A Tale of Three January 6 Misdemeanors: Steve Bannon, Baked Alaska, and Hatchet Speed

After pundits have spent 18 months complaining (falsely) that DOJ was only pursuing misdemeanor cases against January 6 culprits, at least a dozen media outlets assigned reporters to cover the week-long misdemeanor contempt trial for Steve Bannon. The triumphal coverage of Bannon’s guilty verdict will, I fear, continue to misinform viewers about the impact of this guilty verdict.

Bannon’s was almost certainly not the most important development in a January 6 misdemeanor case last week.

That’s true, first of all, because Bannon won’t go to prison anytime soon. After Judge Carl Nichols excluded most defenses Bannon would pursue, Bannon’s attorneys spent their time laying a record on issues they’ll raise in an appeal. Some are frivolous — about the make-up of the committee, about whether Bennie Thompson signed Bannon’s subpoena, about Bannon’s last-minute stunt to pretend he was cooperating. But one of the grounds on which Bannon will appeal, on whether he could rely on his attorney’s advice in blowing off the subpoena, is one about which Nichols agrees with Bannon — indeed, Nichols stated that he agreed over and over, as Josh Gerstein laid out.

Perhaps the most central figure in Bannon’s conviction Friday and the key to his potential victory in any appeal is a long-dead Detroit mobster and bootlegger, Peter “Horseface” Licavoli.

Licavoli died almost four decades ago and spent time in federal prison on a colorful variety of charges, including tax evasion, bribery and trafficking in stolen art. However, it was his refusal to testify to Sen. Estes Kefauver’s 1951 hearings on organized crime that produced a legal precedent central to Bannon’s case.

A decade later, the D.C. Circuit Court of Appeals upheld a contempt-of-Congress conviction against Licavoli, ruling that he could not rely on his lawyer’s legal advice as a defense.

While the precedent was set 61 years ago, U.S. District Court Carl Nichols concluded it is still good law and, as a result, Bannon could not use the advice-of-counsel defense. The ruling also undercut Bannon’s ability to argue that executive privilege excused him from showing up in response to the subpoena.

However, Nichols said on several occasions before and during the trial that he thinks the Licavoli case may well be wrong under modern legal standards, but he was compelled to apply it anyway.

“I was bound by D.C. Circuit precedent that I’m not even sure is right,” the Trump-appointed judge said Thursday.

Now, Bannon’s lawyers will face the task of trying to get the decision overturned or deemed irrelevant, something that may require getting Bannon’s case in front of the full bench of the appeals court or even taking it to the Supreme Court.

In reality, Bannon’s attorney told him — BEWARE — that his failure to comply would get him referred for prosecution. Bannon was warned he’d go to jail for blowing off this subpoena.

But the facts of whether Bannon really relied on his attorney’s advice would not get adjudicated until after the DC Circuit — and after it, SCOTUS — have a chance to review the precedent. And since Nichols agrees with Bannon that the precedent stinks (and since Bannon is a white collar criminal), he’s virtually certain to let Bannon stay out of jail for his appeal.

So Bannon is probably not going to jail for at least a year. And the precedent of this conviction — showing that the legal system allows a well-lawyered defendant all sorts of ways to stall a misdemeanor sentence — is not one that’s likely to persuade the few remaining people whom it would cover, most notably Peter Navarro and Ginni Thomas, to plead out or cooperate (members of Congress defying subpoenas will have entirely different reasons to challenge one, and people like Tony Ornato have already cooperated, in limited form, with the January 6 Committee).

Meanwhile, there were two other misdemeanor cases of probable greater significance to holding the perpetrators of January 6 accountable.

The first is Friday’s guilty plea of Anthime “Baked Alaska” Gionet for the standard parading charge most other misdemeanants plead to.

Gionet won’t be going to jail anytime soon, either: his sentencing is set for January 12. Though, given Gionet’s difficulties of late staying out of legal trouble, it is noteworthy that his plea includes the standard condition that committing a crime while his sentencing is pending could void the entire plea.

As noted, Gionet’s plea is just the standard misdemeanor plea that hundreds of other January 6 rioters have already pled to. But both Gionet’s public claims that the government was threatening Gionet with an obstruction charge if he did not cooperate, and the discussion at his aborted plea hearing in May, make it clear that this was one of the misdemeanor pleas in which the government obtains limited cooperation on the front end, in Gionet’s case, probably in the form of sharing communications that would otherwise require decryption (Brandon Straka, whose sentencing memo included reference to a sealed cooperation description, is the most notable of these pleas, but Proud Boy Jeff Finley also seems to have gotten one; a continuation in Finley’s sentencing “to fully evaluate the nature and seriousness of the defendant’s misconduct” suggests he may not be as cooperative as the government expected). Gionet’s plea was originally offered in December with a deadline of January 7, 2022. It seems to have taken some months to fulfill the terms of the deal. Gionet got cute at his first change of plea hearing in May, and proclaimed his own innocence, which almost got him in a place where the government could use the information he proffered in his own felony charges. Publicly, then, Gionet’s plea only means we’re deprived of the amusement of watching him continue to fuck himself, as he did in May; but behind the scenes, DOJ seems to believe he helped the overall investigation, likely by providing evidence against other movement extremists who made the attack on the Capitol successful but who did not enter it.

These misdemeanor plea deals offer less public hint at what the government got in exchange (which may be one reason DOJ likes them). Gionet’s statement of offense focuses mostly on the abundant evidence to prove that he knew he shouldn’t be in the Capitol, as well as the evidence DOJ would have used to prove an obstruction charge against him (which they would now have sworn allocution to if Gionet tries to renege again).

Unsurprisingly for an asshole like Gionet, it is full of the kind of inflammatory rhetoric that has really offended Judge Emmet Sullivan, who is presiding over Gionet’s case, when sentencing other January 6 trespassers. Among other things, Gionet admitted to saying:

  • “Let’s go, 1776”
  • “We are the Kraken, unleash the Kraken … trust the fucking plan, let’s go.”
  • “This was a fraudulent election, we’re standing up for the truth, God’s truth.”
  • [Speaking through a broken window to other rioters] “Come in, let’s go, come on in, make yourselves at home.”
  • [Speaking into the phone in a Senator’s office] “We need to get our boy, Donald J. Trump, into office. … America First is inevitable, let’s go, fuck globalists, let’s go.”
  • [In another Senator’s office, probably Jeff Merkley’s] “Occupy the Capitol, let’s go, we ain’t leaving this bitch.”
  • [To the cops telling him to leave] “You’re a fucking oathbreaker, you piece of shit, fuck you, fuck you, fuck you, you piece of shit, you broke your oath to the Constitution, fuck you.”

With both Gionet and Straka before him, DOJ seemed to have abundant evidence to prove an obstruction case, and the pundits complaining about the misdemeanor pleas might be better served asking whether DOJ is getting enough value from these misdemeanor pleas to justify not charging someone as toxic as Gionet with a felony.

I wrote more about the various ways DOJ is using misdemeanor pleas to advance the investigation here.

But we won’t be able to weigh that soon, if ever. For now, though, DOJ seems to believe they got enough cooperation from a key influencer to let him avoid a felony conviction (though I would be shocked if Sullivan let him avoid prison altogether).

The way DOJ has been using misdemeanor prosecutions to advance the overall investigation is important background to something that happened in the case of Hatchet Speed last week. Until his arrest, Speed was a Naval petty officer and cleared defense contractor for National Reconnaissance Office.

The investigative steps described in Speed’s arrest affidavit suggest that after FBI identified him via the Google GeoFence (he was usually masked when in the Capitol), they used an undercover FBI officer to meet with him, during which meetings he provided contradictory but damning explanations for his actions on January 6, including that he went to insurrection with some Proud Boys.

During this meeting, SPEED admitted that he entered the U.S. Capitol on January 6, 2021, and that he “made it to the Rotunda down below.” SPEED told UCE-1 that going to the Capitol on January 6 “was always the plan.” He explained, “We would listen to Donald Trump then all of us would go to the Capitol. Now the reason we were going to the Capitol was to protest what was going on in the Capitol… what they were doing was counting the ballots.”

On March 22, 2022, SPEED met with UCE-1 again. During that meeting, SPEED provided further details about his activities at the U.S. Capitol on January 6, 2021. SPEED stated that he went to the Capitol on January 6 with friends who were members of the Proud Boys, with whom he keeps in contact. 1 SPEED blamed “Antifa” for breaking windows and entering off-limit areas of the Capitol, and he blamed the police for using tear gas in a manner to force the crowd into the off-limit areas.

SPEED also blamed Antifa for knocking down fencing around the Capitol. He described walking over fencing and worrying about tripping, but not knowing that he was trespassing at the time.

SPEED claimed that he and the others initially did not intend to enter the Capitol. He said that his plan was to be outside the Capitol and listen to speeches “for the 12 hours it would take to do the 2-hour rebuttal for each of the 6 contested states.” However, SPEED explained, “what the FBI did in advance is they arrested or threatened all the people they knew were going to be the speakers so that there would be no leadership. They wanted to make sure there was no one there…they wanted to maximize the possibility of violence.”


SPEED further told UCE-1 that “there was this staircase leading up to the Senate side, where like we knew it was ‘off limits’ because that was, also the staircase was covered by the structure they’d set up the inauguration…and so, we were like we don’t need to go up there. We’re not here to go in the building. We’re just here to make a statement ‘we are here and we are paying attention’…but, the ANTIFA kept sending people up the staircase and trying to get people to come and we’re all like ‘no, we’re not going to follow you’…”

SPEED decided to go up the staircase because he was “tired of getting tear gassed.” Once up the staircase, SPEED claimed he intended to stay outside the Capitol Building at “this huge portico porch thing which can hold a couple thousand people.” However, SPEED said, he got tear gassed again. He also heard that Vice President Mike Pence had “validated” certain ballots they considered “invalid.”

SPEED described Pence’s act as a betrayal. SPEED stated that, at that point, he “was like, ‘I’m going in there. Like I have no respect for people in this building. They have no respect for me. I have no respect for them.’” SPEED stated, “[S]o we all went in and we took control. Like, when you have that many thousands of people, like there’s nothing the cops can do…it’s impressive.” [my emphasis]

The visual confirmation of Speed’s presence in the Capitol — from a moment when he let down the mask he had gotten on Amazon on December 3 — relies on video that Gionet took (though that’s fairly common).

This is the kind of guy — a cleared defense contractor who went to the insurrection with some Proud Boys “with whom he keeps in contact” — whose cooperation DOJ has used fruitfully in the past. He’s also the kind of guy who presents the ongoing urgent concern about our Deep State being riddled with militia sympathizers.

Perhaps because of the ambivalence of Speed’s comments to the undercover officer, though, he was charged just with trespassing. His case was assigned to Trevor McFadden, the Trump appointed judge who has long suggested, evidence to the contrary, that DOJ was treating January 6 rioters unfairly as compared to lefty protestors.

McFadden has long criticized DOJ’s continued charging of misdemeanor cases, partly because he thinks it treats January 6 trespassers unfairly, partly because it means he has to work hard. Presumably in response and possibly in an attempt to force DOJ to stop, McFadden issued a standing order for misdemeanor cases before him that requires — on threat of sanctions — an immediate plea offer and all defendant-specific discovery within a week of the initial status hearing.

The Government is required to provide all “defendant-specific” discovery information to the Defense by the Initial Status Conference or within one week of the Defense request for reciprocal discovery under Fed. R. Crim. P. 16(b)(1), whichever is later. Regardless of any Defense request, the deadline for disclosure of any information covered by LCrR 5.1 is the Initial Status Conference. 1 Failure to strictly follow these timelines may result in sanctions, including likely Dismissal for Failure to Prosecute. The Government is also expected to provide any plea offer that it intends to make no later than the Initial Status Conference.

This makes it impossible for DOJ to use misdemeanor charges as an investigative tool. And the deadlines McFadden imposes, plus his explicit statements making it clear he will let misdemeanants off easy, makes it virtually impossible to use misdemeanors to obtain cooperation, too.

In a hearing on Thursday, McFadden made it clear that he does intend to impose sanctions if DOJ fails to meet the discovery deadline, even in spite of two specific characteristics of this case: that it involves classified discovery (which is not surprising given that Hatchet had clearance) and that DOJ seized 22 devices when they arrested Hatchet, some of which are encrypted. To add to the near impossibility that DOJ can comply with McFadden’s orders, the AUSA in this case, Alexis Loeb (who is prosecuting a number of Proud Boy and Proud Boy adjacent cases) is in San Francisco, so it’s not like she can go sit in Quantico to speed up the exploitation of Hatchet’s devices.

There’s a bit of a loophole here, in that even the standard misdemeanor pleas require sharing ones devices with the FBI, so to take advantage of what would surely be a punishment free plea deal, Hatchet might be required to open his devices for the FBI.

McFadden has, in the past, rewarded a January 6 defendant for espousing civil war. Here, he seems set to ensure that a Naval petty officer with ties to the militia that led the attack on the Capitol likewise escapes accountability.

If that happens, it may lead DOJ to rethink its charging patterns accordingly.

Update: Corrected Speed’s rank.

130 replies
  1. Bill says:

    So if a year and a half isn’t enough time for DOJ to be ready to try a trespassing case, how is 2 years or 2.5 going to be any better ?

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Bill,” “Will,” “William,” and other very common given names like “Paul,” “John” or “Kevin.” Thanks. /~Rayne]

    • bmaz says:

      Hi there. We have explained that relentlessly on this website.

      And if you comment again here, you will have to use a more differentiated name, because “Bill” is too common. Thank you.

    • TooLoose LeTruck says:

      I recently read Jimmy Breslin’s book on Watergate, ‘How the Good Guys Finally Won’, and not surprisingly, “why is this taking so long?” was a common complaint at that time, too…

      And J6 makes Watergate look like a grade school picnic, for some admittedly crazed grade schoolers… but nonetheless, kind of a lightweight event compared to what we’re dealing w/ now.

      • Tom says:

        Another difference is that the generation of people in Congress at the time of Watergate had lived through and fought through WW2. They knew firsthand the menace of fascist dictatorship and took their responsibility to defend democracy seriously.

        • TooLoose LeTruck says:

          It is impressive to see just how far the current GOP has drifted from what it were during the Watergate years, isn’t it?

          The distance between Republicans’ reaction to Nixon’s misdeeds and their reaction to Trump’s is rather stunning to see…

          • grennan says:

            Those GOP congressional leaders who told Nixon it was all over have gotten way too much credit for their motivation, IMO.

            At least as operant as ‘good of country’ was ‘good of party’. It was August and public opinion was making things uncomfortable for the GOP in the runup to the midterms.

          • Charles Wolf says:

            Under the then current unwritten rules of Congressional decorum, the Rs did everything in their power to conceal Nixon’s criminality..
            It wasn’t until after the Butterfield reveal that they conceded.

      • Yet Another Cynic Philosopher says:

        The ‘this is gonna take light years more than Watergate’ argument has its merits, but leaves out the fact that key J6 crimes were committed on national TV.

        • Rayne says:

          No, key crimes were NOT committed on national TV. You only saw the weapon wielded. You did not see the conspiracies which armed it and deployed it.

          • Yet Another Cynic Philosopher says:

            So had there been no conspiracy at all — had POTUS just gone up there and called for a mob to storm the Capitol (without talking to anybody about it first), that wouldn’t have been a crime in any way shape or form?

            • Rayne says:

              You’d have to show intent. With Trump having been whisked away by Secret Service and prevented from walking with the crowd to the Capitol Building, it would be more difficult to prove incitement.

              18 USC 2101 Riots including incitement, draws at maximum a fine and 5-year sentence, which is chickenfeed.

              Focus on the much bigger crimes which also involved multiple minions who should also be prosecuted. 18 USC 1512(c)(2) is 20 years, not including other possible conspiracy and obstruction charges.

              • Yet Another Cynic Philosopher says:

                Witness tampering? That’s the best we can hope for?

                My growing fear: if Marcy really is right about all of this — if DOJ really is doing its utmost within the constraints it operates under — maybe it’s time to just admit that Trump found the design flaw in the proverbial Death Star, in this case the American legal system.

                Because no system of laws can stand when it allows the plotters of a coup d’etat to remain at liberty for literally years and plot the next coup while they’re at it. Which is what Roger Stone et al are doing around the clock.

                • Rayne says:

                  Christ on a pogo stick. Don’t get fucking hung up on the labels. 18 USC 1512 may be under Tampering but the 20 years is iceberg beneath the water. I supposed you didn’t actually read the damned code:

                  (c) Whoever corruptly—
                     (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
                     (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
                  (d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
                     (1) attending or testifying in an official proceeding;

                  Pay attention: (d)(1) may also be in reach for some of the perps. And then seditious conspiracy and conspiracy to defraud the U.S. as well as other charges of obstruction and mail fraud, not just 1512(c)(2).

                  The hearings are necessary to find the problems in legislation which allowed the insurrection to happen and continue obstruction after. This democracy is a work in process whether you personally like it or not. Instead of whining (or whinging) about it, contact your rep and senators and hammer on the unacceptability of Trump’s conspiracy and their role in it (if GOP) or their role in fixing it (if Dem).

  2. joel fisher says:

    Just wondering: don’t convicted defendants often get their bail continued pending sentencing or an appeal? And if they do, aren’t they required to remain law abiding? And wouldn’t that include appearing if subpoenaed and coughing up documents if the subpoena includes documents? So why doesn’t the J6 Committee drop another one on him? In addition to being convicted of it, Bannon has more contempt for the J6 Committee in particular and the rule of law in general than Trump himself and needs to spend some time behind bars.

    • emptywheel says:

      They do, as noted wrt Gionet.

      I doubt further contempt would do it, but I’m cognizant that Bannon will remain on pretrial release during the period of his appeal.

      • bmaz says:

        No, because that contempt would then be appealed, not that I think J6 has any desire to do that again. Not to mention, Bannon was convicted of non-violent misdemeanors and there is no reason in the world anybody needs to be detained pending appeal on a misdemeanor.

        • joel fisher says:

          I agree 100% that there’s no reason to detain a misdemeanor defendant who agrees to not commit the same crime while out pending appeal.

          • Frank Anon says:

            So would he be committing the same crime if the J6 committee reissued their subpoena, and Bannon again refused?

            • joel fisher says:

              I think he would. The purpose of the subpoena has always been compliance, not jail. I think he should be subpoenaed once again so the level of compliance could be factored into his sentence. The facts on the ground have changed: he now says it was all a big misunderstanding and he wanted to comply. Maybe; but the best way to find out is a 2nd subpoena.

        • Molly Pitcher says:

          Unless he is considered a flight risk…

          Of course if he did go on the lam, it’s not like he could blend in easily anywhere, he has a rather distinctive appearance.

    • Charles Wolf says:

      I’ve been told more or less that continuation on bail during an appeal depends roughly on the possibility or likelihood of success on appeal divided by severity of offence + flight risk.
      But justice is always personal so much depends on the temperaments of the judge and prosecutor handling the matter.

        • Charles Wolf says:

          Sure. Judges are gods in their courtrooms.
          Once you are sentenced to time it’s up to one person, da judge, to decide whether your “appeal” is minimally meritorious, even on jailable traffic misdemeanors.
          Doesn’t happen every day in every jurisdiction, but I’ve seen it.

          • bmaz says:

            Oh, have you now? Because I have been doing this a very long time, and have NEVER seen such a thing on a non-violent misdemeanor with no priors. I think your statement is not just suspect, but complete bullshit.

            • Charles Wolf says:

              You have misread me. I didn’t say anything about no priors.
              But – it could happen.
              When you get dragged from a highway. late at night, into a makeshift kitchen courtroom run by some liquored up judge from bumfuckington, NC, tried, convicted then immediately locked up, maybe you will stop contradicting me on this one.

              Bannon will of course be released on bail/OR pending appeal. Hard to say what the judgement will be but I wouldn’t be surprised if Nichols gave him 30 days on each count, to be served concurrently.

              • bmaz says:

                On that we agree, 30 days is the minimum, but it is almost impossible to see them as being anything but concurrent. It is the same conduct, it has to be concurrent, doesn’t it?

  3. Rugger9 says:

    While this particular set of details will limit the effect of ‘encouraging the others’ (h/t Voltaire) to come clean, a conviction is still a conviction and flips the burden of proof on appeal to Bannon. That means he’ll have to show how EP applies to someone not in any official government role and I don’t think he can do that. Whether the SCOTUS clique buys it anyway is another story, and Nichols’ comments certainly drop the hint for the six RWNJs to go there.

    However, if the GQP gets its way on unofficial privilege it would also apply to D administrations and (speculating) no one would have ever heard about Lewinsky if this idea was in effect in Clinton’s WH. It would make any attempt by a potential GQP Congress to investigate Hunter or any other Biden out of bounds. It would also clearly gut the power of Congress to investigate (Article 1 Section 8 last para) as part of their obligation to make laws necessary and proper to run the government.

    During the 1700s (IIRC) the Parliament passed a law requiring ministers that gave advice to the King sign their advice, in response to some head-snapping decisions by the Crown (IIRC it was mostly about Lord Bute with George III, our last king). That’s why the official access exists and why allowing Team Kraken to have Individual-1’s ear and still be able to claim executive privilege is a really bad idea.

    • joel fisher says:

      I need a lesson on why US v Nixon doesn’t apply. It bothers me that EP is even an issue when communications relating to criminal activities are not protected.

      • bmaz says:

        Meh, don’t worry about it, the court found it was not an issue. That is going nowhere. People can argue all kinds of things, doesn’t mean they will work.

    • emptywheel says:

      His main appeal won’t be on privilege grounds. They’ll be that his lawyer told him EP applied.

      • Rugger9 says:

        However, but don’t defendants hide behind this claim all the time and are routinely told that ignorance of the law is no excuse? Bannon would know better than most given how he would have had US Government classes in college at least.

        I still see this gambit as a trojan horse to establish that EP can be used for non-government person.

        • matt fischer says:

          Claiming ignorance of the law (never considered a valid defense) is quite distinct from the advice-of-counsel defense (sometimes considered a valid defense) that Bannon tried to use .

          • Charles Wolf says:

            Am I the only one who believes that the litigious T**** was told by Roy Cohn Esq. (or was it Michael Cohen Esq.) that he could “shoot somebody on 5th Ave. …” and get away with it.

      • joel fisher says:

        Why doesn’t that make it self-evident that Bannon gets a second subpoena? Pretty hard to make that argument the second time around.

        • bmaz says:

          No, that is most certainly not self evident. They will not waste time with this. Nor should they. Give it a rest.

          • joel fisher says:

            Probably you’re right about what “they” will do, but I still think they should hit him again. Letting him walk away without testifying and almost no–10 days–punishment seems like a win for Bannon. Let’s hope the JD gets him in front of a grand jury and immunizes him so we can all see how much he likes that kind of contempt confinement.

          • joel fisher says:

            And another thing, in the absence of a second subpoena, what’s to keep Bannon’s lawyer from proclaiming at the sentencing hearing, “This case is a political circus unrelated to the search for information; they didn’t even subpoena him again. Obviously, they didn’t really care to hear from him.”?

                • bmaz says:

                  Really? You going to give him a target letter? Why would anybody talk in that scenario. I am sorry, but people are out of their minds on a lot of this.

    • matt fischer says:

      As Marcy pointed out, Nichols seemed to believe (and was practically arguing) that the advice-of-counsel defense would be the best grounds for appeal, not EP.

  4. rattlemullet says:

    “showing that the legal system allows a well-lawyered defendant all sorts of ways to stall a misdemeanor sentence” This defines a man like trump with over 4,000 legal filings.

    The justice system is easily manipulated by money by being well lawyered up. If this is an insurrection, the lemmings that invaded the capital, except some of the proud boys and oath keepers, were only following their seditious leaders, trump, congress people, senate people, their respective attorneys and conservative media. The seditious conspiracy happen on live television, and social media through the conduct of free speech, to lie continuously and repeatedly without repercussions. The only exception to that may be the Dominion lawsuits and the Georgia litigation. I fully hope that EW and their commentariat are correct in their belief the DOJ will eventually come through with enough evidence to prove beyond a shadow of doubt to charge and convict some the politicians involved including THG. BMAZ once asked me if I was ready for the consequences of charing trump. I ask are we prepare as a nation if we fail not to try and convict the obvious attempt to prevent the peaceful transfer of power done trough fraudulent lawsuits and fringe legal theories and the megaphone of lies through the media. The rule of law has only become more convoluted by written rulings that have become so lengthly, verbose and torturous use of the English language as well as incorrect interpretations of history. In today’s Supreme Court law today, precedents do not matter. We are in a bold new frontier of christian interpretation of law by a super majority on the SC.

    • bmaz says:

      “The justice system is easily manipulated by money by being well lawyered up.”

      Yeah, about that, it is not just the rich and well lawyered who could string it out at least a year. Even an idiot pro per defendant could do that easily. The sentencing date was set normally so as to allow post-trial motions, if any, and pre-sentence investigation by the probation department and then creation and lodging of the sentencing memos by the government and defense. Perfectly normal.

      Beyond that, any mope can appeal as a matter of right. That’s called due process. It is awfully easy to complain about it when it is not your ass, or one of your family members’ ass on the line. You would be surprised how fast people change their tune when “they” need the protections of due process. Also, too, keep in mind than Bannon was not per se convicted of anything to do with the actual insurrection. People need to get a grip.

      • rattlemullet says:

        I understood and agree. If my ass was on the line I too would do all I could as well to prove my innocents and if not innocent then use delay to avoid the inevitable. When I was swept up into the military draft for an illegal war I did use every legal tool at my disposal to legally avoid the draft, and in that case I won. However, I guess I always assumed that people swept up in the judicial process that are not well funded, some even to have use public defenders, faired less well at delay and are adjudicated more swiftly. If I am wrong, I apologize, I always defer to your expertise in the judicial process.

        I am more concerned about the those that actively tried to prevent the peaceful transfer of power, done by attorneys filing frivolous and fraudulent lawsuits, supported by elected politicians and by the conservative media megaphone. That act of insurrection is obviously clouded by fringe legal filings and free political speech to make it much more difficult to charge and prosecute. However it was an attempted coup, are now looking for a law to fit the crime? Not many times do I sympathies with prosecutors but in this case they have a tough row to hoe. Respectfully- If we fail to hold the leaders of an attempted coup to account – we as a nation for the rule of law will be weaker. The plan for the next coup is already in place if we fail.

        • Charles Wolf says:

          Yea, but most defendants can’t afford to shop for the affluenza family of defenses, and people without trust funds who depend on the Twinkie defense, well – what can I say… they’re crazy.

          • bmaz says:

            You are full of shit. If you knew anything, you would know that FPDs and most CJA panel attorneys are extremely good. So, when you whine about “affluenza” and “trust funds” you are spewing absolute shit, at least as to federal court. Do NOT do that here, this is not your little ignorant rant spot. And invoking the lie of the “Twinkie defense” proves it.

            • Charles Wolf says:

              I’ve met some good PD (NoFeds though) and some horrible ones.
              On balance the good ones seem to outnumber the awful ones.
              I guess that means that I’m not full of shit.
              I also know from experience as a multiple young hippie defendant, that when the fix was in I won 100%, and when it wasn’t it was 50-50 regardless of my actual culpability.
              My court experience was great when my attorney was the former DA, not so great when he was an appointed narcissistic hack.

          • rattlemullet says:

            Thank you, I do, I live on the emerald coast, at the beach. Walk it everyday, canoe on the bay every chance I get. You should not assume I do not. I only get pumped up when I read EW, LGM, and Digby to stay abreast. – Namaste

            • bmaz says:

              No worries! Enjoy the coast. Wish I were there with you now. Though, in fairness, we are apparently going to have our first below 100º day today in seemingly forever. Is awfully humid out though.

    • grennan says:

      “The seditious conspiracy happen on live television”

      No, the Capitol riot happened on tv, fruit of the seditious conspiracy.

  5. Tech Support says:

    What would a change in charging patterns look like? Is this one of those situations where McFadden, in his delusional effort to create “parity” between J6 defendants and Portland defendants, only going to provoke more felony charges from DOJ?

    • bmaz says:

      Eh, it is not delusional at all. A lot of people other than McFadden have noted that DC is almost alone in that precedent at this point. But McFadden honored the precedent, as he was required to do. And, again, Bannon is not per se a “J6 defendant”. It is very much not a delusional or crackpot appellate issue. And it has nothing to do with “Portland”.

    • emptywheel says:

      Possibly. I guess the question is what the perception of the Magistrate judges approving this stuff is.

    • Charles Wolf says:

      Prosecutors in DC have mountains of overwhelming evidence against the 1/6 defs.
      Prosecutors in Portland have little or no useful admissible evidence against most of those involved.
      One more thing, unlike the DC insurrectionists, the Portland rioters weren’t trying to murder the VP or anyone else. They also weren’t organized in a attempt to overthrow the US Government, as was the case in DC on 1/6.
      I’m all for upping the ante to felonies in Nichols court, wherever appropriate.

      • Charles Wolf says:

        I wonder what percentage of Nichol’s cases are wobblers.
        Of course it’s a prosecution decision, but there must be some.
        That’s just how it must be.

  6. Hopeful says:

    As I read the Statement of Offense concerning Hatchet, I see he is/was a Petty Officer First Class; or Grade 6 Enlisted.

      • Rugger9 says:

        He’s a non-com. “Officer” will refer to warrant officers, midshipmen (with accompanying snickers, but they do have lineal numbers) and commissioned officers.

        • bidrec says:

          A Warrant Officer First Class in not a commissioned officer. They receive their commission on being promoted to Warrant Officer Second Class.

          • Rugger9 says:

            They’re sort of in that hazy zone. They’re still below O-1 but above the cadet / midshipman grades. They’re also subject matter experts and fairly rare, I only recall seeing one or two on CVN-70 while I was there. I don’t remember if they had a standing invite to the Goat Locker (the CPO mess, where the good food was, not the wardroom).

            • bidrec says:

              They have better job security. They, and other “mustangs” can go back to being enlisted if there is a RIF (Reduction In Force). Those who entered the military as officers are out if they are RIF’ed. A mustang is an officer who was promoted from enlisted.

        • emptywheel says:


          And yet that’s precisely the rank that a distant family member (married into the family) was when I first met him.

        • earlofhuntingdon says:

          A military service member who has attained the rank of E-6 is a non-commissioned officer or NCO. That’s why the Navy refers to ranks E-4 through E-6 as “petty officers.”

          • Rugger9 says:

            An E-6 on board will typically run a work center or perhaps two depending upon the size of the division, and on watch will run something like the engine room under the eye of the watch supervisor (usually a CPO) and a watch officer (usually commissioned). Usually they are squared away since attrition and stupidity usually clears out the hopeless ones during the first two enlistment cycles.

  7. Vera Cruz says:

    Thinking about the abortion bans being imposed by some states (including abortion pills) I wonder if there might be a conflict between the fundamentalist jihad and federal restraint-of-trade statutes?

    [THIRD NOTICE: This is your FIFTH username to date. The sockpuppeting ends here, now, PJ512. /~Rayne]

  8. Randy Baker says:

    Point taken about the judge likely granting Bannon bail on appeal — notwithstanding the legal requirement that it be “likely” he would prevail on appeal. But, really, I doubt anyone, even Bannon himself, could maintain a straight face while asserting he had failed to comply with the subpoena — indeed done anything — in “good faith” reliance on the advice of counsel, the theory on which he would intend to defend.

    • bmaz says:

      Likely?? I have never in my life seen a non-violent misdemeanant detained pending appeal unless there were priors or other aggravating factors. Not sure even then.

      • Randy Baker says:

        Can’t speak to what courts typically do, but § 3143 states:
        (b) Release or detention pending appeal by the defendant.–(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds–
        (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in–
        (i) reversal,
        (ii) an order for a new trial,
        (iii) a sentence that does not include a term of imprisonment, or
        (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

        • bmaz says:

          Yeah, thanks, I kind of understand. If you think this should result in misdemeanor appellate detention, I have no idea what to even say to you. That is not going to happen, and it should not. I will stand right there. If you want to contra, have at it.

        • Randy Baker says:

          Sorry for the redundant second email on this point. Again, I did not profess to know the standard practice, only the language of the statute.

  9. Molly Pitcher says:

    OT for bmaz:

    I usually don’t post anything from the unquestionably RW “The Hill”, but this was the first reporting I saw about “Atlanta-area DA disqualified from investigating fake Trump elector”

    I know you have been opposed to how she has been conducting things. Apparently a Fulton County Superior Court judge agrees with you.


    • bmaz says:

      Thanks much! I have also seen it from even a more legit forum, the report is solid. And, yes, I am not sure how she has not been ordered off all the Trump cases.

      • P J Evans says:

        Once you get past the clickbaity headlines, it’s actually a reasonable decision. The one elector is one whose opponent she backed, even to hosting a dinner.

        • grennan says:

          Last week, the judge reamed her out for the fundraiser, according to the Atlanta Constitution which reported:

          “‘It’s a ‘What are you thinking’ moment,’ [Judge] McBurney said. ‘The optics are horrific.'”

          CNN today:
          “The Prosecuting Attorney’s Council of Georgia will select a replacement district attorney’s office that can question Jones, according to Georgia law.”

    • nord dakota says:

      That just means SHE can’t develop the case, right? Someone else in the DA’s office can, right?

      • bmaz says:

        Sure. Because the original taint can just be blithely excised? Seriously??

        It is not just “a bump” for that case, it is some of the most unethical and embarrassing prosecutorial stuff in history. The entire GA “investigation” is tainted, and will remain so. The exact kind of political prosecution people here usually protest.

      • Ravenclaw says:

        According to the Hill, the investigation & possible prosecution of State Senator Jones will be referred to a different D.A. altogether. But as the Hill also remarks, this was a serious “unforced error” on the part of D.A. Fani Willis. It will nourish the right-wing conspiracy theorists for years to come – and with some justification.

        • bmaz says:

          Oh, it is not just “right wing”, this shit is fucked up and bullshit. Nobody should support what Fani Willis is doing.

        • Charles Wolf says:

          How so is it a serious “unforced error” ?
          One case is bounced to another prosecutor. Big deal.
          The other 15 cases are proceeding, only now there are two prosecutions going on where there was only one.
          In addition, bifurcating the trials for such a minor, probably imaginary conflict seems like a close call, so I wouldn’t sweat it if I were doing what Fani Willis is doing.

          • bmaz says:

            What “Fani Willis is doing” is patently political and unethical. Soft selling it is craven. Are you here to peddle bullshit. Because that is what you are doing.

            • Rugger9 says:

              I’ll have to agree with you there, because while this kind of thing is routine for GOP types (see, Paxton, Ken among many other examples) the Ds don’t need to give away appeal points if any convictions result. After all, isn’t it part of court conduct rules to avoid even the appearance of conflict?

              So, instead of creating unnecessary impediments for her cases, I’m sure Willis could have found another DA which would independently run the case without being compromised by her political connections.

              I would have expected to see more poutrage in the RWNM, though but perhaps I missed it.

  10. cmarlowe says:

    A bit off-topic, but it has been reported that Mark Short testified to DOJ grand jury last week. Good news I guess.

    • BobCon says:

      Short was transparently obviously the source for Michael Schmidt’s hangwringing article back in January about whether Pence would cooperate with the Jan 6 Committee and DOJ.

      “Oh dear, what would Hamlet do?” Schmidt wondered. And lo and behold, four days ago the Times felt the urgency to revise the article Schmidt dropped six months ago — something they basically never do.


      If Schmidt did anything but act as a conduit for Republicans like Short, he would have seen how this might play out. If he and his editors at the Times had any respect for their audience, they would have run a very different article.

      But holy cow do they have no shame.

  11. Molly Pitcher says:

    The Pennsylvania AG, Josh Shapiro, who is running for Governor against repulsive Christian Nationalist Thiel acolyte, Mastriano, is appearing on Rachael Maddow tonight. She is going to discuss the fact that 3 districts in Pennsylvania have yet to certify the primary election from a few weeks ago, saying that this looks like a trial run for holding up the election in November.

    I know she is held in skepticism by some here, but it will be interesting to hear this interview.

    • Charles Wolf says:

      Well, we will see what the 3 districts in Pennsylvania do when they receive court orders to do their job.
      Till then stay cool, stay hydrated.

  12. Nick Caraway says:

    “… Speed was a petty officer in the Navy and a cleared contractor for the National Reconnaissance Office.” Though EW and the crew probably know this, just thought I’d mention that most of NRO’s activity is a closely guarded secret and that NRO was long unacknowledged even to exist (kind of like NSA was once referred to as “no such agency”). NRO is responsible for things like spy satellites. Which could mean that Speed is privy to highly sensitive information. Not that I presume to know what Speed knows or how that could matter to J6. But this layman’s interest is piqued to see the NRO pop up at all in this context.

    • Savage Librarian says:

      His birth name was Daniel Abraham Speed. He must be so antisemitic about his own name that he did a hatchet job on it. Brings to mind the fascism of Stephen Miller.

      “In April, Speed told an FBI undercover employee that he has contemplated using violence to further his antisemitic beliefs and discussed using violence against members of the Anti-Defamation League, a Jewish civil rights organization.”


  13. John Paul Jones says:

    I know judges have a lot of independence, but can DOJ in any form appeal McFadden’s order, say, point out that it might be contrary to the larger interests of justice? Or are there workarounds DOJ can use? And if any of this (likely) reveals my ignorance, please be kind.

    • bmaz says:

      Why would you wish DOJ to skirt the law? Would you always? What about under another Trump administration?

    • grennan says:

      It’s only a bump for the GA case; some other DA will be assigned to that one fake elector.

      Leaving it alone would have polluted that one, and potentially all of it.

      The DOJ leaning on the GA judge would be much like Trump leaning on the GA secretary of state.

  14. viget says:

    OT for Rayne and bmaz:

    Could we have an open thread to discuss the TX lawsuit against the ACA preventative services provision?

    They are trying to use “religious freedom” as a backdoor to gut the ACA, and the Dobbs and EPA decisions from SCOTUS makes me think they will succeed. It won’t just be about health maintenance, it will apply to the whole thing. Meaning state legislatures basically get to decide who gets what treatments…

  15. pdaly says:

    While Trump continues to moan about his lost election as he returns to DC today, Pence, who is also in DC today, seemed inspired by the story of Lot’s wife when he told young conservatives gathered at Young America’s Foundation:

    “I truly do believe that elections are about the future, and that it’s absolutely essential at a time when so many Americans are hurting, so many families are struggling, that we don’t give way to the temptation to look back.”

    I think Pence just called Trump “salty” and called Trump’s DC “Sodom.”


      • pdaly says:

        Well, with all those people in his party succumbing to the temptation to look back, Pence will have armfuls of salt to toss over his shoulder for good luck.

      • Rugger9 says:

        Indeed. One of the reasons Pence was available for VP was because he’d already given up running for re-election as IN’s governor because his lack of principles combined with his unctious piety pissed everyone off even in deep red IN. That, and his craven cowardice to keep the Final Four in town exposed Pence as a total phony.

        Can an Ashley Madison scandal be far behind?

        • wetzel says:

          “his unctious piety pissed everyone off even in deep red IN”

          How is it that an obvious sexual reprobate like Donald Trump can appeal to evangelical Christians? Many go so far as to say he is ‘anointed’ or ‘chosen by God’. This is a mystery I have not seen satisfactorily explained.

          I think about anthropological evidence of certain primitive societies I remember reading about years ago. I remember that in some tribal societies, the shaman/chief/sacred king transgresses the taboos that govern everyone else. I remember one society where after the practice of royal incest, the ritual animal is sacrificed as surrogate victim and consumed by the tribe. The idea is that this reinforces the taboo alongside the monopoly on violence as ‘the law’. I know I’m about to be told to ‘get a grip’, but I think the modern right wants their leader to be a reprobate, not a ‘good boy’, as a kind of transference or sublimation within the context of a pagan mindset. I know this is ‘way out there’, but I can’t account for it.

          • Epicurus says:

            Academically, Trump is one of the religious right’s main soldiers in their battle for control of societal and political behavior. (If he believed religiously as they do he would be a reincarnated Cromwell.) He is doing what they are not able to do. He is able to manipulate the political system to achieve their ends. It is a mutually beneficial relationship as Trump needs their devotion as much as they accept his incivility. They are more than willing to look the other way if they can achieve societal control. Any dream will do.

            Realistically, Trump is a supreme con-man. He’s just conned them as he has conned so many others. No one should look any further than that.

          • T A Frye says:

            With religiosity becoming less a part of American life, the Christian Right is desperate and deeply stressed. Their perception of being societally displaced is reinforcing anti-science and mystical beliefs, paranoia end times fixations and Anti-Christ / Messianic eternal vigilance. It also makes them increasingly dangerous.

    • skua says:

      “… don’t give way to the temptation to look back.”
      This looks related to the attitude of the fleeing Irish refugees/immigrants in Peter Behren’s “The Law of Dreams”. They tell me the law of dreams is “keep moving”.

    • Rugger9 says:

      One can hope, and while they’re at it someone can update us on the phony USSS agents busted pretending to be in Jill Biden’s detail.

    • cmarlowe says:

      So the Kelly Townsend subpoena (dated 6/21) appearing in WaPo tonight includes this:
      “‘Although you not required to do so, you are requested not to disclose the existence of this subpoena. Any such disclosure could impede the investigation being conducted and thereby interfere with the enforcement of the law.”

      So either she doesn’t care, or it came from a DOJ source (perhaps authorized?), or?

      • MB says:

        And/or she doesn’t care that her address in Apache Junction AZ (about 40 miles east of Phoenix) was just published in the WP?

        Well anyway, Google Maps shows it as a cheap prefab house surrounded by desert and cacti and close to the Superstition Skies Bar & Grill…

  16. blueridgebill says:

    In all of this recent new, the name I’d like to see is my awful former Congressman Mark Meadows. Surely tRumps Chief of Staff is a thread to tie much of this sprawling crazy quilt of the Insurrection together. And I’m seeing no mention, from DOJ or the Committee.
    Just hoping a shoe drops on him. He got his money in real estate, and is rumored to be back in his old district, the current NC 14th (the more awful if less competent M.Cawthorn will remain in office till January ‘23) pimping some developments “for patriots” in the overheated Real Estate market here.

    • bmaz says:

      Honestly, what do you think you are accomplishing by using “tRump”? Personal cuteness? Internet scorning? What exactly is it you think is important? Do you just desire to look stupid, and make us look stupid? I do not understand this in any regard.

Comments are closed.