January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

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In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests

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One Man’s Flourish Is Another Man’s Seditious Conspiracy: DOJ’s Typo and the Brandon Straka Plea Deal

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The government released their sentencing memo for Brandon Straka yesterday. It confirms that the propagandist got a ridiculously light plea deal because he “cooperated” with the government. But, particularly because of what must be a typo in the government filing, it raises more questions about the fairness of the prosecution for the first purveyor of the Big Lie to be sentenced in January 6 than it provides answers.

As I’ve laid out repeatedly, Straka was a speaker on January 5 and was slated to speak again on January 6 at one of the rallies that provided the excuse to bring more bodies to the Capitol. He also played a central role in riling up a mob at Michigan’s vote count at TCF Center in November 2020. In other words, he was instrumental in the effort to sow violence by leading people to believe false claims about the election.

As described in the sentencing memo, that’s precisely what Straka did at the East side of the Capitol, too.

Straka pleaded guilty to one count of 40 U.S.C. § 5104(e)(2)(D), Disorderly Conduct in the Capitol Grounds. As explained herein, a four-month home detention sentence is appropriate in this case because: (1) the defendant has a significant public profile, which he utilized to promote his activity on January 6, (2) the defendant learned of the breach of the U.S. Capitol Building and went to join the rioters; (3) upon arriving at the U.S. Capitol, the defendant encouraged others to  storm the U.S. Capitol; (4) the defendant recorded video of the rioters entering the U.S. Capitol; (5) the defendant encouraged rioters to take an officer’s protective shield from the officer’s possession, and (6) the defendant took to social media and encouraged rioters who remained at the U.S. Capitol to “hold the line” even after he had left Capitol grounds on January 6.

[snip]

Here, Straka’s participation in a riot that actually succeeded in halting the Congressional certification combined with his celebration and endorsement of the unauthorized entry of the U.S. Capitol and violent conduct of the rioters to his hundreds of thousands of followers, his act of encouraging rioters to take a U.S. Capitol Police officer’s shield, and the need for deterrence renders a four-month home detention sentence both necessary and appropriate in this case.

Straka was originally charged with civil disorder and trespassing, but not the obstruction of the vote count that he was clearly part of. In October, he got a plea deal to plead only to the lesser of the two trespassing statutes, eliminating a felony civil disorder charge. As I previously noted, his plea agreement included the standard cooperation paragraph that usually suggests someone has not yet cooperated.

But DOJ, in their sentencing memo, claims he did, and even included a sealed filing describing the substance of the cooperation, as they would in support of a 5.1K letter that more formalized cooperators get.

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

But even the memo’s description of Straka’s initial “cooperative” interviews, the ones he did before getting that sweet plea deal, make it clear that, at least at the beginning, he was bullshitting them.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6. After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

Indeed, later parts of the memorandum debunk claims Straka made in that interview, completely undermining the description of these as cooperative interviews.

Straka stood at the entrance of the East Rotunda Doors as rioters attempted to enter despite the presence of officers near the door. Alarms from inside the U.S. Capitol can be heard in the background as Straka approaches the doorway’s entrance: a loud, high-pitched, continuous beeping, similar to a smoke alarm. If Straka was unaware that his and the rioters’ presence was not authorized, he should have known it when he heard the sound of the alarms. Additionally, as Straka approached the doorway, he was met by the smell of tear gas that had been deployed by officers inside of the U.S. Capitol.

The memorandum also clearly shows that any remorse Straka has expressed was self-serving.

Straka has indicated that his decision to attend the U.S. Capitol breach was “stupid and a tragic decision.” In his interview with FBI, Straka stated that he did not know that violence and death would occur that day. He then expressed shame for participating in the event. Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

And the memorandum obscures the chronology of Straka’s actions from the day and relies on his word for at least one key detail which the FBI could have (and did, for other insurrectionists) confirmed via more investigation. Straka went to Trump’s speech at the Ellipse. Videos show that he left the speech with Mike Flynn just as the speech was ending, walking unimpeded through the VIP section. Straka claims he took the Metro to the Capitol and arrived between 2 and 2:20, which given that everybody else was walking, is likely only possible if he killed a half hour somewhere before hopping the Metro, presumably getting on at Metro Center or Federal Triangle and getting off at Capitol South. That detail is critical, because it’s how Straka sustains a claim that:

  • He only learned of the assault on the Capitol as he was already traveling over there and not before
  • He arrived at the Capitol between the time he learned of the assault and when his speech was canceled (2:00 to 2:20)
  • He learned his speech was canceled at 2:33

Here’s how it looks in the sentencing memorandum, separated by several pages.

The next day, January 6, 2021, Straka attended the “Rally to Save America” on the White House Ellipse and then planned to travel to an area near the U.S. Capitol Building where he was going to give another speech. See ECF 1, p. 2 at ¶ 3 Straka used the Metro to travel to the U.S. Capitol. Id. While traveling to the U.S. Capitol, he received alerts on his telephone stating that former Vice President Mike Pence was “not going to object to certifying Joe Biden.” Id. Straka continued to make his way to the U.S. Capitol. Id. While walking, Straka learned that the U.S. Capitol had been breached. Id. Straka estimated that he got off of the Metro sometime between 2:00 p.m. and 2:20 p.m. before making his way to the U.S. Capitol grounds. See ECF 28, at ¶ 18.

[snip]

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article
/new-detailssuggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id. Later, as law enforcement was still working to clear rioters from Capitol grounds, Straka encouraged them to continue fighting:

It’s still totally inexplicable. Even if Straka didn’t have knowledge he was traveling into an active riot in advance (a really sketchy claim), he still marched right up the steps of the East side of the Capitol encouraging violent entry, and then stuck around for hours encouraging rioters to keep going. DOJ could have checked the timing of his story by — as they did with other Jan 6 defendants — checking for Metro card purchases, swipes, or surveillance video in the Metro. Instead, they seem to have taken his word for the chronology.

Thus far, then, it looks like Straka successfully bullshitted DOJ for a sweet plea deal.

That treatment is all the more problematic given the discomfort regarding Straka’s incitement in different places in the sentencing memo. In describing his January 5 speech at the Stop the Steal rally, DOJ dismissed his call to “revolution” as “flourishes.”

During his five-minute long speech, Straka again used common rhetorical flourishes, referring to the rally attendees as “patriots,” and referenced a “revolution” multiple times. Id. at 32:27-37:18 Straka directed the attendees to “fight back.” Id.

But in the sentencing memo, DOJ called the same kind of speech on social media before that, often on key days in the developing conspiracy, speech that “could reasonably have been interpreted by some readers as a call for more than just a figurative struggle.”

Following the election, Straka stoked the passions of his followers, frequently telling the “Patriots” that it was time to “rise up” as part of a “civil war.” Many of these messages contain rhetorical flourishes that are common in political speech. However, some of Straka’s references to concrete planning and action could reasonably have been interpreted by some readers as a call for more than just a figurative struggle. In early December 2020, Straka sent out messages informing them that they “could not allow” a presidential transition and encouraging his followers to prepare for a civil war

That is, DOJ admits in its sentencing memo that Straka was stoking violence during the entire transition period.

Thus it happened that, on the very same day DOJ rolled out a seditious conspiracy indictment against Stewart Rhodes for, in part, warning on November 5, “we aren’t getting through this without a civil war,” and then warning on December 11 that if Joe Biden were to assume the Presidency, “it will be a bloody and desperate fight,” DOJ made a case that a guy who, in the same weeks, was also calling for civil war, should get just home confinement.

To be sure, there’s no evidence Straka engaged in military training or purchased weapons. But if Stewie’s incitement counts as sedition, then surely Straka’s counts as obstruction of the peaceful transfer of power.

Which brings us back to DOJ’s claims about Straka’s cooperation and that sealed addendum. According to the memo, as written, Straka had three interviews: one on February 17, 2021, another on March 25, 2021, and a third on — it claims — January 5, 2022.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka follo-up [sic] questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

Except that makes no sense. He signed his statement of offense on September 14, 2021 and pled guilty in October. A January 5, 2022 interview couldn’t have “anticipat[ed] the plea agreement” he entered three months earlier. [Update: I’ve gotten clarification that the reference “the interviews” was meant to refer to the series of interviews. It still doesn’t make sense, but may reflect a late-date addition without correction of the antecedent.]

Moreover, DOJ offers no public explanation for details in this motion for a continuance, which the government attempted to seal after the fact, an attempt Judge Dabney Friedrich refused. It reveals that Straka told the government something new in December, and also that something unexpected came up in the Presentence report.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

Given the timing of that continuance, it might explain a third meeting with Straka on January 5 — nine days ago. But that would suggest that the information wasn’t provided before Straka got this sweet plea deal.

There are any of a number of things going on. Perhaps it’s true that Straka provided useful information early in the investigation and in consideration for that got a sweet plea deal, as happened with Jacob Riles. Perhaps it’s true that Straka was more honest in those early interviews than portrayed in this memorandum.

Or, as seems more likely given the record and the rhetorical contortions AUSA Brittany Reed made in this sentencing memo, FBI let Straka bullshit them and based on that, he scored a ridiculous plea deal, and only after that, his presentence report disclosed things that FBI should have found last spring.

It may be that the belated discovery in December, in the end, makes the plea deal worth it. If Straka is willing to share honest details of how months of incitement led up to that attempted breach on the East steps; if Straka has provided details of what Mike Flynn was up to after Trump’s speech; if Straka belatedly confessed that there was a concerted plan to converge on the top of the East steps, then Straka’s preferential treatment may be worth it.

But DOJ really needs to provide more transparency on what went down, one that doesn’t include an obvious typo obscuring the timeline. If Paul Hodgkins has to serve eight months for obstruction because he wandered onto the Senate of floor and Jenny Cudd only got to plead from obstruction down to the more serious trespassing charge because she repeated the calls for civil war that people like Straka were making on January 5, then equity demands a far better explanation for Straka’s preferential treatment here.

As noted, Straka’s is the first sentencing for one of the organizer-inciters who will need to be held to account if DOJ wants to really pursue the people who master-minded this insurrection. If FBI screwed up (or tried to protect Straka), then DOJ needs to come clean on that and make it clear how they’ll avoid such problems in the future.

Presenting two inexplicable timelines is not the way to do that.

Update: Fixed reference to presentence report. And included clarification regarding “typo.”

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The First Seditious Conspiracy Charges Drop

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The government arrested Stewart Rhodes today and charged him with other Oath Keepers in a seditious conspiracy indictment. Effectively, this charges everyone who conspired — including by participating in the planning — to bring weapons to Virginia on January 6 (and spins the other Oath Keepers off onto their own indictment). The charges effectively incorporate the material from this post on the Quick Reaction Force and this post on discussion of an insurrection after January 6, with additional details on Rhodes and Edward Vallejo, the guy who organized the QRF.

The charges are, at once, no big deal, because they’re really just the same conspiracy charged in a different way with two conspiracies added. They’re a huge deal, because now Republicans will be hard pressed to continue to downplay January 6. And they’re a solution to some problems and a tool to move on.

First consider the problems DOJ was trying to solve:

  • How to split up an unwieldy 17-person conspiracy into two trials?
  • How to charge Stewart Rhodes (and Vallejo) for roles central to the conspiracy when they didn’t do anything like trespassing to make that easy?
  • How to backstop the sedition charges so white terrorists won’t go free?
  • How to add leverage to flip key witnesses to move beyond just the Oath Keepers?

Now consider how this works as a tool. For some reason, the government has moved Jonathan Walden to his own charges separately. And Mike Simmons, who in all earlier indictments was called “Person Ten,” here is just described as “operational leader,” which suggests he’s no longer treated as a co-conspirator, either.

Though Kenneth Harrelson released some of the key communications from the Willard Hotel from earlier in the day, those still don’t show up in this indictment. So the government is remaining coy about what it knows about coordination with people at the Willard Hotel. That’s probably because it still needs others to flip — Joshua James would be ideal, but Roberto Minuta might be useful as well — to confirm whatever Mark Grods and Mike Simmons (if he is cooperating) were able to offer about it.

But they are making it clear that they know more about some communications they’ve been talking about for some time. Here’s my favorite.

I noted in April that this was probably a conference call. They seem to suggest they may know the content of it.

In addition, this indictment confirms that Kelly Meggs hunted Nancy Pelosi down (and that the rest of the stack went towards the Senate, as if hunting for Pence).

As mentioned, they’ve added a bunch of charges:

  • Added Seditious Conspiracy tied to Rhodes’ repeated efforts to arm and train for war
  • Swapped the 18 USC 371 conspiracy charge for a 18 USC 1512k conspiracy; as I’ve noted, that provides additional enhancements for threats of assassination and kidnapping, as this indictment inches closer to alleging
  • Added a conspiracy to prevent an officer from discharging any duty (18 USC 372)

What this does is raise the sentencing exposure for the co-conspirators from around 20 years to, with terrorism enhancements for the broken door, maybe 80. It backstops the sedition charges (with the original obstruction charge, but also with the 372 charge) so white terrorists won’t be able to beat the charges. It charges all the other efforts to obstruct this investigation.

But it’s the latter new charge I’m most interested in, even more than sedition:

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

This is what Eric Swalwell has argued some of these same people did. But it is, more clearly, what Donald Trump did to Mike Pence.

This indictment will, presumably, impress all those who’ve been wailing the existing 20 year charges the Oath Keepers were facing were not adequate. But it may also clear a path to move up the chain.

Update: Correcting that Walden must be cooperating. I think that’s a misreading.

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The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

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Before 8AM on the morning of the insurrection, the Proud Boys had this discussion on their organizing Telegram thread.

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

UCC-1 has been reported to be Aaron Whallon-Wolkind, who cheered on the insurrection from Philadelphia and interacted with Zach Rehl and other Philly Proud Boys throughout the day. Persons 2 and 3 have not yet been publicly identified.

This discussion and others reveal a key part of the Proud Boy plan for January 6: to incite others — “normies” — to commit violence. And while a number of Proud Boys or close associates engaged in what I’ve called “tactical” violence that day, the vast majority of (and the worst) violence was done by others, mostly by people with either no known or just networking ties to militia groups (such as through anti-mask activism). The Proud Boys weren’t the only militia-linked people attempting to encourage others to engage in violence; it’s a key part of the anti-mask/3% conspiracy, for example. But a stated goal of at least some of the militia members who implemented the assault on the Capitol was to stoke others to engage in violence.

This detail is critical to understanding what DOJ has accomplished so far and where they might be headed. Many of those screeching that DOJ is not doing enough to investigate January 6 — like Elie Honig complaining that DOJ has arrested 700 indistinguishable “rioters” or Hussein Ibish claiming that “many foot soldiers” have “received mainly light prison sentences” but no “planners … have been held to account in any meaningful way” — seem not to understand it.

So I’d like to talk about what we know about the structure of the attack on the Capitol and how it related to things Trump and his minions were doing. Before I attempt to do that, let me rebut a straw man Honig and others have used in an attempt to ignore the facts I present. I share their alarm about the urgent need to respond to January 6 and Trump’s unlawfulness. I am not guaranteeing that Trump will be held accountable.

Where we differ is that I have read the public record on the investigation (and on other investigations that Honig, at least, has denied exist, like the investigation into Sidney Powell’s grifting).

It is not the case that all 700 people who have been arrested were mere “rioters,” — and calling some of these people rioters adopts the preferred label of those championing the coup. And unless you consider mere rioters “foot soldiers,” then very few witting foot soldiers have yet been sentenced. While it is true that no planners have been sentenced, it is also the case that DOJ has arrested some key ones, a small number of whom have been jailed since their arrest, and a great deal of DOJ’s overt investigative focus lies in arresting those who can illuminate how the organizers worked and how they coordinated with others.

Before I lay this out, keep in mind the three main theories of liability for Trump for January 6 (as opposed to his call to Brad Raffensperger, though as I’ve noted, the call to Raffensperger goes a long way to showing Trump’s corrupt mens rea on January 6). At first, people argued that Trump incited the mob. There were problems with that claim, which Trump’s defense lawyers successfully exploited during his second impeachment trial, most notably that the Proud Boys had already kicked off the assault on the Capitol before the former President finished speaking. Still, to prove he incited a riot, you’d need to prove that the people who rioted did so in response to his speech at the Ellipse. Then, after Liz Cheney raised it, TV lawyers discovered what I’ve been pointing out for months. Trump’s actions (and inaction) fit squarely within the application of obstruction of the vote count that DOJ applied from the start. Finally, last week, Congress watchers discovered that Trump might actually have entered a conspiracy to obstruct the vote count, “involv[ing] coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol” — again, consistent with what I’ve laid out for months. That, though, would require mapping out how the various parties entered into agreements and how they communicated and coordinated (with conspiracy members as well as Congress and the mobsters). That’s why I keep pointing to the structure of the existing conspiracy charges: because what Trump did exactly mirrors the overt acts already charged, from getting bodies to DC, ensuring they get to the Capitol, and encouraging means to overtake it.

It’s all one networked conspiracy. Indeed, the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, observed in the Trump lawsuit hearing the other day that there was evidence that militia conspired with the Proud Boys.

Which, if DOJ could ever prove that those Trump entered into an agreement with, like Alex Jones, also entered into an agreement with Alex Jones’ former employee Joe Biggs, it would network Trump right into the conspiracies that rolled out at the Capitol, potentially putting him on the hook for the things those at the Capitol did, including damaging the building (which brings the terrorism enhancement), potentially some tactical assaults, and (if it gets charged), possibly even Kelly Meggs’ effort to hunt down Nancy Pelosi.

That may not be your preferred model of to hold Trump accountable, but I’m fairly certain that’s how DOJ would do so, in addition to whatever liability for him arises out of investigations into people like Sidney Powell or Rudy Giuliani.

What the evidence thus far shows is that Trump brought huge numbers of people to DC and convinced them that, to defend their country, they needed to march to the Capitol and pressure Congress, via one of a number of means, to not certify the election. Alex Jones and Ali Alexander then delivered these bodies to the Capitol, and once there, to a second breach on the East side. The Proud Boys, seemingly anticipating that this influx of “normies,” kicked off and carefully focused the riot just in time to create a real threat to Congress (and Mike Pence) just as they started to certify the vote count. (This Sedition Hunter timeline makes a compelling argument, one consistent with Proud Boy Matthew Greene’s statement of offense, that the Proud Boys paused their assault to wait for the mobs Alex Jones was bringing.)

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”

Had any of a number of things gone differently — had Ashli Babbitt not been shot and had the amped up Zach Alam chased just behind her through the Speaker’s Lobby door before members of Congress escaped; had Officer Eugene Goodman not done several things to prevent both Mitt Romney and Mike Pence from running into the mob; had counter-protestors come out in large numbers to create the excuse for street skirmishes made lethal by arsenals of weapons stashed nearby; had DOD delayed deployment of the Guard even further, allowing a planned second assault to take place — the coup might well have succeeded.

With that has background, let’s turn to the DOJ investigation thus far. Politico has done the best public accounting of sentences here (though I treat Zoe Tillman’s numbers, along with GWU’s, as canonical). As Politico shows, the vast majority of those who’ve been sentenced — and almost as significant a majority of those who’ve pled guilty so far — are trespassers.

The vast majority of people sentenced so far were MAGA tourists, lured to the Capitol by Trump’s speech and the momentum of the crowd. While a sizable number knew of plans to obstruct the vote certification in advance (and a significant number of people were permitted to plead down from obstruction), a bunch of them really did arrive for the speech and stay for the riot.

One example of that is Anthony Scirica, who followed the crowd to the Capitol and decided to enter the Capitol even though he heard a window breaking and alarms going off.

After listening to the speeches at the rally, SCIRICA, along with a group of individuals, walked to the U.S. Capitol from the West. 10. As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

Eliel Rosa went to DC as much for the anti-certification rallies as the Trump speech.

Eliel Rosa and Jenny Cudd traveled from Texas to Washington, D.C. to participate in “Stop the Steal” rallies or protests and to connect with other “Patriots.” Mr. Rosa and Ms. Cudd understood that on January 6, 2021, in Washington, D.C. at the United States Capitol, elected members of the United States House of Representatives and the United States Senate were meeting to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020.

But even still, he attributed his trespassing to being swept up in “mob rule.”

Rosa blamed himself for his unauthorized entry into the U.S. Capitol and stated that he was caught up in “mob rule” at the time.

Kevin Blakely, who traveled to DC with friends, made new friends while waiting for Trump’s speech to start and then joined in to experience history (a common theme among some defendants).

The defendant and three others stood in the Ellipse for more than four hours before the rally started and met with other attendees. After President Trump’s speech, the defendant joined others as they began to walk toward the U.S. Capitol Building. [Blakely] made a detour and returned to the Hyatt Regency, where he was staying during his visit to Washington, D.C. From his hotel room, the defendant watched the crowd as they gathered outside the Capitol Building nad sometime between 2:00 and 2:30 p.m., [Blakely] decided to “get closer and more fully experience this ‘once in a lifetime’ event.”

Even those who did go to the Capitol from Trump’s speech knew, from communications including Trump’s, that it would be a mob. Here’s what Blakely’s friend Paul Conover, who just recently pled guilty, said he was doing.

Prior to January 6, on or about December 24, 2020, defendant posted a message on social media that states in sum and substance: GOING TO WASHINGTON DC WITH BLAKEY [SIC] TO JOIN THE MOB JAN 5TH CMON JOIN US.

Conover appears to be one of the misdemeanants whose arrest DOJ prioritized because they took videos in key locations. After he busted through the East doors closely behind the Oath Keepers and Joe Biggs, Conover narrated as he took a video panning the Rotunda:

This is it, boys and girls. This is the Capitol. Apparently, there’s some crazy shit going on in the Senate today and the certification. They’ve had enough. Well, uh, here we are! Ha ha ha! I pray to god that nobody does any damage to the stuff in here, ’cause I’m not down with that. But I’m kind of, kind of proud of the people that stood up and said you know what? Enough.

The statement of offense for Stacie Getsinger, who described on Facebook going to the East steps because Alex Jones told a crowd that Trump would speak, offered few details, describing only that she “walked to onto U.S. Capitol grounds and up the stairs of the U.S. Capitol with others, including her husband John Getsinger. Once Getsinger got to the outside of the Rotunda North doors, she observed others engaged with law enforcement who tried to stop individuals from entering the U.S. Capitol building.”

Adam Johnson described how he went from hearing Mo Brooks call for violence to running towards the Capitol.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

Following these speeches, JOHNSON and. Person 1 began marching to the Capitol with the crowd. While marching, JOHNSON heard someone say “Pence didn’t do it.” JOHNSON also saw police running towards the Capitol and heard members of the crowd shout,”they broke into the Capitol!” JOHNSON and Person 1 started running towards the Capitol as well.

Others who came over from the Ellipse more explicitly discussed intimidating Congress. For example, here’s how Michael Stepakoff (who will be sentenced in coming days) narrated his approach to the Capitol.

So we’re marching up Pennsylvania Avenue to the Capitol building. The Senate and House of Representatives are in session . . . There’s nothing like the presence of at least a million Americans who are fed up and pissed off and are not going to stand for having our vote stolen because it’s the sacred right of our people to be able to vote for our president . . . so a million strong, at least a million standing outside the Capitol, storming the gates, so to speak, is going to make them think twice about what they are going to do today . . . God bless America.

While some people cheered the violence and a few got away with violence DOJ only discovered after their plea, the majority of the almost 200 people who’ve pled guilty so far did not engage in violence. With a few exceptions, below, these people weren’t wittingly part of the more organized plans to storm the Capitol. They were the bodies turned into an orchestrated mob, in part by Trump’s tweets and other social media advertising, and in part by those channeling the mob at the Capitol.

If you want to prove Trump incited the riot, you would need to collect these individual stories to prove it. That’s not the only reason DOJ has prosecuted these people, but it does provide evidence showing how people responded to Trump’s calls after he riled them up.

Some of the movement operatives wandered to the Capitol too

Among those who’ve been permitted to plead to misdemeanors, even some that I’d call “movement operatives,” wandered to the Capitol.

For example, right wing podcaster William Tryon, plausibly described following the crowd to the Capitol after Trump’s speech. Frank Scavo, a local PA politician who arranged busses for 200 people to travel to DC, tied his decision to walk to the Capitol to Pence’s decision to certify the vote; he’s one of the defendants sentenced to a longer sentence than the government requested.

There are a few exceptions. America Firster, Leonard Ridge, unsurprisingly seemed to know there’d be an attempt to shut down the vote count ahead of time, telling a friend, “I think we are going to try to block the session of congress” (he was one of the people permitted to plead down from obstruction to the more serious trespassing charge).

Two cases defy explanation. Micajah Jackson, a Proud Boy who denied a pre-January 6 affiliation and continued to attend Proud Boy events during pretrial release, mentioned nothing about that in his statement of offense. We might find out more about this in February, when Jackson is due to be sentenced.

The statement of offense for Brandon Straka, who is perhaps the senior-most inciter-organizer to plead guilty thus far, describes only that Straka took the metro directly to the Capitol, where he was scheduled to speak: “Knowing that Congress was in session to certify the election results at the U.S. Capitol and that Vice President Pence intended to certify the election, Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m.”

It’s not clear how these men were given misdemeanor pleas, when they were clearly part of an organized attempt to prevent the transfer of power. There’s no sign either man cooperated before entering their pleas, though Straka’s sentencing has been held up because, “the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation.” If the current schedule holds, Straka’s sentencing memos will come in tomorrow and he’ll be sentenced next week.

That said, movement operatives like Jackson and Straka are, thus far, the minority among those moving towards sentencing. Most were part of a self-described mob.

About half the felony pleas charged people who wandered to the Capitol

Even two of the three people who’ve pled guilty to assault thus far showed up without any pre-conceived plan to attack the Capitol. Devlyn Thompson, in an unsuccessful bid to use his autism diagnosis to get lenient treatment, described that he went to the Capitol because believed Trump would give another speech, a lie that motivated a good number of mobsters.

When I was leaving, my intention was to listen to another speech at the capitol. I had gotten text messages. I got a text that there was a planned speech. There was supposed to be two speeches at the capitol. One from an Arizona legislator and one from Women for Trump. I thought Alex Jones would be there and Trump.

After getting riled up by clashes between cops and rioters in the earlier part of the assault, Thompson joined in the Tunnel assault, eventually using a baton to hit one of the officers trying to help John Anderson respond to respiratory distress.

Robert Palmer similarly described being lured to the Capitol by a false belief in Trump’s claims.

In Mr. Palmer’s warped mind, on the day in question, he was acting as a patriot and for the good of the nation. While his intent was misplaced and his actions inexcusable, he sincerely believed that he was acting as a patriot on the day in question. Unfortunately, that mindset, coupled with the crowd mob effect, saw an otherwise law-abiding and successful father and business owner assault Capitol police.

Palmer was at the Capitol for hours, cheering the violence, before he got sucked in and participated in it by throwing a series of things at cops.

Just Scott Fairlamb, who was sentenced for punching a cop, clearly knew shit was going to go down in advance. He RTed a Steve Bannon prediction that “All hell is going to break loose tomorrow,” and asked, “How far are you willing to go to defend our Constitution?” Those statements are one of the reasons why Fairlamb, uniquely thus far, pled to both obstruction and assault and, if not for some mitigating circumstances that came out at sentencing, might have faced a terrorism enhancement.

There are two straight obstruction defendants sentenced so far, Paul Hodgkins and Jacob Chansley. Like many of the trespassers, Hodgkins simply followed the crowd after Trump’s speech (he was charged with a felony because he made it to the Senate floor).

Just Chansley, then, turned a central role in the right wing movement — importantly, as a celebrity in QAnon — into a key role obstructing the vote count and threatening Pence. There’s far more to say about the success QAnon had in mobilizing bodies to where they could be the most useful (and the Podcast Finding Q revealed that FBI was investigating that in the weeks after the attack). But the operational model by which people like Chansley got to the Senate floor is different than for other MAGA tourists who were turned onsite.

There are more known cooperators than straight felony pleas

To a great degree, this entire exercise is misleading, which is why pat comments from people trying to dismiss the investigation are so misleading. There are a number of reasons the stats skew where they are now: Obviously, people will plead to a misdemeanor more quickly than a felony. Virtually all of those charged with obstruction have been waiting for judges to rule on challenges to that application, and as those people move towards pleading out (as they have started to do), it still will take some weeks to finalize pleas. One reason for that hold-up: DOJ is only now making the final bits of global discovery available, without which many attorneys, for due diligence reasons, will not advise taking a plea.

A more important reason claims about who has been sentenced are misleading is that there have been more felony cooperators than straight felony pleas thus far. With two people convicted for making threats, there have been seven people who pled to a felony sentenced. There are nine overt cooperators (and presumably more we don’t know about). And while two cooperators — Josiah Colt and Gina Bisignano — are cooperating against their own limited network of more serious defendants, cooperation deals like Colt’s structured under 18 USC 371 networks into any larger conspiracy, potentially putting conspirators on the hook for the assaults of his co-conspirators. The other cooperating witnesses, though, have provided information about how the planners who’ve been in custody for most of a year — Kelly Meggs and Kenneth Harrelson for the Oath Keepers, Joe Biggs and Ethan Nordean for the Proud Boys — and those who have not yet been arrested orchestrated the attack.

This was a fairly flat conspiracy, with Proud Boys on the scene implementing orders from Proud Boy leaders who are, themselves, just one degree from Donald Trump through people like Alex Jones and Roger Stone. In addition to the 17 plus four Oath Keepers charged in a conspiracy, there are several more Oath Keepers being prosecuted. In addition to the 16 Proud Boys plus one cooperator charged with conspiracy, there are a slew more arrested individually and in co-traveler groups (some of whom are at risk of being added to conspiracy charges once they’re formally charged) who can offer information about the funding for all this, what Proud Boy leaders were saying during the riot, and some key tactical organization. Some of the 3%ers charged so far networked with key right wing funders, January 5 speakers, and even Ted Cruz.

So yes, 700 people have been arrested so far, and half of those are normies whose non-violent presence was operationalized in a well-planned assault on the Capitol. Many of the 150 assault defendants were “normiecons [who] have no adrenaline control.” But 200 of the arrestees are accused of more witting participation in a plan to prevent the peaceful transfer of power and of those 100 have networked insight into how that worked. Those people haven’t been sentenced yet because discovery and legal challenges have delayed most from accepting plea offers.

The most chilling passage in any statement of offense, in my opinion, is Matthew Greene’s description of realizing — from his service in Afghanistan — the moment the mob turned into an insurrection.

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.

In the days and weeks after he recognized Americans turning insurgent in their own country, Greene returned home and started assembling a (seemingly illegal) arsenal and preparing for war.

He told another acquaintance in the days following the riot to be prepared to do uncomfortable things. He ordered over 2,000 rounds of assault-rifle ammunition and a gas mask. And he engaged in conversations with other Proud Boys on encrypted messaging platforms in which he stated a continuing desire to “take back our country” – in Greene’s own words, written in chat platforms post-January 6, “this is a 4th generation” war, and “we must stand together now or end up in the gulag separately.”

The effort to spark an insurrection at the Capitol was not one implemented by “foot solders,” but some highly trained veterans who were onsite, including an alarming number of Marines in most key tactical locations. And the network of people who stoked the normies to serve as useful bodies to this effort ties, via just one or two steps, right to Trump.

That’s the conspiracy DOJ has been investigating for a year.

Update: Took out detail that Straka was not at Ellipse. The key detail is he claims he took the Metro, didn’t walk.

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After a Six Hour Hearing on Lawsuits against Trump, the Only Clear Thing is Don Jr Is in the Clear

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We just finished a 6-hour hearing before Judge Amit Mehta in the consolidated lawsuits (by Bennie Thompson and other members of Congress, by Eric Swalwell, and by some cops) against Trump and others for January 6.

As the judge presiding over the Oath Keepers case, Mehta knows January 6 as well as anyone — and probably has seen a bunch that is not public.

And the only two takeaways about which he seemed certain are that, first of all, Don Jr’s attempts to get his Pop to call off the riot, on top of the fact that his incendiary speech wasn’t nearly as pointed as his Dad’s, likely puts him in the clear for tortious liability. Whether Trump himself is, Mehta said over and over, is a very difficult question.

He seemed to think the question of whether Trump abetted the riot is easier than whether he conspired with the criminals.

The one other thing about which Mehta seemed certain, based on the record before him (and possibly on stuff he has seen that’s not public) is that a claim that the Oath Keepers and Proud Boys conspired is not at all a stretch. He even noted, at one point, that Jonathon Moseley’s claim that some people who listened to Trump might have listened to his speech and then gone to lunch was not applicable here given that, as he knows well, the Oath Keepers did not go to lunch.

Here’s my thread on the rest, which I’ll presumably return to.

Because this case was for a conspiracy before a judge who knows January 6 as well as anyone, in suits arguing incitement more aggressively than a conspiracy that I think is becoming more evident (but that was not briefed before Mehta), his caution should caution others. These lawsuits are basically a dry run of any criminal charges against the Former, particularly for incitement. And, at least per Judge Mehta, the case is not as clearcut as many seem to believe.

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DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

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It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.

[snip]

To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

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The Six Trump Associates Whom DOJ Is Investigating

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Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

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

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

According to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

Update, 2/8/22: NYT just named the sixth person under investigation: Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

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“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

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You might not understand this from following just traditional news outlets, but over the course of a year, the news-friendly January 6 Select Committee and even the public parts of the locked-down DOJ investigation have met at a common pivot point in their investigation of January 6: on Trump’s efforts to pressure Mike Pence to violate the Constitution.

Trump did so, first, with personal pressure. Then he sent his mob.

The pressure on Pence is how Trump’s plotting in advance of January 6 affirmatively led  directly to — not just through inaction, but through action — specific steps taken by confessed mobsters to assault the Capitol.

Already in February of last year, both the House Impeachment Managers and I recognized the centrality of Trump’s treatment of his Vice President to his liability for the January 6 insurrection.

Trump had nothing to say in defense of his actions with regards to Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

[snip]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

Since that time, Congress has been investigating from the top down, aided by the press and a healthy bunch of Pence staffers horrified by what happened to their boss. DOJ has been investigating (at a minimum) from the crime scene up.

The Select Committee appears to have corroborated stories told by Bobs Woodward and Costa in Peril. After losing all their attempts to challenge the election in the courts and backed by a coup memo from John Eastman, in December 2020, Trump’s people started demanding that Pence refuse the vote totals from a select group of states.

At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

Pence conducted a series of consultations, most notably with his predecessor Dan Quayle, who counseled Pence could only open the ballots. In the hours before the riot, conservative legal stars John Yoo and Michael Luttig backed the Vice President as well.

That led to the remarkable scene on January 5 (as described in Peril, though Keith Kellogg is among the witnesses who cooperated with the Select Committee under a friendly subpoena and Peril’s account relies heavily on him and other Pence aides), as Trump invited Pence to call on unconstitutional power from the mob.

On the evening of January 5, as he waited for Pence to arrive from a coronavirus task force meeting, an aide informed Trump his supporters were gathering near the White House on Freedom Plaza near Pennsylvania Avenue.

Despite the bitter cold, the supporters were cheering loudly and chanting his name. They were waving “Make America Great Again” flags.

When Pence arrived, Trump told him about the thousands of supporters. They love me, he said.

Pence nodded. “Of course, they’re here to support you,” he said. “They love you, Mr. President.

“But,” Pence added, “they also love our Constitution.”

Trump grimaced.

That may be, Trump said, but they agree with him regardless: Pence could and should throw Biden’s electors out. Make it fair. Take it back.

That is all I want you to do, Mike, Trump said. Let the House decide the election. Trump was not ready to give up, especially to a man he maligned as “Sleepy Joe.”

“What do you think, Mike?” Trump asked.

Pence returned to his mantra: He did not have the authority to do anything other than count the electoral votes.

“Well, what if these people say you do?” Trump asked, gesturing beyond the White House to the crowds outside. Raucous cheering and blasting bullhorns could be heard through the Oval Office windows.

“If these people say you had the power, wouldn’t you want to?” Trump asked.

“I wouldn’t want any one person to have that authority,” Pence said.

“But wouldn’t it almost be cool to have that power?” Trump asked.

“No,” Pence said. “Look, I’ve read this, and I don’t see a way to do it.

“We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible. My interpretation is: No.

“I’ve met with all of these people,” Pence said, “they’re all on the same page. I personally believe these are the limits to what I can do. So, if you have a strategy for the 6th, it really shouldn’t involve me because I’m just there to open the envelopes. You should be talking to the House and Senate. Your team should be talking to them about what kind of evidence they’re going to present.”

In spite of Pence’s refusals, Trump released a false statement that the Vice President would, in fact, do Trump’s dirty work.

Late Tuesday evening, January 5, as word dripped out in the press that Pence was holding, Trump directed his campaign to issue a statement claiming that he and Pence were in “total agreement that the Vice President has the power to act.”

This set the expectation with the already enraged mob that their efforts to keep Trump in office might just work.

As the Select Committee revealed last night, the White House Counsel’s Office was objecting to all of this, and threatening to resign if Trump tried it. Sean Hannity learned about those threats as early as December 31 and shared his concerns with Mark Meadows.

We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.

The night of January 5, the same night Trump falsely claimed that Pence would go along with the plan, Hannity again told Mark Meadows he was worried the White House Counsel lawyers would quit.

Pence pressure. WH counsel will leave.

Whether or not Hannity sits for an interview with the Select Committee, the release of texts showing that Trump or Meadows shared privileged advice that the White House Counsel gave to Trump (thereby waiving any privilege claim) may have made the testimony of those lawyers themselves accessible, if not to the Select Committee, then under subpoena from DOJ.

That’s important, because as the DOJ prosecutor guiding DOJ’s use of 18 USC 1512(c)(2) to charge those who participated in the insurrection, James Pearce, has already noted, one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.”

By publicly releasing those Hannity texts, the Select Committee may have made proof that Trump knew his request to Pence was illegal available to DOJ.

Still, any testimony Hannity could offer is important for what came next: because Hannity seems to have known that Trump’s persistence would lead to trouble.

Already knowing that Pence would not reject the vote tallies, already knowing Pence didn’t have that power, Trump riled up his mob in his speech by making it clear everything came down to Pence.

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.'”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

Congress is currently focused on showing what Trump did during the 187 minutes after his mob had breached the Capitol — aside from his tweet focusing again on Pence.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

DOJ is finalizing its understanding of the coordinated effort, using the mobs Alex Jones lured to the Capitol and to a second front, that resulted in multiple breaches of the building and vastly inflated risk to Pence and members of Congress.

But on one point, both investigations have already converged: the motive of a vast many involved, from Trump to his scheming associates to organized militias to unwitting trespassers, was to was pressure Mike Pence to violate his duty.

Update, 3/3/22: In a filing trying to breach John Eastman’s claim of privilege, the January 6 Committee cited three instances of defendants reacting the Pence information.

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Trump Breached His Own Privilege by Blabbing to Sean Hannity

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The January 6 Committee is inviting Sean Hannity for a voluntary interview with the committee.

It’s unclear whether he’ll take them up on that investigation. But it seems the damage has already been done. That’s because texts involving Hannity make it clear he knew about the White House Counsel’s concerns about Trump’s actions.

The Select Committee is in possession of dozens of text messages you sent to and received from former White House Chief of Staff, Mark Meadows and others related to the 2020 election and President Trump’s efforts to contest the outcome of the vote. At this time, we are specifically focused on a series of your communications with President Trump, White House staff and President Trump’s legal team between December 31, 2020, and January 20, 2021. For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

Among other things, this text suggests that you had knowledge of concerns by President Trump’s White House Counsel’s Office regarding the legality of the former President’s plans for January 6th. These facts are directly relevant to our inquiry.

Similarly, on January 5th, the night before the violent riot, you sent and received a stream of texts. You wrote: “Im very worried about the next 48 hours.” With the counting of electoral votes scheduled for January 6th at 1 p.m., why were you concerned about the next 48 hours?

Also, on the evening of January 5th, you texted Mr. Meadows: “Pence pressure. WH counsel will leave.” Wha communications or information led you to conclude that White House Counsel would leave? What precisely did you know at that time?

Effectively, Trump breached the privileged advice the White House Counsel gave him by blabbing it to Hannity (or by Meadows doing so). The Committee can’t get that advice directly. But whatever got shared with a journalist has lost its privileged status.

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DOJ’s Approximate January 6 Conspiracies

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Amid the clamor for Merrick Garland to say something about the January 6 investigation, DOJ has announced he will give a speech, tomorrow, to mark Thursday’s year anniversary of the assault on the Capitol.

Meanwhile, late last year, DOJ released a one-year summary of the investigation. It’s similar to periodical reports the DC US Attorney’s Office has released before, including that its numbers generally skew high. It includes DC Superior Court arrests, in addition to federal arrests, to come up with “more than 725 defendants;” (GWU’s count, which those of us tracking this closely consider the canonical list, shows 704 arrests). DOJ appears to mix assault and civil disorder arrests to come up with 225 in some way interfering with cops; my own count, while low, counts fewer than 150 people charged with assault. DOJ’s summary boasts that 275 people have been charged with obstruction, a number that includes those who’ve been permitted to plead down to misdemeanors.

One number, however, is low: DOJ claims that,

Approximately 40 defendants have been charged with conspiracy, either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three.

By my count, this number is at least 25% off the known count. There are 39 people currently charged in the top-line militia conspiracies, plus five people cooperating against them.

There are at least another 13 people charged in smaller conspiracies (though the Texas “Patriot” conspiracy has not been indicted yet), with two more people cooperating in those cases.

It’s most likely DOJ got this number so badly wrong because it is overworked and some of these (like the Texas one and the status of Danny Rodriguez co-conspirator “Swedish Scarf”) aren’t fully unsealed.

But it’s also likely that these numbers are not what they seem.

That’s because in (at least) the larger conspiracies, there have been a lot of plea discussions going on behind the scenes, if not hidden cooperators. Certainly in the wake of five decisions upholding the obstruction application (including in the main Oath Keeper conspiracy, in the Ronnie Sandlin conspiracy, and by Tim Kelly, who is presiding over three of the Proud Boy conspiracies), we should expect some movement. I expect there will be some consolidation in the Proud Boy cases. The Texas case and some other Proud Boy defendants have to be indicted.

Importantly, too, these conspiracies all link up to other key players. For example, Roger Stone, Ali Alexander, and Alex Jones coordinated closely with the Proud Boy and Oath Keeper conspirators. The state-level conspiracies are most interesting for local power brokers and the elected officials with whom these conspirators networked — like Ted Cruz in the case of the Texas alleged conspirators or Morton Irvine Smith in the SoCal 3%er.

The utility of conspiracy charges lies in the way they can turn associates against each other and network others into the crime. Prosecutors love to use secrecy and paranoia to increase that utility.

And so while DOJ is undoubtedly overwhelmed, it may also be the case that DOJ would like to keep potential co-conspirators guessing about what’s really behind them.

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