The MAGA Tourist Geofence and the Violent Confederate Flag-Toting Geofence

By my rough count, Judge Tanya Chutkan has presided over the cases of more than 25 January 6 defendants, in addition to Donald Trump. Nevertheless, Trump keeps trying to lecture Chutkan about what happened, often by pointing to reports from journalists who have not otherwise covered the investigation closely.

Contrary to their false claims about how much video she has seen, Judge Chutkan knows these details far better than Trump’s attorneys.

For example, Trump keeps pointing to a December 2021 piece from Will Arkin to argue, using very dated numbers regarding the investigation, just one percent of his mobsters qualify as insurrectionists.

The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts. 7 Thus, we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol. Moreover, as the Indictment recognizes, a crowd had gathered at the Capitol before President Trump finished speaking, further proving he had nothing to do with those events.

6 William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec. 23, 2021), at The January 6 Committee estimated the crowd on the Mall at 53,000, while President Trump estimated it at 250,000. Compare Final Report, SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL (Dec. 22, 2022), 585, at with Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), at (emphasis added).

7 Id. (“[T]he facts seem to indicate that as few as one percent of the people who were there fit the label of insurrectionist.”).

There are a slew of problematic assumptions in Arkin’s piece (as well as the follow-up piece that appears to be the actual source cited in footnote 7): about the relationship between militias and others, about the role of non-militia organized groups like QAnon or anti-vaxxers, about the role and increasing percentage of military participants.

The most important misconception is that only people who entered the building, as distinct from the often more violent crowds outside it or Proud Boy seditionists orchestrating things from afar, could be an insurrectionist.

Plus, Arkin’s 2021 numbers were outdated at the time — most outlets put the number of insiders at 2,000 to 2,500 at the one year anniversary and the Sedition Hunters have identified 3,200 specific people who went inside the Capitol (though this includes people, including at least one WaPo journalist, who weren’t rioters).

Given Trump’s reliance on such outdated numbers, however, I wanted to look at a filing in the latest challenge to one of the geofence warrants used in the investigation, this time from Isreal Easterday, a Confederate-flag toting rioter who sprayed two cops before entering the Capitol through the east door.

There have already been two failed challenges to geofence warrants used in the investigation. In August 2022, then-Chief Judge Beryl Howell rejected Matthew Bledsoe’s challenge to a geofence of those who live streamed to Facebook during the riot; he is appealing his conviction, but not that ruling. In January, then-presiding FISA Judge Rudolph Contreras rejected David Rhine’s challenge to the Google geofence tied to voluntary use of Google’s Location History service (there’s no FISA component to this, but FISA judges see more novel Fourth Amendment issues). Rhine does appear to be including that ruling in his appeal, in which his initial brief is due in February.

Like Rhine, Easterday is challenging the Google geofence, but from a Fourth Amendment standpoint, he is different than Rhine in two key ways. First, the investigation into Rhine started from some tips called in as early as January 10, 2021; the FBI didn’t need the Google geofence to find him, though it made it easier to pinpoint video of his path through the Capitol.

With Easterday (probably because two distinctive aspects of his appearance changed that day — he dropped his flag and took off his hat — making it harder to track him), the first really good lead on his identity was the geofence.

The second difference between Rhine and Easterday arises from the technicalities of how the FBI did the geofence.

The FBI did three rounds of geofence with Google. In the first, starting with a January 13, 2021 warrant to Google, they:

  • Obtained the identifiers for all the phones that hit the geofence during the riot
  • Took out the identifiers that were present in the building in the 15 minutes before and after the riot (assuming those were people who were lawfully present in the Capitol)
  • Sorted out hits that were in places (for example, areas where surveillance footage showed no rioters to be present) inconsistent with unlawful activity
  • Eliminated identifiers without at least one hit entirely within the Capitol factoring in margin-of-error radius
  • Added back in identifiers with lower confidence radius that deleted Location History with the week after the attack
  • Asked Google to deanonymize that data

For the second round, they submitted a second request for deanonymization on April 14, based on the logic that those for whom there were only low confidence hits within the Capitol would be high confidence hits for the larger restricted area.

Based on the same logic, on May 21, 2021, the FBI obtained a second geofence warrant to include (per Easterday’s filings) the entire restricted area on January 6.

This time, to cull the data, they:

  • Obtained the identifier for all the phones that hit the geofence during the riot
  • Removed identifiers previously deanonymized
  • Took out the lawfully present identifiers either voluntarily identified by Congressional offices or obtained by law enforcement
  • Removed identifiers present in the 15 minutes before or after the riot
  • Eliminated identifiers without at least one hit entirely within the restricted grounds
  • Asked Google to deanonymize that data

Rhine’s phone identifier was included in the first batch of identifiers the FBI asked to be deanonymized, a group of about 1,500 identifiers; Easterday’s was not. His phone was included in the second batch deanonymized, an additional 2,200 identifiers obtained in the first warrant. His phone was also IDed in the second warrant, but by that point had already been deanonymized.

The details of how the Google geofence worked were described in filings in the Rhine case (see this post and this post), but because Easterday was not identified until the second batch, the second cull gets more attention in Easterday’s filings.

Easterday did enter the Capitol. There are pictures of him wandering hallways and stairs. On October 26, a jury convicted him of trespassing inside the Capitol, 40 USC 5104, along with the more serious assault and riot felonies he committed outside the building.

Easterday was only inside the Capitol itself for 12 minutes — he entered at 2:39 and exited at 2:51; Easterday entered three minutes before Rhine but left 13 minutes before Rhine. But he would have been at the east door — not inside the Capitol, but helping to violently break into it — for at least 22 minutes; the assault on one of the cops was captured in video that starts at 2:17.

There are a number of possible explanations for why Easterday phone would not have had a high confidence hit inside the Capitol geofence but did trigger the broadened geofence. For example, the original hit or hits on Easterday’s phone may have been in a location (such as the east door) where the confidence radius of the location was partially outside the Capitol itself. Some of the relevant hits were surely entirely within that area outside the Capitol but inside the restricted area that day. As the government noted in their response to this challenge, being in that area was also a trespassing crime, 18 USC 1752, even if DOJ charged fewer of the people who were in that area. The jury convicted Easterday of that crime, too.

The government provided a supplement answering specific questions Chief Judge James Boasberg posed after the guilty verdict that provides more possible explanations why Easterday did not trigger the geofence within the building at high confidence. For example, it describes that iPhones capture a lot less activity in Location History than Androids do.

[Location History] is sometimes collected automatically, but is primarily and most frequently collected when a user is doing something with his or her device that specifically involves location information (such as following Google Maps directions or taking photographs or videos that record location as part of their metadata).

Moreover, in the government’s experience examining Google LH returns, the range of activities that generate a LH point is narrower on Apple’s iPhones than Android phones. Apple iPhones apparently collect LH data primarily when the user is specifically using Google Maps.


In contrast, Android phones can collect LH data when the user uses a wider array of Google-based applications, or even when the device is not in use at all, such as when it is sitting on a user’s bedside table overnight. Additionally, if an Android phone detects that a user is moving, the Android phone specifically and automatically requests location data from the server about every two minutes, leading to a LH data point being collected by Google. However, if the phone determines that the user is standing relatively still, or remaining within the same Wi-Fi network’s range, Android phones will request location data much less frequently, as the phone is effectively not moving. Similarly, devices will not automatically request location data from the server—or will do so less frequently—when they are low on battery.

Easterday appears to have made a call while inside the building (which would trigger a different kind of location data, but data that DOJ only obtained with individualized warrants), but that’s less likely to be captured in Location History than taking a picture would.

Judge Boasberg’s request for more information — an order he made after the guilty verdict — appears to stem, in significant part, from the fact that FBI’s initial exclusion set of 215 people is obviously a mere fraction of the people who were lawfully in the Capitol that day.

(2) how could the Control List searches for the Initial Google Geofence Warrant have generated hits for only 215 unique devices/accounts when Google applications are so ubiquitous and presumably between 1,500-2,000 people were lawfully present in the Capitol building in the time periods before and after the riot?

It its earlier filings, DOJ used a dated stat that only 30% of Google users actually use the Location History service, a service that takes several steps to turn on. In this filing, DOJ argues that as the proportion of iPhone users increase, the number of people who trigger Location History will be smaller still, unless they’re using Google maps.

Boasberg is suggesting (and DOJ is not contesting) that their initial exclusion effort may only have included about 15% of those lawfully in the Capitol. While there would be some subset of people lawfully present who weren’t excluded in the first batch (people who were not moving in the 15 minutes before and after but who fled or took pictures during the riot, for example), this filing suggests all these numbers are low — very low.

If just one third of the people who entered the building could be expected to trigger the Google geofence, then the number who entered may be well over 4,000 (a reasonable number given the number Sedition Hunters have IDed).

If just a third of the people who were at the Capitol but not necessarily taking pictures inside it triggered the Google geofence, that number might be closer to 7,000 additional bodies, including those assaulting cops. And there could be another 23,000 people outside the Capitol — some no more than MAGA tourists, but others among the most violent people that day.

Using the Arkin numbers that were outdated when he published them in December 2021, Trump claims that, “we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol.”

That’s not what the geofence shows. Using the same 120,000 number he uses for his own calculations, about one in ten were right at the building and a quarter may have made it to restricted ground, and the numbers could be double that.

One thing is clear though: the violent mobsters literally carrying the banner of insurrection as they attack cops may not be the ones you’ll find taking pictures inside the Capitol. And once you figure that out, the numbers of potential Trump insurrectionists starts to grow.

And Judge Chutkan knows that.

Take, Robert Palmer, whom Trump raised to complain that Chutkan had presided over the prosecution of someone who said he went to the Capitol at Trump’s behest, where he serially assaulted cops because he believed he needed to stop the voter certification. Robert Palmer never entered the Capitol. But it’s quite clear he believes Trump sent him.

Update: Distinguished between the two trespassing crimes to show one can be applied to both locations.

Timeline Easterday Google Geofence Challenge

June 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress

67 replies
  1. kaiser says:

    WOW! Geofence, Geofence, even in the HED!
    And nobody thought to tell this, no doubt dumb guy, what a Geofence is.
    Journalism 101.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  2. tmooretxk says:

    Has an actual number for the total of participants in the various rallys and events outside of the chambers ever been determined? The 120,000 figure seems insanely inflated – I understood the max estimate had been maybe 40,000. Can’t quote that source, just a number that stuck for some reason.

  3. Legonaut says:

    IANAL, but am I mistaken in seeing Trump’s lawyers citing news articles to support their arguments as incredibly weak sauce? Shouldn’t they be presenting actual documented evidence, rather than hearsay? Or is it 3:30 AM and I’m missing something really obvious? :-)

    Also, I’m not aware of any of the statues he’s accused of violating including a threshold body count beyond two (for conspiracy). If even one incited mobster is an insurrectionist, he’s still on the hook for incitement and insurrection, correct?

    It sure looks like they’re past arguing the evidence & the law, and well into pounding the table. It’s hard to believe so many people are buying this crap.

    • Buzzkill Stickinthemud says:

      Yes. Why does the percentage or raw number of insurrectionists matter? Are Trump’s lawyers trying to argue the “small” number of mobsters who entered the Capitol are dissociated from Trump, that they’re rogue, or perhaps Antifa or FBI plants or ? Seems besides the point.

      All that should matter is Trump’s guilt or innocence of the statutes he’s been charged with.

      • John Paul Jones says:

        I think they’re trying to argue that the Capitol riot was no big deal, because so few people actually showed up. But the underlying analogy is to show business: if only a few people show up for the performance, then it’s a flop; if it’s a flop we don’t even have to talk about it; and for sure we don’t need to charge anybody. I’d expect the “star” of The Apprentice to think in those terms, and I get the feeling (speculative, no evidence) that the client is to a great extent dictating the terms of some of these filings. “It was no big deal. Put that in lawyer’s language for me.”

        • Buzzkill Stickinthemud says:

          That’s funny, and perhaps true. But all their entreaties should flop when what matters is facts, evidence, and the law.

          Unless we’re hypothetically talking about Judge Cannon. Then we could expect a hearing on the merits of “small mobster turnout equals why are we even talking about this”, to be scheduled late in 2024.

    • theartistvvv says:

      “the statues he’s accused of violating” = sounds painful, even if but a stony silence was heard

  4. Zinsky123 says:

    Again, outstanding investigative journalism and deductive reasoning! The ability to “geofence” and its limitations are astounding and troubling. It is great that we can prove these low-life Trump minions violated the U.S. Capitol on 1/6/21 but I can see this capability being misused. Having a cell phone in your pocket or purse clearly makes you little more than a digital blip on a map. Dinesh D’Souza has already shown how reality can be blurred, as a result. Smart criminals will throw away their cell phones.

    • David F. Snyder says:

      This level of coordination will always need comms. And walkie talkies won’t cut it. And secure radio channels are highly regulated. Not too many options.

      But, yeah, they won’t be carrying tracking devices if there’s a next time.

    • EuroTark says:

      The geofence is actually a data-minimization technique. Where they would previously ask “give me the subscriber info on any phone that pinged the tower(s) covering the Capitol” they can now use the actual data to filter those who actually went inside. But yes, don’t carry your phone with you when criming.

      • Eschscholzia says:

        Exactly. “Geofence” is just a fancy name for point in polygon, something I routinely do to find all records of species X in park Y. The name comes from real-time applications, where some apps illegal or not licensed in some countries check the location against those country’s polygons (fences) and refuse to run in those areas. Starlink and other satellite communications services also geofence to only work where they are licensed. Some apps show ads triggered by geofences around businesses. Another routine application is the iNaturalist app when used for BioBlitz species records in a park: the geofence means all observations in the park polygon are included and those outside the park are excluded.

        The non-real time applications like responses to a warrant start with billions and billions of records of phoneID, DateTime, Lat, Lon, and precision from the GNSS (US GPS + EU Galileo) chip in the phone. The first step is to exclude all records with timestamps before the start (15 minutes before the insurrection) or after the end (15 minutes after). The next step uses a bounding box rectangle enclosing the geofence polygon plus perhaps 50-100m on all sides. Any record in the right time period with Lat greater than the bbox LatMax or less than LatMin, and the same for Lon v LonMax & LonMin, get excluded, as not even possibly in the geofence polygon. Those tests of numeric inequalities are very fast and vectorizable: the only way to deal with ginormous databases is to use fast operations first to winnow down the working dataset to thousands or millions of records.

        The next step is tricky, depending on the variation in the precision of the remaining records. The simple way is to create 3 polygons from the geofence: the original, plus one expanded by the precision buffer, and another shrunk by that precision. Any records outside the expanded polygon are out, any within the shrunk polygon are in, those in the large but not the small are borderline/ambiguous. The rest of the warrant captures phoneIDs that were definitely inside the geofence before or after the insurrection incursion, then removes all location records for those phoneIDs as potentially legal.

        Not something to run in Excel, Access, or even MS SQL Server, but given the appropriate distributed filesystem and (non-transactional) relational database (parquet on datetime and broad regions), the above query could be coded in 5 minutes and run in under an hour, even for trillions of records in the source dataset. Without the fancy distributed file system, my laptop runs queries against 2.5B records in duckDB/parquet in about 5 minutes. The hard part is determining the logic of the query.

        My understanding of the law is much more limited, but obtaining the warrant involves specifying the location and time of a specific crime, and ways to eliminate capturing data on innocent parties who were in the wrong place at the wrong time. In this case that should be relatively easy, as being within the restricted area without specific permission was itself a crime. Again, the important part is the logic of the requested query that the judge must sign off on.

    • Rayne says:

      It should be no surprise to anyone in the US that if law enforcement has reasonable suspicion you’ve committed a crime they can obtain a warrant for data from telecoms/ISPs/internet businesses through which you may have been using services while en route to/during/leaving the scene of the crime.

      How is this substantially different from obtaining a warrant for CCTV video from a business or local government if the target was in the presence of CCTV and relying on services provided by the entity using CCTV? The key here is a warrant. All of this effort to prosecute insurrectionists would fail had they not gotten warrants for this data, buying location data instead without a warrant through app providers.

      You bring up a more important point relevant to Marcy’s criticism of Trump’s erroneous claims about numbers: we cannot know just how many of the persons who trespassed on Capitol grounds and the Capitol building itself were smart enough to put their cell phones on airplane mode/shut down location services/remove the battery/use a Faraday bag/use a burner phone only on January 6. Many of the screened-out numbers may have fit somewhere in the just-smart-enough crowd who were able to obscure themselves enough that they can’t adequately be identified to charge them. How many of these persons were the links between the persons physically attacking the Capitol and those who planned the attack who remained offsite?

    • Peterr says:

      This is where the role of judges is key. For the government to get a subpoena for geofence data, they had to prove to a judge that they had reason to believe a crime was committed, and that the information they were seeking (location data) was related to the commission of the crime. Given that we’re talking about trespassing (at a bare minimum), the location data is obvious proof that the crime was committed. The bullet points in Marcy’s post illustrate how the government sought to minimize the data to only those illegally present — remove information about police/Hill staff/members of congress; remove information if there was a “ping” only within the margin of error, etc.

      Subpoenas and warrants require a judge to sign off on them, consistent with the 4th amendment protection against illegal searches and seizures. Having judges who are appropriately skeptical of ill-founded requests is key to this protection having teeth.

  5. Critter7 says:

    Ryan Reilly was on Molly Jong-Fast’s “Fast Politics” podcast, Nov. 24 edition, to talk about his new book, “Sedition Hunters”. If I remember right, he said that Sedition Hunters have identified another 1000-plus people who were inside the Capitol or otherwise committed possible crimes that day (in addition to the approx. 1200 who have already been charged), and that the FBI is feeling pressure to get the additional 1000 charged in the next 2 years, before the statute of limitations runs out on the primary charge.

    The crux of what he spoke about was the FBI’s outdated technology, and hence their dependence on Sedition Hunters for IDing the rioters who acted in ways that drew criminal charges.

    • emptywheel says:

      Ryan is great and I highly recommend his book.

      That said, there are multiple views among those who know this investigation, including among those who open sourced it. I think it is almost always impossible to know from the outside specifically what FBI/DOJ are thinking–for example, in spite of significant effort Reilly has been unable to figure out the nature of Sam Lazar’s cooperation.

      There’s someone I followed closely whose cooperation remains obscure. There are aspects of the cooperation of two Oath Keepers and at least one Proud Boy for whom that’s true as well.

      But there is abundant reason to think that–as laid out here–FBI’s priority should be almost exclusively on people outside the Capitol at this point, and that some of the arrests they’ve made are instrumental to get there.

      • Spooky Mulder says:

        “…outside the Capitol…” Outside by feet, yards, miles? My reading glasses are at the ready!

  6. John Colvin says:

    I did not realize that there was such a difference between iPhones and Androids, in terms of how much location history information would be available. As iPhone users tend to be somewhat wealthier on average than Android users, law enforcement appears better positioned to track the less well heeled.

    • earlofhuntingdon says:

      It’s not a focus on different income levels, so much as it is prioritizing greater vs. lesser privacy and commercialization of personal data. It’s just part of the world law enforcement has to work in.

      • Ewan Woodsend says:

        That and the fact that google and apple are competitors, providing equivalent services. I suppose the FBI also asked apple for its location information?

  7. dadidoc1 says:

    Excellent article as always. I wonder if the DOJ asked for geofence information on the visitors to the Capitol building in the weeks leading up to the insurrection that they then cross-referenced with ‘tourists’ on January 6th.

    • RipNoLonger says:

      That is an excellent question. Of course the “tour guides” (or maga congresscritters) would probably be filtered out, but one can hope.

    • John Paul Jones says:

      Not sure about the exact nature of Congressional privileges in this area, but supposing such to exist, they might extend to their staffers in the performance of their duties. That might make warrants harder to get.

    • emptywheel says:

      There’s no evidence of that, and that’s the kind of thing that would clearly overstep precedents on geofences that were thrown out.

      • dadidoc1 says:

        I’m not suggesting that members of Congress or their staff be identified because that would overstep precedent, but it would be interesting to see if clutches of Proud Boys, Oath Keepers, or 3 Percenters happened to be touring the Capitol in the days prior to the insurrection.

        • Peterr says:

          At the time, the general public was not getting tours of the Capitol because of COVID protocols. If a visitor had business that required them to be there in person, a member or staffer had to accompany them from the time they arrive to the time they leave.

          I don’t know whether there were entry logs kept of such visitors, or other means of cross-checking visitors pre-Jan 6 with Jan 6 insurrectionists, but I would think that various investigations (Capitol policie, FBI, Congressional J6, etc.) would have been chasing this down, without resorting to geofenced phone data.

    • Frank Probst says:

      My non-lawyer guess is that there wouldn’t be enough probable cause to get a warrant for this information.

  8. posaune says:

    What at great post, EW! Geez, you do get into the weeds on everything! So much appreciated! This year, I’ve been doing beta testing for ESRI — who is focused on a LOT of geofencing development, including building interiors which is a serious shift in their historical work. I’ve looked through some of the Jan6 trial exhibits and they include ESRI maps (and floor plans). I would expect to see increased development in this area. Can’t tell you how pleased (but not surprised, of course) I am to see you address this.

  9. ApacheTrout says:

    Off topic but with a potential for effective geofencing, here’s a situation where I sure hope the attempted murderer carried a cell phone. Three students (two American citizens and one resident of the US) of Palestinian descent were shot and wounded last evening in Burlington, VT.

    • dannyboy says:

      Way, way off topic and using “the potential for effective geofencing” as the hook really stretched it.

      But you made your point about Palestine and we had to read it because it was so well disguised here under “THE MAGA TOURIST GEOFENCE AND THE VIOLENT CONFEDERATE FLAG-TOTING GEOFENCE”.

      I am a Jew, so please inform me of intentions to draw the Palestinian’s into future unrelated topics.

    • Rayne says:

      Let’s not drag this thread off topic this way and derail discussion about geofencing with regard to January 6.

      There are mass shootings every day across the country — there were six different mass shootings on November 5th alone, and yet there wasn’t a lot of concern about using data to identify and apprehend the shooters.

      You want to discuss geofencing in relationship to mass shootings? Get your own blog.

      Marcy has discussed geofencing in 24 posts to date, in relation to January 6. Head back in that direction, on topic.

      • ApacheTrout says:

        Woah, sorry about that. I brought it up because I was hoping to see the investigative strategy used to identify the shooter in a small neighborhood with relatively few people in it. Wasn’t intending to hijacking the thread, which is why I said off-topic..

        • Rayne says:

          There are topics which have the ability to attract trolls to attack the site, potentially doing more than derailing a comment thread. You were walking that line and we simply do not need that kind of trouble when there is so little solid journalism about January 6 covering the topics Marcy addresses.

          If I sound terse about it, know that the community doesn’t see all that’s going on here.

  10. pdaly says:

    From following the links to the geofence process the DOJ used in these cases, it seems the riot is defined as the time just before the U.S. Capitol building was breached and then cleared (time stamps from 2pm to 6:30pm) and not the moment the outer perimeter fence of the Capitol grounds was breached, which occurred more than 1 hour earlier at 12:53pm

    For the DOJ’s expanded geofence, did they still use the 2pm to 6:30pm window and potentially miss anyone trespassing into the outer grounds of the U.S. Capitol at 1pm and who were gone before 2pm ?

    Jan 6, 2021 timeline excerpt from wikipedia:
    “12:53 p.m.: Rioters overwhelm police along the outer perimeter west of the Capitol building, pushing aside temporary fencing. Some protesters immediately follow, while others, at least initially, remain behind and admonish the others: “Don’t do it. You’re breaking the law.”[188][189] By 1:03 p.m., a vanguard of rioters have overrun three layers of barricades and have forced police officers to the base of the west Capitol steps.[182]”

    12:57 p.m.: Federal Protective Service officers report that the Capitol Police barricade on the west side of the Capitol building has been breached by a large group”

  11. Eichhörnchen says:

    “The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts.”

    I snicker a bit whenever I see this – which is a lot. Isn’t the Park Service the go-to for crowd sizes in DC?

    I think Trump will never pass up an opportunity to get his own wishful crowd-size numbers into an official record.

    • Eschscholzia says:

      NPS is officially out of the business of estimating crowd sizes for anything on the Mall. No upside, plenty of downside.

    • dannyboy says:

      His attempt to break his previously held record (Trump claimed that 1.5 million people attended his inaguration).

      His facile use of numbers is getting him a bit of trouble here with the Honorable Letitia James.

  12. e.a. foster says:

    Thank for this very interesting article. Did learn a new word, “geofencing”, looked it up and now I know the term. Makes sense.
    John Paul Jones: comment cracked me up.
    Whether there were 200K or 1,200, crimes were committed and people died and other left mentally and/or physically scared. It was a disgrace.
    Who knows perhaps some do believe it was no big deal. They were just exericing their rights,

    • Rayne says:

      January 6 insurrectionists were not exercising their First Amendment rights when they trespassed, used violence against law enforcement, and obstructed government operations.

      Don’t amplify that bullshit claim, especially when more than 200 persons were unlawfully arrested in 2017 for exercising their First Amendment rights by protesting Trump’s inauguration. A small number of protesters were responsible for setting fire to a limo and breaking windows, but the majority of the +200 arrested weren’t trespassing on federal property/using violence against law enforcement/obstructing government operations.

      ADDER: I should note that for the January 2017 inauguration there were 3,300 law enforcement and 5,000 national guard personnel on duty to police persons exercising their First Amendment right to exercise free speech and freedom of assembly. In comparison, Trump did not deploy a similar force on January 6, 2020 though he called for participation in the event ahead of time and saw the number of attendees on the mall that day. Evidence of Trump as First Amendment proponent or LIHOP?

  13. William Allen Simpson (DayDreamer) says:

    So the current Trumpy estimate is 120,000. That’s quite a reduction from the million he’s previously claimed.

    In reality, the crowd was no more than 10,000, and most of the time was considerably smaller, as many of them started toward the Capitol before he’d finished speaking.

    With the actual number of those identified as inside the capital, plus those outside that violated the perimeter, seems to me that’s 35% to 50% (not 1%). Looking forward to the reply brief to set it straight.

    [FYI – edited, follow-up comment deleted to remove clutter. /~Rayne]

  14. Just Some Guy says:

    Just noticed something weird about the filing:

    “The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech.”

    Uhhhh, wasn’t Trump’s speech on January 6th at The Ellipse? I mean, of course if his attorneys cannot get such basics as the freaking location of where his speech was, why would anyone expect anything else claimed in the filing to be remotely related to the facts? Yeesh.

  15. TimothyB says:

    Very useful post, thanks.

    Typo [in the header that displays before you come to this post] “one person” should be “one percent.”

    What is the legal, as opposed to the political, weight of the “less than1%” argument? If I gave an inflammatory speech to 203 people outside a haberdashery, claiming the hatter was a thief and a traitor not deserving the protection of the laws, but admiring the Stetson in the window (no less weird than Mr. Trump’s speeches) and then two of my peeps break the window to steal the hat for me …. I have no culpability because 99% of my audience didn’t break in?

    • bmaz says:

      “What is the legal, as opposed to the political, weight of the “less than 1%” argument?”

      None really. There are no set limits as to numbers or percentages in the applicable statutes. It is PR bullshit.

    • emptywheel says:

      Virtually all of Trump’s DC filings are garbage. He seems to be planning to either win that case by stalling and winning (or stealing) the election or getting the help of Sam Alito and Clarence Thomas.

      • RipNoLonger says:

        Just a rhetorical question: Who is really masterminding this whole show?

        Trump is a two-bit carnie who really doesn’t have the IQ or focus to pull so many disparate pieces together. Obviously there are whole groups of people and organizations that need coordination to make this production work.

        I’m thinking at least the huge PR effort, working with the RW and “christian” networks, funneling money through many layers, the legal blitzkriegs, the coordination with outside interests (monied foreigners), und so weiter.

        Makes me think there is a giant spreadsheet detailing the tasks, due dates, monies spent/brought in, who’s-on-first. Wonder who is keeping this plan.

  16. Brian Ruff says:

    The stupidity of the rioters is astounding. Carrying your phone while committing crimes, taking pictures, live streaming??
    Have they no concept of the burner phone?
    They really believe their own entitled bs.

  17. Purple Martin says:

    OT. Here’s Judge Chutkan’s Order today, denying “Defendant’s Motion for Pretrial Rule 17(c) Subpoenas.”

    That’s also known as the fishing expedition. Don’t take my word on that, but do take Judge Chutkan’s:

    Accordingly, Rule 17(c) subpoenas are not appropriate where the moving party seeks materials “procurable reasonably in advance of trial by exercise of due diligence,” or operate “as a general ‘fishing expedition.’” Id. at 699–700. “Courts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.” United States v.Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)

    The broad scope of the records that Defendant seeks, and his vague description of their potential relevance, resemble less “a good faith effort to obtain identified evidence” than they do “a general ‘fishing expedition’ that attempts to use the [Rule 17(c) subpoena] as a discovery device.” United States v. Binh Tang Vo, 78 F. Supp. 3d 171, 180 (D.D.C. 2015) (quoting Cuthbertson, 630 F.2d at 144); see also id. at 181. “[I]f the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused.” Libby, 432 F. Supp. 2d at 31 (quoting United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991)). Defendant has not justified the issuance of a Rule 17(c) subpoena for the five additional categories of records related to the “Missing Materials.”


    For these reasons, the court hereby DENIES Defendant’s Motion for Pretrial Rule 17(c)
    Subpoenas, ECF No. 99.

    • earlofhuntingdon says:

      From page 6, at the top:

      Defendant could have used the written transcripts of the interviews which he already possesses to identify particular portions of video recordings where “a witness’s demeanor, tone, and expression” would likely provide impeaching evidence…; or he could have proffered some other reason to believe that the video recordings would do so. The Motion does not even make that attempt. Accordingly, Defendant has not carried his burden in justifying the issuance of the subpoenas with respect to any of the “Missing Materials.”

      “The Motion does not even attempt” to make an argument. Trump always hires the best lawyers.

      • bmaz says:

        If you are filing a motion that will not get a full evidentiary hearing, attach the goods. The Trump lawyers continue to be ridiculously bad.

  18. Vinniegambone says:

    Worse than the flag toting attendees are the AR-15 totting attendees spotted in the trees just outside the MAG barriers at the Ellipse. Odd there’s so little mention of the spotting reports of and of the multiple arrests of people who came to Jan 6 prepared for worse action than breaking windows and pooping on floors.

    One hopes DOJ, or Homeland Security, pulled the geo fence data in that are to identify and watchlist that set of possible criminals/ insurrectionists phone owners who may have had weapons with them . Just the count of people who refused to go through the MAGS is telling. That Trump knew they weren’t coming through the mags for that reason is telling. HE FUCKING LOVED IT. Who is kidding who? “They’re not here to hurt me.” pretty much admits, “but they are here to hurt my enemies.”

    You are special. We love you. Kill your fellow Americans.

    More should be made of the weapons brought to the capitol because of Trump’s incitement. Then there’s Stewart Rhoades exhortation to his followers NOT to bring firearms, but “bear spray and other weapons were OK. ” You are no good to anyone if you are rotting in jail.” he intoned.

    Not only did Trump invite and incite the insurrectionist, the violence was a self fulfilling prophecy of sorts. The prior marching orders rippling through the MAGA channels teased a promise of violence to participants in a cult of violence. Stopping the count = proveable crime. But this full thrust incitement of violence? This is a worrisome phenomenon.

    Wonder if we will learn Jason Eaton visited DC Jan 6, or didn’t have the money, and just wish he had. This breeding of political based violence should worry us all, and how much racial violence has also the taint of politics?

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