November 26, 2022 / by 

 

Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.


The Curiosity of Norm Pattis’ Third January 6 Client’s Delayed Arrest

On Wednesday (the time on the screen cap is Irish time), Norm Pattis — the Connecticut lawyer who fucked up and sent texts from his client Alex Jones, along with highly personal discovery from the CT Sandy Hook plaintiffs, to the TX Sandy Hook plaintiffs — tweeted that a head lawyer in CT wants him to serve a six month suspension for that ethical violation.

On Thursday, for a second straight time, the pre-trial hearing in the Proud Boy Leader case, in which Pattis represents Joe Biggs, was sealed to the public. One thing that has been a pressing discussion in that case that might merit sealing is the potential conflict of Biggs’ other lawyer, Daniel Hull, because he briefly represented co-defendant Enrique Tarrio in one of the civil suits against the Proud Boys.

If both Biggs’ lawyers had conflict problems, it might seriously roil the schedule of the trial, which is currently due to start next month. When Jonathan Moseley’s license was suspended, for example, the prosecution of his then-client, Oath Keeper Kelly Meggs, was halted until Meggs found a new attorney.

Meanwhile, Pattis’ other January 6 client, Jones sidekick Owen Shroyer, is supposed to decide by the end of the month whether he’ll take a plea or take his chances with getting superseded with others.

All of which makes it weird that Pattis took on a third January 6 defendant last week. Or perhaps we only learned that Pattis has long been representing one: The defendant is a guy named Douglas Wyatt, who was arrested for assault, civil disorder, and trespassing on the same day as his stepson, Jacob Therres.

It turns out Wyatt has been lawyered up and waiting for arrest since shortly after the attack. As his arrest affidavit describes, there were tips streaming in to the FBI about him starting the day after the attack, with a tip received on January 7, two tips on January 8, and two more tips on January 12, based in part on his social media postings.

The FBI interviewed him at his home in a suburb of Baltimore on January 29, 2021; while he admitted he was at the attack, he managed to get rid of the FBI before he said much more.

By April 2021, Wyatt was represented by some lawyer — Attorney-1 — who basically did DOJ the favor of calling a prosecutor to confirm that his client was the guy identified in one of the FBI’s wanted posters, BOLO 277.

On January 29, 2021, the FBI interviewed WYATT at his residence in Fallston, MD. WYATT admitted he had been present on January 6, 2021 at the U.S. Capitol, which he referred to as “the People’s House,” and felt he had the right to protest. However, WYATT claimed he did not have time to talk but took a business card and agreed to call the FBI in the future. WYATT later retained counsel (“Attorney-1”) and was not interviewed further. On or about April 6, 2021, Attorney-1 sent an email to an Assistant United States Attorney for the District of Columbia. The email stated in relevant part (with emphasis added):

“Mr. Wyatt did not go into the Capital building on January 6, did not assault a law enforcement officer, nor anyone else that day, and was not engaged in the destruction of any property. . . He had no intention nor desire to, nor caused any trouble and is not a member of any group which was involved in causing trouble on January 6. I am sending you this email because I noticed yesterday that my client’s picture is one of the several hundred pictures on the FBI website. That came as a surprise because the FBI has known who he is since early February.” [emphasis original]

The posting of pictures of Wyatt on FBI’s BOLO site, on March 26, 2021, could not have been a surprise, to Attorney-1 or to Wyatt. By February 2021, shortly after the interview, Wyatt had started searching the FBI’s site full of January 6 BOLO posters.

WYATT conducted several searches on Facebook in February 2021 regarding “fbi most wanted capitol riots.”

Wyatt may have been searching FBI’s most wanted Capitol Riot site in February because, on February 2, 2021, FBI had posted pictures of Wyatt’s stepson, Therres, BOLO 180. Therres is alleged to have thrown a plank that hit a cop in the head and did real injury.

So Wyatt was monitoring whether the FBI was onto him in February 2021. Yet it wasn’t until November 14, 2022 when these two men were arrested.

You’ve got to wonder why the government took 21 months to arrest these guys, living an hour away in Maryland, after almost immediately confirming Wyatt’s ID. Especially given Therres’ recent arrest record (Therres’ own detention response says this may not be entirely accurate).

In this case, at least as described by the timeline laid out in the arrest affidavit (which I’ve laid out below), FBI got immediate notice of Wyatt’s participation. But they may not have looked too closely — they may have believed Attorney-1’s denials — until they first started confirming Therres’ identity, with his familial tie to Wyatt, starting in August 2021.

That still doesn’t explain the delay since April, when the FBI had solid IDs on both father and stepson.

Which brings me to a few of the reasons I started looking at this arrest more closely.

His arrest affidavit describes how Wyatt successfully wrestled the Gadsden flag of another rioter away from a cop.

WYATT also helped pull away a protestor’s flag, shouting “get the fuck off that” as an officer attempted to grab the flag away from the protestor:

It also describes how, after the cops on the West Terrace are first overwhelmed he filmed that. That’s interesting because for an hour of the insurrection, he parked himself on an enormous Trump flag (see the significance here) and at times appears to make hand signals.

It’s almost like he was providing others feedback, though Therres’ detention memo says, “there is currently a lack of evidence concerning coordination with others before January 6,” at least regarding Therres. If FBI delayed the arrest to try to see if Wyatt had coordinated with others — besides handing Therres the plank he threw — they may yet to have found evidence before searches done with their arrest.

Which brings me back to Norm Pattis.

When the Sedition Hunters first started focusing on Wyatt’s activities months and months ago, they gave him a hashtag like they do everyone else.

They named him #InfoSprayer, based on his use of spray against cops, and his hat: An InfoWars hat. (Therres was dubbed #NelsonPostThrower.)

I’ve emailed Pattis to see if he would say whether he was the Lawyer-1 described in the affidavit; I have yet to get a response. If he was, though, it would mean around the time Wyatt was given an InfoWars moniker, Wyatt was lawyering up with Alex Jones’ lawyer, a Maryland guy counterintuitively hiring a Connecticut lawyer for legal troubles in DC.

It’s weird enough that Norm Pattis filed as Wyatt’s lawyer last week.

It would be more interesting still if Wyatt hired Pattis back when the FBI first started investigating him.

Update: Hmmm. DOJ charged Therres by himself. Wyatt has, separately waived the preliminary hearing.

Timeline

January 7, 2021: First tip on Wyatt submitted: “Check out his Facebook, too. He has posted videos as well.”

January 7: Wyatt comments on Facebook that “I was there.”

January 8: Wyatt comments on Facebook that Ashli Babbit “was in the wrong for breaking the window” … “I did not enter the capital or engage the police.”

January 8: Second tip on Wyatt: “Pictures of Douglas Wyatt at/in the Capitol on the day in question.”

January 8: Third tip on Wyatt: “I’m simply reporting a former FB friend for his part in the terrorist acts in Washington D.C. on January 6th.”

January 12: Fourth tip on Wyatt: “Saw Suspicious FB comment and checked his page. These were associated with a ‘profile’ attached. Douglas Wyatt lives in Fallston, MD…”

January 12: Fifth tip on Wyatt: “Made suspicious comments on FB post which led me to snoop his profile. Found this and wanted to share. FB pick is from previous ‘protest’ but comments he will be there on Wednesday.”

January 29: FBI interview of Wyatt.

February 2: Therres’ picture posted as BOLO 180.

February: Wyatt searches for “fbi most wanted capitol riots.”

March 26: Wyatt’s photo posted as BOLO 277.

April 6: Attorney contacts DOJ about Wyatt.

August 5: First tip on Therres.

September 20: FBI matches Therres BOLO to Maryland ID.

Late October: FBI searches for now-deleted Facebook content of Wyatt.

October 29: FBI accesses Facebook account for Wyatt’s spouse, matches gloves used at attack.

November 5: Therres’ probation officers confirm BOLO ID.

November 23: FBI reviews video of Therres throwing plank.

November 29: FBI reviews video of Therres’ alleged assaults (this may have been the first that FBI realized Wyatt’s interactions with Therres at the attack, including that he handed Therres the plank with which Therres allegedly injured an officer; thus far Wyatt is not charged with abetting the assault causing injury charged against his stepson.

December 14: Second tip on Therres, reporting he tasered 4 police officers.

April 5, 2022: Close contact of Therres IDs his BOLO, relays that Therres was “very vocal” in social circle about “inflicting violence on police officers, with potentially a taser.”

April 6: FBI access previously obtained Wyatt’s Meta content showing contemporaneous posts about his participation.

April 19: FBI agent who interviewed Wyatt confirms ID.


What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.


Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.


Yes, DOJ Is Reportedly Investigating the 2018 Election that Trump Just Invoked with Ron DeSantis

In the wake of Tuesday’s shellacking of Democrats in Florida and the losses of winnable seats by Trump endorsees, Republicans are explicitly discussing Ron DeSantis as if he is the head of the party, in lieu of Trump. That set off a temper tantrum on the second shittiest social media site run by a narcissistic billionaire [sic] in which Trump:

  • Accused Fox of fighting him and likened the focus on DeSantis to the 2016 election
  • Claimed his endorsement of DeSantis in 2018 was a “nuclear weapon” that took out Adam Putnam
  • Took credit for DeSantis’s victory over Andrew Gillum
  • Claimed he “sent in the FBI and the U.S. Attorneys, and the ballot theft immediately ended, just prior to them running out of the votes necessary to win”

This last bullet, which seems to claim that Trump deployed DOJ resources to help DeSantis win, has attracted a great of attention.

It would be utterly corrupt to imagine that Trump used DOJ resources to help in an election — though there is evidence he did in 2020: when Bill Barr’s efforts to undermine the Mike Flynn prosecution released altered Peter Strzok notes that Trump used in an attack on Joe Biden. He of course tried to do far more, going so far as attempting to replace Jay Rosen with Jeffrey Clark to give DOJ sanction to frivolous lawsuits.

Plus, people are far too quickly suggesting this claim is made up entirely, and that there’s no evidence of misconduct in 2018. That’s true not just because Trump’s lies generally have some basis, albeit really tenuous, in reality.

Just ten days ago, after all, the NYT reported that prosecutors on at least two investigative teams (which might actually be prosecutors bringing together networked conspiracies as seemed likely for 14 months), implicitly boosted by cooperation from Joel Greenberg, are investigating the 2018 Stop the Steal effort in Broward County.

The NYT article focused on efforts by Trump’s rat-fucker and friends to shut down challenges to the vote count: a Jacob Engels/Proud Boy mob in Broward County.

President Donald J. Trump and other top Republicans were stoking claims that the election had been stolen, and their supporters were protesting in the streets. Members of the far-right group the Proud Boys and people close to Roger J. Stone Jr., including Representative Matt Gaetz, took part in the action as the crowd was chanting “Stop the Steal.”

The time was 2018, the setting was southern Florida, and the election in question was for governor and a hotly contested race that would help determine who controlled the United States Senate.

Now, four years later, the Justice Department is examining whether the tactics used then served as a model for the attack on the Capitol on Jan. 6, 2021.

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

[snip]

The 2018 protests were triggered by the tight outcome of the races for United States Senate and Florida governor. On election night, the Republican Senate candidate, Rick Scott, declared victory over the Democrat, Bill Nelson, but the race was close enough that local officials were set to hold recounts in key locations like Broward County.

Prominent Republicans, including Mr. Trump and Senator Marco Rubio of Florida, suggested on social media that the Democrats were trying to steal the election. Mr. Engels promoted an event in Broward County, writing on Twitter that he was headed there “to handle this situation” and was going to “STOP THE STEAL.”

On Nov. 9, a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

Undoubtedly, the Proud Boys are not the FBI (though the FBI in this phase was far too credulous of the Proud Boys). But given the NYT report, it is nevertheless the case that Trump-related Broward County rat-fuckery in 2018 not only happened but is already under investigation.

It may even be the case that DOJ collected information about such things in near real time. DOJ obtained renewed warrants on three Roger Stone accounts on August 3, 2018. It continued to investigate Stone and associates at least through October 2018. And an investigation into the rat-fucker remained ongoing through his November 2019 trial and into at least April 2020.

Again, that doesn’t mean that Trump’s specific claim — that DOJ was involved in all this — is specifically true. It means that before you dismiss it out of hand, you should ask what bread crumbs of reality this probable lie is based on.

When Trump started threatening DeSantis, I immediately thought of Roger Stone, because collecting dirt with which to exert political pressure is what Trump’s rat-fucker does and because Stone was always active in these same circles. And the Broward County Stop the Steal effort may be the least of it.


Former Secret Cooperator Enrique Tarrio Reveals a Secret Cooperation Deal

Last Friday, in the guise of arguing that Enrique Tarrio’s trial should be moved from DC to Miami, one of his attorneys, Sabino Jauregui, revealed that DOJ had gotten a plea agreement with Jeremy Bertino and “Stewart” in June, but only rolled them out recently, which he claimed was proof of politicization. That argument, like Jauregui’s arguments that the national media coverage that Tarrio himself had cultivated and a DC lawsuit against the Proud Boys that the judge presiding over the case, Tim Kelly, had never heard of, meant Tarrio could not be tried in DC was nonsensical and probably false as to motive. It was a painfully stupid argument from lawyers from one of the few people who could make a real case for moving his trial (though not to Miami, where there has been localized Proud Boy coverage).

But it revealed that the person identified as “Person Three” in many of the charging documents, John “Blackbeard” Stewart, had entered a plea agreement in June. After I tweeted that out, WaPo described a June 10 Information charging someone with conspiring to obstruct the vote certification.

The disclosure by Tarrio’s defense aligns with court records showing that prosecutors on June 10 charged a defendant who was expected to plead guilty and cooperate with investigators in a case related to Tarrio and four top lieutenants, who stand accused of planning in advance to oppose the lawful transfer of presidential power by force. The unidentified defendant was charged with conspiring to obstruct an official proceeding of Congress, according to the records — initially posted publicly by the court but removed from public view.

It’s unclear whether Jauregui really meant to argue that the non-disclosure of a June plea would harm his client — or even the early October disclosure of a Bertino plea that was signed in September — or whether this was the kind of happy accident that sometimes exposes a detail that might be useful for others. But it reveals that in the same period when DOJ charged Tarrio and his alleged co-conspirators with sedition, DOJ secretly added a cooperator against them.

That detail isn’t all that surprising — and it’s certainly not cause to move the trial to Miami. The government often keeps cooperation deals secret — indeed, the government kept at least some of Tarrio’s cooperation secret when he was cooperating against his codefendants and other medical fraudsters in the 2010s. They did so, in part, so he could conduct undercover operations.

But it raises other questions, such as what happened with Aaron Whallon Wolkind, who also figured prominently in charging documents as Person 2, but who was not mentioned in Bertino’s statement of offense. The recent silence about AWW’s role in January 6 is all the more telling given that Zach Rehl’s co-travelers, Isaiah Giddings, Brian Healion, and Freedom Vy just had their pre-indictment prosecution continued until February; along with Rehl, they’re the ones that interacted most closely with AWW on and leading up to January 6. We may learn more by Wednesday, which is the due date for the two sides to submit a new sentencing date for Jeff Finley, another co-traveler of this crowd.

There has long been reason to wonder about what was going on in the Proud Boy case behind the scenes. The revelation of hidden plea deals only confirms that.

The silence of most Oath Keeper cooperators

It’s not just the Proud Boys investigation where there’s uncertainty about cooperating witnesses.

A recent status report for Jon Schaffer, who was generally understood to be a cooperator against the Oath Keepers, reveals that his attorney,

has reached out to counsel for the government, Ahmed Baset, Esq., multiple times in regard to the Joint Statius Report as requested by this Court. Unfortunately, as of the filing of this report, undersigned counsel has not been able to reach Mr. Baset.

The status report includes the same description as used in earlier status reports, one that was always weird in conjunction with the Oath Keepers and now is completely incompatible with it.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

That doesn’t rule out that his cooperation was for different militia defendants, or for Oath Keeper James Breheny, whose pre-indictment prosecution was recently continued until January (Breheny is most interesting for an event he attended in Lancaster, PA, not far from both John Stewart and AWW).

The continuing lack of clarity about Schaffer’s cooperation comes even as he has successfully hidden from DC process servers for months. He is one of the cooperators whose plea included the possibility of witness protection, but the process servers attempting to notify him of lawsuits against him seem to be chasing real addresses.

Schaffer aside, there are even interesting questions regarding cooperators in the main Oath Keeper conspiracy. After Graydon Young finished testifying yesterday (revealing, among other things, that he had learned that Kelly Meggs had high level ties to the Proud Boys), prosecutor Jeffrey Nestler revealed there is just one more civilian witness. If by “civilian” he includes cooperators, that means at most one more Oath Keeper cooperator — probably Joshua James, whose cooperation on post-January 6 development seems critical for the sedition charge — will testify. That would mean a bunch of the cooperators — Mark Grods, Caleb Berry, Brian Ulrich, and Todd Wilson — would not have taken the stand (Jason Dolan is the only other cooperator, in addition to Young, who has testified so far). While some of these cooperators were likely important for getting others to flip (for example, Grods would have implicated James), there are others, like Wilson, whose testimony might be uniquely valuable.

Or perhaps in the same way DOJ was attempting to hide at least one Proud Boy cooperator, the Oath Keeper team is hiding the substance that some of their cooperators have provided to protect ongoing investigations.

Mystery Green Berets

Then there’s a January 6 cooperation deal that has attracted almost no notice: that of Kurt Peterson. He’s a guy who broke a window of the Capitol and witnessed the shooting of Ashli Babbitt. Last December, DOJ was attempting to use the broken window to leverage him to plead guilty to obstruction as part of a cooperation deal. In September, he pled to trespassing with a dangerous weapon, one of the sweetest plea deals of any January 6 defendant, one that likely means he’ll avoid any jail time (which is consistent with how enthusiastically DOJ was pursuing his cooperation last year). In advance of his plea, the two sides got permission to seal two sentences in Peterson’s statement of offense.

Here, there are compelling interests that override the public’s presumptive right of access because the proposed plea agreement is conditioned upon Defendant’s continued cooperation with the government, and the statement of offense that accompanies the proposed plea agreement describes another individual who is under investigation for criminal wrongdoing on January 6, 2021. Publicly filing this information could lead to the identification of this individual and would be akin to a criminal accusation that could cause serious reputational or professional harm before formal charges are filed. Moreover, the need to protect the integrity of the ongoing investigation justifies the requested partial sealing. See United States v. Hubbard, 650 F.2d 293, 323 (D.C. Cir. 1980) (“As to potential defendants not involved in the proceeding …premature publication can taint future prosecutions to the detriment of both the government and the defense.”). Furthermore, the partial sealing is justified by the need to protect the Defendant’s safety in light of his ongoing cooperation. Washington Post, 935 F.2d at 291 (“the safety of the defendant and his family, may well be sufficient to justify sealing a plea agreement”). See also United States v. Thompson, 199 F. Supp. 3d 3, 9 (D.D.C. 2016) (“sentencing memoranda that include information regarding a defendant’s cooperation are often filed under seal.”).

[snip]

No alternative to sealing will adequately protect the due process rights of an unnamed defendant; preserve the integrity of the government’s investigation; and help ensure the safety of the Defendant.

The two sentences in Peterson’s statement of offense (which follow these two sentences) clearly relate to the three people with whom he traveled from KY to DC.

The defendant, Kurt Peterson, lives in Hodgenville, Kentucky. On January 5, 2021, the defendant drove from his home to the Washington, D.C. area with three other people,

[snip]

After leaving the Capitol Building, the defendant met back up with his traveling companions.

He got separated from them on the way to the Capitol though; his cooperation likely pertains to what he learned they (or one of them) had done on the trip back.

His arrest affidavit describes a recording he made on January 10, 2021, when he had gone on the run. It reveals that his three companions were all former Special Forces guys in their sixties.

To my family and friends who are able to see this, I am writing it with a voice recognition program while driving. I feel the need to keep moving and trying to keep my phone wrapped such that it can’t be traced most of the time. I was at our nation’s capital for the rally and watched the presentations at the ellipse prior to walking to the Capitol building with at least a million and a 1-1/2 to 2 million people.

The people that were there at the ellipse were peaceable and loving and supporting our country. The people that were at the capital were also primarily peaceful and loving our country. But when there are huge crowds and there are people that are inciting violence the crowds will many times be pulled in to this action.

I was with 3 men who had served our country in special forces. All of us in our sixties.

[snip]

Sadly I do not trust many branches or people in our government particularly the federal bureau of investigation. So at this time I am moving continuously and wrapping my phone in such a way that I hope it cannot be tracked. If for any reason I am not available to see you or meet with you again know that my intentions are to keep our country free of oppression by an over zealous government.

Yet no one knows who these three (or one particular) suspects were that made them or him so interesting to DOJ to merit this sweet plea deal or the year of effort to get it.

The thing is, the suspect in question must have already been charged and probably arrested. Before the plea hearing formally started, there was discussion of a “related case” designation, which would ensure that Judge Carl Nichols would preside over it, as well as Peterson’s. That would only happen if there were already another indictment.

Besides, the three guys who were with Peterson know they were with him; redacting that language doesn’t hide the cooperation from them, at all.

The relentless public roll-out of cooperators in the Oath Keeper case is the exception, not the norm (as Amit Mehta noted when Schaffer first pled guilty). Even those of us who follow closely are not seeing all of what’s going on, even in the overt crime scene prosecutions.

And Tarrio, himself a former snitch, knows better than most how useful disclosing such details may be to help others evade justice.


AMERICA, WE HAVE A PRIVACY PROBLEM

[This is a guest post by our long time Roving Reporter, Rosalind]

It may have been the moment I found a private drone filming me at night through an upstairs window.

Or the medical receptionist’s surprise when I wouldn’t sign in on the touch pad until she showed me a copy of what I was agreeing to, saying I was the first to ever ask for this.

Or at the end of a recent physical therapy session, after an hour divulging the most private and confidential health information, when I bent down to put on my shoes and discovered an Amazon Alexa blinking back at me.

Doorbell Surveillance Cameras and Microphones. License plate readers. Delivery robots. Security robots. Dashboard cams. Bike helmet cams. All recording our every move. Our personal privacy is being striped-mined, data-mined and packaged up for corporate profit, and we the people are assisting all the way.

I am not a technophobe. I AM someone who has the perhaps radical idea that before any device that permanently collects our biometric info is put out in the world, the company must first provide verifiable proof that their widget actually does what it claims, and fills a true societal need.

As the Amazon/Apple/Google panopticon leads the way in creating ever more horrific ways of monetizing our individual selves, we must collectively hit pause and consider the ramifications. The technology feeding our Brave New AI (Artificial Intelligence) Algorithmic World isn’t being built by benign super geniuses. Ignore the number of supposedly astute folk who wax orgasmic over the possibilities of AI as if it’s untouched by human hands. Newsflash: (Charlton Heston voice) AI – is – people! More specifically, a self-selected narrow slice of the human spectrum. Flawed humans propagating and programming their every bias and prejudice into their final products that are then put on the market to travel the world.

Say hello to medical devices that don’t work on darker skin. Light sensors that don’t register darker skin. Home computer school proctoring software that don’t register darker skin. Sensing a pattern here?

The hottest area in surveillance is emotional recognition, companies claiming their products are able to discern our very thoughts. Smiling = happy! Frowning = Sad! Congrats, Silicon Valley, for finding a way to monetize Resting Bitch Face! It would be funny if it wasn’t so fucking scary. Forget the idea that each internal brain, processing the world in its own unique way, could ever be decoded by the exterior. Full stop at the idea that private corporations are claiming rights to our private thoughts, as they insert this fatally flawed algorithm into programs currently denying you a job, a mortgage or health care.

We gotta hit the brakes. The first way is to understand what you’re agreeing to when you bring new tech into your life and home. The tiny font, multi-page “Terms of Service” and “Privacy Notice” are designed for you to give up and auto-smash the “accept” button. The three things to remember are “The Corporation” may collect and keep forever anything it wants, any agreement you signed is null and void upon sale of “The Corporation” to another, and your personal info becomes the property of the new “Corporation”. And “Personal Information” includes: facial recognition, iris scan, voiceprint, fingerprint, palm print, body type, gait, emotional state, DNA, health conditions, and on.

It’s time to re-discover the power of “no”. We have the ability and the right to challenge privacy violations. Corporations count on, and invest millions seeding one-sided stories, for us to simply accede to ever more invasive tech without a fight. After discovering the Amazon Alexa with its multiple omni-directional microphones blinking back at me in my physical therapy office, I went home and composed a polite but pointed email to the owner. She replied a few hours later thanking me. She hadn’t considered the ramifications of these devices, and had removed them from the rooms.

Beyond the personal invasion of privacy inflicted by our growing Surveillance Nation, is the very real damage it’s doing to the fabric of our Nation. The chief driver in my opinion is the Amazon Doorbell Ring Camera & Microphone. First Amazon turned us into package addicts, promising faster and quicker fixes. Then when the inevitable occasional package theft occurred, flooded the zone with cameras and mics and smartphone notifications amping up fear beyond the facts. Then the sharing – often in realtime – of the footage with Facebook or Next Door or the Local Police and the weaponization of the nosey neighbor began.

Most articles about the Ring set it in a single family home suburban setting, with footage capturing the street and the homes across. They never consider the Ring in an apartment or condo setting where doors face one another from just a few feet away, where a neighbor you have never met may film and record your every move. This is my reality, but thankfully no neighbor on my floor has yet installed one, but they are spreading throughout the complex and every conversation with neighbors is “ZOMG, Crime!!”. Impervious to the facts that our local crime rate has stayed stable, and no package has been stolen for years, their solution to any perceived problem is lights, cameras and microphones – so they “feel” safer.

Instead of safer, a nation of paranoid voyeurs is creating life-threatening situations for innocents caught up in their cameras, calling the police out for anyone they deem suspicious – i.e. a white person seeing a person of color in “their” neighborhood (hey, Amazon was able to create a tech that DOES recognize darker skin!). This week saw the idiotic example of a neighbor helpfully returning a mis-delivered package, placing it on the recipient’s porch, when Father and Son inside got the doorbell camera alert and rushed out – armed – to bag the thief messing with their package. No one in sight, they ran into the parking lot where they saw a woman sitting in her car. Aha! Blam! Blam! Blamblamblam! Thankfully the woman, a different person than the helpful package returner, was unharmed.

My personal breaking point occurred when I experienced a medical situation that required my calling 911 (all good – a minor issue producing dramatic blood). As I stood at my front door awaiting the paramedics, staunching the blood flow, I stared at my neighbor’s door staring back, realizing if I lived a floor below every moment of my terror would’ve been captured up close and forever, potentially broadcast live to the world. My Amazon datafile would be updated to include “this is what Rosalind looks like undergoing a medical emergency” and the Bezos Borg’s definition of who “Rosalind” is duly repackaged for redistribution.

For a neighbor on another floor who chose to die at home under hospice care, her final exit in a body bag on a stretcher was captured by four cameras and mics, her file updated to “this is what the neighbor in 4B looks like when she is dead”. Her mortal self ceased, her captured biometric self doomed to life eternal.

Before any device that permanently collects our biometric info is put out in the world, the company shall first provide verifiable proof that their widget actually does what it claims, and fills a true societal need. Then We the People have a choice to make. Please choose wisely.


DOJ Rethinks — but in a Few Areas, Expands — Access to Media Content

In a story on the new media guidelines DOJ rolled out yesterday, Charlie Savage reveals what representatives of the press think they got in the new guidelines, in addition to a formal codification of broader restrictions on the use of legal process to find real journalists’ sources:

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The language in question appears to cover things like encrypted dropboxes, something that journalists liked to compare (inaptly) to the charge against Julian Assange of attempting to hack a password for Chelsea Manning. Thus far, multiple criminal prosecutions show that dropboxes have not thwarted DOJ from prosecuting those who submitted documents into them.

Journalism includes reporting on classified information

A more important change is that the guidelines explicitly include reporting on classified information in its definition of newsgathering.

Newsgathering includes the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

Savage describes that “is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.” I’m not sure that’s right: 18 USC 793 and 798 were (along with Child Sexual Abuse Materials) included in the exceptions to 42 USC 2000aa, which I think is unchanged by this regulation.

What has been removed from the prior version (in addition to the inclusion of classified information in the definition of newsgathering) is an exception permitting the use of legal process in investigations of classified leaks. This language has been removed.

In investigations or prosecutions of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation or prosecution, the Attorney General may authorize members of the Department, in such investigations, to issue subpoenas to members of the news media.

In other words, it wasn’t that there was an exception for the Espionage Act. Rather, there was language permitting searches in leak investigations that might be (and frequently have been in recent years) charged under the Espionage Act. That exception has been removed, and reporting on classified information has been explicitly included in the definition of newsgathering.

As we’ll see below, the regulation still authorizes searches in cases of suspected agents of a foreign power.

Expanded protection and a prohibition with exceptions instead of permission for exceptions

As Savage notes, however, the topline change is both a restructuring in the ways that a journalist’s sources might be accessed and the types of legal process covered. Whereas previously, the language on accessing source information included a presumption of access with a bunch of limits on use, as laid out in the prior regulation

The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. In particular, subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. [my emphasis]

The new regulation outright prohibits compulsory legal process except in certain exceptions.

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope ofnewsgathering. Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(l) through (3).

In other words, these regulations importantly flip the presumption from one that permits the access of journalist records in certain situations to one that prohibits it except according to an enumerated exception.

And this revised regulation has broader language prohibiting the use of legal process. It now includes interception orders (like that used against NBC journalists who were sourced by Henry Kyle Frese), MLAT orders (like the Mexican one that targeted Zach Whittaker in 2020), and orders served on obscure third party providers of enterprise email hosting (like orders used against the WaPo and NYT in recent years).

“Compulsory legal process” consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests-regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.

In other words, the revision closes loopholes used under the Trump Administration.

What journalism isn’t

More generally, DOJ has reconceptualized the regulation though the use of exceptions.

Some of these are exceptions that permit the compelled process of a journalist, the most interesting new one of which entails evidentiary authentication with DAAG authorization.

(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;

This may be a response to the need to get journalists to validate videos they took on January 6.

DOJ has slightly reworked an existing section that at least used to be tailored to the definition covered by FISA (and FISA surveillance of journalists is in no way excluded from these regulations). It still includes the same language excepting an agent of a foreign power or someone who aids or abets one.

A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

In at least one of the reworked categories, the regulations represent an (entirely reasonable) expansion. The regulation includes this definition of terrorist activity — adding 18 USC 2339B, C, and D — which not only aren’t tied to State’s Foreign Terrorist Organization designations, but also includes (with C) funding for what could be domestic terrorism.

Committing or attempting to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or

Seamus Hughes pointed me to this case in which three white supremacists were prosecuted under 18 USC 2339A as an example of how this might apply to domestic terrorists. The new regulations add a review by the National Security Division head on these categories, but since John Demers approved the data collection on real journalists under the Trump Administration, that’s unlikely to be a very useful protection.

Another new exception — this time not associated with newsgathering — is for an investigation targeting a journalist’s non-journalist housemate or similar who is the subject of an investigation.

To obtain information or records of a non-member of the news media, when the nonmember is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;

But the biggest change is that, in addition to that tweaked list of national security exceptions, DOJ added a bunch of more common crimes that journalism doesn’t include:

(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

The distinctions are not entirely clearcut though. Of most concern, what distinguishes a journalist reporting on tech vulnerabilities and a hacker is that “requisite criminal intent,” and one often determines that by accessing content.

Incorporation of cases against recent not-journalism cases

Importantly, however, these crimes include a number of the cases that got journalists all hot and bothered but which, under the new rules, are very clearcut (Savage’s professed uncertainty about Project Veritas notwithstanding).

DOJ’s approach to Julian Assange didn’t begin change until he helped Edward Snowden flee to Russia and Assange wasn’t charged — initially, with attempting to help Chelsea Manning crack a password, itself included in one of the distinguishing crimes — until after he had aided and abetted Russia in a hack-and-leak campaign, one of the national security exceptions. The Espionage charges against Assange were filed after Russia attempted to exfiltrate Assange at the end of 2017. Any superseding indictment of Assange in the future would likely include an extortion claim and an aid-and-abet claim of Josh Schulte’s hacking of the CIA, for which Assange clearly expressed the criminal intent.

With regards to Project Veritas, the very first subpoena targeting their office manager (one obtained while Bill Barr was still Attorney General) listed 18 USC 873, blackmail — a kind of extortion — among the crimes under investigation, and their own defenses raised the possibility of extortion. Plus, Robert Kurlander’s statement of offense described trying to raise the price Project Veritas would pay for Ashley Biden’s diary because it was “literally a stolen diary.” So these new guidelines, applied retroactively, make the Project Veritas search an obvious exception.

The distinction between certain crimes and journalism would encompass three other, still undisclosed investigations into journalists last year described in DOJ’s report on legal process. The first was into insider trading:

In connection with an investigation of securities fraud and wire fraud relating to insider trading activities, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the person, personal effects, and cellular telephones of a member of the news media who was the subject of the insider trading investigation. Investigators had established probable cause that the member of the news media had participated in the insider trading activities with three coconspirators and was in communication with the primary target of the investigation, a former U.S. Congressperson; and that the information seized pursuant to the search warrant would lead to further evidence. Investigators had pursued multiple avenues to obtain the evidence, without success, and had exhausted all investigative leads. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the member of the news media’s newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the Privacy Protection Act (PPA), see 28 C.F.R. § 50.10(d)(4).

The second was into fraud and money laundering.

In connection with a fraud and money laundering investigation involving employees of a news media entity, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to search stored electronic content of email accounts maintained by a member of the news media and its affiliate entity; and to issue a subpoena to a thirdparty service provider for information relating to accounts maintained by a member of the news media. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the entities’ and employees’ newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

A third investigation last year into stalking that included the use of spyware and hacking.

In connection with an investigation of a member of the news media for stalking offenses, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the email account of the member of the news media. Investigators had established probable cause that the member of the news media had engaged in harassment and stalking of multiple people, including through the installation and use of spyware and the hacking of social media accounts, as well as employing several means to damage the reputations of the parties the member of the news media was harassing and stalking. The U.S. Attorney’s Office established evidence that the information seized pursuant to the search warrant would lead to evidence regarding the member of the news media’s criminal conduct, which was wholly outside the scope of his newsgathering activities. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant application pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

In other words, DOJ has used the lessons from the Trump DOJ’s hunt for journalistic sources, Julian Assange, Project Veritas, and three other undisclosed investigations (and who knows? Perhaps also to media outlets run by Neo-Nazis to help fundraise) to change how they conceive of journalism. All of those are reasonable exceptions from journalism.

There are a bunch of potential loopholes. If DOJ wants a journalist’s content, there are a great many ways they can still get it and because those exceptions would permit sustained secrecy about the searches might never be disclosed.

But these regulations, at a minimum, have established that reporting on classified information is part of journalism and have eliminated a lot of the loopholes to surveillance used to target journalists during the Trump Administration.


“Fuck! Two years or three years, screw you, they will get you when it’s time”

About 26 pages into a 40-page indictment of Quanzhong An and his daughter Guangyang An — which was obtained last week but rolled out at a press conference yesterday — the indictment shifts tracks dramatically.

Up until that point, it lays out in detail An’s role in China’s efforts, dating back to 2002, to convince John Doe-1 and his son, referred to as John Doe-2 in the indictment, to return to China. But then at page 26, it starts to lay out alleged money laundering, showing how Quanzhong An transferred almost $4 million from China to the US over six years by transferring it in increments at or just under $50,000 in the name of family members.

From in or about 2016 through the present, the defendants QUANZHONG AN and GUANYANG AN conspired with others to engage in a money laundering scheme. During this period, the conspirators sent and caused to be sent millions of dollars in wire transfers from the PRC to the United States. As these activities violated applicable PRC law regarding capital flight — which imposed a limit of $50,000 per person annually for total foreign exchange settlement — the conspirators engaged in deceptive tactics designed to frustrate and impede the Anti-Money Laundering (“AML”) controls of the U.S. financial institutions, so that the defendants and the coconspirators could enjoy continued access to the U.S.-based bank accounts.

Here’s what a fraction of the transfers look like.

To be clear, the reason these transfers were made in $50,000 increments was to comply with Chinese transfer restrictions, not US ones. This is charged as money laundering in the US because (as the indictment notes) it involved false statements to banks and layering and other tactics to hide the ruse. But it also appears to be a violation of Chinese law, the same kind of law that the person targeted for repatriation by An allegedly violated.

As FBI Director Chris Wray noted at yesterday’s press conference,

Two of the subjects who targeted him, two of the defendants charged today, are themselves actually involved in a scheme to launder millions of dollars. And as if that weren’t enough evidence that the real purpose of their operation was political, they gave their victim a deadline to return by: the 20th CCP Congress earlier this month.

The money laundering belies the claim that China is pushing for John Doe-1’s repatriation out of some concern about financial corruption.

It may provide context, too, to details earlier in the indictment that described how An became involved in efforts to coerce John Doe-1 to return to China. As described, his efforts to lure John Doe-1 back to China started in 2017, when he showed up at John Doe-1’s home to locate him and his son. A year later, his daughter Guangyang accompanied a family member’s boss to the house in 2018, where they left a note and were captured on John Doe-1’s security camera, as shown in the picture.

In August 2019, one of the Chinese-based co-conspirators sent a message to John Doe-1 claiming that An was just helping out out of patriotism.

An Quanzhong is a patriotic businessman in the U.S. and the head of the Chinese Business Association of New York. He was originally from Zaozhuang, Shandong, and has given strong support to the government’s work. He is willing to communicate with [John Doe-1] and pay for [John Doe-1] to help the government recover the loss without anything in return. At the same time, he is willing to provide enough funds to guarantee [John Doe-1’s] return and cover his expenses needed to return home.

Starting in 2020, An started meeting with the son, John Doe-2, meetings which were consensually recorded (meaning either the FBI was already involved or John Doe-2 is really smart).

At a January 2020 meeting, An explained to the son what he was up to, admitted to the 2017 visit to the house, and explained that he would pay the money John Doe-1 allegedly owes to the Chinese state and put him up in his Chinese home if he returned.  John Doe-2 asked why he was willing to pay that amount, and An explained that he was trying to get the Chinese government to view him as a good guy.

QUANZHONG AN responded that he had donated over 100 million yuan to the PRC government the previous year and that the PRC government “will be very happy if this thing is settle[d].” QUANZHONG AN boasted that, if he assisted with John Doe-1’s repatriation, the PRC government “will not see [QUANZHONG AN] as a bad guy because [he has] done so many good things, even donating money to society.”

In a July 2021 meeting with John Doe-2, also lawfully monitored, An repeated the promise that John Doe-1 would not be detained if he returned, then explained he was involved in part because of his business interests.

QUANZHONG AN also acknowledged how his business interests prompted his involvement in John Doe-1’s case. QUANZHONG AN explained, “[A]s you know, there are many ways to make it work in China. It’s hard to do business in China.” QUANZHONG AN claimed that he had succeeded by making donations to the PRC government. QUANZHONG AN further claimed that “he had donated over 300 million yuan over the years to the PRC government.”

In a July 2022 call that An brokered to take place at a hotel he owns in Flushing, one of the Chinese co-conspirators told John Doe-2 that he should return before the Party Conference (the October 20 arrest took place in the middle of it, which spanned from October 16 to October 22), because, “In case there is a change, I am afraid that it doesn’t work in favor of the old man” (which I believe is a reference to John Doe-1’s father, in China).

In recent weeks, the detention motion for the father and daughter describes, An met with John Doe-2 again, this time with a confession for John Doe-1 to sign in advance of the Party Congress.

More recently, Quanzhong An met with John Doe-2 again on September 29, 2022. During this meeting, Quanzhong An pressed for John Doe-1 to execute an agreement to return to the PRC in advance of the CCP’s 20th National Congress, which began on October 16, 2022. As part of such agreement, Quanzhong An sought a written confession from John Doe-1, which would be submitted directly to the PRC government. This morning, incident to Quanzhong An’s arrest, agents located a photograph of what appears to be a sample confession for John Doe-1 to use.

Instead of returning, the implication is, DOJ finalized this indictment on October 7, and the FBI arrested An and his daughter. The indictment includes two forfeiture provisions, and lists three properties. After his arrest last week, An was given a CJA attorney, suggesting the considerable assets he has in the US may be tied up in those forfeitures.

In other words, this appears to be a story of how the Chinese government used An’s own violations of Chinese law not to rein him in, but to coerce him to pursue the return of a long-sought exile. The US government is effectively using the leverage China had over An, because of his alleged money laundering, to impose far greater penalties — both financially and (because of stiff penalties on money laundering) in terms of criminal exposure — on his involvement in the matter here in the US.

This was one of three charging documents rolled out yesterday in a very high-level press conference involving Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco, National Security Division head Matthew Olsen, and FBI Director Chris Wray. Those three sets of charges are:

  • Charging two suspected Chinese intelligence officers — both in China — who paid a double agent for what they believed was secret information pertaining to the 2018 prosecution of Huawei on racketeering charges. (press release)
  • Charging four Ministry of State Security officers — all in China — in conjunction with their unsuccessful attempt to recruit a former law enforcement officer while on two trips to China (one in 2008, the second in 2018) and their successful recruitment of an unnamed and uncharged US permanent resident co-conspirator who took actions in New Jersey. (press release)
  • As noted, the indictment charging US permanent resident Quanzhong An, his US citizen daughter Guangyang An, along with five Chinese based individuals, four of whom are members of the Provincial Commission for Discipline Inspection for their efforts to lure a long-term US resident back to China. (press release, which was issued on the day of arrest, October 20)

On their face, the charges seemed quite unrelated (indeed, Wray acknowledged as much). On its face, the press conference seemed to be another of the showy ones designed to get attention precisely because most of those affected are overseas, out of the reach of law enforcement. (Compare that press conference to the more discreet rollout of the three indictments targeting Oleg Deripaska and his associates, charges that take more overt cooperation with other countries, to say nothing of even more juggling of ongoing sensitivities.)

Which raises the question of why now, why these cases. In response to a direct question about whether the timing of this related to the party conference — mentioned in the An indictment and in Wray’s prepared remarks — that solidified Xi Jinpeng’s third term, Wray said only that, “we bring cases when we’re ready.”

It may be that An was lured back to the US for his arrest based on that timing, which would in turn explain the timing of that arrest (which was announced, though not docketed, last week). But that would only explain why that case was rolled out, and it was already public last week.

An and his daughter are the only people described to be arrested in these documents.

But there is a Co-Conspirator-1 named in the New Jersey indictment (which was filed on October 20, the same day the An arrest took place) whose apparent US presence is unexplained in the indictment and yesterday’s press conference.

That indictment seems like it’s an investigation that started when a former law enforcement officer was recruited in China in 2008, which alerted the US government to the identity of Wang Lin, who in 2016 traveled to the Bahamas to begin recruiting CC-1, first by tasking him or her with delivering a $35,000 payment in the US. Then, in 2016, another of the co-conspirators, Wang Qiang, traveled with CC-1’s Chinese family members and had a series of discussions about working for China. In one, Wang expressed concern that the US had planted surveillance equipment on one of his phones at the airport.

During the same conversation, CC-1 also discussed with CC-l’s two family members, in sum and substance, what s/he believed to be the United States’ surveillance capabilities. CC-1 also told her/his family members that WANG QIANG had expressed concern when he (WANG QIANG) entered the United States that customs officials had installed surveillance equipment on one of his telephones at the airport, and that WANG QIANG was concerned about numbers for several contacts in North Korea that he had in his phones. CC-1 stated, in sum and substance, that WANG QIANG was “a low-level” official and should not have been concerned that he would be known to United States authorities.

It seems Wang was right to be concerned, because a series of damning conversations involving Wang and CC-1 were “lawfully recorded.”

WANG and CC-1 continued to discuss working on behalf of the PRC and obtaining information for the PRC in furtherance of its intelligence-gathering operations. Among other things, CC-1 stated thats/he “like(s) to do it,” meaning working for the PRC. CC-1 complained, however, that “[it] would be fine if there were more money.” CC-1 continued, stating, “It will work if you can truly pull off something big, things like the fucking U.S. high tech, anything that is important, right?” CC-1 then stated that “We are the ones who do the fucking work.” CC-1 also noted that “it is just a business,” that “they pay you for each job done,” and that “they will pay you again if they use you again.”

WANG QIANG and CC-1 continued to express fear about getting caught. Indeed, CC-1 stated thats/he did not “want to get into any trouble now.” CC-1 advised WANG QIANG, “If you don’t need to travel, it should be safe to stay in China. If you need to travel, fuck! The U.S. is very capable, I am telling you. You can’t run away from them.” CC-1 continued, “The Americans are really capable. Fuck! Two years or three years, screw you, they will get you when it’s time. . . . On the other hand, I have no use to them if I go back. I have no use to them if I go back to China.” During the conversation, WANG QIANG stated his belief that individuals working for the PRC “will be abandoned in the future.” [my emphasis]

There’s no other explanation for what happened with CC-1. And absent a 2018 offer to the law enforcement officer on a trip to China in 2018, these charges would be time-barred; I wonder whether that former law enforcement officer has a tie to the double agent described in the Huawei indictment (though timing wise, he cannot be the same person). Of that double agent from the Huawai case, Wray yesterday said, “we very rarely get a chance to publicly thank” double agents working in operations targeting China and other foreign countries.

But the pattern shown in the An indictment holds: the recruitment via Chinese associates using family ties of permanent residents in the US.

That is, at least two of these indictments appear to be based off far deeper investigative work than that FBI had previously pursued, in which they tried to catch scholars in false statements regarding dual Chinese and US-funding.

At yesterday’s press conference, someone asked (seemingly pointing to the ongoing threat of espionage from China), “Was it a mistake to get rid of the China initiative?”

The China Initiative was a Trump Administration effort that resulted in a series of high profile failed prosecutions and that sowed discrimination against Chinese and Chinese-Americans working in technical roles.

Garland responded by saying that,

These cases make quite clear we are unrelenting in our efforts to prevent the government of China from economic espionage, from operating in the United States as foreign agents, from trying to affect our rule of law, our judicial system, from trying to target or recruit Americans to help them … we have not in any way changed our focus on those kind of behaviors by China.

Olsen added,

We have stayed very focused on the threat that PRC poses to our values, to our institutions. We speak through our cases, and we speak to those cases today. I think what we are charging today in terms of the range and persistence of the threat that we see from the PRC demonstrates that we have remained relentless on that threat and we will continue to be focused on that threat going forward.

Asked by the same apparent Trump booster whether he had just gotten rid of the name, Olsen responded,

We ended the China Initiative earlier this year after a lengthy review and adopted a broader strategy focused on the range of threats that we face from a variety of nation-states, and that’s the strategy we’re carrying forward.

What DOJ spoke through its cases yesterday suggests they’re using longer-term operations to target a more fundamental recruiting effort and only unwinding them, one by one, as such interlocking efforts require it.

Update: In juggling some quotes I cut the part from which the title comes. I’ve added it back in (h/t higgs boson) and fixed another detail.


Friends of Sedition: The Networked January 6 Conspiracy

I’d like to look at several developments in recent days in the interlocking January 6 investigations.

First, as I noted Friday, the January 6 Committee subpoena to the former President focuses closely on communications with or on behalf of him via Signal. It specifically asks for communications with the Proud Boys and Oath Keepers (including on Signal). And Roger Stone is the first person named on the list of people all of whose post-election communication with Trump (including on Signal) the Committee wants. Clearly, the Committee has obtained Signal texts from others that reflect inclusion of the then-President and expects they might find more such communications, including some involving Stone and the Proud Boys and Oath Keepers.

Then, on Friday, one of the the main Proud Boy prosecutors, Erik Kenerson, asked to continue Matthew Greene’s cooperation for another 120 days, which would put the next status update in late February, over a month after the Proud Boy leader’s trial should be done. There are, admittedly, a great number of Proud Boy defendants who will go to trial long after that, but Greene doesn’t know many of them (he had just joined the Proud Boys and mostly interacted with other New York members like Dominic Pezzola). Nevertheless, prosecutors seem to think he may still be cooperating after the first big trial.

Those details become more interesting given how DOJ is presenting the Oath Keeper conspiracy at trial. Last Thursday, DOJ added the various communication channels each participant was subscribed to on their visual guide of the various co-conspirators.

It’s not surprising they would do that. To prove the three conspiracies these defendants are charged with, DOJ needs to prove each entered into an agreement to obstruct the vote certification, obstruct Congress, and attack the government. DOJ is relying on the various statements in advance of (and, for sedition, after) January 6 to show such intent. The fact that an intersecting collection of Signal channels incorporated most of the charged defendants will go a long way to show they were all willfully part of these three conspiracies.

But as you can see with Elmer Stewart Rhodes and Kellye SoRelle (circled in pink), DOJ has included Stone’s Signal channel — Friends of Stone — along with the Oath Keeper ones. As DOJ laid out last week, in addition to Rhodes and SoRelle, Enrique Tarrio, Alex Jones, and Ali Alexander were on the FOS channels, in addition to Stone himself.

DOJ has included things Rhodes said on the FOS chat in its timeline leading up to and on January 6. Significantly, at 2:28 on January 6, Rhodes informed the FOS chat that they were at “the back door of the Capitol.” (See the context in Brandi Buchman and Roger Parloff live threads.)

The thing is, many of the participants in FOS that prosecutors have, thus far, identified as participating in the chat (SoRelle, Ali Alexander, and Alex Jones) and most of the Oath Keepers were there on the East side of the Capitol or had only recently left. So was Owen Shroyer, who was also on FOS; he had been on the top of the stairs with Alexander and Jones.

Enrique Tarrio is one exception. He wasn’t present at the East side of the Capitol, but he was following along closely on social media — and likely already knew what was happening on the East side of the Capitol from Joe Biggs, who went through the East doors right along with the Oath Keepers.

Which means the only person mentioned so far who now needed to be told where the Oath Keepers were was Stone, back at the Willard.

We learned one more thing recently, at the last January 6 Committee hearing.

At 1:25PM — after the attack on the Capitol had started — Trump’s Secret Service detail was still planning on bringing him to the Capitol two hours later, around 3:30. That was after, per a video clip in which Nancy Pelosi said she would punch Trump if he showed up, Secret Service told Pelosi they had talked him out of coming.

But 18 minutes after Rhodes told the Friends of Stone list where the Oath Keepers were, at 2:46, Joseph Hackett came out of the Capitol and looked around, as if he was expecting someone to show up.

The fact that Rhodes was updating the FOS list from the Capitol suggests he may have been getting feedback from Stone and whoever else was on the list, including those who may have been coordinating with the then-President.

And whatever else DOJ’s use of the FOS list as part of this conspiracy does, it establishes the basis to argue that those coordinating on the FOS list were, themselves, in a conspiracy together: Rhodes and SoRelle with Tarrio (whom both met in the parking garage) and Alex Jones and Ali Alexander and Stone.

Just as importantly, it would network the conspiracies. That would put all the various Proud Boys taking orders from Tarrio in a conspiracy with those on the FOS list. It would put all the Oath Keepers conspiring with Rhodes and SoRelle in a conspiracy with those on the FOS list.

And it would put those on the FOS list in a conspiracy with those directing the attack on the Capitol.

I laid out over 14 months ago that, if DOJ were to charge Trump in conjunction with the attack on the Capitol, it would likely be part of an intersecting conspiracy with those already being charged.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

In the last two weeks, DOJ has started to show how those conspiracies intersect.

Unsurprisingly, they intersect right through the former President’s rat-fucker.

Update; Corrected Pelosi timing, per Nadezhda.

Update: Tried to clarify that Tarrio was on the chat but was not (as the Oath Keepers, Jones, and Alexander were) on the East side of the Capitol.

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