“We Have a Plan. I’m with Rufio” … But the Government Does Not

There was a big hole in the middle of the Oath Keepers prosecution that likely was a big part of the reason jurors didn’t convict on more of the conspiracy charges. Just after 2:30PM the day of the attack, field leader Michael Greene called Stewart Rhodes. A minute later, Kelly Meggs called Rhodes, who conferenced Meggs into the ongoing call with Greene.

Altogether, the three men were on the phone together for 1 minute 37 seconds, and Rhodes and Greene were on the call for several minutes afterward. The call immediately precedes the First Stack busting into the Capitol, and happens at the same time that Joshua James and others are racing to the Capitol on their golf cart.

By context, it appears to be the moment where Rhodes decided to use the attack on the Capitol to advance his plan to decapitate the government. But for all the cooperating witnesses DOJ flipped in the Oath Keeper case, they never got any of these three to cooperate, and so never were able to prove what was said on the call. On the stand, Rhodes made up some bullshit about difficulties connecting.

While by context it seems to be the moment that these three leaders made a decision on operationalizing their plan, which they then directed others to implement. But absent a cooperating witness from that call, they didn’t have that proof.

And so they got limited conspiracy convictions.

There’s a similar big hole in the middle of the Proud Boys case, one — a status conference just made clear — may be even more fatal for the government’s case. In the time on the evening on January 5 when everyone was trying to figure out what to do given the arrest of Enrique Tarrio, Ethan Nordean and Joe Biggs were temporarily AWOL.

When Biggs reappeared, he described “meeting w[i]th a lot of guys” and that “We have a plan. I’m with rufio,” that is, Nordean.

To this day, even those of use who’ve followed the case closely don’t even know with whom Biggs and Nordean met, much less what the plan was.

And that’s a problem because every Proud Boy witness, even senior prosecution cooperating witnesses Jeremy Bertino and Charles Donohoe, will testify that they knew of no plan to attack the Capitol in advance of January 6.

Absent that, DOJ will point to the plan to meet at the Washington Monument, the ways the Proud Boy plan deviated from the norm (including ditching Proud Boy colors to blend in), the orderly marching, the choice not to show up at Trump’s speech at all and instead to go to the Capitol and rile up a mob of normies.

They’ll put cooperating witness Matthew Greene on the stand to explain that he understood they were crowding the Capitol to pressure Pence.

They’ll presumably put their latest cooperating witness, Isaiah Giddings, on the stand to admit that, “before January 6, Giddings did not know that Congress would be certifying the election results in the Capitol building on January 6,” but that in advance of the attack, “leaders, including Rehl, Biggs, and “Rufio,” would meet separately from the larger group.” Giddings will testify that after the attack, “Rehl, and the other Proud Boys were laughing and celebrating what they had done; namely, stopping the certification proceeding.”

They’ll point to comments afterwards, taking credit for it all.

Tarrio asserted to the Proud Boys “Elders” who had approved his formation of the MOSD, “Make no mistake. We did this.” Similarly, Bertino told Tarrio “You know we made this happen,” and “I’m so proud of my country today,” to which Tarrio replied, “I know.” The next day, Rehl similarly told an MOSD chat group that he was “proud as fuck what we accomplished,”

There is far, far more evidence in the actions the Proud Boys took that day that they did have a plan and succeeded in implementing it beyond their wildest dreams. But they don’t have that plan.

And two likely developments will likely make proving they had a plan more difficult.

First, Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

More damaging still for their case, an exchange at the end of a status hearing today suggested that Judge Tim Kelly is likely to prohibit the government from arguing that the Proud Boys were using other rioters are “tools” in their conspiracy (I wrote about this dispute here). That’s sound legally; the government argument doesn’t fit into existing conspiracy law. But it will make it difficult, if not impossible, for prosecutors to prove sedition, which requires the use of force. It is true that key Proud Boys expressed a goal to rile up the “normies” who would then carry out the violence on January 6. It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses. It is true that Ryan Samsel — the guy who kicked off the entire riot — had an exchange with Joe Biggs right before the attack. But DOJ never got Samsel to cooperate.

There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so. But it seems likely that prosecutors have the same kind of evidentiary holes, including a potentially fatal one where the plan they finalized on January 5 is, that the Oath Keeper prosecutors did.

Update: On a late re-read, I realized I left out a key caveat on the issue of a plan: People do acknowledge there was a plan. That plan included meeting at the Washington Monument instead of at Trump’s speech, for example. The question is whether it included the attack on the Capitol (the language I’ve added, in bold).

23 replies
  1. Fenix says:

    Obviously IANAL, & this is likely a question that has no satisfying answer rendering it rhetorical, but why are there so many holes in this case?! Is it really due to a lack of cooperating witnesses or a lack of thorough investigation? Sorry my frustration is showing

    • emptywheel says:

      There’s one primary hole. It’s there because the three people who know the answer are all charged together and none of them has turned on the other two.

  2. Savage Librarian says:

    In early 2019, Joel Greenberg hired Samuel Armes as a blockchain liaison. Armes is/was listed as a key member of the Florida Blockchain Business Association. Eryka Gemma sat/sits on the board of the Florida Blockchain Business Association. So, it is possible that Joel Greenberg has shared some valuable info. But he is, obviously, not a witness who prosecutors would be eager to call. And he and Armes may know nothing about a J6 plan.


      • Peterr says:

        That’s the essence of the prisoner’s dilemma. “Wait – if they don’t want to use my cooperation, maybe someone flipped on me. Maybe I should flip on them, before it’s too late . . .”

        Good prosecutors understand that game theory can assist their approach to trial preparation. Getting inside conspirators’ heads can be very very helpful.

        • TooLoose LeTruck says:

          The Prisoner’s Dilemma…

          That is EXACTLY what came to mind above…

          “It’s there because the three people who know the answer are all charged together and none of them has turned on the other two.”

          The instant I read that, ‘the prisoner’s dilemma’ popped up in my mind…

        • viget says:

          So it would seem. Problem is,the prisoner’s dilemma breaks down when there are indirect lines of communication among the various lawyers. They’ve got a cover story and they are sticking to it.

    • emptywheel says:

      Yes. This version of the texts is from early on when a lot of these people hadn’t been arrested.

  3. Tom R. says:

    Let’s pursue this line of thought:

    There’s a lot of evidence that the Proud Boys orchestrated the riot

    Orchestration is not the same as conspiracy … but it sounds an awful lot like abetting. One could imagine a scenario where certain defendants have aid-and-abet liability for a whole raft of felonies.

    It seems to me (in public-policy terms) that orchestration “ought” to be illegal. If (in legal terms) it is neither fish nor fowl — i.e. neither abetting nor conspiracy — that seems like a hole in the statute-book rather than a hole in the evidence.

    There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so.

    Aiding and abetting is not 𝘱𝘦𝘳 𝘴𝘦 a crime, so the concept of conspiracy to abet is difficult, but it does exist. It’s classified as a “double inchoate” offense.

  4. John_02DEC2022_2011h says:

    DOJ just had a successful, unprecedented seditious conspiracy prosecution that they no doubt learned from. If they continue to move forward with that charge in the Proud Boys trial, I wouldn’t underestimate them and the case they believe they have.

    • FL Resister says:

      To state the obvious, Jack Smith is not Robert Mueller.
      And neither is Donald Trump president, nor Bill Barr attorney general.
      The 11th Circuit firmly cracks down on Judge Cannon detour;
      the Jan 6 report comes out just before Christmas,
      and Michael Flynn is on deck to talk to grand jury.
      spit and a thousand knives

    • Hoping4better_times says:

      John- to be clear, There were TWO conspiracy charges, one for Sedition and one for Obstruction of an official Proceedings. Only Rhodes and Meggs were found guilty on the Sedition conspiracy charge. Meggs & Watkins were found guilty on the conspiracy to Obstruct an Official Proceeding. ALL five were found guilty on (actual) Obstruction of an official proceeding. That last charge carries a possible 20 year jail sentence.

  5. Ryan says:

    I’m wondering how much information they’ll get from Flynn. Is his appearance believed to be useful for what it will reveal, or as a step towards a perjury charge later? I don’t see him as having a great incentive to tell much truth.

    (I meant this as a reply to FL Resiste’s comment but I misplaced it.)

  6. Spencer Dawkins says:

    I was intrigued by this:

    It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses.

    Any thoughts on why? Is it as simple as the “normies” not being able to testify about what the Proud Boys are actually charged with?

    • Peterr says:

      The problem is likely that they couldn’t get any terribly useful testimony from them.

      Q: You were outside the Capitol?
      A: Yes.
      Q: You got riled up and angry?
      A: Yes.
      Q: What got you riled up?
      A: There were these guys shouting about stopping the steal and saving democracy.
      Q: Who was doing the shouting?
      A: Everyone seemed to be shouting.
      Q: Anyone in particular seem to be leading it?
      A: I don’t know. It’s hard to say. Maybe some folks with megaphones, but I don’t know. Things were pretty chaotic.
      Q: You went inside the Capitol?
      A: Yes.
      Q: Did anyone tell you to go in?
      A: I don’t know. I just followed the people in front of me and was kind of being pushed by the folks behind me.
      Q: Do you know who was in front of you or behind you?
      A: No.

      No specific people and no specific actions is the definition of no useful testimony.

      It’s also exactly what turning a collection of people into a tool called a mob looks like.

      • emptywheel says:

        I disagree.

        When I say there were dozens of rioters who said they followed the rioters, I mean there were dozens who either said in advance or on the day that they were looking to connect with the Proud Boys to get instructions or there were people who saw the Proud Boys during the attack and recognized them as celebrities to follow.

        Here are two comments, for example, from the sentencing memo for George Tenney, who played an absolutely critical role in the success of the attack (and about whom I expect I’ll write more):

        On December 14, Tenney asked Individual-1, “Where and how do I get involved or a part of one of these patriot revolution groups? Like proud boys, or any of the other American Patriot Militias??”


        On January 5, Tenney again asked Individual-1 if he had “heard or seen anything going on today in DC? Like proud boys / militia groups etc.”

        As to why DOJ didn’t already do this — IMO it likely stems from the organizational structure of the investigation, where DOJ has even the Proud Boy investigation broken into groups. I also don’t trust the woman in charge of the larger Proud Boy investigation, though not pursuing these witnesses may be more incompetence than sabotage.

  7. BruceF says:

    The hole that continues to perplex me is what communication preceded the message drooling dotard Chuck Grassley put out on the morning of January 5th when he stated he would be filling in for VP Pence during the EV count the following day. Somebody woke Chuckie up from his morning nap and gave him information that led him to put out that message–along with his further statement that he would be open to considering arguments on the legitimacy of certified slates of Electoral voters from several states. My understanding is the Chuckster put out this message (which he took down by the afternoon) shortly after Pence met with Traitor Donnie and made clear Eastman’s plan for recognizing alternate slates of electors was nonsense. Disappointed that the J6SC has failed to shed further light on this strange series of events. Hope some light is shed on how this came down in their upcoming report!

    • Just Some Guy says:

      Both Grassley’s tweet and the Republican Attorneys General Association robocall haven’t been well explained by either the press or any investigatory body, imho.

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