odd. It underlines how little standard policing of the mob was going on before the violence even began.

      I think the default narrative prepped for the press was the response failure was just a screwup with no real responsible party. I suspect there is a lot more probing of that going on now, and I hope a lot of hard questions are put to leadership under oath.

      It’s not just that the response was delayed, it wasn’t deployed in the first place in ways that regularly happen, and the political actors and decisions need to be challenged in ways that have teeth.

      • Molly Pitcher says:

        Looking at this video, I’m not bothered by the construction quality of the gallows. As has been said below, there are plenty examples of lesser structures working.

        What causes me pause is what they are claiming is the noose. It does not look right; the know looks fake with some sort of white ‘core’. We didn’t hang a lot of people in the Girl Scouts, but we did tie knots, and that one looks wrong.

        • earlofhuntingdon says:

          Braided nylon rope, the kind often used in climbing and boating, has a core. It’s smooth, pliable when cold or wet, and easily strong enough to do the trick. But that rope looks like hardware store polyester: adequate, but it would bind under load, making it hard to use more than once.

          A standard, 13-coil hangman’s knot is painfully easy to tie. But tying it poorly would not mean it wouldn’t be adequate for a single use, assuming the un-braced u-shape frame survived the drop. Whoever used it on a victim would have been the last to get away.

        • Leoghann says:

          It looks to me like the knot is a good stout one, but you’re right about it being tied around a towel or some such (Stewart Rhodes’ white jockeys?). My guess is that the towel is in there to allow the noose to be reused without retying.

        • P J Evans says:

          They didn’t teach us that one. Others that are more generally useful, yeah. (I don’t know about you, but I’d have to work at it to tie a granny knot. Square is so easy….)

    • matt fischer says:

      The best image I could find of the gallows’ construction is here. 4x4s make up the primary structure, supplemented by 2x4s. It’s a bolted assembly, and light enough that a small group of people could have carried the components. The framing members appear to be numbered to facilitate rapid reassembly. It is braced to resist lateral movement. Thought was put into it. In my educated opinion, this simple gallows could actually have done the trick.

      • Peterr says:

        You’d have to push the victim *forward* off the platform, as the crossbeam appears to be only about 6 feet above the platform and I doubt there’s a panel that drops out of the floor.

        I think it could have worked, but it would not have been a clean, break-your-neck-and-we’re-done-here kind of execution for which the gallows were designed. It would have been slow, painful, and cruel death by slow strangulation.

        • ducktree says:

          From my understanding of the reports, Robin Williams successfully hanged himself from a doorknob. All would it take is to keep the victim’s feet off the ground a sufficient amount of time and let the noose do its work of strangulation. Snapping the cervical spine is not required to starve the brain of oxygen long enough to cause death. YMMV.

        • P J Evans says:

          Just needs to be solid enough to work, if you’re determined to go that way. A good coathook might also be enough.

        • LaMissy says:

          We had a raft of suicides among high school aged boys in my community. The last death of this wave was a student of mine. His friends told me that, terribly, it was precisely this act he was attempting.

        • ducktree says:

          The report(s) I recall included a quote from Mr. Williams’ personal assistant that because RW hadn’t come out of his bedroom the asst knocked and then attempted to open the door, but it was blocked and impeded by the corpse hanging on the doorknob.

        • ducktree says:

          Once I was asked by a co-worker (taking an impromptu survey): If I was stranded on a desert island and could bring only one movie to watch over and over again: what would that movie be?

          Without hesitation I said, “The Fisher King.” Watching that movie, I cried; I laughed; I sang; I danced.

          There’s none other like it. And Robin played his crazed character very well.

        • P J Evans says:

          That’s how they did it before trapdoors were installed. (It’s how they were able to do hanging, drawing, and quartering: the victim was partially strangled , then…)

        • P J Evans says:

          A lot of the 1/6 people might have gotten some kicks from watching. The victim(s) could even have been grabbed and tossed, which might have had enough force to be quick.

      • chum'sfriend says:

        There was no trapdoor in the platform. The upper vertical posts were mounted at the edge of the platform. A victim with the noose around their neck could’ve been shoved off the platform, and would then hang with their legs or back against the edge of the platform. Kinda clumsy. They probably wouldn’t get the proper “neck snap”, but the victim would thrash about and die of strangulation.

      • John Paul Jones says:

        In the photo there appears to be a slight indentation around the edge of the washer underneath the bolt. So whoever built it likely brought a battery operated power drill with a driver to do the assembly. (And if you were doing it purely by hand, the washer wouldn’t even be needed.) Is it the case that there are no photos of the two or three folks required for the job actually doing the assembly? Given the saturation coverage on social media of the event, this is surprising.

        • earlofhuntingdon says:

          The photo at that site shows a simple, better-built gallows, whose uprights are braced at the bottom on both sides. The scaffold on the Mall was not as well-built, but it would have been useful for one victim – and thousands of pictures.

      • Raven Eye says:

        After looking at the pictures in the link provided, I looked at scores of others on Google. The perspective of the most often seen photos gives you no idea as to the actual size of the “gallows”. A few things caught my attention:

        — The thing looks like a 3/4 scale version — at best.
        — The scantlings are much lighter than I expected (again — scale).
        — The plywood floor, even if in two pieces, would be a pretty noticeable thing to haul across the mall to the edge of the Capitol Reflecting Pool.
        — The platform is braced on only one axis, though the stairs might help to stabilize it. I wouldn’t want to be part of the party that stood on it.
        — Related to that, I seriously doubt that enough people could get up on that thing to conduct a hanging unless the victim was unconscious — and even then there would be at least three people.
        — The noose is pretty sloppy. It does look like a towel or some other cloth is stuffed inside…was the wrap not impressive enough?
        — It looks like at least one piece of lumber still had the retailer barcode label attached on the end.

        Did anyone seriously intend to use it? I think the main purpose was to threaten and intimidate, mixed with some sophomoric bravado. I leave it to those more experienced in criminal law to explain what charges might come out of this.

        • Rayne says:

          You’re doing a really, REALLY fine job of helping minimize what the insurrectionists were doing at the Capitol. Great work.

          Jesus Christ, it doesn’t fucking matter if the scaffold met any structural standard. Do you think the people in this photo gave a flying fuck whether they were meeting any code of any kind to meet their aims of stopping the election certification?
          Photo: Roberto Schmidt-AFP

          Stop it right the fuck now. You’re done with structural analysis here BECAUSE THIS IS ABOUT TERRORISM AND ITS INTIMIDATING EFFECT ON CONGRESS THAT DAY. A goddamned rope would be enough. Or all the goddamned zip ties so many assholes were carrying. Hell, a shoe or boot lace.

          Just stop with the DDOSing this thread with minutiae and keep your eye on the ball.

        • pdaly says:

          Point well taken, Rayne.
          Rope, shoelace, or stampede. They just needed physical access to their planned victims.

          WRT how the gallows timber got to the reflecting pool in front of the U.S. Capitol without anyone seeming to notice it, I wonder if it gets back to poor planning with road closures/nonclosures around the Capitol?
          Third Street SW, which runs past the reflecting pool on its west side, was restricted to traffic on 1/6/21, but I see that Maryland Ave SW was not a road with restricted traffic on 1/6, and it runs along the south end of the reflecting pool.

        • Rayne says:

          There was definitely a problem with security, including the ability to bring in lumber. I have a photo someplace of rally attendees up in the trees above the ground, which should have had cops and Secret Service all over them.

          Speaking of trees…like it’s occurred to no one wasting time in this thread on a construction project there were trees for the rope. ~smh~

    • civil says:

      I doubt that it was sturdy enough to have hung anyone, and the noose also wasn’t high enough to hang anyone unless the person was either pushed off the stand or had their legs broken so they’d be unable to support themselves with their feet.

      Here’s a video from Jan. 6 showing that the gallows had a sign on the side saying “this is art”:

      In one of these photos, it looks to me like the guy in the black and red plaid shirt was tying the noose:
      His face wasn’t covered, so I’d think that if the FBI had wanted to identify him, he’d have been identified by now. The noose was cut down by someone later, and a journalist turned it over to the FBI with thought of it eventually going to the Smithsonian:

      There’s a person in a “faith, family, freedom” hoodie in photo #2 (split image), and the position of that person’s body in the image on the left reminds me of the celebratory (to me) arm motion of the person who left the pipe bombs — motion in one of the FBI’s videos of the pipe bomber.

    • Leoghann says:

      That gallows would probably not have passed inspection by the State of Utah (the last state to use hanging as a means of execution). But would it, and the noose, have sufficed for at least one crowd-sourced murder? Hell yes. And had the insurrection gotten to the point where people were dragged out of the building to the gallows, I have no doubt whatsoever that the victims who survived the crowd’s rage to make it to the structure would have been helped along the way by the same people who brought them. As Rayne pointed out, that was how “drawing” worked, of drawing-and-quartering.

    • greenbird says:

      from Doc 192:
      ” … After the 1995 Oklahoma City bombing, Congress, in passing AEDPA, directed the U.S. Sentencing Commission to modify its existing sentencing enhancement for crimes that involved or were intended to promote “international terrorism” with an enhancement directed at “Federal crimes of terrorism, as defined in [newly-enacted] section 2332b(g).” Pub. L. No. 104-132, § 730, 110 Stat. 1303 (1996) (“the 1996 Directive”). The Sentencing Commission did as instructed, so that § 3A1.4 now applies both to crimes “involv[ing]” as well as crimes “intended to promote” offenses listed in Section 2332b(g)(5)(B) … “

        • greenbird says:

          well, mebbe, but per Dr. Whee …
          ” … That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism … ”

          reckon i’ll go on ahead and read Doc 169, since i’m just a bird and have been typing with my feet for too many years to qualify as more knowledgeable.

  2. Bay State Librul says:

    In Watergate, we had the plumbers.
    Now, we have the carpenters.
    A crew engaged in rough blue collar carpentry work, not the interior finished projects led by the white collar gang of six

    • Peterr says:

      Such a feeling’s coming over me
      There is hatred in ‘most everyone I see
      There’s a shaman I spy, I got mace in my eyes
      And I hate those Dems so much that I could scream

      Everything I want the world to be
      Is now coming true exclusively for me
      And the reason is clear, it’s because Trump is here
      He’s the nearest thing to hell that I have seen

      I’m in the Cap’tol Rotunda looking out on the anger
      And the only explanation I can find
      Is the hate that I’ve found ever since Trump’s been around
      His hate’s put me at the top of the world . . .

      My apologies to Richard and Karen Carpenter

  3. chum'sfriend says:


    I did not see Peter’s comment about the gallows, and just posted a comment that pretty much repeats what he said about how it would function in an execution. Please don’t post my submitted comment on the gallows, because it’s just needless repetition.

  4. klynn says:

    Your tweets today Re: Hannity are so wonderful!

    They are a thing of beauty. Should “certain” folks read them, my hope is they induce a panic!

  5. Badger Robert says:

    The paragraphs about Fairlamb were the most interesting. He was very far involved in the conspiracy, but he claimed to have started to back away from it on 01/06 and now has taken a few more steps toward accepting responsibility. Not all those who plead out there cases have done that.
    So will quit the conspiracy? Fairlamb felt he had mitigated his culpability and he was smart enough to follow good legal advice.
    The people who won’t plea probably are more culpable, and have sacrificed more of their ability to reason to the demands of the cult, and less cognitive strength to begin with.
    On the public side, the idiots like Navarro and Bannon have no place else to go. Unless somehow Trump remains relevant they are finished.
    But when do public Republicans begin to calculate the end of Trump and their chances of survival in politics or outside politics differently?
    Finally, there was reason Carlson was so sensitive about the word “terrorism” becoming normalized with respect to 01/06 defendants. Big sentences for some of these defendants is going to be hard to conceal. It will unravel the cult further.

    • eyesoars says:

      I hope you are right, but it seems unlikely. So many of the bad actors in Nixon’s White House and administration returned in subsequent administrations (Reagan, G. H. W. Bush, W., and TFG), that I have very little confidence that the younger generations of apparatchiks that served under TFG won’t be back in any future GOP administrations. Party loyalty seems to be the only qualification that matters.

    • Leoghann says:

      You say Fairlamb “was smart enough to follow good legal advice.” But since then, he has filed a motion to have his sentence thrown out because of ineffectiveness of counsel.

      • Badger Robert says:

        Hopefully his request will be granted and he will prove me wrong. If he wants back in at this point, he’s not smart. Or he could be dealing with threats.

    • skua says:

      Wow. The work of a master propagandist who needs money.
      Looking forwards to vibrant exposés of Paul’s lies.

      Is Paul known to have been involved in The Big Lie?

        • Rayne says:

          Bulk buys, same as conservatives’ book sales have been used as conservative welfare all along. Wealthy supporter uses a front to buy a metric shit ton of books, dumps them as giveaways or in stores which handle remaindered books (Dollar Stores are one such outlet).

          Bypasses election law limitations, don’t have to report except as income from Amazon or whatever publishing interface is used. As long as the author reports their income when they file their taxes they should appear on the up and up. But they’d know it was a payoff based on the front and the number of books sold.

        • Peterr says:

          “As long as the author reports their income when they file their taxes . . .”

          Properly filing his taxes is something which Manafort has had problems with in the past.

        • skua says:

          Never seen before.
          1. Were these the squad that arrived up the stairway to the corridor and then continued consulting with a besuited gentleman after the beleagued cops had left their posts in front of the doors, leaving Babbit to climb through the window and be killed? Training in how to relieve AND maintain control of an environment is needed.
          2. One trigger for 45 declaring martial law may have been mass deaths of Trump’s protestors. Was Jan 6 planned knowing that the police would be over-run and special forces were already onsite, authorized to use lethal force, and would be in a fraught situation?

        • dimmsdale says:

          Details are here (apologies if I screw up the link, Rayne). Short version (at least of the part “Newsweek” got right, though evidently it got a lot wrong too) is that these squads are absolutely typical of big-deal national security events like this. Writer is a guy I have found credible on security issues (although IANA security professional myself).

          [FYI, link from Twitter replaced with link to original source to remove two layers of tracking. /~Rayne]

  6. skua says:

    “..Big sentences for some of these defendants is going to be hard to conceal. It will unravel the cult further.”
    Or be incorporated into the mass delusion /hysteria by Tucker et al as further proof of the Deep State’s War Against Trump?
    I hope you’re on the money.

    • Badger Robert says:

      Carlson Tucker’s response is predictable. But even most Fox consumers will learn of it in another way. It won’t destroy the conspiracy but hopefully it will be another fissure.

      • skua says:

        People who stay on the Trump side of that fissure will be rejecting the legitimacy of the US Government, though they’ll call it rejecting the Deep State.
        Their rejecting will form them into extremists. I sure hope there aren’t many.

    • Badger Robert says:

      Tucker Carlson will respond in the usual way. But even Fox consumers will learn about from alternative sources.

  7. Vinnie Gambone says:

    “… if the Jan 6 prosecution runs its course ( a big if ) line shook me. What reasons might it not run its course ?
    “All of the stitching and unstitching has been for naught.”.
    The gallows and rebel flag were dispicable theatre. Had anyone a rope inside the capitol ?
    The pipe bomber is key to unlock worst conspirators. Unless a lone wolf, somebody knows who this creep was. It is definitely a get out of jail card for someone. Who ? When ? Three years into their sentence ? But for now. Why in gods name might the prosecution not run its full course ?
    So important to prove these cases beyond doubt so it makes it hard for future president to pardon, but these people don’t give a shit. They’ll pardon first day in office. Every gop presidential candidate has to be asked their view on pardoning.

  8. Greg Hunter says:

    Can anyone explain Michael Isikoff?

    I can’t tell whether he is Area Substacker DC or the Jonathan Turley of Journalism?

    I listened to his podcast about J6 with Robert Costa. He was really arguing that his access journalism is a far better predictor of the outcome of J6 investigations/prosecutions than following what is actually happening. I find it interesting that he spent far more time selling access, rather than analyzing the possible alternatives had any elected official been killed that day.

    Wonder what is happening on the DOD investigation?

    • Rayne says:

      The people who have done the best work on the J6 investigations aren’t people with access. They’re people with a passion for detail willing to do the simple, dogged work of looking at evidence. Like the folks behind

      Access right now is no guarantee since access journalists like Isikoff didn’t exactly do the kind of reporting which would have warned the general public let alone intelligence and law enforcement there was an impending insurrection on January 6, 2021. Go back and look at his articles between November and January 2021 — they don’t hint at all of anything impending based on his access. (I can think of other access journalists who waited to publish fucking books rather than do reporting in real time. So helpful. -__-)

      If anything, Isikoff may have wittingly/unwittingly carried water for Trump on this story which denigrated Pence in October 2020. Was Pence being set up in a way which Trump hoped would encourage Pence to suck up to him?

      • P J Evans says:

        The former guy might have had that intention, but he consistently fails to understand that other people may not need *his* approval. He assumes everyone else has his same motives.

        • Rayne says:

          Yeah. Still a data point worth noting — I haven’t looked but I’ll bet if all the reporting from Aug-Nov 2020 mentioning Trump’s relationship with Pence was collected, we might see a narrative take shape.

          I need to go back and look to see what Eastman may have written in that time frame because he may have been sowing the field. I think his earlier piece claiming Harris wasn’t eligible for the VP slot was like Bill Barr’s unrequested letter supporting unitary executive powers and obstruction — a job application.

        • AndTheSlithyToves says:

          Mary Trump emphasized in this recent appearance on Joy Reid’s program that Donald is the weakest person she knows, and no one that’s stronger than he is has the need to work with him (and probably is repulsed by him).

  9. blueedredcounty says:

    I know none of the necessary evidence was collected, but I have felt from the start the people who spread feces and urine around the Capitol should all be charged with attempted terrorism with a biological agent. Given the anti-vaxxers and the COVID exposure, lord only knows how many pathogens they spread.

Comments are closed.