Jeanine Pirro Has a Black Powder Problem
At the hearing in accused pipe bomber Brian Cole’s case the other day, Magistrate Judge Matthew Sharbaugh ordered both sides to file their views about whether the indictment DOJ obtained against Cole from a Superior Court grand jury was valid; he ordered those filings to be posted to the public docket by end of business yesterday.
MINUTE ORDER as to BRIAN J. COLE, JR.: As discussed during today’s proceedings, the Court was presented yesterday afternoon with a two-count indictment in this case that was returned by a D.C. Superior Court grand jury, rather than a federal court grand jury. The indictment included the same two counts charged in the criminal complaint, namely 18 U.S.C. 844(d) and 844(i). In asking the Court to accept the indictment, the government invoked D.C. Code § 11-1916(a), which provides that “[a] grand jury serving in the District of Columbia may take cognizance of all matters brought before it regardless of whether an indictment is returnable in the Federal or District of Columbia courts.” The Court recognizes that Chief Judge Boasberg recently upheld the propriety of this approach based on that statute, concluding that Section 11-1916(a) authorizes local D.C. grand juries to return indictments in U.S. District Court (and vice versa). United States v. Stewart, 2025 WL 3237833 (Nov. 20, 2025). But Judge Boasberg then stayed that ruling pending appeal, stating in part that “the public interest lies in letting the Court of Appeals decide this issue before the Government moves forward both on this case and in similar fashion on other cases.” See Stewart, No. 25-mj-225, Order (Dec. 9, 2025). The Court yesterday deferred a decision on whether to accept the indictment pending further briefing from the parties on the question of whether Judge Boasberg’s stay order extends to the circumstances here. The parties were directed to submit briefing on that question, and the Court intends to issue a decision in short order on whether to accept the indictment as proposed. Meanwhile, the Court ORDERS that both sides shall file their respective briefs on the public docket by close of business on December 31, 2025. Either side may request redactions to their briefs the extent they believe it necessary, provided that the filing is accompanied by an appropriate motion to seal. SO ORDERED. Signed by Magistrate Judge Matthew J. Sharbaugh on 12/30/2025. [my emphasis]
According to Cole’s response, the government may have filed something under seal (I’m confused about the date here, because Cole’s response bears yesterday’s date, which would make the government filing, filed “yesterday,” on December 30).
Defendant Brian Cole Jr. respectfully submits this response in opposition to the government’s memorandum, filed late yesterday, December 29, 2025, asking this “Court [to] accept the indictment return,” referencing a document returned earlier that day not by a grand jury of this Court but rather by a grand jury organized by, and sitting at the behest of, the D.C. Superior Court. (Gov. Mem. at 7.)
But Jeanine Pirro went out partying last night before actually filing whatever they filed publicly.
And given the panic that Cole’s response describes, it suggests there may be real problems with the case.
The response provides the back story to their December 28 filing seeking to clarify that Tuesday’s hearing would include a probable cause inquiry.
On Christmas Eve, Cole’s attorneys asked prosecutors whether the December 30 hearing or whether they would indict before then.
We also need to know whether the government plans on holding a probabl[e] cause hearing on Tuesday [December 30, 2025]. We have received no information regarding an indictment and thus would like to know the government’s position on this. Please let us know by December 27, 2025.
Cole’s exasperated filing translated that inquiry this way: “Are you going to indict this case before next Tuesday?” [italics original].
The government used the holiday to stall almost two days, after which they asserted that the hearing would deal only with detention.
Tuesday’s hearing is a detention hearing under 18 U.S.C. § 3142(f). The government will be proceeding by proffer.
As Cole’s filing describes, nothing about that response made sense.
In this context, two options seemed likely: (1) the government had tried and failed to secure an indictment; or (2) it was still planning to obtain an indictment from the federal grand jury on Monday. To that end, Mr. Williams quickly wrote back:
Also, please tell us whether the government has sought an indictment before a grand jury on the charges against Brian Cole Jr. If an indictment was sought before a grand jury, we are requesting all documents demonstrating the outcome of the grand jury. For example, if a “No Bill” was rendered by the grand jury on Brian Cole Jr’s charges, please provide us with that. Please provide us with this documentation prior to this Monday.
On December 28 (that is, the day Cole’s attorneys filed that motion to clarify), AUSA Charles Jones responded that no grand jury was sitting after December 19, which surely he knew in real time.
As John [Shoreman] indicated below, the parties have not yet scheduled a Rule 5.1 preliminary hearing given the defense’s request to continue the December 15 detention hearing (at which we would typically have scheduled the preliminary hearing). Please let me know if you have a view on when to schedule that hearing.
Had there been a “no bill” in this matter, we would have promptly reported it to the Court pursuant to FRCP 6(f).[2] The government has not yet sought a grand jury indictment in this case given the defense’s request to continue the detention hearing and your agreement to exclude time under the Speedy Trial Act’s 30-day indictment deadline. Additionally, there are no sitting grand juries in D.C. District Court between 12/19 and 1/5.
Which Cole’s attorneys used to note that the FBI was surveilling Cole for a good deal of time before they arrested him.
2 The government must only make the report of a “No True Bill” under Fed. R. Crim. P. 6(f) “[i]f a complaint or information is pending against the defendant,” so the government’s response does not say whether it sought (and failed to receive) such an indictment prior to Mr. Cole’s arrest. From discovery, the defense team is aware that federal agents had placed the defendant under surveillance for a long period of time before his arrest, suggesting again that they had plenty of time to seek an indictment.
Cole’s team wonders whether they tried and failed to indict Cole; I repeat my observation that they did this last minute, in such a way that they would be unable to prosecute others.
This is when the filing gets a bit comical.
They translate what this means, again.
In turn, defense counsel finally had the answer to the question they had asked four days earlier: No, the government is not going to indict this case before next Tuesday. This meant, based on a plain reading of the relevant federal Rules and statutes, that there would have to be a preliminary or Mr. Cole would be released without conditions. [italics original, again]
In real time, Cole’s lawyers offered to forgo the probable cause inquiry if prosecutors would release him on bail.
(1) “We can exchange dates for the preliminary hearing;” and (2) “[W]ould the government be interested in waiving the preliminary hearing in exchange for bail under a strict set of agreeable conditions placed on Mr. Cole?”
That’s when Jones got obstinate: No release, no probable cause hearing until January 7.
23. About 20 minutes later, the government responded on these two points by writing: (1) “Would the afternoon on January 7 or January 8 work for a preliminary hearing?”; and (2) “We’re not willing to agree to release under conditions in exchange
Cole’s lawyers were not that stupid, as they describe.
Given that a federal grand jury would reconvene on January 6, 2025, it would have been malpractice for defense counsel to agree to delay the preliminary hearing again until a date as late as January 7, 2026.
Jones went silent, so Cole’s lawyers flew out a witness who — they reportedly said during the hearing the other day — would have testified that the pipe bombs would not have exploded. They also noted what I did: neither the arrest affidavit nor the detention memo presented any evidence that Cole bought black powder or the potassium nitrate that he allegedly told them he used to make it.
If these weren’t bombs, they might not be able to charge Cole under the existing statute, and if they can’t, then the statute of limitations might run before a grand jury is seated to indict Cole with something else.
And in the government’s (apparently still sealed) filing, they try to blame Cole for adhering to Federal Rules of Criminal Procedure.
34. This is not hyperbole. The government admits as much, stating that it “would have sought [] an early indictment from a federal grand jury panel had there been any indication that the defense, contrary to all indications, intended to pursue a preliminary hearing on December 30, 2025.” In other words, the government expected defense counsel to drop the ball.3 That is not “changed circumstances.”
3 The government does not proffer any reason why competent defense counsel would agree to forego a preliminary hearing in the absence of receiving some benefit, such as an agreement to release the defendant from custody. That is because there is none—making the government’s purported reliance on this “indication[]” entirely unreasonable.
For what it’s worth, I think the government’s location data is also likely to be aggressively challenged.
But it sounds like the government also understands they’ve got a hole in their case where the actual explosives are supposed to be.
Update: Sharbaugh has dispatched with this process by, first, seemingly misrepresenting what the defense said about a probable cause hearing (and thereby granting himself the ability to determine probable cause without the hearing the defense wanted), then finding Cole should be detained. Then, after doing that, he said it was no harm no foul on forgetting to indict him and doing it in the DC Superior Court to avoid a hearing.
I don’t contest the decision, which seems reasonable enough (he relies heavily on DOJ’s representation of Cole’s confession, which his attorneys did not contest because they were making a procedural case), though I do think the procedural posture is a problem.
“And in the government’s (apparently still sealed) filing, they try to blame Cole for adhering to Federal Rules of Criminal Procedure.”
Adhering to Rules can lead to adhering to laws, so in this Administration must be called out and tamped down forthwith.
Many thanks for your continued, detailed, analyses. Happy New Year.
How like Bondi, Patel, and Piro to make a big splash over a case that may be as full of holes as Swiss cheese. Perhaps they should have brought in Alina Habba as a SGE to help out.
They’ve painted themselves into a SOL corner, with only a few days left to figure a way out. But they’ve also precluded themselves from indicting anyone else for the crime or as co-conspirators with Cole. They’ve had eleven months to come up with this dog’s breakfast. May they eat it for hash every morning for the rest of the year.
Two Questions:
1. Without black powder or potassium nitrate, what charges fail? Wouldn’t the feds presumably have evidence that Cole’s intent/mens rea was to assemble explosive devices? The lack would make “beyond a reasonable doubt” more difficult but that’s not the evidentiary standard yet.
2. What happens if January 7th results in an indictment and evidence suggests that the delay was purposeful to toll the Statue of Limitations for co-conspirators, like Proud Boys? Is this part of “prosecutor’s discretion” or is this “playing games with a judge’s patience”?
I’ll write this up further, but I think the defense challenges:
1) Whether these were really bombs. If not the charges would get thrown out.
2) Whether his Miranda waiver was voluntary (though it sounds like it was).
3) THe location data, both on 4A grounds (bc these kinds of tower dumps are no longer widely accepted) and on accuracy (bc they only correlate with the later movements of pipe bomber).
I read that they threatened him not to ask for a lawyer.
Where did you see that?
“1) Whether these were really bombs. If not the charges would get thrown out.” <== Wow, how does that work? I must be missing something (see username). If I make, and place, what I think is a bomb, and it's inert because I screwed it up, they throw out the charges (no pun intended)?
Here’s some model jury instructions for the charges.
The statute defines explosive this way:
If there was not enough black powder to detonate, then it may not qualify.
… I should have added, … “or if he’d made a fake on purpose?”. . If they throw out the bomb | explosive charges, they’d surely get him on *something*, no?, assuming it’s true he left the items, which is what I thought is so. I should stick to cooking-tips. I see. I read your link. But, I assume he’s not off the hook even if it’s inert or a fake.
The question of what is charged is based on how the device is constructed.
A device that contains all the elements that could produce an explosion is charged as such.
A device that does not is charged as a hoax device.
I’m curious since they have some of the ingredients to make gun powder listed, and it is against the law for an individual to make then transport gunpowder. He is not charged as such, I wonder why?
Also I do not see any initiator, IE blasting cap etc, listed on the list of components, as possessing a blasting cap with out a federal license is illegal. Did he like Ted Kaczynsky make his own? Since the rest of his initiating section seems to be electrical based I wonder what he tried to use if anything.
If you are charged with deploying a bomb, but you really deployed an imitation of a bomb, then you don’t meet the definition of the alleged crime. Now if what you actually did is commit a different crime, they can charge you with that.
The crime charged has to match the crime committed in order to get a conviction.
They can only charge another, different crime if the statute of limitations hasn’t expired
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We adopted this minimum standard to support community security. Because your username is too short, your username will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. /~Rayne]
The very lack of explosives blows up the feds’ case–on these charges.
How, given the SOL having tolled, can they change the charges to accommodate a “hoax” device? (IANAL, obviously.)
To emptywheel@1/1 6:57pm:
There’s a more complete definition of explosive in the text of the 18 USC 844(j) (https://www.law.cornell.edu/uscode/text/18/844). The first part of it specifically mentions gunpowders. So if Cole had actually made black powder (even a lousy version), I’m pretty sure it would be defined as an explosive. If he was completely missing one of the components, it might not be.
The second paragraph of the jury instructions also says that the defendant doesn’t need to intend to harm people or damage property, an intent to intimidate is enough. Of course, they’d have to get into Cole’s head for that, and he may not have said that specifically in his confession.
FWIW, there are lots of commercially available and homemade ways to light off black powder, from fuses to electrical components. Some of them would be obvious on a receipt (eg electric matches used by pyrotechnics and hobby rocketry folks), but others might not be. Just shorting out a lithium battery would almost certainly do the job.
With duds in charge, fizzles are to be expected.
“Catch 22” just popped into my brain, but is that an applicable label for a self-imposed conundrum?
Will “Pirro’s Paradox” have to be coined to describe this?
Or maybe it’s just a Wheezy Joe moment.
“But it sounds like the government also understands they’ve got a hole in their case where the actual explosives are supposed to be.”
Re: this final sentence, it’s hard to tell whether the *government*, thick as they are, understands this yet, but the defense attorneys sure do.
The government may be able to make a case on other charges, but they definitely have a hole in their “explosive” allegation. From backyard experimentation with friends in my youth, I know that simply mixing sulfur, saltpeter, and charcoal does NOT create an explosive compound, even if confined as in a sealed pipe. Without a couple of other steps after mixing, which I’ll not list, the best you get is a dark powder that burns hot and well, but very slowly. So if all Cole did was look up the ingredients and proportions, and stir them together, there were no explosive devices involved here.
(We melted a couple dozen glass baby food jars into interesting small piles of slag over several weeks, and generally had a great time learning how things worked, but the first time one went bang instead of fzzzzzzzz, we decided that was probably all the knowledge we needed on the subject. Too many of our dads had security clearances to risk the attention we’d draw by learning much more.)
Yes, and presumably the government will have analyzed that substance in the pipe to see whether it actually was capable of a deflagration-to-detonation transfer in the pipe. Or would even burn at all.
As a misguided teenager in pre-Internet days, I once tried to make black powder for a large firecracker (like a “M-80”) by mixing the ingredients together. The resulting substance would not even burn.
Then, I tried some of my brother’s commerical black powder that he had for his black powder rifle. I wanted a firecracker not a pipe bomb. Even as a dumb teenager I realized that shrapnel of any kind would be extremely dangerous, especially with fuses of questionable reliabilty. So, I tried to pack it tightly enough in a small cardboard cylinder to acheive a detonation. This effort resulted in a large quantity of acrid smoke, but no appreciable sound. At that point I gave up experimenting.
Point is, it is not necessarily that easy to make a device capable of detonation. The government has the devices here, and presumably, analysis of the devices would prove or disprove whether they were capable of detonation. If they charged this under a statute requiring a functional explosive device, while knowing the devices would not have exploded, that is a whole other level of incompetence.
The FBI can and should have done a complete forensic workup of the “black powder” in those pipe bombs – before prosecuting Cole. That would have determined the characteristics of that powder, including what it would take to ignite it, its burn rate, explosive power, etc. It should also have given that information to the defense.
In my neighborhood there were plenty of kids but not any that had access to guns, black powder or an understanding of simple plumbing, but there was a desire to make pipe bombs by some. If I recall correctly an individual got a bunch of stick matches and broke the heads off, then stuffed them in a pipe. He only lost one finger as he attempted to seal the end of the pipe by hammering it closed.
Dumb and Dumber.
Curious! I know of someone who did that exact procedure with the exact same results. Chicago area!
As you say, traditional black powder, as opposed to, say, contemporary smokeless powder, burns slowly and is a low-yield explosive.
The detention memo says Cole learned to make black powder from a video game which listed the ingredients.
While I’m positive there are games that list the ingredients for black powder, I’d be astonished if any went further than that and provided quantities and/or how to combine them into something which would explode.
[Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment as “deepthought856” triggering auto-moderation; it has been edited to reflect your established username. Please check your browser’s cache and autofill; future comments may not publish if username does not match. /~Rayne]
Games might not, but I know of one SF novel that did – it was a plot point!
How is it possible that there is uncertainty as to whether these were pipe bombs? The FBI has had them for years, and undoubtedly studied them in minute detail. Either they could explode or they could not. Its a simple fact question.