Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

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Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

  • Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
  • A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
  • An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
  • Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
  • Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
  • Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
  • A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
  • A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
  • A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
  • A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
  • A law review article on prosecutorial discretion
  • Robert Jackson’s seminal text about the role of a Federal prosecutor
  • The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
  • The quip, “hard cases make bad law”
  • An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “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 College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that 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.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Other Posts

Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.

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Trevor McFadden Uses Stormtroopers to Justify His Promise to Let Jan6ers Off Easy

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In the middle of a rather cursory opinion rejecting David Judd’s claim that he has been selectively prosecuted as compared to Portland rioters, Trevor McFadden cites this AP story to support a claim that “thousands” of protestors gathered every night in Portland.

For the first prong, Judd argues that he is similarly situated to multiple defendants who faced charges in the District of Oregon. Those defendants rioted outside the Mark Hatfield Federal Courthouse in Portland during the summer of 2020. See Def.’s Mot. at 2–4. The riots erupted after the death of George Floyd in May 2020 and raged for months. Thousands gathered nightly, vandalizing the courthouse and hurling objects at federal agents guarding it. Officers responded with tear gas and rubber bullets to disperse rioters, but the riots continued, causing havoc. See generally Mike Balsamo and Gillian Flaccus, On Portland’s Street: Anger, fear, and a fence that divides, AP News (July 27, 2020). [my emphasis]

In fact, the story says that the 4,000 gathered on that particular night was the largest crowd federal officers had seen, not that those kinds of numbers consistently came out.

Under orders to protect the courthouse — federal property that has been increasingly targeted as the city’s protests against racial injustice march on — the agents were accustomed to the drill. But tonight, the crowd was huge, estimated at 4,000 people at its peak and the largest they had seen.

The numbers the AP cites for those involved in violence or those that remained after officers responded is smaller.

As she spoke, small pods of three to four protesters dressed in black circulated in the crowd, stopping every few minutes to point green laser beams in the eyes of agents posted as lookouts on porticoes on the courthouse’s upper stories.

[snip]

Outside, hundreds of protesters surged back from the courthouse with each new round of tear gas, dumped saline solution and water into their stinging eyes, vomited or doubled over to catch their breath, then regrouped to march back to the fence.

“Stay together, stay tight! We do this every night!” they chanted.

The protesters’ numbers, however, were half what they had been just a few hours before.

[snip]

Tear gas canisters bounced and rolled in the street, their payload fizzing out into the air before protesters picked them up and hurled them back over the fence at the agents, who held their ground.

A woman weaved through the crowd of the few hundred people who remained and told someone on the phone, “We’ve reached some kind of stand-off, I think.”

When the federal agents finally came, they came with force. [my emphasis]

So it actually doesn’t support McFadden’s claim, which is probably why he cites it, “generally:” to hide that in fact he doesn’t have a source for his claim about sustained crowds of thousands of rioters (though at that time in July 2020, protests did remain large for a brief period).

The article is not one David Judd cited himself in either his original motion or his reply — perhaps because the AP story makes it crystal clear why firecrackers are so dangerous when thrown at cops, as he is accused of doing.

That McFadden’s clerk did research on their own on the Portland unrest and that McFadden’s clerk chose this particular article — by one of Billy Barr’s favorite reporters and covering unrest overnight on July 24 to 25, 2020 — is really telling. That’s true because the story portrays details directly pertinent to Judge McFadden’s opinion that should, but do not, appear in his opinion. And it’s also true because McFadden’s clerk relied on the AP story and not this NYT story from the same week covering the same unrest, which I’ll come back to.

At the core of Judd’s argument is that those charged with violence in Portland got (starting even under Billy Barr) and continue to get (under Merrick Garland) Deferred Prosecution Agreements, rather than the felony charges Judd is facing. To make his argument, Judd cherry-picked some cases and complained that he wasn’t being treated as nicely as a guy who (unlike Judd) was charged with a crime of terrorism, but whose charges were dismissed when the guy was murdered. DOJ pointed out more problems with Judd’s claims, including that he had claimed felony assault charges were misdemeanors, left out cases similar to his that were charged similarly, and ignored cases where DOJ deferred to state prosecution.

But DOJ professed to be unaware of the reason why three cases on which Judd (and McFadden) focused closely led to a DPA.

Further, contrary to his claims, each of the three cases Judd cites in his motion as examples where a defendant had only been charged with a misdemeanor actually involved a felony charge to 18 U.S.C. § 111(a). Although it is true that each case was eventually dismissed by the government for unknown reasons (typically after the defendants repeatedly agreed to waive their rights to a preliminary hearing or indictment over a period of months), all were initially facing felony charges. [my emphasis]

DOJ’s claim not to know why these cases entered into a DPA is just as suspect as McFadden’s choice of a source for the crowd sizes in Portland.

That’s because the three cases at the core of this debate all appear to involve assaults not at Portland Federal courthouse (marked with the green arrow), but assaults a block away, not on Federal property at all, probably close to the blue arrows marked below.

  • David Bouchard, arrested overnight on July 23-24 at Main and 4th by a Federal Protection Services officer stationed in Colorado
  • Joshua Webb, arrested overnight by a US Marshal on July 25-26 on Salman between 4th and 5th by a US Marshal
  • Thomas Johnson, arrested overnight by a US Marshal on July 25-26 “in the park” (but because it appears to be the same instance as Webb, probably towards Main & 4th) by a US Marshal

All three of these arrest affidavits include a drawing of the city block that is Federal property, and then describe arrests that don’t take place on that Federal property.

The arrest affidavits offer no explanation for what led the Federal agents to leave the courthouse they were purportedly defending.

Specifically, on July 26, 2020, federal law enforcement officers attempted to disperse a crowd on SW Salmon Street between 4th and 5th streets in Portland, OR. The crowd was part of a protest that was declared an unlawful assembly by the Federal Protective Service and a riot by the Portland Police Bureau.

In other words, the story McFadden cites for his claim that there were thousands involved in the unrest involved direct reporting from the site the day between these arrests. His clerk researched and found a story about Portland from the week of these arrests, which featured elevated hostility and significantly expanded numbers, because (as even that story noted) Portland was reacting against Billy Barr’s decision to send in Federal agents.

Which brings us back to the NYT story that McFadden could have but did not rely on. It describes that on Friday morning — overnight on July 23 to 24, so covering events from the day when Bouchard was arrested — Federal officers were prowling the streets blocks away from the Hatfield Court House that they were purportedly protecting. And that created legal problems,

After flooding the streets around the federal courthouse in Portland with tear gas during Friday’s early morning hours, dozens of federal officers in camouflage and tactical gear stood in formation around the front of the building.

Then, as one protester blared a soundtrack of “The Imperial March,” the officers started advancing. Through the acrid haze, they continued to fire flash grenades and welt-inducing marble-size balls filled with caustic chemicals. They moved down Main Street and continued up the hill, where one of the agents announced over a loudspeaker: “This is an unlawful assembly.”

By the time the security forces halted their advance, the federal courthouse they had been sent to protect was out of sight — two blocks behind them.

The aggressive incursion of federal officers into Portland has been stretching the legal limits of federal law enforcement, as agents with batons and riot gear range deep into the streets of a city whose leadership has made it clear they are not welcome.

[snip]

Robert Tsai, a professor at the Washington College of Law at American University, said the nation’s founders explicitly left local policing within the jurisdiction of local authorities.

He questioned whether the federal agents had the right to extend their operations blocks away from the buildings they are protecting.

“If the federal troops are starting to wander the streets, they appear to be crossing the line into general policing, which is outside their powers,” Professor Tsai said.

Homeland Security officials say they are operating under a federal statute that permits federal agents to venture outside the boundaries of the courthouse to “conduct investigations” into crimes against federal property or officers.

But patrolling the streets and detaining or tear-gassing protesters go beyond that legal authority, said David Lapan, the former spokesman for the agency when it was led by John Kelly, Mr. Trump’s first secretary of homeland security.

“That’s not an investigation,” Mr. Lapan said. “That’s just a show of force.”

Indeed, these particular arrests happened just after the Portland City Council voted to cease cooperating with Federal authorities, as described by a DHS OIG Report reviewing the deployment (which McFadden’s clerk might have used to source a claim that the largest protest reached 10,000 participants, but which would have made the authorization problem clear), meaning that invoking the Portland Police Bureau covering the city generally (including where these arrests seem to have taken place) was particularly problematic.

However, on July 22, 2020, the Portland City Council voted to cease cooperation between the Portland Police Bureau and Federal law enforcement. The Portland City Council viewed Federal operations in Portland as an “unprecedented and unconstitutional abuse of power” by the Federal Government.11 According to the Portland City Council resolution, “the Portland Police Bureau shall not provide, request, or willingly receive operational support … from any agent or employee representing or constituting part of deployment under executive order from the president, be they from Department of Homeland Security, the U.S. Marshals Service, the Federal Protective Service, U.S. Customs and Border Protection or any other service.”1

The OIG Report states that officers had authority to be in Portland, but doesn’t address whether they had legal authority to do what the did in this case: leave the building they were protecting and go blocks away, looking for trouble.

An earlier DHS OIG Report described that officers sent into Portland had not been bureaucratically designated in the way they should have been and raised still-unanswered questions about whether DHS Acting Secretaries acted under legal authority when sending troops to Portland.

In other words, there seems to be a ready explanation — one that both DOJ and McFadden have reasons to suppress — for why these cases were diverted: for a number of reasons, the arrests were made under dubious legal authority. (At least one of the other ones Judd cites may have involved less-than-lethal force violation.)

But Trevor McFadden, who made very clear he wanted to consider this kind of selective prosecution claim and has whined for months that Jan6ers are being treated differently, doesn’t mention this ready explanation which (given the research his clerk did to find the AP article and others not included in the record before that) at least his clerk must know. Instead, McFadden goes on a multi-paragraph rant suggesting that DOJ — starting under, “a Republican-appointed U.S. Attorney (under the direction of a Republican-appointed Attorney General),” he notes elsewhere — started diverting these prosecutions in significant numbers.

Judd’s claim is nontrivial. His chart suggests that Portland defendants generally received much lighter treatment than he has. For example, three Portland defendants allegedly struck officers in various ways. One placed an officer in a headlock. See United States v. Bouchard, No. 3:20-mj-00165 (D. Or.), ECF No. 1-1 at 4–5. Another punched and hit an officer in the face with a shield. See United States v. Webb, No. 3:20-mj-00169 (D. Or.), ECF No. 1 at 5. Yet another struck officers with a shield after he tried to pick up a smoke grenade. See United States v. Johnson, No. 3:20-mj-00170 (D. Or.), ECF No. 1 at 5. The Government charged these three defendants with felony assault on a federal officer, just as it charged Judd here. See Gov’t Opp’n at 17–18. That makes some sense—Judd was likewise allegedly present for a fracas with law enforcement at a federal building and used a firecracker (which if it had exploded, would have caused “bodily injury”) to “intimidate” law enforcement. 18 U.S.C. § 111(a). The Government could justifiably seek felony convictions for both Judd and the Portland defendants.

But, incredibly, the Government dismissed the charges against all three Portland defendants. See Bouchard, Motion to Dismiss Complaint, ECF No. 16; Webb, Motion to Dismiss Complaint, ECF No. 22; Johnson, Motion to Dismiss Complaint, ECF No. 9. Judd still faces nine charges, including multiple felonies, even though the Government never alleges that he, unlike the Portland defendants, struck or injured an officer. That he still faces greater charges than the Portland defendants despite that key difference is suspicious.5 That is the kind of “different treatment” that might warrant discovery. Armstrong, 517 U.S. at 470.

The Government responds that it treated Judd and the three Portland defendants equitably because it filed felony charges against all of them. See Gov’t Opp’n at 18. The Government seems to think that the initial charges are all that matter. Not so. By that logic, the Government could avoid discovery of a race-based selective prosecution claim if it indicted similarly situated black and white persons, dismissed the charges against the whites, and prosecuted the black defendants to conviction or plea. The “administration of a criminal law” is not limited to an initial charging decision. Armstrong, 517 U.S. at 464. Nor is it so easily circumvented.

More, the Government’s logic would allow it to charge similarly situated black defendants with felonies and white defendants with misdemeanors. But discriminatory effects include disparities in the “crimes charged.” Stone, 394 F. Supp. 3d at 31. The Government’s argument is thus absurd and untenable—that the Government originally indicted the Portland defendants does not erase the potential for discriminatory effect.6

Nor does the Court accept the Government’s attempt to distinguish these Portland cases on evidentiary grounds. According to the Government, video footage of Judd’s actions solidified the case against him, precluding a dismissal. See Gov’t Opp’n at 20. In contrast, Portland cases relied on officer recollections during nighttime attacks—none captured on video—by mostly masked assailants. See id. Fair enough. This could explain why fewer defendants overall were charged in Portland than here. But by indicting those cases, the Portland prosecutors presumably believed they had sufficient evidence to sustain convictions. See Justice Manual § 9-27.220 cmt. (“[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”). If anything, that fact supports Judd’s argument. Evidentiary differences notwithstanding, the Government felt it had enough basis to charge both Judd and Portland defendants. Yet the Government dismissed the charges against only Portland defendants. The suggestion that Portland cases suffered from widespread, post-indictment, evidentiary challenges is thus a tough argument to swallow.

[snip]

Therein lies a troubling theme that emerges from a wholesale analysis of the Government’s decisions in Portland. The Government dismissed 27 cases brought against Portland defendants, including five felony cases. See generally Appendix to Def.’s Mot. Dismissal of one felony case is unusual. Dismissal of five is downright rare and potentially suspicious.7 Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers. Considered in this light, when compared to Portland cases, the disposition of Judd’s case appears an outlier.

5 The D.C. U.S. Attorney’s Office also dismissed charges against the one D.C. defendant mentioned by Judd. She allegedly threw a firecracker at police during a Black Lives Matter protest in August 2020. See Affidavit in Support of Arrest Warrant, United States v. Rogers, No. 2020 CF3 006970 (D.C. Super. Ct. dismissed Sept. 30, 2020). The firecracker burned the pant leg of one officer. See id.

6 The Government wisely dropped this argument at the motion hearing. See Hr’g Tr. at 66.

7 By way of comparison, the Court knows of only one January 6 case that the Government has dismissed among the hundreds of defendants charged for their alleged actions on that day. See United States v. Kelly, No. 21-mj-00128 (D.D.C., dismissed on June 1, 2021). [my emphasis]

DC District’s Trumpiest judge here uses diversions most likely necessitated by the legal abuses and bureaucratic incompetence of the Trump Administration to claim that Jan6ers are being treated poorly. He focuses on arrests made, in very significant part, to fulfill Barr’s priority on such prosecutions in summer 2020, while ignoring the legally suspect circumstances created by Barr’s effort to gin up arrests. And he does so even as he refuses discovery that might confirm this most obvious of explanations.

The proper comparison to the cases McFadden focuses on would be to examine the arrests on January 5 and 6 in DC made by Federal officers away from the Capitol, such as Freedom Square. Yet in that case (particularly at the Washington Monument before the riot kicked off), the evidence suggests that Federal officers were far too lenient on Jan 6, even in the nation’s Capitol on Federal land. At least in the three cases as the center of this dispute, the disparate treatment in Portland appears to have come in the arrests outside of Federal property, not the prosecutorial diversions of those arrests later. Such a comparison would make it clear that Federal authorities treated Trump’s supporters far too lightly, not the opposite.

But McFadden has a goal here, one that — as he notes — he has been developing since at least July.

McFadden properly rules that Judd has not shown enough evidence of selective prosecution to get discovery into why these other prosecutions were diverted (in that, he may have been bound by an opinion issued days earlier by Trump appointee Carl Nichols in the Garret Miller case). Both Trump appointees note that Jan 6 is different from Portland for a number of reasons. In fact, McFadden cites Nichols in describing what he sees to be the difference.

Putting aside any claims that January 6 rioters sought to tear down our system of government (an allegation not made against Judd), their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters. See Lindsay Wise, Catherine Lucey, and Andrew Restuccia, “The Protestors Are in the Building.” Inside the Capitol Stormed by a Pro-Trump Mob, Wall St. J. (Jan. 6, 2021, 11:53 P.M.).8 The action in Portland, though destructive and ominous, caused no similar threat to civilians. Accord United States v. Miller, No. 21-cr-119 (CBN), slip order at 3 (D.D.C. Dec. 21, 2021) (“Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.”). Given the “narrow[ ]” interpretation of “similarly situated,” Stone, 394 F. Supp. 3d at 31, the Court cannot say that the Portland defendants “committed roughly the same crime under roughly the same circumstances” as Judd, Khanu, 664 F. Supp. 2d at 32.

But even after having laid out reasons (but ignoring the legal problems introduced by Federal big-footing in Portland) why you cannot compare Portland and Jan6, McFadden — who, again, invited this challenge — concludes that he will sentence Jan6ers leniently because he’s sure they’re being mistreated. McFadden cites himself saying he’ll account for such disparities at sentencing in the very same paragraph where he denies discovery to find out whether there’s an obvious explanation for such claimed disparities.

None of this suggests that the distinctions Judd highlights are irrelevant for all purposes. “Disparate charging decisions in similar circumstances may be relevant at sentencing.” United States v. Griffin, — F. Supp. 3d —, 2021 WL 2778557 at *7 (D.D.C. July 2, 2021); cf. 18 U.S.C. § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But on this record, those disparate outcomes fail to justify the discovery he seeks.

Then he cites Merrick Garland thinking he’s being clever.

Justice requires that “like cases be treated alike” and that “there not be one rule for Democrats and another for Republicans.” Merrick Garland, Remarks to DOJ Employees on His First Day, (Mar. 11, 2021).10 Otherwise, prosecutions risk becoming “so unequal and oppressive” as to deny the rights of all. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice. Judd raises troubling questions about the Department’s adherence to this imperative in Portland. But for the reasons stated above, he has not carried his burden to justify further discovery into the Government’s prosecutions.

Make no mistake what this is: It is an otherwise law-and-order touting Federal Judge announcing, in advance, that he’s going to sentence Jan6ers, people who share his political views, leniently because — he claims, even while refusing to order discovery to prove or disprove his hypothesis — Jan6ers are being badly treated.

And in fact he has already been doing that. When he sentenced Danielle Doyle to two months probation and a fine in October, rather than the three years of probation DOJ sought, he said as much.

Trevor McFadden used this challenge to lay out, for at least the third time, his plan to let Jan6ers off easy, presumably including Judd and his co-defendants, accused of attacking cops over the course of hours. And in the course of doing so, he has suppressed the evidence showing that the disparity, in fact, pertains to overpolicing, not lenient prosecutions, in Portland.

Update: In June DHS provided Ron Wyden with responses to some of his questions about the deployment. They claim they can operate 1-3 blocks from the Federal property which could include all of these arrests.

Practically speaking, DHS personnel deployed to support FPS in protecting federal property in Portland, like the Hatfield U.S. Courthouse, dispersed crowds approximately one to three blocks away from the federal property to secure the perimeter, contain/mitigate fires, treat officer injuries, and otherwise reconstitute facility security.

As set forth above, 40 U.S.C. § 1315 does grant cross-designated law enforcement personnel certain authorities at a distance from federal property. For instance, a cross-designated officer or agent may make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. Similarly, such an officer or agent may conduct.

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The Big Election Lie Built on the Last Big Election Lie

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Welcome to Byron York’s readers! Since you’re here, you may be interested that Byron didn’t tell you in his error-riddled piece that I was years ahead of the Right Wing in debunking the dossier, and have even noted how Byron ran interference for Oleg Deripaska, thereby hiding the way Deripaska was really fucking over Paul Manafort. And not only did I not attribute Hillary’s loss to Russia, I even challenged the easy claims it was all Comey’s fault. You might ask yourself why Byron didn’t reveal any of that to you (to say nothing of misrepresenting what this post says).

NPR did a good piece last week on Trump’s Big Lie about winning the election.

Call it an insurrection or a coup attempt, it was fueled by what’s known as the “Big Lie”: the verifiably false assertion that Trump won. Joe Biden won 306 votes in the Electoral College, while Trump received 232. In the popular vote, Biden won by more than 7 million votes.

Many are warning that over the past year, that “big lie” of a stolen election has grown more entrenched and more dangerous.

It quoted Tim Snyder, an expert on authoritarians, on how the tactic of telling lies to turn a powerful person into a victim comes right out of Mein Kampf.

A couple of weeks later, he repeated the fiction at a rally in Iowa. “We didn’t lose,” he insisted to a crowd that rewarded him with chants of “Trump won!”

By inverting the narrative, attempting to slough off the “big lie” and pin it instead on his opponents, Trump exploited an age-old tactic, says Yale University history professor Timothy Snyder.

“Part of the character of the ‘big lie’ is that it turns the powerful person into the victim,” he says. “And then that allows the powerful person to actually exact revenge, like it’s a promise for the future.”

Snyder, author of the books The Road to Unfreedom and On Tyranny, has spent years studying the ways tyrants skewer truth. Snyder points to Hitler’s original definition of the “big lie” in his manifesto, Mein Kampf and the ways he used it to blame Jews for all of Germany’s woes.

“The lie is so big that it reorders the world,” Snyder says. “And so part of telling the big lie is that you immediately say it’s the other side that tells the big lie. Sadly, but it’s just a matter of record, all of that is in Mein Kampf.“

That’s all true. As someone who has read virtually all of the statements of offense for those who have pled guilty for January 6, many credibly claim they really believed this Big Lie. Some still believe it. Their lives will be forever changed — some ruined — because they believed Trump was a victim and acted to avenge him.

But there’s something missing from all the worthwhile discussions of the Big Lie. It’s the lie those who helped tell this most recent Big Lie tell.

Consider this interview Chris Hayes did with Dustin Stockton and Jennifer Lynn Lawrence, who’ve been doing a media tour to claim they were betrayed when Trump launched his mobsters on the Capitol.

When Hayes asked them whether they now admit that the election wasn’t stolen, Stockton instead attempted to turn the question around:

Do you now admit that the “Russia memes” that you guys ran 24-hours a day in the early days of the Trump that got maybe several million impressions which our pages often do. [cross chatter] There were tons of ridiculous stuff.

[snip]

Democrats and Republicans, every four years, whoever loses, right, then goes on to say, “oh, it was broken this way, it was broken this way.” It’s not that there aren’t things that aren’t broken and should be done better with mail-in balloting, with the way we verify people, the way we, make sure everybody has access to voting. There is common ground here. The problem is partisanly the Left fights, when they lose, the Right fights, when they lose.

[snip]

Or widespread Russian interference.

Stockton did, ultimately, concede that Biden is President and that there were tons of ridiculous claims about the election. But he excused his own contributions to sowing The Big Lie by equating lies about Trump’s loss with reporting about Russia’s attempt to interfere in the 2016 election, and claimed that reporting arose out of Democratic excuses to explain Hillary’s loss.

That is, a key purveyor of the The Big Lie excuses his actions because MSNBC reported on a Russian investigation that was based off real facts, an investigation that led to the prosecution of Trump’s National Security Advisor, Trump’s Coffee Boy, Trump’s personal lawyer, Trump’s Campaign Manager, and Trump’s rat-fucker, all of whom covered up aspects of the Trump camp’s outreach to Russia in advance of becoming President (Paul Manafort wasn’t prosecuted for his lies, but Amy Berman Jackson agreed with the Mueller team that he lied to cover up, among other things, why he traded campaign strategy for $19 million in debt relief). Stockton equates reporting on all that — plus the dossier and Alfa Bank and the failson’s meeting to trade campaign dirt for sanctions relief, as well as details of the disinformation campaign that had as a primary goal sowing division — Stockton equates all that with a deliberate attempt, over the course of months, to completely dismantle the credibility of our electoral system.

The equation is all the crazier given that, while Hillary herself did put some of the blame for her loss on Russia’s interference, most Democrats blame Jim Comey, the guy whom Trump fired in an attempt to undermine the Russian investigation. Those of us who live(d) in states that Hillary neglected were perfectly happy to blame Hillary’s own mistakes. More importantly, Hillary ceded power with no contest of the results even in closely fought states like Michigan.

This is just one example where Trumpsters excuse their own participation in The Big Lie by turning a bunch of different prongs of reporting on Russia in 2017 — some undoubtedly overblown but much based on real facts about real actions that Trump and his aides really took — into the equivalent of wild hoaxes about efforts to steal the 2020 election.

And it’s not just those who fostered The Big Lie. As I’ve noted, a viral thread earlier this year went further still, blaming January 6 on the Steele dossier (which most Republicans agree was larded with Russian disinformation).

This use of the Russian investigation, the Democratic-paid dossier, and the legitimate reporting on both to rationalize Trump’s actions post-2020 is no accident. That’s one reason I persist in reporting on the dossier: because Paul Manafort came back from a meeting with an Oleg Deripaska associate and encouraged everyone to discredit the Russian investigation by focusing on the dossier. Because it was so full of garbage (some of it placed there at the behest of Russian intelligence, if you believe all the Republican members of Congress to focus on it), it was an easy way to make the real Russian investigation look corrupt to people like Dustin Stockton, to say nothing of the real cover-up disclosed by the investigation.

Before Trump claimed to be the victim of vote fraud, Trump claimed to be the victim of an investigation into the many documented ways in which Trump tried to optimize Russian help to get elected. That claim — that he was the real victim of the Russian investigation — is how Trump trained so many Republicans to put his fate over the fate of the country.

And so as the traditional press turns its attention to the lies that Trump tells to claim he’s a victim, that first lie cannot be forgotten.

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A Christmas Limerick from Limerick

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In Limerick Christmas is here

No Trumpsters with guns do I fear

I write on this blog

Share craic and talk grog

From EU I send readers cheer

 

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Broken Windows Policing and January 6 Plea Deals

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Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

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Behind the Arrest of Putin’s Pen-Tester, Vladislav Klyushin

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There’s a gratuitous passage in the March 20, 2021 complaint charging Vladislav Klyushin, Ivan Yermakov, Igor Sladkov, Mikhail Irzak, and Nikolay Rumyantev with conspiracy to violate the Computer Fraud and Abuse Act. It describes that Klyushin — the guy just extradited to the US on the charges — possessing a picture of Alexander Borodaev and Sergey Uryadov posing in front of Scotland Yard in London.

Thus far, it’s unclear who the guys in the picture are, other than customers of M-13’s “investment services,” for which they paid extortionate 60% commissions to benefit from the insider trading scheme allegedly run by Klyushin and Yermakov. But, in addition to alerting Klyushin to how many of his personal files the FBI has obtained, folks back in Russia will have a taste of the kind of information at risk now that Klyushin is in US custody.

That is, this passage, and a host of others in the charging documents, appear designed to maximize the discomfort of a number of people involved, as much as justifying the arrest and extradition of the guy who led a company that provided services that amount to information operations to Vladimir Putin. As the DOJ presser explained,

M-13’s website indicated that the company’s “IT solutions” were used by “the Administration of the President of the Russian Federation, the Government of the Russian Federation, federal ministries and departments, regional state executive bodies, commercial companies and public organizations.” In addition to these services, Klyushin, Ermakov and Rumiantcev also allegedly offered investment management services through M-13 to investors in exchange for up to 60 percent of the profit

The insider trader scheme works like this: Klyushin (the guy in US custody) and Yermakov (a key person involved in the 2016 DNC hack, described in DOJ’s press release as a “former” GRU officer), along with one other guy from M-13, area accused of hacking at least two US filing agents to obtain earnings reports before they were officially released. They conducted trades for a handful of clients — along with Borodaev and Uryadov, Boris Varshavskiy is mentioned. Klyushin also conducted trades for himself. The three M-13 figures were indicted on conspiracy, hacking, wire fraud, and securities fraud charges on April 6, 2021, an indictment that formalized the extradition request for Klyushin, who had already been arrested in Switzerland.

Then there are two apparent private citizens who live in St. Petersburg, Michail Irzak and Igor Sladkov. They were indicted on May 6, 2021 on conspiracy to hack and hacking charges, along with securities fraud. That indictment (like the complaint) focuses on some different trades than the Klyushin one (and because neither is likely to be extradited anytime soon, the second indictment may shield some portion of evidence from discovery).

Actions attributed elsewhere to Yermakov are attributed to Co-Conspirator 1 in that indictment, and it is on that basis that Irzak and Sladkov are exposed to the hacking charges. Irzak and Sladkov don’t appear to have been paying the extortionate 60% fees that the other M-13 clients were, which makes me wonder whether Yermakov was helping buddies get rich on the side. Worse still, Sladkov had some epically bad operational security; the indictment describes he had in his possession pictures showing:

  • A picture of a black Acer computer, with a blue Russian Olympic Committee sticker over the camera, showing a press release with Snap’s 2017 earnings that was not released publicly until 8 hours later.
  • A picture showing the same Acer computer with the same blue sticker showing his own trading activity on BrokerCreditService on May 2, 2018
  • A picture taken on July 24, 2018 at 2:05PM (ET) showing himself and Irzak sitting at a brown table; Irzak had Facebook running at the time, which showed him to be in the vicinity of Sladkov’s house
  • A picture dated July 25, 2018 showing him trading in a bunch of shares the earnings reports of which had been illegally accessed the day before
  • A picture dated October 14, 2018 showing a hand-written note instructing to “short” three shares, which Irzak did short two days later

In other words, Sladkov documented much of his insider training in photographs (perhaps to share the instructions with Irzak), and left all those photographs somewhere accessible to the US government.

If Yermakov was sharing this information with these guys without permission, then Sladkov’s role in providing the US government really damning information that would form the basis for an arrest warrant for Klyushin, then things might get really hot.

But it’s not like Klyushin or Yermakov did much better. In addition to the pictures of the clients, above, and some screencaps that got sent showing trading activity (though with less obvious evidence of insider trading), there’s a bunch of messaging from both, including an oblique reference to messages Yermakov and Borodaev sent on November 19, 2020 that have nothing to do with the context of the indictment but happens to be after the US election. There are even pictures Klyushin shared with Yermakov, “showing a safe that contained growing stacks of U.S. one hundred dollar bills.”

Yermakov appears to have used one of his messaging accounts via multiple devices, because on December 3, 2018, when he “forgot telephone at work,” he was still able to message Klyushin about closing out a trade. Using the same messaging app across platforms would offer one means of compromise, especially if the FBI had gotten into Yermakov’s device updates. The indictment doesn’t mention a warrant for such messaging that you would expect if it took place on Facebook.

Again, this indictment seems to aim to cause discomfort and recriminations based on information in US possession.

But then there’s the question of how it came about, how it landed in Massachusetts rather than DC (where the lead FBI agent is from) or NY (where the trades get done) or Pittsburgh, where one of the prior indictments against Yermakov was done.

The indictments and complaint base the MA jurisdiction on the fact that the culprits used a VPN that used a server in MA on several occasions. At a presser the other day, Acting US Attorney Nathaniel Mendell suggested the case had been assigned to MA because of its good securities prosecution teams.

As to how it came about, purportedly, the story starts in January 2020, when two filing agents allegedly hacked by the men, FA1 and FA2, reported being hacked at virtually the same time. Someone had used an FA1 employee’s credentials on January 21, 2020 to access the earnings data for IBM, Steel Dynamics, and Avnet before those results were publicly announced the following day, but no similar transaction noted with respect to F2 (indeed, a list of accesses involving F2 have a gap from November 2019 through May 2020). The investigation determined that FA1 had first been hacked by November 2018 and that FA2 had first been hacked by October 2017.

FA1 and FA2 discovered this compromise just months after the third M-13 employee, Rumyantev, was blocked by his Russian-based brokerage account for suspicious transactions. Months after FA1 and FA2 reported their compromise, Rumyantev and Klyushin lied to a Denmark bank that they were working entirely off of public information. By that point, in other words, banks in at least two countries were onto them.

Then, the story goes, the FBI investigated those hacks — through domains hosted by Vultr Holdings to a hosting company in Sweden to a user account under the name Andrea Neumann. From there, the FBI tracked back through some Bitcoin transactions made in October and November 2018 to the IP address for M-13 where they just happened to discover one of the very same hackers that was behind the 2016 hack of the DNC was also behind this hack. Mendell sounded pretty sheepish when he offered that explanation at the press conference.

Perhaps it’s true, but another key piece of evidence dates to actions Yermakov took on May 9, 2018, when he was under very close scrutiny as part of the twin investigations into his role in the hacks of the DNC and doping agencies, but before the first indictment against him was obtained.

Based on a review of records obtained from a U.S.-based technology company (the “Tech Company”), I have learned that on or about May 9, 2018, at 3:44 a.m. (ET), an account linked to ERMAKOV received an update for three native applications associated to the Tech Company. Records show that the May 9, 2018 application updates were associated to IP address 119.204.194.11 (the “119 IP Address”).

Based on my review of a log file from FA 2, I learned that on or about that same day, May 9, 2018, starting at 3:46 a.m. (ET)–approximately two minutes after ERMAKOV received application updates from the Tech Company–the FA 2 employee’s compromised login credentials were used to gain unauthorized access to FA 2’s system from the same 119 IP Address, and to view and/or download earnings-related files of four companies: Cytomx Therapeutics, Horizon Therapeutics, Puma Biotechnology, and Synaptics.7 All four companies reported their quarterly earnings later that day.

It would be rather surprising if the FBI agents investigating the DNC hack had not at least attempted to ID the IP associated with Yermakov’s phone (or other device) back in 2018. Whether or not they watched him engage in insider trading for years after that — all the while collecting evidence from co-conspirators flaunting the proof of their insider trading — we may never learn. The discovery on this case, featuring evidence explaining how the FBI tracked the insider trading of Putin’s pen-tester, will certainly feature a number of law enforcement sensitive techniques that Klyushin would love to bring back to Putin.

But it’s possible these techniques were what the FBI used to target these guys four years ago now, and the insider trading that Yermakov was doing in addition to whatever he spent the rest of his time doing has now provided a convenient way to bring Putin’s pen-tester to the United States for a spell.

Update: Included the pictures of the safe included with his detention memo, as well as earnings reports from Sladkov’s computer. Note the detention memo says the latter came from an ISP.

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Hot and Cold Running John Durham Conspiracy Conspiracies

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I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

  • A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
  • An October 3, 2018 Baker interview that conflicts with the indictment.
  • An October 18, 2018 Baker interview that conflicts with the indictment.
  • A July 15, 2019 Baker interview that conflicts with the indictment.
  • The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
  • Three more Durham interviews with Baker on this subject that align with the indictment.
  • Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
  • Hearsay testimony from Bill Priestap that generally aligns with the indictment.
  • Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
  • Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
  • A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
  • A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
  • At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

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How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

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It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

  1. The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.
  2. The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.
  3. Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.
  4. The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.
  5. After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.

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The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters

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In a post laying out what I called my “taxonomy” of the DOJ investigation of the January 6 crime scene, I noted that the next step in holding those who orchestrated January 6 responsible was to start holding the “organizer-inciters” responsible.

 I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

Though you might not know it from the coverage, DOJ has charged several people who played a key role in creating and mobilizing the mob that seized the Capitol. This is where, however, the obscurity of the investigation and First Amendment protections raise real questions about whether DOJ will be able to move up the chain of responsibility.

I’d like to look at the prospects of accountability at three nodes of organizer inciters:

  • Walkaway founder Brandon Straka
  • SoCal anti-maskers Russell Taylor and Alan Hostetter
  • Alex Jones, Owen Shroyer, and Ali Alexander

The import of January 5 in January 6

Before I do so, though, a word about January 5. Though the general outline of the January 6 attack kicked off in November 2020 and was fine-tuned in December (the MAGA events in both months were critical both as dry runs and for networking among participants), the final outline of plans took place in the days before the riot. There seems to have been an intra-militia meeting planned on January 3 in Quarrysville, Pennsylvania where groups, “[got] our comms on point with multiple other patriot groups.”

After Proud Boy Enrique Tarrio got arrested on January 4, the Proud Boys frantically tried to regroup. As late as 9PM on January 5, Joe Biggs and Ethan Nordean were meeting with some unnamed group, out of which came their plan for the 6th.

There were rallies organized for January 5 at which a number of leaders gave incendiary speeches. There’s some reason to believe that members of what I’ve called a “disorganized militia” conspiracy, Ronnie Sandlin, Nate DeGrave, and Josiah Colt, learned key details of the plan for the next day at that event, which allowed them to be tactically important in the breach. Other disorganized attendees, like Jenny Cudd, came away from those Janaury 5 speeches persuaded a revolution was inevitable.

On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”

As Robert Costa and Bob Woodward have described, Trump ratcheted up the pressure as the mobs formed the night of January 5 by falsely claiming that Mike Pence agreed he could ignore the true vote counts.

Yet, even in spite of the import of January 5 to what happened on January 6, DOJ has included remarkably few details about what January 6 defendants did that day.

The organizer-inciters called for revolution on January 5

The three organizer-inciters are a notable exception. As I noted in this post, DOJ focused on the January 5 speeches of Straka, Shroyer, and Taylor in their arrest affidavits. Straka’s described how he called for revolution on January 5.

STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

The SoCal 3%er conspiracy described how Russell Taylor called for violence.

[T]hese anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

And Owen Shroyer’s arrest affidavit described him calling for revolution, too.

Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!

But the treatment of these three organizer-inciters, both in their charges, and the development of their prosecution so far, has been very different.

Brandon Straka

Originally, Brandon Straka was charged with trespassing and 18 USC 231, civil disorder, for egging on rioters as they stripped a cop of his shield.

At around the 3:45 mark of the video, an officer from the United States Capitol Police holding a protective shield could be seen in the crowd. As individuals pushed past the officer toward the entrance of the U.S. Capitol, the officer held his shield up in the air. At around the 3:59 mark of the video, STRAKA stated, “Take it away from him.” STRAKA and others in the crowd then yelled, “Take the shield!”

As several people in the crowd grabbed the officer’s shield, STRAKA yelled, “Take it! Take it!” The crowd successfully pulled the shield away from the officer as the officer appeared to be trying to move back toward the entrance of the building.

After his early arrest, his case was continued without indictment several times, first in February, then in May, then in August, each time invoking fairly standard boilerplate about a plea. “The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.” In September, Straka was finally charged, with just the less serious of the two trespassing misdemeanors. After a tweak in October reflecting that he never entered the Capitol itself, he pled guilty on October 6. His statement of offense says only this about January 5:

Brandon Straka flew to Washington D.C. to speak at a rally protesting the election results on January 5 and January 6, 2021.

It focuses entirely on his role in egging on rioters at the Capitol.

This plea could be one of the ones in which someone cooperating was able to plead to a misdemeanor (the only confirmed one of which, so far, was Jacob Hiles, who cooperated in the prosecution of Michael Riley). After all, he could provide valuable information not just on the plans for January 5, but also explain what he learned about why the scheduled rally on January 6, at which he was also supposed to speak, got canceled. And in fact, he posted the kind of self-justification in advance of pleading that might reflect cooperation.

[O]n Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

“Hang on tight,” Straka wrote on the site, where he has asked for financial support and plugged a forthcoming “grand relaunch” of his campaign. “Let it come, and let it go. It means nothing. It’s just pointless noise. The best is yet to come. We’re almost there.”

But his plea agreement includes the boilerplate cooperation language that generally gets taken out when someone has already cooperated, which is one reason to believe his plea may just reflect good lawyering.

We may find out whether his plea included a cooperation component when we see the filings regarding his sentencing. He was originally supposed to be sentenced on Friday December 17, but that got bumped back (as many things are, these days) to December 22. His sentencing memos were due on December 15. But unless something happened with PACER overnight, they’re not there (PACER was particularly unreliable yesterday on account of the AWS outage, but the filings could also be sealed).

Update: The two sides have asked for 30 more days to make sense of some stuff that has recently come up.

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 Pre- Sentence 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.

The government is currently ordered to file its sentencing memorandum and any video evidence in support of its memorandum on December 17, 2021. The government respectfully requests that this deadline be extended based upon the reasons stated.

3%er SoCal Conspiracy

Calling the indictment against Alan Hostetter et al the “3%er SoCal conspiracy” is actually a misnomer, because it has more to do with how two men calling for violence helped organize Southern Californians largely mobilized around anti-mask politics.

The indictment provides evidence that some of the men charged–Erik Warner, Tony Martinez, Derek Kinnison, and possibly Ronald Mele– are 3%ers. Though the indictment shows Hostetter invoking the language of 3%ers in one place, he is the head of the American Phoenix anti-mask group and his anti-mask activism is one of the places Hostetter met Russell Taylor (the other is the QAnon conference in Arizona in October 2020). Hostetter and Taylor repurporsed a Telegram chat Hostetter was already using to sow violence to organize Southern Californians to travel to DC for the rally, then created a new one on January 1 called “The California Patriots-DC Brigade.”

Much of the conspiracy involves the planning of alleged conspirators for the trip, including discussions of how to bring weapons to DC.

Just one of these men, Warner, entered the Capitol; the rest skirmished around the West Terrace. Not all of the January 6 defendants whose arrest documents show them to be members of the California Patriots-DC Brigade Telegram chat are included as part of this conspiracy; Jeffrey Scott Brown and Ben Martin, who were each charged individually, are described to have been part of the chat, and it’s likely that Gina Bisignano and Danny Rodriguez and his co-conspirators were also part of that chat (among others). In addition, there’s a Person One described in the indictment, whom Hostetter has identified as big GOP donor Morton Irvine Smith, who wasn’t charged, though Irvine Smith’s actions appear distinguishable from Hostetter’s only in that he didn’t climb onto the West Terrace on January 6. So it’s not entirely clear why DOJ included the six people they did in this conspiracy.

As I laid out before, in addition to being charged individually with obstructing the vote count, the men were charged with conspiracy under the obstruction statute rather than the conspiracy statute, as most other January 6 conspiracies were charged (though a Patriot-3%er two person conspiracy unsealed the other day uses 1512(k) as well). Taylor was charged for civil disorder for an interaction with cops and his trespassing charges were enhanced because he was armed with a knife. Warner and Kinnison are separately charged for efforts to hide the Telegram chat.

In other words, this conspiracy ties together two guys publicly calling for violence with members of a militia who discussed arming themselves.

Hostetter says he wants no part of it, though. After getting permission to represent himself in October, earlier this month the former cop filed a motion to dismiss the entire indictment because of alleged government misconduct. The entire thing is the kind of batshit conspiracy theory you’d expect from Tucker Carlson or Glenn Greenwald, spinning what appears to have been inappropriate coddling of him by an Orange County Sheriff’s Sergeant into an FBI plot (that started in spring 2020) to get him, involving Yale’s Secret Society Skull and Bones, the Freemasons, Scientologists, Mormons, and a talented artist named Bandit who likes to mock him. (Read this thread if you want to laugh along.) In the wild yarn Hostetter spins, he argues both Irvine Smith and Taylor must be FBI informants and therefore he can’t be held accountable for any of the actions they induced him to take.

He asks to be severed from the other defendants and/or have his case thrown out because, he claims, he “has never knowingly met, nor has he ever knowingly communicated with, four of the co-defendants,” the 3%ers, and according to his feverish conspiracy theory, Taylor is an FBI informant who set him up (Taylor is Mormon, which is where that part of Hostetter’s conspiracy theory stems from). In a filing asserting as fact that, “the election of 2020 was actually stolen from a duly elected President whom was elected in one of the biggest landslide victories in the history of our country,” Hostetter complains that his actions to prevent the vote count of the actual winner do not amount to a crime.

On January 6, 2021 defendant did not commit one act of violence. Defendant did not commit one act of vandalism. Defendant never entered the U.S. Capitol Building. Defendant never conspired with anyone to do anything illegal, immoral or unethical. The government has not provided anything, that defendant has yet seen in discovery, that contradicts these claims by defendant. Yet, defendant is charged with federal felonies that could result in his imprisonment for up to twenty years.

Particularly given the scope of Dabney Friedrich’s ruling on the application of obstruction, with its caveats regarding whether legal activities can be deemed part of an effort to obstruct the vote count, Hostetter’s claims may have some success (Royce Lamberth is presiding over the case).

His motion to dismiss doesn’t, however, mention a number of overt acts described in the conspiracy to obstruct the vote count:

  • His participation in the November 14, 2020 MAGA event in DC
  • His own November 27, 2020 call to execute “traitors”
  • A December 12, 2020 Stop the Steal rally in Huntington Beach
  • His own calls for people to travel to DC starting on December 19, 2020

Rather than addressing most of the overt acts alleged against him, Hostetter provides what appear to be cover stories for two key December 2020 events in this timeline.

After Taylor and Hostetter spoke at an Orange County event on December 15, they met with Irvine Smith the next day, and Taylor gave both axes.

On December 15, 2020, defendant and co-defendant Russell Taylor both spoke at an Orange County Board of Supervisor’s Meeting. This was only three weeks prior to January 6th. As usual at the Board Meeting, the topics to be discussed related to Orange County issues to include Covid-19 related issues, which is what we typically spoke out about. For some reason, while Taylor was speaking during this particular board meeting, he made the following comment to the Board which was completely unrelated to any of the topics on the agenda: “Week after week, I and others are with thousands in the street all up and down the state of California. You know what they are saying? Revolution. Storm the Capitol.”

[snip]

On December 16th, the day following Taylor’s comments to the Orange County Board of Supervisors, co-defendant Russell Taylor met defendant and “Person One” Morton Irvine Smith at a Mexican restaurant in San Clemente, CA called “El Ranchito.” Taylor was the organizer of this meeting and had requested, planned and organized it a few days prior. While at the restaurant, Taylor told defendant and Irvine Smith that he had purchased gifts for them. Taylor reached under the table and pulled out two boxes and gave them to defendant and Irvine Smith.

Inside these boxes were the axes that have been referred to in the indictment as proof of defendant’s nefarious intent to attack the Capitol using the axe as a weapon of some sort. Until receiving this “gift,” defendant had never personally owned an axe in his life. As he gifted it to us, Taylor described the axe metaphorically as a “battle axe” representing the battles we had already fought in support of freedom and the many battles yet to come.

Upon leaving the restaurant, either (informant) Taylor or (informant) Irvine Smith requested one of the restaurant employees take our photograph in front of the restaurant holding the axes. Defendant liked the photograph and thought it looked quite masculine and “tough” so he posted the photograph to Instagram with a somewhat provocative comment attached to the photograph. Defendant’s comment was, “The time has come when good people may have to act badly, but not wrongly.” Defendant continued in this post with, “Thank you @russ.taylor for the gift of the #thebattleaxe representing the many battles yet to come.”

Defendant had read this quote about good people possibly having to act “badly but not wrongly” in a meme very close in time to when Taylor gifted the axe to him. Defendant had no thought whatsoever about January 6 or the U.S. Capitol when creating this Instagram post. Defendant had been making public speeches regarding the fact that the U.S. was and had been “at war” with the Chinese Communist Party and domestic enemies for approximately 8 months prior to receiving this axe from Russell Taylor

Hostetter posted the photo not as a call for war, he claims, but because it made him look manly. And his caption to the photograph wasn’t a prospective call to war on January 6 in response to Taylor’s call for revolution, but to the prior 8 months of political unrest.

Particularly given Hostetter’s description of the December 16 meeting, which he helpfully tells us was actually planned, “a few days prior” (and so possibly the same day that Irvine Smith, but not Hostetter, returned from the DC MAGA March), I find the description Hostetter gives for his involvement in the January 5 event of interest. He learned of it from Irvine Smith at around the same time as that same December 16 meeting at El Ranchito and before — the indictment alleges but Hostetter ignores — he started recruiting people to attend the event.

January 5, 2021: Defendant’s non-profit organization, American Phoenix Project (APP), cohosted a rally with a group called Virgina Women for Trump. The VWT group was headed by Alice Butler-Short, a well-known and well-connected woman in the DC area.

This event, and APP’s ability to co-host it was brought to defendant’s attention in mid-December after informant Morton Irvine Smith returned to California after attending the December 12, 2020 Stop the Steal rally in Washington DC. Defendant did not attend this event. Irvine Smith claimed to have met Ms. Butler-Short for the first time at this 12/12/2020 event and the two of them agreed to APP becoming involved in co-hosting the event together.

Irvine Smith arranged for defendant to participate in a conference call with Ms. Butler-Short and two members of another group identified as Jericho March as they were a nationally known group also supporting election integrity. Once this conference call was completed, defendant told Irvine Smith that he was not interested in having American Phoenix Project co-host the event as it was too far away from California to be able to properly assist in putting it together and defendant had also gotten a bad vibe / feeling from some of the other participants in the conference call.

Irvine Smith was highly disappointed and notified defendant that he, Irvine Smith, would then just continue to help Butler-Short on his own time as they had developed a good relationship and he wanted to be personally helpful to her. Within a week or two, Irvine Smith notified defendant that Butler-Short had lined up some very big-name and popular conservative speakers for the event to include Roger Stone, Alex Jones, General Michael Flynn’s brother Joe Flynn, among several others. Irvine Smith notified defendant that ButlerShort was continuing to hold out the invitation for APP to co-host this event with her group, to include flying the APP banner at the event. Irvine Smith told defendant the only thing Butler-Short requested of APP was to help her with finding security staff to cordon off an area in front of the Supreme Court because it was a “first come, first served” policy as far as finding a location to set up a stage and microphone.

[snip]

After hearing from Irvine Smith about the high-quality speakers involved and the relative ease with which APP could co-host such a high-profile event, defendant agreed to co-host the event under the APP banner. Were it not for the individual efforts of Morton Irvine Smith, neither defendant nor APP would have been involved with this event at all.

Irvine Smith’s role in getting him this gig certainly raises more questions about why he wasn’t charged, but it doesn’t change Hostetter’s own exposure.

Hostetter adds to the questions about Irvine Smith’s treatment by revealing that Irvine Smith was not searched until the day before this indictment (Hostetter also makes much of what appears to be FBI’s choice to image Irvine Smith’s devices rather than seizing them).

On 1/27/2021 when Taylor and defendant had search warrants served on them, Irvine Smith did not. It wasn’t until nearly five months later, on June 9, 2021 that Irvine Smith finally had a search warrant served on him. This was one day before defendant’s indictment was unsealed. The timing of Irvine Smith’s “raid” is transparently obvious and laughable. It was intended to “clean him up” as an informant.

Hostetter’s questions about Irvine Smith, who funded much of his actions, are as justified as questions from the Oath Keepers about Stewart Rhodes not being charged yet. But I expect this crazypants motion to be dismissed and the conspiracy prosecution to continue to hang on whether all six members of the conspiracy entered into an agreement to help stop the vote count on January 6.

But Hostetter’s motion does suggest that the conspiracy indictment uses the involvement of the 3%ers as a way to raise the stakes of both Hostetter and Taylor’s own public calls for violence. That is, DOJ seems to have charged these organizer-inciters (but not the guy funding it all, yet) by exploiting their ties to an organized militia.

Alex Jones, Owen Shroyer, and Ali Alexander

The way that DOJ appears to have used militia ties to charge organizer-inciters Alan Hostetter and Russell Taylor makes their treatment of far more important organizer-inciters, Alex Jones, Owen Shroyer, and Ali Alexander, more interesting.

Ignore for a moment Ali Alexander’s crucial role in setting up explicitly violent protests.

It is a fact that the guy leading the coup, Donald Trump, asked Alex Jones (personally, as Jones tells it) to lead the mobs Trump had incited at the Ellipse down the Mall to the Capitol. As Jones was doing this, his former employee, Joe Biggs, was kicking off the entire riot. It is also a fact that Jones lured rioters like Stacie Getsinger to the East side of the building, to where Biggs and the Oath Keepers were also gathering, by promising a second speech from Trump.

There’s reason to believe that Jones and Biggs remained in contact that day, evidence of which DOJ would presumably have from Biggs’ phone, if not his phone provider (based on whether the contact was via telephony or messaging app). If it was the latter, getting it may have taken a while. While DOJ obtained Ethan Nordean’s phone when they searched his house (because his spouse provided the FBI the password), and obtained the content of Biggs’ Google account quickly (which included some videos shared with his co-travellers), it may have taken until July 14 to exploit Biggs’ phone (this Cellebrite report must pertain to Biggs because it is not designated Highly Sensitive to him). While the content of any calls Biggs had with his former boss would not be captured, some of it is also likely available from videos shot of him. If his co-travellers wanted a cooperation deal they might be able to provide Biggs’ side of any contacts with Jones too, though several of Biggs’ co-travelers are represented by John Pierce, who may be serving as a kind of firewall for Biggs or even Enrique Tarrio.

Nevertheless, if DOJ has in its possession evidence that one of the guys accused of masterminding the plan to breach the Capitol from two sides was in contact during that process with Jones, who lured unwitting rioters to the second breach by lying to them, then DOJ would appear to have far more evidence tying Jones to militia violence than they used to charge Hostetter in a conspiracy with 3%ers. And Jones got just as far inside the restricted area of the Capitol — to the top of the steps on the East side — as Hostetter did.

Of course, two things have made it harder to charge Jones: he is a media figure, one who very quickly disseminated a cover story claiming his intent for joining the Proud Boys and Oath Keepers at the site of the second breach was to de-escalate the situation, not to escalate it.

DOJ has been chipping away at both those defenses. It already arrested two of Jones’ employees, videographer Sam Montoya and on-air personality Owen Shroyer.

DOJ arrested Montoya for trespassing on April 13 and charged him with misdemeanors on April 30. The arrest warrant cited a number of things Montoya said that were captured on his own footage making it clear he viewed himself as part of the mob.

We’re gonna crawl, we’re gonna climb. We’re gonna do whatever it takes, we’re gonna do whatever it takes to MAGA. Here we go, y’all. Here we go, y’all. Look at this, look at this. I don’t even know what’s going on right now. I don’t wanna get shot, I’ll be honest, but I don’t wanna lose my country. And that’s more important to me than—than getting shot.

And DOJ noted that Montoya had no press credentials for Congress (a really shitty distinction for an event where legitimate journalists chased mobsters inside).

At times during the video, Montoya describes himself to others inside the Capitol Building as a “reporter” or “journalist” as he attempts to get through crowds. The director of the Congressional press galleries within the Senate Press office did a name check on Samuel Christopher Montoya and confirmed that no one by that name has Congressional press credentials as an individual or via any other organizations.

Montoya’s case has been continued on his own initiative since then. Given the discovery notices he has gotten — from AUSA Candice Wong — he had been treated as part of the mob most closely involved in the scene at Ashli Babbitt’s shooting. On December 10, Montoya got discovery from the Statutory Hall Connector that other defendants in that group did not get, and a different prosecutor, Alexis Loeb, took over his case. Loeb’s January 6 caseload is eclectic, but in October she started taking over the case of Proud Boys Joshua Pruitt, and Nicholas Ochs and Nicholas DeCarlo, and she has always been in charge of the prosecution of the pair that played a key role in opening the East doors from the inside, George Tenney and Darrell Youngers.

In August, Shroyer was arrested. His arrest was opportunistic, relying on the fact that he had a still-unsatisfied Deferred Prosecution Agreement arising from his attempts to disrupt Trump’s first impeachment making his loud presence inside the restricted are of the Capitol uniquely illegal. He filed a motion to dismiss his case, which was basically the cover story about de-escalation that Jones offered up immediately after the riot and Ali Alexander prepared to deliver to Congress last week. In a filing debunking that cover story, the government noted that calling for revolution — as Shroyer and Jones did from the top of the East steps — does not amount to de-escalation.

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Shroyer let the due date to reply to this debunking, November 22, pass without filing anything. A status conference that had originally been scheduled for Tuesday, December 14 has been rescheduled for Monday December 20.

As I said in my taxonomy post, the government seems to be very close to being able to demonstrate how that the breach of the second front worked, an effort on which the Proud Boys, Oath Keepers, and Alex Jones seemed to coordinate.

Doing so will be very important in demonstrating how the militia conspiracies worked. But if DOJ finds a way to charge Alex Jones for his role as the Pied Piper of insurrection, the organizer-inciter who provided the bodies needed to fill that second breach, it would bring the January 6 investigation up to an order issued directly by the former President.

The investigation of three InfoWars figures — Montoya, Shroyer, and Jones — who all have legitimate claims to be media figures happens even as DC judges are getting more insistent that DOJ adhere to Merrick Garland’s own media guidelines. In November, for example, Chief Judge Beryl Howell required prosecutors to acknowledge the media guidelines if they sought orders and warrants targeting news media.

Of course, Alexander has no such press protection, and his decision to go mouth off to Congress for seven hours last week may prove as self-destructive as the similar decision by his mentor, Roger Stone, four years ago.

The government seems to have a pretty good case about how the multi-front breach of the Capitol worked. The question is whether First Amendment protections will shield those who made that breach possible from prosecution.

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Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

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Back in June, I noted that Ethan Nordean’s lawyers were staking his defense on getting all the crimes charged against him thrown out — from the obstruction charge applied in an unprecedented manner, to the civil disorder tainted by its racist past, all the way to trespassing.

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

[snip]

[T]actically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

[snip]

[I]f any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

As I noted, on Friday Dabney Friedrich became the first DC District judge to uphold the obstruction application. The decision comes as — predictably — DOJ seems to be closing in on a much more substantive description of the Proud Boy-led plan to assault Congress. All the while, Nordean has been sitting in SeaTac jail, and even got thrown into SHU (solitary) last week for as yet undisclosed reasons.

To be clear: Friedrich’s is in no way the last word. Judges Randolph Moss, Amit Mehta, and the judge presiding over Nordean’s case, Tim Kelly, are all due to rule on the issue as well, with a number of the other judges facing such challenges as well. I’d be surprised if all the judges ruled for DOJ.

And because these judges are likely to rule differently, as all the parallel challenges have been briefed, some of the lawyers in the key cases have kept the judges apprised of what was going on in other challenges. For example, after getting leave first, the government submitted filings they made in Nordean and Guy Reffitt’s challenges to obstruction in the Brady Knowlton docket. Defendants have occasionally used that opportunity to respond.

Yesterday, without first asking for leave to file it, Nordean submitted what was billed as a “notice of new authority” in the case, but which was, in fact, a 23-page point by point rebuttal of and which didn’t actually include Friedrich’s opinion. As part of that, purportedly to take issue with the grammatical claims that Judge Friedrich made but actually in an effort to attack an example Friedrich used rather than the law itself, Nordean lawyers David and Nick Smith use an Emily Dickinson poem to — they claim — make a point about line breaks and semicolons.

And the Court did not explain how a semicolon and line break somehow altered the meaning of (c)(2)’s “otherwise” phrase which, as the Court correctly noted, “links” it to the meaning of (c)(1). As Nordean has previously explained, the question of meaning involves grammar, not page format. Subsection (c)(2) is a clause dependent on (c)(1) for its meaning because the predicate “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to. . . .” is not a complete sentence.

[snip]

As the Court will see, each of the provisions in the case relied on by the Sandlin Court is a complete sentence, unlike subsections (c)(1) and (c)(2) of § 1512. Thus, they are grammatically independent in a way that (c)(1) and (c)(2) are not. The same grammatical point distinguishes Justice Scalia’s finding in United States v. Aguilar, on which the Sandlin Court relies, that the ejusdem generis canon did not apply to § 1503’s “omnibus clause.” 515 U.S. at 615-16 (finding that the omnibus clause is “independent” of the rest of § 1503 in a grammatical sense: it stands alone as a complete sentence).

Contrary to the Sandlin Court’s understanding, line breaks and semicolons do not necessarily alter the meaning of the clauses that follow in a sentence. One simple example would seem to suffice:

The reticent volcano keeps
His never slumbering plan;
Confided are his projects pink
To no precarious man.

In the sentence above, the line break between “The reticent volcano keeps/His never slumbering plan” does not indicate that the second line’s meaning is “independent” of the first line’s. To the contrary, the phrase containing the pronoun “his” cannot be understood without reference to its antecedent in the first line. Similarly, the same pronoun following the semicolon cannot be understood without reference to the first line. Just so with (c)(2)’s “; or otherwise obstructs . . .” We are concerned with meaning, not the surface of the page.

This is poetry!! It is fairly insane to liken poetry, much of the power of which stems from breaking the rules of grammar and which often strives to obscure meaning, to US Code, which aspires to use grammar in ways that clarify meaning.

There’s one more problem, too.

There’s some dispute, because there is no final manuscript for this poem, about whether Dickinson used a semicolon or a dash after “slumbering plan.” And Dickinson’s dashes — literary experts say with all the certitude that drove me from literary academics — put great stake in the ambiguity introduced by such punctuation.

“The dash is an invitation to the reader to make meaning,” Dr. Smith said. “It can also be a leap of faith.”

Moreover, these were handwritten works, and so dashes would not even be regular lines. The variation in such lines has been interpreted with various meanings as an immediate expression of Dickinson’s intent. [Note: I owe this observation to several people on Twitter but have lost those Tweets; h/t to them]

That is, Dickinson’s poem is not so much an apt comment on Friedrich’s examples. Rather, it’s an example of the uncertainty embodied by the artistic expression of another individual, almost the opposite of laws codified by Congress.

Bizarrely, the citation of Dickinson is among the parts of Smith’s brief that Brady Knowlton’s attorneys lifted and replicated in their own unsolicited notice and reply. Carmen Hernandez, who is Donovan Crowl’s attorney, not only remembered to include Friedrich’s opinion, but she didn’t include the Dickinson poem.

There have been many aspects of my own literary training that I’ve used in my coverage of the January 6 investigation. Reading Emily Dickinson (about which I have no expertise) is not one I’d expect to need.

Update: In a hearing today, Judge Kelly joined Friedrich in rejecting the challenge to the obstruction application.

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