April 1, 2023 / by 

 

Pride before the fall? Testimony from witnesses in seditious conspiracy trial leaves weaknesses in defense wide open

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The end of the Proud Boys seditious conspiracy trial may be growing closer but the hole the defendants seemingly dug themselves into this week with yet more testimony from their own witnesses has grown larger.

Testimony continued briefly this week with Tarrio’s witness George Meza. Meza is the self-proclaimed rabbi and former third-degree Proud Boy who described Jan. 6 as ‘the most patriotic act” in a century in a gushing, white power-hand-gesture-wielding video post mere days after former President Donald Trump incited a mob to descend on the U.S. Capitol. 

As a witness for Tarrio, Meza was meant to credibly convince jurors that while he was admittedly once part of a rowdy, reactive brotherhood unbound by social mores, it didn’t mean that he or fellow members of the group, including its national leader, were ever part of a violent conspiracy to stop Congress from certifying the election in 2020. 

Their support of Trump was prolific but to hear Meza insist upon it, it was only in a wholesome patriotic fashion, the way that any American might exercise their right to free speech and assembly.

But Meza’s claims collided, in the final hour of his appearance before jurors, with the cold reality of the prosecution’s evidence against the defendants. Impeaching Meza was often done with a sober tone from Assistant U.S. Attorney Jason McCullough. 

When Meza, also known as “Ash Barkoziba,” insisted he had been ousted from the exclusive text channel at the heart of the charges; Tarrio’s so-called “Ministry of Self Defense” or MOSD, by Jan. 3, McCullough presented evidence where Meza’s frantic rantings about the 6th had continued into chats dated Jan. 9. 

“I can’t tell what chat this belongs to,” he said, speaking fast. “It’s hard to believe they would let me back in after they kicked me out…The average Proud Boy didn’t even know this chat existed. I question this statement if I made it at all in this chat.” 

Jan. 6 was “mass hysteria” Meza later told the jury. People were simply “emoting,” he said. He denied having any understanding that police were under extreme duress when he was near the Columbus Doors seconds before they were forced open. He denied attacking the door or being part of the breach there. 

And though suspicions had been raised about the truthfulness of his testimony for a little more than a day, before he left the stand he told one of Tarrio’s attorneys, Nayib Hassan, that he never received instruction from the Proud Boy leader to go to the Capitol. There wasn’t even a discussion about going there, Meza testified. 

Hassan worked to elicit testimony through Meza that seemed intent to portray Tarrio as all flash and no substance, or a showboater who simply enjoyed to “razzle dazzle” the masses or antagonize the media. But objections over the scope and relevance on this count were sustained, leaving an already thin argument more impotent.

Battered by Meza’s testimony, it was followed with a First Amendment heavy defense from fourth-degree Florida Proud Boy Fernando Alonso that was rich in controversy.

Like Meza, Alonso was a member of MOSD and told the jury when he joined the chapter on Dec. 31, 2020, it was his understanding that the local D.C. division of Proud Boys didn’t want “any heat” and the Vice City member learned that other chapters of the extremist group were warned about coming to Washington on Jan. 6. 

Nonetheless, Alonso came on the 5th. 

And when he did, it wasn’t because there was a plan arranged to storm the Capitol, he said. Any suggestion otherwise, Alonso repeated through a gruff, often heavy accent, was “just ludicrous.”

He knew to meet at the Washington Monument, however, having consulted the MOSD chat that day, he testified, but there was “no objective” discussed. Alonso told the jury he didn’t know what was going to happen and when a video of Proud Boys shooing press away from their group as they congregated near the Capitol was played in court this week, Alonso said this wasn’t about hiding conduct. 

It was because Proud Boys didn’t want to be “doxxed” and didn’t want attention on their club. 

Though Alonso testified on direct that the Proud Boys weren’t doing “photo ops” on Jan. 6, another defense witness, Proud Boy Travis Nugent, said that’s exactly how he perceived things. At trial, Alonso insisted Proud Boys were “peacekeepers” on Jan. 6. 

“The objective was we were going to walk towards the Capitol, stop somewhere along the line, and say a prayer. That was the only objective I knew of at that point,” he said.

Tarrio always contacted law enforcement before Proud Boys rallied, he told defense attorney Sabino Jauregui, “as he should.”

But when pressed, he testified that he never saw any messages about that himself, and he admitted to the jury, that while he considered himself a “good friend” of Tarrio who understood the ringleader’s intentions, he also never saw a single private message between Tarrio and Proud Boy elders or leaders like Nordean or Biggs.

 If he had even an inkling that the plan was for Proud Boys to attack the Capitol on Jan. 6 and stop the certification, well, that would have been an affront so severe to Alonso’s sensibilities, he told the jury, “I would have left right there and then.”

Alonso elaborated on how offended he was at the suggestion that Proud Boys would incite violence. They did charity work and hurricane relief. 

It “insulted” him, in fact, that people could think Proud Boys would even ponder the idea of storming the Capitol.

But in court, jurors heard and saw a different side of Alonso.

In an audio clip, he is heard breezing right over the news that a woman (Ashli Babbitt) had been shot inside the Capitol. From the grounds as people around him exclaim, he is heard only asking if then-Vice President Mike Pence had “betrayed” Trump and whether the vote had been certified. 

“Going on the 6th is not about fighting lefties. It’s about joining patriots on the Capitol steps and awaiting the outcome of history that affects us all,” Alonso once wrote under the handle “Deplorable51” in a message to fellow Proud Boy Michael Priest, also known as Al Tourna, on Dec. 20. Priest was brought into the Ministry of Self Defense by Tarrio, according to application records for the “ministry.”

When Tourna, who used the handle “AL PB,” told him that Jan. 6 would be the moment people would need to “take DC” and then warned that it “may not be peaceful,” Alonso didn’t shrink away. 

Unlike much trial testimony from other defense witnesses who vowed the Proud Boys focus was grounded in defending the Trump-loving masses from antifa, Alonso told Priest going to the Capitol on Jan. 6 “is not for antifa.” 

They were going “as patriots to stand with normies together united awaiting the outcome… when we are amongst them they feel safer and the purpose is what will happen that day…” he wrote

“It’s not a meet at Harry’s [bar at] 8 p.m. to go hunt antifa,” he added. 

Alonso had attended the Stop the Steal rally in Washington, D.C. in December 2020 with fellow Proud Boys, and on his application form for MOSD, he said he had “provided intel” to members of the extremist group while they were on the ground in D.C. for the Million MAGA March a month earlier. He stayed in Florida for that event.

Proud Boys engaged in violent clashes with counterprotesters after both of those rallies. After the rally in November, a Black woman with long braids brandishing a knife and surrounded by Proud Boys was knocked unconscious by a man who cracked a helmet over the crown of her head prompting her to crumple to the ground immediately.

Prosecutors say Alonso greeted that violence merrily.

“‘Put up the video of that predator bitch,’” Mulroe said in court, quoting Alonso’s texts found in a Miami Proud Boys channel that counted Tarrio as a member.  Alonso denied writing it. 

It didn’t sound like him, he said. 

But Alonso joked about that violent episode and others, Mulroe told presiding U.S. District Judge Timothy Kelly this week as he fought off objections from the defense that this evidence was prejudicial and irrelevant to impeaching one of Tarrio’s few witnesses. But Mulroe convinced Judge Kelly that this show of force, appearing sanctioned by Tarrio, encouraged Alonso to return to the next pro-Trump rally in December and later, to join his fellow Proud Boys in January after Trump’s “wild” invite to Washington. 

Assistant U.S. Attorney Conor Mulroe presented evidence spread out over a series of text messages where Alonso excoriated law enforcement roughly a week before he would officially be invited into the Ministry of Self-Defense by Proud Boy Gilbert Fonticoba, an intimate of Tarrio’s. 

Police in D.C. backed antifa, Alonso wrote on Dec. 23. So too did the FBI. Police had turned their backs on Proud Boys when one of their brothers, Jeremy Bertino, who has already pleaded guilty to seditious conspiracy, was stabbed at the Dec. 12 event.

Weeks later on Jan. 6, when defendant Ethan Nordean spoke to a mass of Proud Boys and others gathered at the Washington Monument with a megaphone, it was he who encouraged them to “back the yellow.” Jurors saw this footage of Nordean invoking the Proud Boys black and yellow “colors” in the same way pro-law enforcement groups may invoke their slogan “back the blue.”

Nordean told the crowd just before 11 a.m. on Jan. 6 that police had let the people who stabbed Proud Boys get away last time. Tarrio had been arrested unfairly just two days before, Nordean wailed. Video footage played for the jury on March 7 showed Nordean passing the bullhorn off to defendant Joseph Biggs next. 

Excitedly speaking to the crowd, Biggs told them it was their “goddamned city” and started chants of “fuck antifa.” But once Biggs would reach the location of what would be the first barrier breach of the day, Alonso testified in court this week that Biggs used the bullhorn again. This time as Proud Boys and non-Proud Boys alike were gathered near the Peace Monument less than 100 yards away from the Capitol, Biggs led chants of “Whose House, Our House” and “1776,” Alonso testified.

Prosecutors contend that Proud Boys relied on “tools” of the alleged conspiracy to pull it off and that included Proud Boys as well as non-members, the  “normies” at the Capitol. In sum, the Justice Department argues Proud Boys believed they could whip the “normies” into a frenzy and this would aid them to breach barricades, subsequently overwhelm law enforcement and get inside the Capitol to stop the certification.

After the Stop the Steal rally just three weeks before the insurrection, positive attitudes toward law enforcement among Proud Boys had dried up, prosecutors allege, and the group’s anger morphed and hardened into a multi-layered paranoia: Trump’s “victory” was stolen. Cops in D.C. had sided with “antifa.” The Democrats and radical left needed to be stopped. 

In a text chat seized off Tarrio’s phone dubbed “Croqueta Wars,” Tarrio and other Florida Proud Boys including Gabriel Garcia, George Meza, Pedro Barrios, and others, shared messages about efforts to keep Trump in power. On Dec. 17, Alonso forwarded a message to the group that laid out a “plan” for Trump to win. He had “dueling electors from 7 state legislatures [and] he has VP Pence as final arbiter of the ballots to accept,” Alonso’s friend “Tim Moore” wrote in the forward. The message was rich in conspiracy theories invoking Julian Assange, Seth Rich, and Sidney Powell’s “Kraken.” 

In the transcript from Alonso’s testimony, during a sidebar with Judge Kelly, Nordean’s defense attorney Nick Smith objected to the introduction of evidence indicating Michael Priest had something a “little less complex in mind” than the theories Alonso forwarded to the Croqueta Wars chat.

While Smith argued it was irrelevant, Mulroe managed to convince Judge Kelly to let in Alonso’s exchange in the next sequence. Priest, as a member of the Ministry of Self-Defense and “tool” of the conspiracy—something Kelly agreed with during the sidebar—was fed up. 

“Unleash the Kraken. Trust the plan. Blah. Blah. Blah. When do we start stacking bodies on the White House lawn?” Priest wrote. 

“Jan. 7,” Alonso replied. 

When Priest told him they would stack the bodies of “RINOs,” or “Republicans in Name Only” first and make Democrats watch, Alonso affirmed in court this week that he said “yes.” But it was just “locker room talk, if you will,” he said. 

In the Ministry of Self-Defense chat on Jan. 3, a day before Tarrio would be arrested and three days before the insurrection, Gabriel Garcia shared a message with MOSD members. It was a blog post from the Hal Turner Radio Show promoting the false claim that a “1776 flag” was flying over the White House that night. But the image wasn’t new. Trump White House deputy chief of staff Dan Scavino posted an image of a colonial-era flag over the White House in June 2019 though that image was doctored too.

But Garcia seemed to believe it was realand so did others in the Ministry like one Proud Boy identified in chats only as “BrotherHunter Jake Phillps.” When Phillips asked whether the “normies and ‘other’ attendees” were going to “push thru police lines and storm the capitol buildings,” and invoked the violence that unfolded in D.C. on December, Alonso replied: “cue in the music… let the bodies hit the floor, let the bodies hit the floor.” 

On direct, Alonso told Jauregui the “bodies” were “regular people” not the police. The police, he said, were going to make people hit the floor at the Capitol. On cross, he told Mulroe it was just a song. It was just locker room talk. It was all just a joke. 

Norm Pattis, for Biggs, argued during a bench conference that Alonso’s comments were protected under the First Amendment and “no more prohibited than saying you’re going to line up capitalists against the wall and shoot them.” 

At the end of his testimony on Tarrio’s behalf, Fernando Alonso said under oath that as far as overtaking the U.S. government was concerned or storming the Capitol, he had no part in it or wanted no part in it. It was a reprehensible suggestion. That was behavior that wouldn’t make him proud. 

Yet, Mulroe pointed out to him, he sat in court today with a yellow shirt bearing the Proud Boys laurel on its chest, hiding just beneath his fleece. And he didn’t seem insulted when Priest talked about storming the Capitol. No one else seemed put off by the suggestion in MOSD either, that Alonso could recall. And though he had claimed he knew Tarrio’s intent, he wasn’t ever a witness to meetings or calls or chats that Tarrio may have had with elders, leaders, or even local police in advance of a Proud Boys official event. 

There was no indication one way or the other to Alonso, Mulroe elicited, that Tarrio had even told local police Proud Boys would plan to meet at the Monument on the morning of the 6th. And he certainly had ample opportunity: Tarrio was arrested on the 4th and ordered by law enforcement to stay out of Washington after his release on the 5th. 

Yet, Mulroe elicited, there was no indication that law enforcement was hipped to the Ministry of Self-Defense’s plan to gather at the Monument with what Alonso said was at least 100 men.

Alonso never went into the Capitol on Jan. 6. He never went with the defendants or anyone else that day to hear Trump, their man of the hour, speak at the Ellipse. When people were breaching the Capitol, he told the jury he thought it would be “too extreme” for anyone to go inside or past police lines. Police could shoot them, he testified.  Alonso, like other Proud Boys on Jan. 6, carried a radio but like other members, he claimed “there was no communication” on it. He downplayed evidence of him railing over Proud Boy Eddie Block’s decision to circulate  footage from Jan. 6 just a week after the insurrection. The wheelchair-bound Block, he told Mulroe, was doxxing them. 

“Crip or not,” Alonso wrote in a Proud Boy chat. “Snitches get stitches.” He added later: “That fuck needs to be duct taped to the National Mall, his scooter placed at the top of it.” 

Congress went into recess on Jan. 6 ultimately stopping the certification for several hours after the mob had rushed past police barriers, subsumed the Capitol steps, tunnels, archways, and inaugural scaffolding before streaming through broken windows or doors like the 20,000-pound Columbus Doors that were ripped from their hinges. 

Tarrio, it appears now, is unlikely to testify on his own behalf. 

Following suboptimal testimony from Tarrio’s witnesses this week, defendant Ethan Nordean squeezed in witness testimony from an FBI confidential human source and Proud Boy who appeared in court using only his middle name, “Ehren.” 

Unfortunately for the defense, “Ehren,” testified under cross-examination that he was not at the Capitol on Jan. 6 as an FBI informant in any meaningful sense. He was there, he affirmed, as a member of the Proud Boys. Though the spelling of his name was not reported into the record, “Ehren” would appear to be the individual that Jan. 6 internet sleuths have identified as “TrackSuitPB.”

In video footage, jurors could see how “Ehren” entered the Capitol carrying zip tie cuffs he said he acquired incidentally as a memento of sorts. At another point, he appears in capitol CCTV  footage flanked by Kansas City Proud Boys like William “Billy” Chrestman, Chris Kuehne, and others, as he helps place a podium under an interior electric gate to keep it from closing while others set chairs in the way. Police are seen working over and over to drop the barrier as rioters advanced.

Poking holes in the defense’s direct and indirect suggestions over these many weeks of trial that the FBI was responsible for guiding the violence of Jan. 6, “Ehren” admitted he wasn’t instructed by the bureau to obstruct the gate. Or enter the Capitol. Or impede police. In hindsight, he admitted, he shouldn’t have helped prop open gates police were trying to lower at all.

While he testified, evidence was also presented to strongly support the government’s claim that he was playing up the “informing” he offered to the FBI. 

“Ehren” texted his handler on Jan. 6 at 1:02 p.m. ET just as barriers were overrun: “Pb did not do it, nor inspire. The crowd did as a herd mentality. Not organized. Barriers down at capital [sic] building crowd surged forward, almost to the building now.” 

During his interviews with the FBI in the summer of 2021, he claimed he was standing 100 people back from the front of the first breach. In court, however, footage showed him more like 20 or 30 people back. He was also close to defendant Zachary Rehl at one point as Rehl filmed from the fore of the crowd.

FBI Agent Nicole Miller testified earlier in the trial that in this particular clip shot by Rehl, she was able to identify the Philadelphia chapter president’s voice screaming “Fuck them! Storm the Capitol” moments before Proud Boy William “Billy” Chrestman is seen scrambling over snow fencing and outnumbered police start to run backward. “Ehren” told the jury he followed Chrestman. The crowd’s chants of “fight for Trump” reverberated as they ran closer to the Capitol. There were hundreds of people behind them, he affirmed. 

When he approached the terrace of the Capitol, he said in court that he saw people topple barricades. 

And yet, he told his handler that the Proud Boys didn’t inspire the breaches.

“Ehren” said he had sent his text vouching for the Proud Boys to his handler earlier than the handler received it but bad cell service caused his message to go through on delay. His testimony around the timing of the message changed over two interviews with the FBI and diverged again once he appeared in court this last week. 

“Ehren” told Nordean’s attorney on direct that his handler urged him: if he saw a crime committed and was asked to talk about it, he was to be truthful with the bureau. 

On cross, he testified under oath that the FBI never “embedded him” with the Proud Boys. He was tasked to report on “antifa” or leftist violence, then a focus for Trump’s Attorney General Bill Barr. “Ehren” was never part of MOSD or the Boots on Ground chat created just for Jan. 6. He said it was his local chapter president who told him to go to the Washington Monument on the 6th and not to wear Proud Boy colors. He never saw messages from Bertino or Tarrio suggesting otherwise but it would seem that information was passed down to him nonetheless.  When he arrived that morning, it was clear, he testified, that Nordean was in charge. 

Proud Boys were to blend in, he said, making themselves identifiable only to each other by slapping a piece of orange tape on their shoulder or arm. Antifa would infiltrate the crowds on the 6th, they believed, “Ehren” testified, and the orange tape allowed so-called Proud Boys brothers to identify each other.

Adding further ammunition to the prosecution’s “tools” argument, “Ehren” also said that Three Percenter Robert Geiswein approached him that morning and asked to march with the Proud Boys to the Capitol. “Ehren” said he told Geiswein he could stick around for a bit but once his brothers started to get on the move, he would have to go his own way.

On redirect by Dominic Pezzola’s attorney Roger Roots, “Ehren” said “Geiswein “didn’t listen very well about staying back once we met with other Proud Boys.”

Indeed, Geiswein would be spotted shoulder-to-shoulder with Pezzola on Jan. 6 just outside of the Senate Chamber. 

 As for “Ehren,” he wouldn’t leave the Capitol until after police told him a woman had been shot. Prior to that moment, he said, he didn’t attempt to de-escalate the situation because he figured if there was an “emergency situation” he “might be asked about it” by his handler. But this testimony ran up against video footage of “Ehren” also pumping his fist in the air in celebration after breaching. 

He rather sheepishly conceded that, in the moment, it all seemed “funny” and “exciting.” 

Witnesses for defendant Zachary Rehl didn’t fare much better this week, save for the largely innocuous testimony of Rehl’s wife, Amanda. Cutting a sympathetic figure, her voice was gentle as she testified and admitted to Rehl’s attorney, Carmen Hernandez, that she was nervous. They married after Rehl graduated from Temple University; she told jurors how three of her uncles were policemen and his father and grandfather were policemen, too. Jurors saw pictures of Zachary’s father and grandfather in their uniforms, including one photo of a young Rehl in tow. They also saw a photo of her child with Zachary, a cherubic-looking little girl of maybe two or three years old. 

On Jan. 6, her husband, she said, left out for D.C. with Isaiah Giddings, Brian Healion, and Freedom Vy. She didn’t come. On the witness stand, Amanda Rehl said she couldn’t distinguish her husband’s voice in the video he shot from the first breach at the Peace Circle. She could hear someone say “Fuck them! Storm the Capitol” but if it was her husband’s, she couldn’t say. 

Testimony from Rehl’s next witness, former West Virginia Proud Boy chapter president Jeff Finley followed. 

Finley was easygoing on the stand with responses neatly tailored on direct. He pleaded guilty to a misdemeanor charge of entering restricted grounds in last April and was sentenced to 75 days. Finley’s first reporting to prison was delayed so he could appear at the trial on Rehl’s behalf. 

Though not a member of MOSD, he was part of the Boots on the Ground chat using the handle “El Jefe.” Finley was often in close proximity to Biggs and the co-defendants on Jan. 6 including at the west terrace where some of the worst fighting of the day occurred. He couldn’t recall whether any police officers asked him not to come inside the capitol that day, however, and he couldn’t identify any of the  Proud Boys Rehl had brought to DC from Philly when Hernandez asked. 

But, he testified succinctly, “no,” he didn’t do anything that day to stop legislators from certifying the election. He was in and out in 10 minutes, he said. 

Finley was a fourth-degree Proud Boy deeply invested in the club—he has a tattoo etched across his chest declaring him a “West Virginia Proud Boy” jurors learned. And in the run-up to the insurrection, prosecutors brought out texts and video showing Finley looking to Nordean as the leader. In his guilty plea, he said as much to investigators and from the witness stand, Finley testified that while Proud Boys marched on the Capitol, it was Biggs, Nordean, and Charles “ Yut Yut Cowabunga” Donohoe, who would sometimes break off from the group for chats he was not privy to. Rehl, Biggs, and Donohoe did the same, he testified. 

Donohoe pleaded guilty to conspiracy to obstruct an official proceeding a year ago this week. 

Finley told the jury he never saw any of the defendants throw projectiles at police and didn’t hear any conversations that led him to believe a plan to stop the certification was in place. He presented Jan. 6 as an opportunity he seized on to “make my voice heard” about potential discrepancies in the 2020 election. 

Yet, prosecutors presented pages of text messages to the jury where Finley urged Proud Boys to delete their communications. Some of the messages showed Finley was furious with Eddie Block for filming, just like Alonso had been. In the weeks after the attack, Finley steadily discouraged Proud Boys from saving information or from having mementos, like challenge coins commemorating Jan. 6, mocked up.

“It would just place you in D.C. give more ammo against you,” he wrote on Jan. 12.

 He deleted his own socials after the 6th but not before making a podcast appearance where he told the interviewer he didn’t know a single Proud Boy who was remotely close to being in the Capitol on Jan. 6. 

“But you were a Proud Boy and you went in with Rehl and three other Philadelphia Proud Boys?” prosecutor Nadia Moore asked Finley in court on March 30. 

He did, he admitted, but in the podcast, the host wasn’t a member of law enforcement so he was in no way obligated to tell the truth. 

When the trial resumes starting Monday, it is expected that defendant Joe Biggs will start to come into focus as his attorneys, Norm Pattis and Dan Hull, make their case. Dominic Pezzola’s attorneys Steven Metcalf and Roger Roots shouldn’t be far behind. While it seemed that Biggs would likely take the stand earlier in the trial, after grueling days for the defense without any immediately obvious pay-off, that likelihood now seems low.

It may behoove Pezzola to try his luck or admit to charges that will be the hardest for him to beat because of compelling video evidence compiled by prosecutors, including video footage of him smashing open a window and allegedly stealing a police riot shield. In the first Oath Keepers case, which in many ways is quite similar to this one, defendant Jessica Watkins admitted to jurors that she impeded officers. In the end, her remorse from the stand may have helped her. She was convicted for impeding officers during a civil disorder (and conspiracy and obstruction) but she evaded a destruction of property charge despite being in the thick of a quite brutal push into the Capitol. She also was not convicted of seditious conspiracy. 

The light is now visible at the end of the tunnel in this three-month-long trial and this week, parties are expected to hash out jury instructions. If there are any Hail Mary moves to be made by the remaining defendants, the window to make them is inching closed.


Trump’s People Have Attempted to Cover Up That He Cheated to Cover Up Cheating in 2016 at Least Six Times

Among the things Trump said in his tweet yesterday complaining that he had been “indicated” is that his criminal prosecution was “a continuing attack on our once free and fair elections.”

Thanks to the former President for reminding us what the charges against him, in part, are about: That he cheated to win.

Whether it would have made a difference or not, Donald Trump believed it sufficiently important to lie to American voters about fucking two women– both Karen McDougal and Stormy Daniels — that both were paid in the last months of his 2016 campaign to prevent voters from finding out.

Paying his former sex partners to hide from voters that he cheated on Melania is not, itself, illegal.

Having corporations pay sex workers for the purpose of benefitting a political campaign is. The company that owned the National Enquirer paid for the first payment, to McDougal; Trump Organization, by reimbursing the payment that Michael Cohen made, eventually paid for the second payment, to Daniels.

The charges brought against Trump in NY reportedly relate, at least in part, to the second payment — to the treatment of the reimbursement to Cohen as a legal retainer rather than a reimbursement for a political donation. That is, the cheapskate billionaire, who could have legally paid off the women himself, allegedly covered up his cover-up.

Trump’s eponymous corporate persons have already been found guilty of serving as personal slush funds. In 2019, he admitted the Trump Foundation had engaged in self-dealing. And last year, a jury convicted Trump Organization of compensating employees via untaxed benefits rather than salary.

The new charges against Trump aren’t so much unprecedented, as they simply charge Trump’s biological person with the same crimes for which his corporate persons have already been convicted.

But there’s more history here, too. On multiple occasions, agents of Donald Trump reportedly engaged in further attempts to cover-up this cover-up.

Trump Organization withheld multiple documents from investigators. Most known documents that were withheld — such as the email showing Cohen had a substantive conversation with a Dmitri Peskov aide during the election — pertain to Russia, but it’s certainly possible they withheld others.

In 2018, in the days after SDNY seized phones that included recordings of conversations about the hush payments, Trump is suspected of floating a pardon to Cohen to keep him quiet, about this and about the impossibly lucrative Trump Tower deal both had lied to hide from voters in 2016.

In an email that day to Cohen, [Robert] Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027

Cohen said that following these messages he believed he had the support of the White House if he continued to toe the party line, and he determined to stay on message and be part of the team.1028 At the time, Cohen’s understood that his legal fees were still being paid by the Trump Organization, which he said was important to him.1029 Cohen believed he needed the power of the President to take care of him, so he needed to defend the President and stay on message.1030

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House.1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him.1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine.1033

Note that the payments for Cohen’s legal fees — which stopped after he pled guilty — are another expense that Trump Organization may not have accounted for properly.

Later in 2018, during the period where he was feigning cooperation with Mueller’s prosecutors but really just stalling past the midterm elections, Paul Manafort attempted to lie about some aspect of a different investigation

Manafort gave different versions of events surrounding an incident in the summer 2016 that was potentially relevant to the investigation: one version that was more incriminating was given prior to signing the plea agreement (on September 13, 2018), and another that was more benign was made after on October 5, 2018, after his plea. When confronted with the inconsistency by the government and his own counsel, Manafort largely retracted the second version.

A footnote in that discussion cites the Cohen plea, suggesting the 2016 conversations that Manafort lied to prosecutors in an attempt to spin pertained to these hush payments.

83 See United States v. Cohen, 18-cr-602 (S.D.N.Y. 2018); Information, United States v. Cohen, 18-cr602 (S.D.N.Y Aug. 21, 2018) (Doc. 2).

Unlike Cohen, of course, Manafort did get a pardon.

In the months after Cohen’s plea, Main DOJ attempted to interfere in the Cohen investigation repeatedly, as laid out in Geoffrey Berman’s book. They did so first on Rod Rosenstein’s orders, by demanding the SDNY rewrite Cohen’s statement of offense to hide the degree to which Trump ordered the hush payments (Rosenstein’s deputy, Ed O’Callaghan tried to eliminate all reference to Individual-1).

We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.

O’Callaghan was aggressive.

Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.

[Robert] Khuzami responded, What exactly are you concerned about? O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1.

It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1.

[snip]

The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.

Then, after Bill Barr came in, he amazingly tried to order SDNY to dismiss the charges against Cohen entirely, the functional equivalent of what he tried with Mike Flynn, undoing a successful criminal prosecution after the fact.

When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr had Steven Engel write up an OLC opinion about the charges (which is likely one of the reasons SDNY didn’t charge Trump).

About six weeks later, Khuzami returned to DC for another meeting about Cohen. He was accompanied by Audrey Strauss, Russ Capone, and Edward “Ted” Diskant, Capone’s co-chief. Barr was in the room, along with Steven Engel, the head of the Office of Legal Counsel, and others from Main Justice. A fifteen-page memo, drafted by Engel’s office, had been provided to our team the day before, which they were still analyzing. I learned later that it was an intense meeting.

When SDNY refused to dismiss the case against Cohen, Barr tried to transfer the case to EDNY, under Richard Donoghue, so he could kill it.

 About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.

At the same time that Barr was trying to cover up that Trump cheated to win in 2016, Republicans on the FEC were joining in the cover-up. After FEC’s General Counsel recommended acting on several complaints about the payments, Republican Commissioners Sean Cooksey and Trey Trainor refused to do so because, they said, Michael Cohen had already been prosecuted for it and, thanks to Trump’s own actions, there was a backlog of other complaints.

Before the Commission could consider the Office of General Counsel’s (“OGC”) recommendations in these matters, Mr. Cohen pleaded guilty to an eight-count criminal information,2 and in connection thereto admitted, among other things, to making an excessive contribution in violation of the Act by making the Clifford payment from his personal funds. 3 The plea hearing transcript includes a step by step review of how U.S. District Judge William Pauley verified the plea, confirming that a federal judge was sufficiently satisfied with the circumstances surrounding the plea deal and the responses given by Cohen at the hearing, including the explanations given by Cohen, count by count, during his allocution.4 Ultimately Mr. Cohen was sentenced to three years in prison and ordered to pay $1.39 million in restitution, $500,000 in forfeiture, and $100,000 in fines for two campaign finance violations (including the payment at issue in these matters) and other charges. In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters.

Thus, we concluded that pursuing these matters further was not the best use of agency resources.5 The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests.6 Furthermore, by the time OGC’s recommendations came before us, the Commission was facing an extensive enforcement docket backlog resulting from a prolonged lack of a quorum, 7 and these matters were already statute-of-limitations imperiled.

This was one of 22 credible campaign finance allegations against Trump that Republicans refused to consider, nothing less than a partisan effort to make the leader of their party immune from all campaign finance rules.

There’s a lot of shite being written about how the indictment of a former President — for actions that stem from cheating to win — will test democracy.

But Trump’s serial cover-ups of his own actions in this and other matters already threaten democracy.

Trump is right: This is about free and fair elections. This is, like most of his allegedly criminal behavior, about his refusal to contest elections fairly. It’s about his corruption of the entire Republican Party, from top to bottom. And it’s about one of at least six times that Trump and his agents have tried to cover up that he cheated to win in 2016.


Donald Trump, Accused Criminal

NYT reports that Trump has been indicted. CNN has confirmed.

A Manhattan grand jury voted to indict Donald J. Trump on Thursday for his role in paying hush money to a porn star, according to four people with knowledge of the matter, a historic development that will shake up the 2024 presidential race and forever mark him as the nation’s first former president to face criminal charges.

The felony indictment, filed under seal by the Manhattan district attorney’s office, will likely be announced in the coming days. By then, prosecutors working for the district attorney, Alvin L. Bragg, will have asked Mr. Trump to surrender and to face arraignment on charges that remain unknown for now.

These are just the training wheel charges.


The Yahoos in Brazil Identified in Sergey Cherkasov’s Complaint

There’s a detail in Greg Miller’s profile of Sergey Cherkasov, the Russian accused of posing under an assumed Brazilian identity and using a SAIS degree to get an internship at the ICC, that confirms something I’ve long assumed: the US has had a hand in the recent roll-up of Russian spies, mostly in Europe.

He was due to start a six-month internship there last year — just as the court began investigating Russian war crimes in Ukraine — only to be turned away by Dutch authorities acting on information relayed by the FBI, according to Western security officials.

[snip]

His arrest last April came at the outset of an ongoing roll-up of Russian intelligence networks across Europe, a crackdown launched after Russia’s invasion of Ukraine that officials say has inflicted greater damage on Kremlin spy agencies than any other effort since the end of the Cold War.

The FBI and CIA have played extensive behind-the-scenes roles in this wave of arrests and expulsions, according to Western officials.

As Miller describes, the Dutch realized that Russians stationed in the Hague were preparing to welcome a new agent, but by then, the US already had an incredibly detailed dossier on him.

On March 31, as he boarded a flight to Amsterdam, neither Cherkasov nor his GRU handlers seemed aware of the net closing in on him. By then, the Dutch intelligence service had picked up its own signals that the Russian Embassy in The Hague was making preparations for the arrival of an important new illegal, according to a Western security official.

Authorities in the Netherlands then received a dossier from the FBI with so much detail about Cherkasov’s identity and GRU affiliation that they concluded the bureau and the CIA had been secretly monitoring Cherkasov for months if not years, according to a Western official familiar with the matter.

Until DOJ charged him last week, this had been largely a European story, with Dutch intelligence crowing about their success at foiling his plans and Bellingcat serially unpacking his public life (though CNN published this story at the time). Significantly, the Dutch published his legend and an explanation of how it might be used, with translations into Dutch and English from the original Portuguese.

As noted below, the US would later source its own possession of the legend to devices seized from Cherkasov on arrest in Brazil.

However, as Brazil gets closer to extraditing Cherkasov back to Russia on a trumped up narcotics trafficking charge, the US stepped in to make their own claim with the criminal charges: multiple counts of fraud, as well as acting as an unregistered foreign power. It’s not yet clear how Brazil will respond to the competing charges. Contrary to some reporting on the charges, DOJ has not yet indicted the case. The complaint has not yet been docketed.

Which is why I wanted to look at the sourcing for the complaint.

Many of the sources in the complaint come via way of Brazil, temporally after the Dutch deported him and the Brazilians arrested him, and so long past the time the US shared “a dossier” from the FBI reflecting months if not years of review. Brazil-sourced evidence includes:

  • A picture taken on Cherkasov’s 2011 immigration into Brazil
  • His Brazilian birth certificate
  • The details behind Brazil’s identity theft charges
  • Items collected — as if for the first time — from devices Cherkasov had with him when he arrived in Brazil, including:
    • The hard drive
    • Thumb drive 1
    • Thumb drive 2
    • Thumb drive 3, including:
      • March 2022 emails of unknown provider with details about a dead drop
      • Details about his dead drop site
      • March 2022 emails about paying for false Portuguese citizenship
      • March 2022 mails about establishing a meeting place
    • Samsung Galaxy Note phone
      • His mother’s Kaliningrad contact
      • 90 contacts with someone whose Telegram account and VKontakte account lead to a 2011 picture of Cherkasov in military uniform and a 2008 picture with friends
      • Contacts from one of those friends to a posted picture in military uniform (a picture also shown in the original Bellingcat profile)
  • Devices collected from the dead drop shared by Brazilian authorities
  • Correspondence between Brazil and Russia about Cherkasov
  • Audio messages between Cherkasov and his fiancée from immediately after his arrest in the Netherlands
  • Post-arrest communications between Cherkasov and his one-time fiancée, at least some of which were photographs of hand-written notes
  • Validation of Cherkasov’s ID in certain photos from FBI agents who met him in 2022 (though these meetings are not explicitly described to have taken place in Brazil)
  • A Bellingcat story debunking the Russian narcotics charges against Cherkasov

The focus on the phone, especially, cites evidence that would be fairly easily collected via other sources, but attributes that evidence to analysis the FBI did only downstream from the Brazilian arrest, and with the assent of Brazil. The complaint doesn’t explain whether these devices were encrypted or even what messaging applications were used, at least on the thumb drives including communications with his handlers. But there’s at least some reason to believe Brazil let FBI take the lead on exploiting those devices.

To be sure, there are items that the US could have collected in the US, whether before or after Cherkasov flew to the Hague, such as an Uber receipt timed to his travel to the dead drop in Brazil and IP addresses tied to US-based cloud providers like Yahoo and Google. Just once does the complaint reference using legal process — a 2017 video from a Moscow airport restaurant, obtained using legal process, reflecting Cherkasov saying goodbye to his mother — though it doesn’t describe what kind (it sounds like it could be iCloud content).

Still, the emphasis on material obtained with subpoenas and investigative steps done while Cherkasov has been in Brazilian custody — whether or not that was the first that FBI obtained such evidence — is one reason I’m interested in the outliers.

This is a document that could form basis to extradite Cherkasov to the US — it seems more than sufficient to make that case. But it’s also a document that might reflect on the kinds of investigations that have contributed to efforts to roll up spies outside of the US.

First, there are details about communications that Cherkasov had, while studying at Trinity College in Ireland and so not a US person at all — via known Section 702 participant, Yahoo!!! — with a tour agent who wrote recommendations for Cherkasov then later worked in Russia’s Consul General and, apparently, the General Consul himself.

CHERKASOV used the Yahoo 1 Account on multiple occasions to contact individual “C2” who was communicating with CHERKASOV from Brazil. C2 communicated with CHERKASOV on numerous matters, including financial matters, between at least July 22, 2016, and December 27, 2019. According to a translation of C2’s curriculum vitae, C2 worked in Brazil at “The General Consulate of the Russian Federation,” for “General Consul [M.G.]”

[snip]

35. Other emails show C2 took direction from another person, M.G., about financial payments that C2 sent to CHERKASOV. In correspondence between C2 and M.G., C2 refers to M.G. as “Mikhail” and the email address is identified in C2’s contacts as “MikhailRussia.” For example, on or about November 30, 2016, C2 forwarded M.G. correspondence from CHERKASOV that indicated another payment to CHERKASOV was imminent. M.G. responded by sending an email to C2 instructing C2 to make a payment to CHERKASOV: “Friend; thank you very much. Let’s do another one on the 14th of December.” According to further correspondence, CHERKASOV was able to receive the original transaction intended via MoneyGram. However, after corresponding to CHERKASOV that C2 would attempt to make transactions via Western Union the following day, financial records indicate C2 attempted to make two separate transactions via Western Union shortly after on December 16 and 18, 2016, for $842.65 and $867.55, respectively, but the funds were never transferred to CHERKASOV. CHERKASOV corresponded on December 19, 2016, that Western Union would not work properly and moving forward, the transactions should be made via Moneygram. C2 corresponded back to CHERKASOV on December 20, 2016, that C2 had sent €750 again via Moneygram to CHERKASOV.

36. C2 also stated in other emails that C2 previously owned a travel agency in Brazil, and that the Russian Federation was one of C2’s best clients. C2 later moved to the Russian Consulate after C2 closed the travel agency.

37. On or about March 8, 2017, C2 wrote a letter of recommendation for CHERKASOV for a university located in Canada. In the letter, C2 indicated FERREIRA worked as a travel consultant for C2 from May 2014 until March 2017, and as a senior event manager in

It’s possible that something Cherkasov did while at SAIS triggered a larger investigation that worked its way back to two likely Russian spies in Brazil. It’s also possible that the investigation started from known subjects in Brazil and thereby discovered Cherkasov.

But one thing these two references do — aside from identify the travel agent later made part of the official Russian delegation, aside from making Cherkasov’s tie to Russian government officials necessary for the 18 USC 951 charge — is put both Brazil and Russia on notice that the US is aware of these two suspected intelligence officers who were or are in Brazil.

Both C2 and the Consult General would have been legal targets for the entirety of the period in question and (as noted) Cherkasov was while he was in both Ireland or Brazil.

Another of the relatively few pieces of evidence unmoored from the Brazil arrest pertains to collection Cherksov shared after taking a SAIS trip to Israel. The details around the reporting — the single use email directing Cherkasov to fly to the Philippines to meet — definitely give the story spy drama.

Just as interesting, however, are the descriptions of the identifiable US (and Israeli) subjects targeted by Cherksov’s collection.

45. On or about January 16, 2020, CHERKASOV, using his D.C.-based phone number, texted with M.S. at a Philippines-based number for M.S. the following:

CHERKASOV: Hey [M],7 I arrived…Where do you want to meet?

[M.S.]: Grab a taxi and ask to drive via skyway.

CHERKASOV: On my way. Will be there in approx. 15 min.

[M.S.]: Ok. Here

CHERKASOV: I can’t find it

[M.S.]: Names?

CHERKASOV: Yea, I’ll text you then when I’m in the airport.

CHERKASOV: Texting you the names.

CHERKASOV: Sent you a list there. Now whom we met.

CHERKASOV: All people from the Jerusalem Embassy, literally every single one, even LGBTQ advisor. [N.G.]8 – security expert, local. I think he is a spook. [?.L.]9 kingmaker’ – [Israeli political] party leader

CHERKASOV: The previous list didn’t sent [sic], I’ll retype it.

CHERKASOV: Can I send it to you email?

CHERKASOV: This SMS shit kills me

[M.S.]: Sure.

46. On or about January 17, 2020, CHERKASOV sent M.S. an email with a screen shot of names, mostly U.S. persons (“USP”), stating the following: Just a list of interesting people that I was talking to you about Experts side: [USP 1]10– DoS, middle Eastern direction advisor the president admin, former [University 1] student.

[USP 2]11– FDD, military security adviros [sic] to the Congress Committee on Intelligence, [USP 3]’s12 assistant. [“TT1”] 13 group: [USP 4]14– [USP 5]15 chair, came only for a day though, [USP 6]16– main guy to call shots, Israeli expert came with small team of his own. [University 1, University 2] student leader: [USP 7]17– Anapolis [sic] Naval Academy Cyber Sec instructor

While just one of the people involved in Cherkasov’s targeting — his SAIS professor, Eugene Finkel — has explicitly spoken out about being duped by Cherkasov, virtually all of these people (and a bunch more described later in the complaint) are likely to be able to identify themselves.

There are a few I suspect I recognize and, if I’m right, they’ve been apologists for Trump’s propaganda about Russia.

Notably, this messaging involved a US-based phone, one not obviously included among the devices seized from Cherkasov when he returned to Brazil. The FBI Agent who wrote the affidavit couldn’t have obtained the messaging in real time — he or she has only worked at the FBI since 2021, and the messaging dates to early 2020. But the affidavit does reference “surveillance that I have conducted.”

In general, the FBI is revealing almost nothing obtained via sensitive sources and methods — that’s one reason the reliance on evidence obtained via Brazil is of interest to me. Given how the US has allowed European countries to take credit for these stings, I find it interesting that the US almost creates the misimpression that it only discovered Cherkasov — that it accessed his legend that the Dutch had upon his arrest — when he arrived in Brazil.

But in just a few spots, the affidavit gives a glimpse of what else the US Intelligence Community might know.

The US has not really taken much credit for helping a bunch of European countries roll up Russian spies (though they’re likely reminding them of the role Section 702 plays in the process). But this document, seemingly released because they had reason to exert legal pressure with a country that is fairly close to Russia, likely serves multiple purposes. While it doesn’t give away a lot, it does hint at far more.


Donald Trump’s Dumbass Russia Binder

There is some tie between Donald Trump’s effort — as one of his last acts as President — to declassify a binder of materials from the Crossfire Hurricane investigation and his hoarding of still-classified documents that could get him charged under the Espionage Act.

It’s not yet clear what that tie is, though.

On May 5 of last year, Kash Patel offered the declassification effort as an alibi, claiming Trump had declassified a bunch of materials, including not just the Crossfire Hurricane materials, but everything else discovered in boxes returned to NARA in January 2022. Kash’s claim would be included in the search affidavit for Mar-a-Lago and ultimately lead to his compelled testimony in the investigation.

Last fall, at a time when Alex Cannon and Eric Herschmann would have been under some scrutiny for their role in Stefan Passantino’s dubious legal advice to Cassidy Hutchinson, Maggie Haberman told a story in which the Trump lawyers heroically warned Trump about the risks of holding classified documents. That story claimed Trump had offered to swap the documents he did have for the Russian-related documents the former President believed NARA had.

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.

Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

The story doesn’t mention Cannon’s role in a fall 2021 inquiry to NARA about the Russian documents. Nor does it say that National Archives General Counsel Gary Stern told Cannon and Justin Clark that NARA had 2,700 undifferentiated documents, but that the binder Trump wanted declassified had been rendered a Federal Record when it got sent back to DOJ.

That’s what NARA told John Solomon on June 23, 2022 — that Trump’s lawyers had requested the binder in fall 2021 — in Stern’s first explanation for why NARA didn’t have the binder.

John, fyi, last fall Justin Clark, another PRA representative of President Trump, also asked us for a copy of this declassified binder. Upon conducting a search, we learned that the binder had been returned to the Department of Justice on January 20, 2021, per the attached memo from Chief of Staff Mark Meadows to the Attorney General, titled “Privacy Act Review of Certain Declassified Materials Related to the FBI’s Crossfire Hurricane Investigation.”

Accordingly, we do not have the binder containing the declassified records. As we explained to Justin, what we were able to locate is a box that contains roughly 2700 undifferentiated pages of documents with varying types of classification and declassification markings, but we could not be certain of the classification status of any of the information in the box. We are therefore obligated under Executive Order 13526 to treat the contents of the box as classified at the TS/SCI level.

Then on August 9 and again on August 10 last year, immediately following the search on Mar-a-Lago, Solomon asked for all correspondence between Cannon and NARA up until days before the search.

Gary, John: My research indicates there may be a new wrinkle to the Russian declassified documents. As part of my authorized access, I would like to see all correspondence between NARA and attorney Alex Cannon between December 2020 and July 31, 2022. I think the information will have significant value to the public regarding current events. Can that be arranged?

[snip]

Checking back on this. It’s time sensitive from a news perspective. Can you accommodate?

Stern, no dummy, likely recognized that this information would not just have news value, but would also have value to those under criminal investigation; he responded with lawyerly caution. As NARA representative for Trump, he explained, Solomon was only entitled to access Presidential records — those that predate January 20, 2021 — and communications between Cannon and NARA post-dated all that. But, Stern helpfully noted, Cannon was cc’ed on the request for the Russian binder.

It’s important to clarify that, as a designated PRA representative of President Trump, you may receive access to the Presidential records of the Trump Administration that have been transferred to NARA, which date from January 20, 2017 to January 20, 2021.

Alex Cannon has represented President Trump on PRA matters (along with Justin Clark) only since the summer of 2021, principally with respect to the notification and review process in response to special access requests. Accordingly, there would not be any Trump Presidential records between NARA and Alex Cannon.

FYI, in my June 23 email to you (which is below within this email thread), I noted that “last fall Justin Clark, another PRA representative of President Trump, also asked us for a copy of this declassified binder.” Alex Cannon was cc’d on Justin’s request and our response. I am not aware of any other communications that would exist between NARA and Alex about this matter. [my emphasis]

That would be the only communications “about this matter,” seemingly distinguishing the Russian binder from the missing Presidential records.

At the time Maggie was distracting the chattering classes with the swap story, ABC had a very thorough story that revealed some of what Stern had explained to Solomon last year. That story suggests the month-long focus on the Russian binder had led overall compliance with the Presidential Records Act to be lacking. As Hutchinson tells it, it was worse, with 10 to 15 NSC staffers madly copying classified documents in the last days Trump was in office, with two sets of four copies — one still classified, one less sensitive — circulating to who knows where.

The tie between the Russian documents and the documents Trump stole may be no more than the alibi Kash tried to use them as, an attempt to claim that the limited declassification was instead a blanket effort. Perhaps it was also a failed effort to use Kash and Solomon as moles to figure out what NARA got back. Or perhaps some of these materials madly copied at the last moment were among the classified documents Trump took with him. Perhaps some of those materials were among the still-classified documents Trump took and hoarded in a storage closet with a shitty lock.

But that tie is one of the reasons I read the version of the binder released earlier this year in response to a Judicial Watch FOIA closely (release 1, release 2).

That is one dumbass binder. If you’re going to expose yourself and your assistants to Espionage Act prosecution, this is one dumbass document to do so over.

Having reviewed it — even with great familiarity with the unending ability of certain frothers to get ginned up over these things — I cannot believe how many people remain obsessed about this document.

The document, as released to Judicial Watch, is little more than a re-release of a bunch of files that have already been released. Perhaps the only released documents I hadn’t read closely before were memorializations that Andy McCabe wrote of conversations he had in the wake of Jim Comey’s firing with and about Trump, including the one that described Rod Rosenstein offering to wear a wire to meetings at the White House.

And because DOJ subjected the documents to a real Privacy Act review, unlike declassifications effectuated by Director of National Intelligence John Ratcliffe when Kash babysat him as his Chief of Staff, a number of the documents actually are more redacted than previous versions, something that will no doubt be a topic of exciting litigation going forward.

Mark Meadows ordered DOJ to do a Privacy Act review and as a result great swaths of documents were withheld, page after page of b6/b7C exemptions as well as b7D ones to shield confidential information.

Here’s what got released to Judicial Watch, along with links to the previous releases of the documents:

The Bruce Ohr 302s are the only documents that include much newly released materials, mostly reflecting Igor Danchenko’s subsequent public identification. Both the candidate briefing and the Carter Page FISA application include significantly more redaction (and those are not the only interesting new redactions); given the redactions, it doesn’t look like Trump contemplated disseminating any Page material that was sequestered by the FISA Court, which would have been legally problematic no matter what Trump ordered, but references to the sequestration were all redacted.

As noted above as Requests 1, 5, 6, 14, and 17, there were five things Trump asked for that were still pending at DOJ when Trump left office. Two of those are identified: A request for materials on Perkins Coie lawyers, which (DOJ informed Trump) had no tie to Crossfire Hurricane, and a request for details on an August 2016 meeting involving Bruce Ohr, Andrew Weissmann, and one other person “concerning Russia or Trump.”

There were a number of communications between Ohr, Weissmann, and others later in 2016, including communications potentially relating to an effort to flip Dmitry Firtash, as well as October 2016 communications between Ohr and McCabe. But the jumbled timeline of Ohr’s communications has often been used to insinuate that the Crossfire Hurricane team learned of the Steele allegations earlier in the investigation than the September 19 that DOJ IG reflects. In any case, some of these meetings likely touched on Oleg Deripaska and some might touch on the suspected Egyptian donation Trump used to stay in the race past September 2016, not the dossier.

Between other then-pending requests and big chunks of withheld information (I’ve noted the biggest chunks above, but it would be around 300 pages total), there are things I would have expected to see in this binder that are not there. For example, almost none of the material released as part of DOJ’s attempt to undermine the Flynn investigation (links to which are in this post) is included here. Most of that stuff constitutes information that would never normally be released. It was egregiously misrepresented by Barr’s DOJ. Some of the files were altered. If these were requested, I can think of a number of reasons it would take DOJ a while to provide the materials. Even still, though, the materials didn’t persuade Emmet Sullivan to overturn Flynn’s prosecution, and documents left out of this bunch — such as Flynn’s later 302s, including some where he obviously told the same lies he had told in January 2017, would easily rebut any claims Trump might offer with the Flynn documents.

The documentation showing Strzok learning of a Russian intelligence product claiming not very damning things about Hillary is not in here. That, too, is something that would never have been released with a normal DNI not being led around by Kash Patel and it’s one that would take DOJ a good deal of time to clear. But as I laid out here, the report came after Trump had already demonstrably started pursuing files stolen by Russia. By the time Hillary purportedly decided to call out Trump for encouraging the Russian hack, Trump was encouraging the Russian hack.

Given that Mike Rogers’ 302 from the Mueller investigation is included here, you’d expect those of Trump’s other top intelligence officials to be included as well. Dan Coats and Mike Pompeo were interviewed in the weeks after Rogers. Coats’ aide Mike Dempsey and NSA Deputy Director Rick Ledgett were also interviewed about Trump’s March 2017 effort to get the IC to deny he had a role in Russian interference, as was Trump’s one-time briefer Edward Gistaro (Gistaro was interviewed a second time in 2018, in an interview treated as TS/SCI, which likely pertained to his involvement in briefing at Mar-a-Lago during the transition). Details of these interviews show up in the Mueller Report, and his request only helps to make Trump look more guilty.

It doesn’t include materials released as part of the failed Sussmann and Danchenko prosecutions. But like Barr’s effort to overturn the Flynn prosecution, none of that evidence sustained Trump’s conspiracy theories either. Indeed, during a bench conference in the Danchenko trial, Durham fought hard to keep the substance of the discussions — ostensibly about energy investments — between Sergei Millian and George Papadopoulos starting in July 2016 out of the trial because, “it certainly sounds creepy.” The Sussmann trial showed how justified people were in wondering about Trump’s Russia ties in the wake of his “Russia are you listening” comment. It provided a glimpse of how time-consuming being a victim of a nation-state hack had been for Hillary in 2016. Durham even demonstrated that FBI badly screwed up the Alfa Bank investigation. When subjected to the rules of evidence, none of Trump’s hoax claims hold up.

The point is, nothing in this binder — particularly as released — supports Trump’s claims that the investigation into him wasn’t independently predicated and didn’t lead to really damning information implicating at least five of his top aides and his own son.

Trump keeps trying to collect some set of evidence that will make go away the far more damning ties to Russia that his National Security Advisor, his Coffee Boy, his personal lawyer, his campaign manager, and his rat-fucker all lied to hide. And in this case, it may have led Trump to do something far dumber, to defy a subpoena and hoard highly classified documents.

Which possibility only makes the dumbass Russia binder even more of a dumbass Russian binder.


“That’s How … You End Up as a Defendant in a Court Room:” Some Days in the Life of a Named-and-Shamed Former GRU Hacker, Ivan Ermakov

In early 2018, Ivan [Y]Ermakov,* one of the hackers alleged to have stolen John Podesta’s emails two years earlier, was living it up.

For his April 10 birthday that year, he went on a stunning heli-ski trip with his future co-conspirator, Vladislav Klyushin (Ermakov is on the left in this picture, Klyushin, on the right and in the Featured Image picture).

In summer 2018, they were enjoying the Sochi World Cup together, too.

Just days after this trip to Sochi, however, on July 13, 2018, Robert Mueller would indict Ermakov, along with eleven of his former GRU colleagues, for hacking the DNC, DCCC, Hillary Clinton, election vendors, and registration websites, as well as orchestrating the release of the stolen files.

By the time of that first indictment against him — the first of three known indictments against the Russian hacker so far — Ermakov had already made one of the fatal slip-ups that would form part of the proof against Klyushin at trial, this time for a hack-and-trade scam. On May 9, 2018, Yermakov received three updates from his Apple iTunes account to the IP address 119.204.194.11. Just four minutes later, someone using that IP address downloaded an SEC filing using credentials stolen from a Donnelly Financial employee named Julie Soma. That download occurred hours before the report would be publicly filed with the SEC, one of dozens of such thefts of SEC filings that formed the basis of the hacking and securities fraud charges against the men.

So months before Mueller’s indictment alerted Ermakov that the FBI had discovered who he was and that they believed he was one of the hackers behind the 2016 hack, he had already left proof in US-based servers that would tie to him to a follow-up crime, the hack-and-insider trading conspiracy for which Klyushin was convicted in February.

Klyushin has challenged the verdict, largely based on a technical challenge to the venue of the charges in Massachusetts.

Per trial testimony, Ermakov left those tell-tale forensic tracks four months before Klyushin would first get involved in the hack-and-trade scheme, in August 2018. The scheme was doomed from the start — at least, it would be doomed if any of the identified co-conspirators traveled to a jurisdiction that would extradite to the US, as Klyushin did in March 2021.

In fact, there’s something curious about that.

One thing submitted as evidence at trial was a picture of a May 22, 2017 Reuters article reporting the US sentence for Ukrainian hacker Vadym Iermolovych, one of ten people prosecuted for a hack-and-trade conspiracy similar to the one for which Klyushin was convicted.

According to the FBI agent who introduced the exhibit, the picture itself was taken in August 2018. Someone printed out the article and packaged it up in a plastic folder over a year after the fact. That suggests Klyushin was in discussion with a very well-connected friend about the possibility of such charges in the same month that Klyushin first got involved in the scheme.

The possibility of prosecution hung over the conspiracy from the start.

Thanks to Klyushin’s promiscuous storage of damning evidence in his iCloud account, from which many of the pictures and chats in this post were obtained by the FBI, the Klyushin case offers an unprecedented public glimpse into the effect that US indictments against nation-state hackers like Ermakov might have on one of the target’s lives. In Ermakov’s case, it didn’t stop him from hacking US targets. Indeed, it’s possible that others used the indictments to pressure Ermakov to use his hacking skills for them.

Since 2014, DOJ has been indicting nation-state hackers in what have always been assumed to be name-and-shame documents, indictments that would never lead to trial. Indeed, that’s what the two earlier indictments of Ermakov have always been assumed to be: a public accusation that would never lead to Ermakov’s imprisonment. The wisdom of indicting nation-state hackers has never been obvious. Yevgeniy Prigozhin’s exploitation of his own name-and-shame indictment has revealed the potential perils of the policy. And Russian denialists brush off the July 2018 indictment charging Ermakov and others with the election year hack (as Matt Taibbi did in his recent congressional testimony), arguing that since the indictment will never be tested at trial, it could be mere government propaganda.

At least in the case of the 2016 Russian operation, the indictment has done little to persuade denialists, who simply refuse to read about the many places where the hackers left evidence.

In a follow-up, I’ll show how DOJ proved their case against Klyushin using the same kind of evidence they used in the earlier indictments against Ermakov and his colleagues, largely metadata and content obtained from US-based and a few foreign servers. DOJ may never get a chance to prove the first two indictments against Ermakov, but using the same investigative techniques, they did prove the case against Ermakov’s co-conspirator, Klyushin.

This case, where a sealed complaint ultimately led to the trial of one co-conspirator of a hacker previously charged, also provides a glimpse of what happened after one nation-state hacker got name-and-shamed in the US.

It’s not clear from the trial record when Ermakov left the GRU or who his formal employer was before he joined Klyushin’s M-13, an information services company with ties to Putin’s office that offered, among its services, pen testing.

The FBI found a contact card for Igor Sladkov, with whom Ermakov may have started the hack-and-trade scheme at least as early as October 2017, in Ermakov’s own iCloud account, one of the only interesting pieces of evidence they found there. It was dated November 16, 2016, just over a week after Donald Trump got elected with Ermakov’s help. Sladkov — whose iCloud OpSec was just as shoddy as Klyushin’s — had a bunch of photos of Ermakov in his iCloud account, including the hacker’s passport, a 2016 picture of Ermakov sitting before an enormous plate of some animal flesh, and a picture from Ermakov’s 2018 ski trip, as well as a picture of Klyushin’s yacht that Ermakov had shared.

Before trial, Klyushin’s team argued that Ermakov never worked for Klyushin’s company, bolstering the claim with a chat from May 2019 in which Ermakov bitched about his job to Klyushin and a certificate from the Russian tax service claiming that [Y]Ermakov never worked at M-13.

But days after that chat, per another pre-trial filing, Ermakov spoke longingly of being able to travel like Klyushin could. Klyushin responded that he would get Ermakov new identity papers so the two could travel to Europe together, but not — Klyushin conceded — London or America. Klyushin seemingly used that discussion as background to press Ermakov to get back to work, with the implication being he should get back to the hack-and-trade scheme.

That is, Ermakov appears to have included Klyushin in the hack-and-trade scheme while still working for someone else. And Klyushin seems to have used his promise to help Ermakov mitigate the risks created by those earlier indictments to pressure Ermakov to keep hacking. If that’s right, the vulnerability created by the earlier indictments gave Klyushin leverage to get Ermakov to keep hacking.

But Ermakov did eventually join M-13, at least informally. The government introduced an M-13 employee list reflecting Ermakov’s participation in specific project at trial. And they submitted a picture, from December 2019, showing Ermakov with an M-13 sticker, within days of the time when a staging server similar to the one used in the 2016 hack of the Democrats was set up.

Klyushin may have even incorporated Sladkov into M-13. The FBI found a proposal for a data analysis service, dated September 4, 2019, which M-13 would introduce on October 28, 2020, as well as encrypted communications from an M-13 chat application, in Sladkov’s iCloud account.

Klyushin fought hard to exclude one of the most telling pieces of evidence that the hacking scheme came to be tied to M-13 — the four Porsches that, Klyushin bragged to an investor, he had bought for himself, Ermakov, and one other co-conspirator with the proceeds of the insider trading.

But this currency — expensive gifts — seems to have been at least part of the way Erkamov was compensated for his role in the scheme.

Ermakov did not engage in any trading himself. Instead, two men in St. Petersburg, two associated with M-13 (including Klyushin himself), and three clients of M-13, profited off documents [Y]Ermakov seems to have stolen.

But in addition to the Porsche, on August 17, 2020, ten days before the delivery of the Porsches, Ermakov took possession of a Moscow house worth millions, the loan agreement for which Klyushin reportedly ripped up. Months earlier, Klyushin had tied paying for the house with continued hacking — which, Klyushin joked, amounted to just turning on the computer and thinking about making money.

Ermakov was effectively printing money for Klyushin, and his reward was that house.

In September 2020, the hack-and-trade scheme would be shut down for good.

Throughout the time it was going, however, those co-conspirators knew of the indictment against Ermakov. Sladkov downloaded Ermakov’s wanted poster from the FBI website on October 5, 2018, just a day after Ermakov was charged in the 2016 hack-and-leak of anti-doping agencies while Ermakov was still a GRU officer.

And on October 4, 2020, Klyushin took a screencap of Ermakov’s wanted poster from the FBI website.

By the time Klyushin took this screencap, the victim filing agencies had finally shut down Ermakov’s access to the site, after eight months of trying. Perhaps Klyushin was contemplating what that would mean or how it had happened? According to trial evidence, DOJ didn’t identify the hack-and-trade scheme by tracking what Ermakov was doing. Rather, the investigation started when the SEC started tracking some large-scale trading by a bunch of Russians together, then asked the filing agencies if they had been hacked. At least according to the public record, the involvement of Ermakov was disclosed only after working backwards from the forensic evidence. But in October 2020, Klyushin may have considered the risks of entering into a hack-and-trade scheme with a hacker whose habits were already known within the FBI.

By then it was too late. Indeed, Ermakov had already warned his boss about his shoddy OpSec. On July 18, 2019, Kluyshin asked Ermakov and the other M-13 co-conspirator Nikolai Rumiantcev how the hack-and-trade was going. He included pictures of two of the M-13 investors. In response, Ermakov warned his boss that that kind of OpSec is the kind of thing that would land him as a defendant in a courtroom.

Q. Okay, thank you. And now can we move to 3980, please. And this date is?

A. This is July 18 of 2019.

Q. Would you begin with 3980.

A. “Vladislav Klyushin: So what did we earn today?”

Q. And then there’s an attachment?

A. Correct.

Q. And then he says what?

A. Ermakov responds: “About 350 and another 350 in the mind. Sasha the most among the rest. “Klyushin: Our comrades are wondering.”

MR. FRANK: Could we stop right there, and I realize it’s hard, Ms. Lewis, because we’re in the Excel, but could you please display Exhibits 52 and Exhibit 50.

Q. Those are the attachments, Special Agent. Have you had an opportunity to review those?

A. Yes.

Q. Who’s depicted in Exhibits 52 and 50?

A. On the left, 52 is Sergey Uryadov. On the right is Boris Varshavksiy in Exhibit 50.

MR. FRANK: I offer 52 and 50. (Exhibits 50 and 52 received in evidence.)

Q. Okay. So those are the two attachments Mr. Klyushin has just transmitted in the chat?

A. Yes.

Q. Can we go back to the chat and pick up where we left off. So Mr. Klyushin says, “What did we earn today? Our comrades are wondering.” Could you continue, please, at 3987.

A. After sending those pictures we just looked at, Ermakov replies: “Vlad, you are exposing our organization. This is bad.” Nikolai Rumiantcev: Vlad, stop sending to Threema.” Klyushin replies, “So sorry.” “Ermakov: And that’s how they get you and you end up as a defendant in a courtroom.”

Q. How does Mr. Klyushin respond?

A. Klyushin responds, “Removed. Open a chat with us already. “Ermakov: Go ahead and create. It was a bad move now. “Klyushin: Sorry. Did a dumb thing. “Rumiantcev: I suggest to recreate the chat with the deletion of attachments in Threema, or switch to ours if ready. “Klyushin: I will delete this one on my end.”

Klyushin did delete this chat. Rumiantcev left it in his iCloud account, where the FBI found it.

At the time, the men appear to have been shifting their trading discussions to the encrypted M-13 chat application found in all their iCloud accounts, finally taking measures to cover their tracks going forward, over eighteen months into the hack-and-trade conspiracy. Going forward, those working with Ermakov might not exhibit the kind of abysmal OpSec that produced abundant trial evidence against his co-conspirator. Maybe they learned their lesson, and they’ll be able to exploit Ermakov’s skill more safely going forward.

It remains to be seen whether the prosecution of Klyushin, with his ties to high even higher ranking Russians, does more than hold him accountable for millions in fraudulent trades. But that may have little effect on the life of John Podesta’s suspected hacker.

* The government has used two different transliterations for [Y]Ermakov’s last name. In 2018, they used the one that aids in pronunciation. In 2021, they used the direct transliteration from the Cyrillic. Because evidence submitted at Klyushin’s trial uses the initials “IE” to refer to Ermakov, I’ll adopt that spelling here.


When things turned to ‘Ash’: Henry Tarrio’s first witness appears; plus a fight over informants ensues at Proud Boys sedition trial

From emptywheel: Please help support Brandi’s important coverage with a donation to the site.

The first witness for Henry Tarrio at the now 43-day-old trial was George Meza, a former Proud Boy turned self-professed rabbi who also goes by “Ash Barkoziba.” Meza was discharged from the U.S. military after going AWOL for over six months. These days, as prosecutors elicited, Meza offers prospective converts to Judaism medical exemptions for the Covid-19 vaccine online. 

If the aim of Meza’s testimony was, in some fashion, meant to persuade jurors that the Proud Boys as an organization were tolerant, ideologically passive, or nonviolent or further, that Tarrio’s oversight of the group meant greater standards were enforced that put checks on members who engaged in bigotry or hate, then Meza was unsuccessful. 

Appearing before jurors wearing angular dark-rimmed glasses and a long button-down shirt, Meza’s testimony was often contradictory. On direct examination, he told Tarrio’s counsel Nayib Hassan that he became a third-degree member of the extremist organization but he couldn’t recall when. He told the January 6 committee he joined the group in September or October of 2020.

He told Hassan the Proud Boys were a “reactionary movement” aimed to protect patriotic Americans from communist leftists and flag-burners. Anyone who held supremacist views would be kicked out of the Proud Boys or “should have been,” he said. 

When he was a member and participated in the Ministry of Self-Defense (MOSD) group chat he said he policed it for anti-Semitic and racist commentary. It was a responsibility he took upon himself, he admitted, because the group didn’t “do enough” to eject bigots from its ranks. 

They did, however, eject Meza. 

He was cagey about why he was ousted, his memory foggy on the finer points. During a pointed exchange with prosecutors during cross-examination, Meza also could not remember the exact date he was ousted but insisted it must have been prior to Jan. 3, 2021. Incidentally, Jan. 3 was the same date that members like Proud Boy Gabriel Garcia of Miami texted Tarrio, Biggs, and other members in MOSD that “yes sir, time to stack those bodies in front of Capitol Hill.” 

Prosecutors say evidence shows Meza was in the MOSD chats through Jan. 6 and wasn’t kicked out until after the insurrection. 

When he was an insider, Meza was a member of MOSD as well as the group’s Boots on Ground channel yet another text forum where, according to prosecutors, Tarrio and his now co-defendants Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola (as well as a host of other Proud Boys charged in separate indictments) coordinated efforts directly or indirectly aimed at disrupting Congress on Jan. 6, 2021. 

The defendants claim the groups were innocuous and largely served as spaces where members could sketch out methods of self-defense against antifa and other perceived enemies of patriots like Donald Trump or his supporters when pro-Trump events were underway. 

The mission of MOSD was about ensuring the “safety of other Proud Boys,” Meza testified.  There was talk of Jan. 6 in MOSD, he said, but he couldn’t recall specific discussions. He also brushed aside suggestions that the group used the space to do things like find “real men” willing to confront police when Jan. 6 rolled around. 

MOSD, he said, was a place where leadership could work toward things like the “thinning out” of members who were unable to curb binge drinking or other unruly behavior at rallies. But at the same time, Meza said Proud Boys did not shy away from taking matters into their own hands when they felt under duress.

After two pro-Trump events in D.C. in November and December 2020 —the Million MAGA March on Nov. 14  and the ‘Stop the Steal’ rally on Dec. 12—the Proud Boys were keyed up. Members had been stabbed during street brawls with antifa, he said. But, he admitted, he didn’t see the stabbings with his own eyes or who started it. 

People got bored. Bored and drunk. And stabbings occurred, he said.

But, he testified, this boys club also sincerely believed it was in the middle of a civil war with antifa. Meza described it as “somewhat of a peaceful civil war… for the most part.” 

Yet, he downplayed the Proud Boys as a drinking club akin to a “fraternity” where “locker room talk” flowed. When one member in MOSD discussed breaking people’s legs or hunting antifa down, for example, Meza said it was hyperbole. 

“It was always reactionary,” he volunteered to Assistant U.S. Attorney Jason McCullough. “It was a lot of poetic hyperbolic statements.” 

“When you’re on the receiving end of violence, does it feel better if it’s just hyperbole?” McCullough asked. 

Defense attorneys objected before he could answer. 

By the time Jan. 6 arrived, Meza testified that he was specifically focused on providing security for Latinos for Trump founder Bianca Gracia. He had been admitted to MOSD after the December 12 rally, he said. Text exhibits indicate Meza was a participant in the MOSD Main chat when Tarrio first out an invitation for a critical video conference hosted on Dec. 29, 2020. 

Ahead of that meeting, defendant Joseph Biggs eagerly told members in MOSD they would soon discuss the “need to make sure guys understand the chain of command” for Jan. 6. In clips from the teleconference played for the jury this February, Proud Boy Charles Donohoe—who has already pleaded guilty conspiracy to obstruct proceedings—is heard emphasizing a need for secrecy among MOSD’s operations.

There would be no social media posts about MOSD, Donohoe urged and at the meeting, Tarrio reiterated this point. Even in the MOSD text channel jurors saw this point was one of several Tarrio listed in a reminder post that was pinned at the top of the channel. When FBI Special Agent Peter Dubrowski testified about the Dec. 29 teleconference, he said while Tarrio, Biggs, and other leaders on the call did not discuss a strategic objective for January 6 that he heard, there was interest for those details expressed by other members. 

Tarrio just wouldn’t come out with it openly, Dubrowski said. He opted to keep information siloed. There was more than one teleconference for MOSD members in the run-up to Jan. 6, Dubrowski testified, but investigators were unable to successfully locate recordings of those videos if they existed. 

As for Meza, he would arrive in Washington on Jan. 5 to stay at the Phoenix Park Hotel.

His mission, he told the jury, was to escort Gracia and others in her entourage as a representative of the Proud Boys on Jan. 6. 

He was to ensure she got to and from the hotel and to the group’s rally. Tarrio, he said, was meant to speak at the Latinos for Trump rally from 10 a.m. to noon though he admitted, Tarrio’s name was never listed on the Latinos for Trump publicity flyer for the 6th. 

The Proud Boys ringleader was arrested on Jan. 4 and promptly received an order to stay out of  D.C. from law enforcement. 

Despite being tapped as security for the high-profile pro-Trump event that the very leader of the Proud Boys was supposed to speak at, Meza testified that he and Tarrio never had any communications about it before Jan. 5.

Further stretching the limits of logical belief, in addition to security for Gracia, Meza told jurors he was there on Jan. 6 as an “independent licensed journalist.” Putting aside the fact that there is no license issued to journalists independent or otherwise, McCullough elicited from the former Proud Boy turned rabbi that he was also interviewing people on the 6th who had never met Proud Boys before. 

The prosecution has alleged that the Proud Boys activated fellow members of their organization on Jan. 6 to breach police lines but further, that they understood their success in applying force to stop the certification would hinge also on raising the hackles of “normies” or everyday people at the rally in Washington. These “normies” were “tools” of the conspiracy, at times, almost as much as some members of the organization were, the government contends. 

McCullough pressed Meza on this point asking him several times if he was positive that he was ousted from MOSD prior to Jan. 3. Presenting a MOSD text chain to the jury, McCullough showed him where a Proud Boy using the handle “BrotherHunter Jake Phillips” told MOSD members: “So are the normies and ‘other’ attendees going to push through police lines and storm the capitol buildings? A few million v. a few hundred coptifa should be enough. I saw a few normie groups rush police lines on the 12th.” 

“Ever see that?” McCullough asked. 

“Never seen it,” Meza said. 

Meza also testified that he didn’t see another comment where “BrotherHunter Jake Phillips” asked, “what would they do if 1 million patriots stormed and took the capitol building. Shoot into the crowd? I think not.” 

Meza did not meet with Proud Boys, including some of the defendants, who gathered at the Washington Monument on the morning of Jan. 6. He told the jury he did not march with any of them when they descended on the Capitol. He said too that he had no cellphone communication with any of them and carried no radio. McCullough, however, showed Meza a picture of himself where a radio is clearly visible on his chest. He stands next to a Proud Boy from Miami he identified as “The Greek.” Also appearing alongside them in the picture is Josh Macias, the co-founder of Vets for Trump. 

This jogged his memory, Meza said. They had radio for the Latinos for Trump event, he said. But they never used them. Someone had given the radios to him but he couldn’t recall who and he said, in any event, they “never figured out how to use them.” 

Former Proud Boy Matthew Greene—who has pleaded guilty to conspiracy and obstruction of an official proceeding already—testified this January that he was tasked to program radios for Proud Boys on Jan. 6 but it wasn’t Tarrio, he told Nayib Hassan, who set him about this project.

When Nick Smith, defense attorney for Proud Boy leader and defendant Ethan Nordean, asked Greene whether those radios were ever used to plan an invasion on the Capitol, Greene also said no. 

Though he said he heard no specific plan for Jan. 6 if it existed, Greene said Proud Boys had steadily grown angrier and angrier as the day approached and members, by December, fully and openly expected a civil war was imminent. 

When Greene traveled to D.C with defendant Dominic Pezzola in a two-car caravan (Pezzola rode in a separate car, Greene rode with New York Proud Boy William Pepe), that hadn’t changed. When things finally clicked into place in his mind, he said, was when he saw Proud Boys lead rioters over barricades for the first time on Jan. 6. 

“Oh shit, this is it,” he recalled thinking.

“I personally had an abstract feeling that Proud Boys were about to be part of something, the tip of the spear, but I never heard specifically what that could be. But as people moved closer to the Capitol, I was in the moment, putting two-and-two together and saying, well, here it is,” Greene testified on Jan. 24. 

Like Meza, Greene was not a high-ranking member of the Proud Boys. 

Greene stuck close to defendant Dominic Pezzola on Jan. 6 as they breached barriers and ascended scaffolding around the Capitol. 

At one point on the 6th, when Greene saw Pezzola clutching a police riot shield, Greene said it was then that he started to question what he was really doing there. Greene stayed close enough to Pezzola long enough to watch him have his picture taken with the riot shield, Pezzola’s hand making the “OK” hand gesture that extremist experts say is associated with the white power movement. Meza told the jury Proud Boys were instructed by the group’s leadership to use the hand signal to antagonize the media. 

Other testimony from Meza was likely just as unhelpful for the defendants.

As video footage played in court from a violent breach of the Columbus Door near the East Rotunda, police clearly struggling to keep the mob at bay, Meza testified that he was escorting two women out of the Capitol after the door was breached. He never saw it breached, he said. He was walking away and three seconds later, the door was open. He asked jurors to believe he never saw protesters stream through that same door 10 to 15 seconds later because things were “so densely populated.” 

He understood the purpose of going to D.C. on Jan. 6 was to “stop the steal,” he testified. And when McCullough asked him plainly whether he believed that the people who went inside the Capitol were “heroes”, Meza was unabashed. 

“Yes I do,” he said. 

Meza’s testimony will resume on Monday since his cross-examination did not conclude Friday. And much to the defense’s chagrin, presiding U.S. District Judge Timothy Kelly has agreed to admit evidence into question that will tie the Proud Boys ever closer to the sedition charge they each face. 

The government wants to cross Meza on a series of key details around Jan. 5 at the Phoenix Park Hotel in downtown D.C. 

This was the same hotel where Tarrio would meet that night with Oath Keepers founder Elmer Stewart Rhodes, who was convicted of seditious conspiracy in November, Bianca Gracia, Joshua Macias, former Oath Keeper attorney Kellye SoRelle and others, in an underground parking garage. 

Prosecutors argue that Meza’s proximity to Gracia as well as his testimony on his stated purpose—security guard for Jan. 6 related events—should grant the government the right to question him about what he heard or what he saw happen in Gracia’s hotel room. 

Judge Kelly was not initially inclined to let this line of examination run, suggesting it was beyond the scope and that conversations in the hotel room prior to a rally were First Amendment-protected activity. But McCullough kept at it. 

“It squarely refutes the idea this is all done for First Amendment [reasons], your honor,” McCullough said. “He is in a room with the head of the Oath Keepers, with the Latino for Trump folks who have just met with Tarrio in a garage earlier that evening and now he is continuing to engage with Bianca who we have heard on direct is thick as thieves—[strike that]. They are very close is what we have heard. That is relevant. There is a connection with this individual when this is all supposed to be about Latinos for Trump and ‘we’re going to a rally from 10 a.m. to 12 p.m.’.”

In a text message extracted from Proud Boy Gabriel Garcia’s phone after Jan. 6, McCullough said Meza said he told other Proud Boys things were “planned in our hotel room the night before by Oath Keepers and Three Percenters. 

In the sentence just before this in the text message, Meza writes, “I’m thrilled with what happened and don’t know why people keep saying it was antifa [or] BLM.” 

Ethan Nordean’s attorney Nick Smith argued this was exculpatory since it appeared to rest responsibility on other extremist groups. But these were Meza’s statements, Kelly found, and therefore, he now agreed with the government: they were relevant and Meza could be questioned about them because “at least,” Kelly said, it was an “implication” that Proud Boys planned to stop the certification with the other groups. 

Tarrio’s next witness is teed up for Monday after much commotion: FBI informant Jennylyn Salinas, also known as “Jenny Loh.” 

Loh’s anticipated appearance threw proceedings into disarray last week as defense attorneys claimed they had no idea Loh was an informant. Loh maintains she told her handlers nothing about her interactions with the Proud Boys and that once the government became aware that she could be called to testify in the case, her informant relationship ended completely. Prosecutors say Loh, who was associated with  Latinos for Trump, was an informant from April 2020 through this January and only received a single payment from the bureau after sharing footage with agents of people harassing her at home. Loh has said that her communications with the FBI were not about Proud Boys but the threat that antifa posed. 

Sabino Jauregui, another defense attorney representing Tarrio, told Judge Kelly on Friday that Loh would be able to testify that in at least 100 different Telegram channels or group chats with multiple Proud Boys, she never saw any chatter of plans to storm the Capitol on Jan. 6. How relevant that will be remains to be seen. There’s no indication that Loh, even if she was a member of dozens of Proud Boy channels, would be hipped to information closely guarded by leadership. 

The government has maintained that Loh never informed on Proud Boys specifically. Jauregui insisted she would often talk to her FBI handler about Biggs and Tarrio in particular. Defense attorneys claim Loh tried to convince one of the defendants to get rid of his attorney.

McCullough offered to share a 36-minute recorded interview with Judge Kelly involving Loh and her FBI handler where, the prosecutor said, it would become clear that Loh was not reporting on Proud Boys.

Kelly has been treading carefully around informant issues that continue to arise in the trial. The defense has issued subpoenas to several witnesses who they say are confidential human sources that would vindicate the Proud Boys. For example, Judge Kelly recently quashed a subpoena from the defense for  Massachusetts Proud Boy Kenny Lizardo. Lizardo attended the meeting with Tarrio and Rhodes in the parking garage at the Phoenix. 

Lizardo, Kelly found,  had a “reporting relationship” with the FBI and intended to invoke his Fifth Amendment right if called. 


On Joshua Schulte’s Alleged Substantial Amount of CSAM … and Other Contraband

Yesterday, Judge Jesse Furman docketed a letter, impossibly dated March 23, updating him on the investigation into the Child Sexual Abuse Material allegedly found on WikiLeaks Vault 7 source, Josh Schulte’s discovery computer, six months ago (see this post for an explanation).

It described more about the CSAM material found on Schulte’s computer: The FBI had found “at least approximately 2,400 files on the laptop … likely containing CSAM.”

With respect to assertions that Joshua Schulte, the defendant, has made about the discovery laptop—that the laptop does not contain CSAM, that any CSAM appears only in thumbnails, or that the CSAM was maliciously or inadvertently loaded onto the laptop by the Government. See, e.g., D.E. 998 at 3 (pro se letter to the Court dated Dec. 21, 2022), 5 (pro se letter to the Court dated Jan. 5, 2023)—the Government is able to confirm the following: at least approximately 2,400 files on the laptop have been identified to date as likely containing CSAM. Those files include full images, and are not limited to thumbnail images. Moreover, the Government did not copy discovery materials onto the defendant’s laptop. In 2021, former defense counsel copied discovery and trial materials onto the laptop, which was then reviewed by personnel from the U.S. Attorney’s Office for security compliance before making a file index and providing the laptop to the Metropolitan Correctional Center (“MCC”), where the defendant was then in custody. The CSAM on the laptop was not provided by the Government or the result of Government action.

That, by itself, doesn’t tell us a lot more than we learned in an October filing, which explained that the FBI had found, “a substantial amount” of suspected CSAM.

Indeed, the letter focuses on debunking two counterarguments Schulte has made since, which is one of the reasons Furman docketed it after DOJ submitted it ex parte: “[T]his letter responds directly to assertions by Mr. Schulte,” Furman observed.

The government was debunking a claim made by Schulte that the government had caused the CSAM — but only thumbnails — to be loaded onto his discovery computer by “connect[ing] a child pornography drive to the laptop during setup.”

Schulte repeated and expanded — at great, great length — that theory in a set of filings dated March 1 but just loaded to the docket today.

The government response, effectively, was that they made an index of the files as the computer existed when it was turned over to MCC in 2021, calling Schulte on his claim that he was framed with CSAM.

Ultimately both sides will be able to present their claims to a jury.

But there are several other reasons I’m interested in the letter and related issues.

The government’s working theory when they first revealed this last fall, was that Schulte got a thumb drive into the SCIF and from that accessed the CSAM allegedly found on his home computer six years ago, presumably just to have it in his cell for his own further exploitation of children.

there is reason to believe that the defendant may have misused his access to the SCIF, including by connecting one or more unauthorized devices to the laptop used by the defendant to access the CSAM previously produced.

That’s because in August, they found a thumb drive attached to the SCIF laptop.

On or about August 26, 2022, Schulte was produced to the Courthouse SCIF and, during that visit, asked to view the hard drive containing the Home CSAM Files from the Home Desktop. The hard drive was provided to Schulte and afterwards re-secured in the dedicated safe in the SCIF. The FBI advised the undersigned that, while securing the hard drive containing the Home CSAM Files, they observed that an unauthorized thumb drive (the “Thumb Drive”) was connected to the SCIF laptop used by Schulte and his counsel to review that hard drive containing the Home CSAM Files. On or about September 8, 2022, at the Government’s request, the CISO retrieved the hard drive containing materials from the Home Desktop from the SCIF and returned it to the FBI so that it could be handled pursuant to the normal procedures applicable to child sexual abuse materials. The CISO inquired about what should be done with the Thumb Drive, which remained in the dedicated SCIF safe.

But in a little noticed development, during the period when FBI has been investigating how a defendant held under SAMs managed to get (we’re now told) 2,400 CSAM files onto his discovery computer, CNN reported that the network of FBI’s NY Field Office focused on CSAM had been targeted in a hacking attempt.

The FBI has been investigating and working to contain a malicious cyber incident on part of its computer network in recent days, according to people briefed on the matter.

FBI officials believe the incident involved an FBI computer system used in investigations of images of child sexual exploitation, two sources briefed on the matter told CNN.

“The FBI is aware of the incident and is working to gain additional information,” the bureau said in a statement to CNN. “This is an isolated incident that has been contained. As this is an ongoing investigation the FBI does not have further comment to provide at this time.”

FBI officials have worked to isolate the malicious cyber activity, which two of the sources said involved the FBI New York Field Office — one of the bureau’s biggest and highest profile offices. The origin of the hacking incident is still being investigated, according to one source.

DOJ still insists that former CIA hacker Josh Schulte found a way to access a whole bunch of CSAM. And in the same period, reportedly, the servers involved with CSAM investigation in the NYFO were hacked.

And while the letter released yesterday doesn’t tell us — much — that’s new about what Schulte allegedly had on his laptop, it does tell us, by elimination, which of the sealed filings in his docket are not related to the CSAM investigation.

Since the October update on the investigation into Schulte, sealed documents have been filed in Schulte’s docket on the following days:

  • December 15: Sealed document
  • January 19: Ex parte update on CSAM investigation
  • January 26: Sealed document
  • March 9: Sealed document
  • March 13: Sealed document

Only the January 19 letter — along with yesterday’s letter — have been unsealed. That, plus the flurry of filings in September and October, are it for the CSAM investigation. There’s something else going on in this docket, four sealed documents worth.

Indeed, in those very long set of filings mentioned above, both dated February and finalized March 1, both docketed today, Schulte alluded to something beyond CSAM.

Judge Furman has begun claiming that there are other vague misuses or misbehavior on the laptop.

He must not have read the September and October letters very closely, because they describe there was a warrant that preceded the discovery of the CSAM.

The warrants that we know of include the following:

Since late September, this investigation was about the “substantive” amounts of CSAM found on a computer possessed by Schulte.

But before that it was based on suspicions of contraband.

That stems, in significant part, from a search of the computer DOJ did in June, when Schulte turned it over claiming it had been dropped.

It hadn’t been dropped. It needed to be charged. Indeed, in the interminable motions filed today, Schulte treated plugging in a laptop as some kind of due process violation.

Plugging in a laptop should in no way compromise the privacy of a laptop. But it did raise real questions about the excuse Schulte offered in an attempt to get a second laptop (one he effectively got once trial started anyway).

Needless to say, his description of what happened with the BIOS password differs from the government’s, as provided last June.

First, with respect to the defendant’s discovery laptop, which he reported to be inoperable as of June 1, 2022 (D.E. 838), the laptop was operational and returned to Mr. Schulte by the end of the day on June 3, 2022. Mr. Schulte brought the laptop to the courthouse on the morning of June 3 and it was provided to the U.S. Attorney’s Office information technology staff in the early afternoon. It appears that the laptop’s charger was not working and, after being charged with one of the Office’s power cords, the laptop could be turned on and booted. IT staff discovered, however, that the user login for the laptop BIOS1 had been changed. IT staff was able to log in to the laptop using an administrator BIOS account and a Windows login password provided by the defendant. IT staff also discovery an encrypted 15-gigabyte partition on the defendant’s hard drive. The laptop was returned to Mr. Schulte, who confirmed that he was able to log in to the laptop and access his files, along with a replacement power cord. Mr. Schulte was admonished about electronic security requirements, that he is not permitted to enable or use any wireless capabilities on the laptop, and that attempting to do so may result in the laptop being confiscated and other consequences. Mr. Schulte returned to the MDC with the laptop. [my emphasis]

Here’s more background on all the funky things that happened with this laptop that led me to suspect something was going on last summer.

Anyway, the government claims it found a whole bunch of CSAM on Schulte’s computer. But there’s also something else going on.

We may find out reasonably soon. The impossibly dated filing from this week promised an update in a week, which (if the impossibly dated filing was actually dated March 21) might be Tuesday.

The Government expects to provide the Court with a supplemental status letter in approximately one week.

At the same time that CIA hacker Josh Schulte was allegedly finding a way to load CSAM onto his discovery laptop, the local FBI office’s CSAM servers were hacked.

That might be a crazy coincidence.

Update: DOJ filed an ex parte update today, which may or may not have to do with the CSAM investigation.


Remember: DOJ May Still Suspect Trump Is Hoarding Classified Documents

When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.

In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.

As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.

The six things Corcoran has been ordered to testify about, per ABC, are:

  1. “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
  2. Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
  3. “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
  4. “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
  5. “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
  6. What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room

Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?

Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?

Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.

“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.

And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.

She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.

But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.

As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.

Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.

But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.

Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.

Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.

Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.

If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.

It may also finally provide the basis to hold Trump in contempt for withholding further documents.


With Friends Like These: A rough start to testimony from defense witnesses at Proud Boys sedition trial

From emptywheel: Please help support Brandi’s important coverage with a donation to the site.

There was a moment outside of the Capitol on January 6, 2021, when Proud Boy Travis Nugent turned to Proud Boy elder and leader in the neofascist network, Ethan Nordean, and asked him: “Are we doing this?” 

Then, Nugent testified this week at the seditious conspiracy trial unfolding in Washington, D.C., Nordean said nothing. But he watched Nordean move toward the Capitol and ahead to barriers thinly held—for that moment—by a scattering of police already wildly outnumbered by the crowd. 

“You felt shocked but you still knew you were not supposed to go past the barriers?” Assistant U.S. Attorney Conor Mulroe asked Nugent, both of his hands resting on the edge of the courtroom podium as he leaned in toward the witness on Monday. 

“Correct,” Nugent replied. 

His voice was quiet, as it so often was as he testified throughout the day. 

“So you fell back on the chain of command?” Mulroe said. 

At almost a whisper though Nugent’s mouth was near the microphone in the witness box, he testified: “Fair statement.”

And then, Mulroe elicited, Nordean just looked at Nugent. Two years after that day, Nugent struggled to recall “exactly what totally came out” in that moment between the men as they stood in a thick crowd surrounding the Capitol. But he did remember Nordean looking at him, unresponsive to his question: Are we doing this?

When Mulroe asked Nugent whether he remembered asking Nordean a more specific question next— “are we going in?”—Nugent wasn’t sure. 

But he knew he didn’t need to be told to follow when Nordean moved ahead and though he agreed with the prosecution that he is the final arbiter of his own decisions, he still rested his hand on Nordean’s shoulder as they moved together toward metal fencing that would very soon be ripped from concrete and broken into pieces. 

Tensions in the crowd were high, he recalled. Nugent remembered feeling uneasy. 

Yes, he said, it was true that he asked Nordean to get on a megaphone and try to calm the crowd. Yes, he said, he even went so far as to approach a police officer on site and request to borrow that officer’s bullhorn. Yes, he agreed, if they could just get their hands on that megaphone and have a Proud Boy speak to the masses, a person the crowd would respect because this was a crowd that respected and adored Proud Boys, there might be a chance to turn the temperature down. 

But that chance didn’t come. When Nugent was interviewed by the FBI on May 5, he told them Nordean wouldn’t listen to him. 

“I don’t think that was my exact words but it was along those lines,” he told the jury Monday. 

He would go no further with Nordean and he didn’t enter the Capitol on Jan. 6. He said “correct” when asked if he understood that day that if he went ahead, he would be breaking the law. Nugent said he understood their presence interfered with police. But, he said, he didn’t know at the time what politicians were doing inside the Capitol. 

Nordean stayed after Nugent left and to his knowledge, Joseph Biggs, one of Nordean’s co-defendants in the now ten-week-long trial, stayed too. 

Nugent has not been charged with any crimes and it was the Proud Boys who called him as their witness with the aim of having the Washington state, fourth-degree Proud Boy tell the jury only of how there was no plan on Jan. 6 to stop the certification and that members of the group showed up merely to air their frustrations and support Donald Trump’s grievances, as well as their own, over a “stolen election.”

When Nugent came under direct from Nordean’s defense attorney Nick Smith, his answers were brief and amenable to those core arguments, even if, at times, it seemed any rehearsal or preparation for his testimony may have already gone stale in Nugent’s mind. 

As a member of Henry Tarrio’s specially-created Ministry of Self Defense text channel where Proud Boys frequently discussed Jan. 6, and as a member of the group’s Boots on the Ground chat just for those Proud Boys on-site on Jan. 6, Nugent was privy to communications that prosecutors have said are integral to the alleged conspiracy to stop the certification. 

When Smith questioned Nugent, he steered clear of what the witness may have seen in those communications, keeping his questions generic and short-lived. 

Nugent did tell Smith, however, that when he met with Proud Boys at the Washington Monument before heading to the Capitol on Jan, 6, he didn’t remember what was said as the group congregated. Present there were defendants Biggs, Nordean, and Zachary Rehl. 

He had partied the night before with Nordean and other Proud Boys at an AirBnB, he testified. A lot of people drank heavily. The next morning hangovers were in abundance. He told Smith he couldn’t recall what was said on the night of the 5th but there were discussions, he said, about what would happen the next day. 

The group met at the Washington Monument and by the time they had moved from the Monument to a smattering of food trucks near the Capitol to eat, Nugent told Smith the Proud Boys, and in particular, Ethan Nordean, had said repeatedly they just wanted to go back to their hotels or AirBnBs to relax for the day. A conversation ensued among Proud Boys at the food trucks too but Nugent told Smith he couldn’t recall whether it was then that a “decision was ever really made” about where to go next. 

He described it as “chaotic” and struggled to pin down particulars. The situation, he offered, “devolved” quickly. 

When Proud Boys went to the nearby Peace Circle next, Smith didn’t work to fish out specifics. 

He, like Mulroe, elicited that Nugent was “shocked” when people started going over barriers at the Peace Circle and prompted by Smith, Nugent said it felt “spontaneous.” He told the jury, he “just didn’t know it was going to happen.” People were taking pictures of them that day wherever they went and although Nugent and Nordean stayed close to each other and often conversed, Nugent couldn’t say whether Nordean brought up using force at the Capitol as they marched toward it. 

“I kind of perceived the whole thing as a photo op,” Nugent said. “A publicity stunt.” 

 He later told Smith Proud Boys were “pushed up” by the crowd into areas he knew they shouldn’t be. 

Like the cows, pigs, and chickens that Nugent raises, he said, it was a “herd mentality.” 

Then, touching on another core theory from the defense—that Proud Boys were incited not the other way around—Nugent testified that a man who introduced himself as a pastor had approached Nordean and asked Nordean to go through the barriers. Nugent recalled Nordean had “basically denied” the request but Nugent had no further particulars. 

When Smith asked him about a rowdy man in a star-spangled jacket—identified as Proud Boy Chris Quaglin of New Jersey—who appeared to be in an altercation with police, Nugent in one breath told Smith he could see Nordean grabbing the man as if to stop him but in another breath, Nugent testified that he couldn’t get a clear read on what was actually happening. It was just his perception, he said, that Nordean was trying to stop the man. Quaglin now faces multiple charges, including assault. He has pleaded not guilty. 

After the 6th, Nugent stayed in the Proud Boys text channels for a day or two. He suggested to members that the chats be deleted. He was worried, he testified, that “antifa groups” would infiltrate the chats and doxx him or others. He was “highly doxxed,”he said. 

Under the friendly glow of direct examination, Nugent, in sum, aligned himself with the defense’s narrative: Proud Boys weren’t at the Capitol on Jan. 6 to incite violence or to force their will. 

But once Mulroe began asking the questions, evidence emerged of Nugent celebrating violence and in particular, the violence exacted by the Proud Boys.

That evidence included an illustration of Proud Boys strangling people, the animated eyes of their victims bulging. This was found on Nugent’s Google drive. He admitted, there were times he also celebrated the aggressive use of force. He admitted that violent propaganda videos showing Proud Boys clashing at events or at rallies or in the streets were effective recruitment tools. And when Mulroe asked Nugent if Proud Boys, like himself, recruited people aggressively to “attack people he didn’t agree with,” Nugent affirmed. 

Proud Boys punching Antifa

And key to the prosecution’s argument that Proud Boys developed a growing disdain for law enforcement in the run-up to Jan. 6 that fueled the intensity of the violence that day, Mulroe showed jurors a series of texts where Nugent urged Proud Boys less than a week after the 2020 election that they couldn’t allow cops “to become social justice warriors.” 

Most cops were “good dudes,” Nugent wrote on Nov. 9, 2020, but if they chose to “play games” then it would be “time to play.” And if necessary, Proud Boys would turn their back on police, he added. Other text messages showed Nugent discussing how Proud Boys shouldn’t “wear colors” or their traditional black and yellow, at events. He testified this could help them conceal their identities in public. 

This direction was one Tarrio had handed down to members for pro-Trump rallies in November and December 2020. And the same directions came down in the group’s “New Ministry of Self Defense” channel on Jan. 6, 2021. 

That channel was created after Tarrio was arrested on Jan. 4 for burning a Black Lives Matter banner and included many of the same participants as the original Ministry of Self Defense chat like Biggs, Nordean, and Rehl. Nugent testified on cross that he told Proud Boys the original chat should be nuked. They knew police had Tarrio’s phone and they worried, he said, that chats could potentially come into law enforcement’s hands.

With Tarrio arrested, it was Proud Boy Charles Donohoe who told the “new” ministry on Jan. 6 what to do, where to meet, and importantly, not to wear colors. Less than a week before that text from Donohoe, jurors saw messages where Nugent told Proud Boys “the big thing with this event is we need to get everyone focused on the goal of the event and not getting Proud Boys their fourth [degrees].” 

In another Ministry chat dubbed “MOSD Main 2,” Nugent worked to fill the vacuum left by Tarrio’s arrest. It wasn’t his idea, he testified, but he told the group they needed to fall under Nordean. People looked up to Nordean, he said in court this week. He was a leader. It was fair, Nugent agreed, to describe Nordean as having a “heroic” reputation among Proud Boys because of his fighting skills. Namely, for his “punch heard round the world.” (Prosecutors were unable to persuade presiding Judge Timothy Kelly to admit footage featuring the punch that made Nordean famous among the far right.)

Nugent wasn’t a hero like Nordean, he testified. He was a “nobody.” 

“I’m nobody but I’m doing what I can to help my brothers,” Nugent wrote in a text on Jan. 5 in the MOSD Main 2 chat. 

They were “working a plan,” Nugent wrote. They would meet in the morning and continue on with the plan, he added. Things had clearly “went south” after Tarrio’s arrest, Nugent wrote, “but they are continuing on with it tomorrow.” 

When Mulroe asked Nugent about his use of the word “they,” Nugent said it was a “grammar mistake.” 

Though he had told Smith he couldn’t remember much, and in particular, the meeting at the AirBnB on the eve of the attack, he told Mulroe “yes” when asked if they discussed tactics for Jan. 6, including using radios, breaking into small teams and following the command’s leadership. 

“Even if you didn’t fully understand the plan, you were supposed to follow?” Mulroe asked.

“Fair statement, yeah,” Nugent replied. 

In addition to Nugent’s testimony, jurors also heard from defense witness Michale Emanuel aka Michale Graves, a former singer from the punk band The Misfits. Graves became a Proud Boy in 2020 and traveled to D.C. for Jan. 6 though he didn’t march on the Capitol. 

The only plan Graves could speak of was a plan to play a concert at an AirBnB on Jan. 5. That concert was moved to Jan. 6 after Tarrio was arrested. On the 6th, Graves sang the National Anthem at a Latinos for Trump rally in the morning, and then, he testified, he and the Proud Boys had considered going back to the AirBnB around 3 p.m. to hang out before Graves’ nighttime performance. 

Graves told defense attorneys on direct he wanted the concert because it would “keep people off the street.” Yet, despite all testimony about the concert, he told Assistant U.S. Attorney Jason McCullough on cross, he and the Proud Boys didn’t communicate on Jan. 6, really, at all. The only text he sent to Nordean on Jan. 6 was a singular “I’m safe” long after the Capitol had been breached. 

There was no apology for missing the show and no discussion otherwise found. 

When McCullough began grilling him about his conduct on social media, Graves grew defensive. He had posted messages online saying Proud Boys were having lunch when the Capitol was breached. Graves said he may have read that in a media report. 

“And you told the public that Nordean and Biggs did nothing wrong?” McCullough asked. 

Graves said so online, but in court, he conceded that maybe they had trespassed. 

“What I know is a fact is there was not some elaborate plan to take over the Capitol on Jan. 6,” he said before acknowledging that he was never part of the Ministry of Self Defense chat nor Boots on Ground chats. 

On Tuesday, the defense’s third witness, Proud Boy photographer Eddie Block took the stand, his service dog, a St. Bernard named Donald J. Trump, at his side. 

Block told defense attorneys that Proud Boys didn’t come to Washington on Jan. 6 with plans for violence or to interfere with police or the certification. 

“No sir,” he told Nordean’s attorney Nick Smith, “we were just there to get our voices heard.” 

Proud Boys only engage in violence when they need to self-defend, he said. They only brought radios to D.C.  on Jan. 6 purely because they were worried about being able to “scout antifa out” and warn each other if “antifa” were spotted. From the stand Tuesday, Block said he believes antifa had a large presence at the Capitol on Jan. 6. This has not been supported by any credible evidence. Block told jurors it was a “gut feeling.” 

A self-proclaimed documentarian, Block filmed Proud Boys, including the defendants, marching on the Capitol on Jan. 6. He thought they would get as close as they could to the barriers but not past them, he said. Appearing to play things down further, Block said for two weeks before Congress met to certify the election, “everyone was saying you gotta storm the Capitol” on social media. “Normies” would use that phrase all the time, he added. 

Prosecutors have argued that “normies” and Proud Boys alike were tapped by the defendants on Jan. 6 as “tools” of their alleged conspiracy. In effect, prosecutors have argued Proud Boys needed more muscle and more numbers than they had available to stop the certification and knew it. 

Like Nugent, Block testified that Jan. 6 was a full day of photo opportunities for the Proud Boys. Block fawned over Joseph Biggs, calling him a hero and telling jurors on Tuesday anyone would want their picture taken with the former InfoWars contributor because he had won a Purple Heart. 

As Smith guided Block through video clips from Jan. 6, the same arguments emerged: there were mysterious men in the crowd who appeared to speak to the defendants before the breach kicked off. (Ray Epps has been pointed to indirectly and directly with zeal by defense attorneys over the course of the trial but that conspiracy theory has long been debunked.) 

There was no plan, Block said, not to stop Congress and not to interfere with police. 

Under cross-examination by Assistant U.S. Attorney Erik Kenerson, Block first said planning was non-existent and that no one prior to 9:45 a.m. on Jan. 6 invited him to film the Proud Boys. Nordean didn’t ask nor did Tarrio, he testified. They just knew he was going to be there and they knew, he said, “wherever I am, there’s cameras.”

Ultimately, he did livestream from Washington on Jan. 6. He told prosecutors he’s not made much money on his footage from that day. Unprompted, Block said he averages about $40 a month from his channel featuring Jan. 6 footage on YouTube. 

“It’s not like I’m making money on this,” he said. 

But one of the ways he could make money, Kenerson pressed, was to get his name out there.  

Agreeing easily with the prosecutor, Block replied: “That’d be correct.” 

There was nothing wrong with filmmakers or videographers trying to earn a buck for their work, Kenerson argued. Then the prosecutor shared information with jurors they might not otherwise have heard. Block drove across country from Fresno, California to Washington, D.C. to testify. He live-streamed that too and set up a fundraiser online. 

“And one of the things you said was, if you got $1,000, you would put your dog in a Donald Trump vest?’ Kenerson said. 

“Yeah,” Block said. “It’s his name. Donald J, Trump. I call him Donnie because I live in California and if I say Trump in public, someone may attack me.”

Ever the self-proclaimed adherents of self-defense, Block told jurors that Proud Boys didn’t start fights, they finished them. 

Testing that claim, Kenerson brought Block’s attention to footage from Portland, Oregon. A man with Proud Boy garb approaches a van in a parking lot. There are several men surrounding the vehicle before suddenly, a Proud Boy starts unloading a stream of chemical spray with some sort of paintball-gun-looking apparatus into the van, overwhelming the driver and forcing the person to drive off road. 

As the video played, Block testified unprompted. Again.

The van had come to the location to attack Proud Boys. The government was taking things out of context, he said.

“You’re making it look like we did something to those people. I saw the man pull in there with a can of mace,” Block said. “What were we supposed to do?” 

“You don’t start fights?” Kenerson volunteered. 

‘Right,” Block said. “We’re finishing it.” 

But at another time, it didn’t appear Proud Boys were only about “finishing” fights. Pulling up a series of text messages from Dec. 13, 2020, Kenerson asked if Block had once “concocted” a plan to lure “antifa” so Proud Boys could ambush and assault them. 

In the text chain, Block appeared livid that Proud Boy Jeremy Bertino had been stabbed the night of the Million MAGA March in D.C. just one day earlier. Bertino has since pleaded guilty to seditious conspiracy and testified on behalf of the prosecution last month. 

“I don’t care. I say we let me be the sacrificial lamb next time,” Block wrote. “I’ll sneak in. Get their attention on me.” 

Block, who is disabled, had 60 operations by that point and told Proud Boys that he could “take the pain.” 

“You don’t fuck with my brothers like that,” he groused. 

But he told jurors, at first, no one ever took him up on the offer.

Then Kenerson showed him where a Proud Boy identified by the handle, “RC Proud Nate” told Block: “Be live while your scooter suddenly dies right while the exact street corner you are crossing is visible.”

Block replied: “I’ll just say, don’t worry folks, I’ll catch up like I did last night.” 

Block’s testimony will resume on Wednesday at 9 a.m. and it will be left to the defense to attempt damage control after two hard days where witness testimony has withered under the Justice Department’s scrutiny. 

Update: Exhibits from Nugent’s testimony added.

Update: Correction – an earlier version of this story stated the van video from Oregon was from years prior to Jan. 6. It was from August 2021.

 

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