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Baloney and Blackjack! A John Pierce Client Complains of Paying Too Much for What Had Been Free

November 2, 2021/49 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

It’s time to check in with John Pierce’s accumulation of January 6 clients.

The other day, the attorney who got fired by Kyle Rittenhouse apparently swapped family members to expand his docket. Pierce withdrew from the case of Jonah Westbury, who is charged, by himself, with trespassing. At virtually the same time, Pierce was making his first appearance in the case of Isaac and Robert Westbury and Aaron James, replacing lawyers for all three. Isaac Westbury and Aaron James are charged with civil disorder and assault, and all three are charged with trespassing. When Rudolph Contreras was sorting all this out a status hearing, Pierce explained, “ I think we’re up to 21, your honor!!!,” like a kid who has gotten his first 21 in blackjack. (h/t MK for the observation) Though unless not all his clients are noticed on the docket, he’s at 20 as of November 1.

Here are those 20, along with the clients who dropped him along the way:

Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. While Pierce was hospitalized with COVID, Pierce submitted some filings attempting to get Worrell out of jail because he’s not getting medical care; the most recent filing not only thrice misstated what jail Worrell is in, but also admitted he has refused treatment at least five times. On September 24, Alex Stavrou replaced Pierce, and almost immediately found success that Pierce had lacked in getting Judge Royce Lamberth to believe that Worrell is not getting adequate medical treatment in the DC jail.

1. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

2. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

3. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, while Pierce was in the hospital with COVID, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

4. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo, he has some drug-related crimes, and he violated probation in the period before he was arrested. Pierce filed his appearance to represent McGrew on June 16, and he’s currently trying to get McGrew bailed by arguing he wasn’t assaulting cops, he was looking for his mother. Update: Chief Judge Howell denied the effort to reopen detention fairly resoundingly.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, even before Pierce’s bout with COVID halted his relentless acquisition of new Jan 6 clients, Hostetter replaced Pierce, and Hostetter has since gotten permission to represent himself.

5, 6, 7. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They were originally separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing, but have since been joined in one case. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares. On October 8, Harrelson replaced Pierce with Brad Geyer, and anti-vaxxer who just got slapped down by Amit Mehta for trying to make this case about that, instead of attacking democracy.

MINUTE ORDER denying Defendant KENNETH HARRELSON (10) and KELLY MEGGS’s (8) [476] Motion for Enlargement of Page Limit. Whatever motion Defendants intend to file, the court will stop reading it after page 45. See LCrR 47(e). The court will not allow this case to become a forum for bombastic arguments (“SCOTUS Could Not Have Foreseen the Holocaust,” see ECF No. 476-2, at 1) or propagating fringe views about COVID-19 or vaccinations (“A Human Experiment Unlike Any Other,” “Pseudo-Science Displaces Science,” “Mandatory Everything,” “C19 Conspiracy Structure,” see ECF No. 476-2, at 2). To this court’s knowledge, the D.C. Department of Corrections does not require any person held there to accept a COVID-19 vaccine. If that is the intended basis of Defendants’ motion, they must file a brief of no more than five pages (excluding exhibits) establishing such a mandatory policy before the court will accept a longer filing. Signed by Judge Amit P. Mehta on 11/01/2021.

8. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

9. Nate DeGrave: DeGrave is part of what I’ve called the “disorganized militia” conspiracy, a handful of guys who met online, ordered a bunch of gear from Amazon, and then happened to be at several key places — the East Door of the Capitol and the Senate — during the riot.The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty as part of a cooperation agreement, July 13, Pierce filed a notice of appearance for Nate DeGrave.

10 and 11. Nathaniel Tuck and Kevin Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy. On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged. This means he represents three of the people charged, together but in a conspiracy, for tagging along behind Joe Biggs the day of the riot.

12. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, a felon out on COVID-release accused of macing some cops.

13. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

14. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

15. Anthony Sargent: On September 25, Pierce filed a notice of appearance for Sargent, yet another Florida Proud Boy, this one who tried to breach the North Doors.

16. David Mehaffie: On October 12, dubbed #TunnelCommander by online researchers and charged with orchestrating some of the worst fighting in the Tunnel, David Mehaffie, fired his superb public defender Sabrina Shroff and hired John Pierce.

17: Ronald McAbee: On October 25, Pierce filed a notice of appearance for Ronald McAbee, a former Georgia Sheriff with ties to the Three Percenters charged in a sweeping indictment of those who dragged some cops out of the Tunnel and beat them.

Jonah Westbury: On October 26, Pierce filed a notice of appearance for Jonah Westbury and then, three days later, on October 29, he dropped off the case. I wonder if he just got the wrong Westbury family member?

18, 19, 20: Also on October 26, Pierce filed a notice to replace the existing lawyers for Isaac and Robert Westbury and Aaron James.

As I’ve noted in the past, John Pierce appears to believe he can gaslight his way to liberating these clients — or at least profiting wildly along the way.

Witness the bullshit narrative that one of his clients, Nate DeGrave, has released from jail, as tweeted out by Brad Geyer. Nates the one in this video wearing the all-black armor, and Ronnie Sandlin, the guy in orange, is his alleged co-conspirator. Other rioters tried to restrain DeGrave here.

DeGrave’s letter from jail is a transparent attempt to make false claims to sustain a fairy tale that he and others in the DC jail are 1) being detained merely for protesting and 2) being treated any differently from other people in the DC jail, including some who, because of COVID, have been there even longer than Jan6ers have.

One of his complaints is that he’s being fed baloney sandwiches, which he says is causing him to starve and/or spend money at the commissary.

We are undergoing SEVERE NUTRITIONAL DEFICIENCIES and STARVATION. For breakfast this morning, I received a tray of flavorless paste, two slices of bread, and a slice of bologna. Lunches usually consist of rice and beans, but we’ll get cold chicken/beef patties if we are lucky. For dinner, we are sometimes fed a diet of cheese sandwiches, and bologna and cheese 4 to 5 times per week. Without commissary, people like myself are FORCED TO STARVE.

He also asserts that the around 40 of Jan6ers in the DC jail (which includes at least one and possibly several Black men) are not white supremacists, but then describes the guards as “liberal migrants,” white supremacist code.

And last but not least, we experience racism from many guards on a daily basis, being the ONLY WHITE REPUBLICANS in the entire jail.

The false narrative is has been passed around the jail and to corrections officers that we are “white supremacists” (we are NOT). The inmate population is predominantly black, so we are at risk being here because of this false narrative. The guards are mostly liberal migrants from Africa who have been conditioned to hate us, and hate America. Jan 6ers have been mocked, beaten and ridiculed by guards for singing the National Anthem.

Much of what DeGrave complains about, though, are COVID restrictions that apply equally to other detainees at the jail, but which Jan6ers likely have exacerbated because so many of them are anti-vaxxers.

For the first 120 days in DC’s Gitmo, Jan 6ers experienced DAILY LOCKDOWNS for 23-24 HOURS before being allowed to leave our small 120 sq. ft cell.

[snip]

Masks are WEAPONIZED and used against us, even though we NEVER leave the facility. Officers have walked in with the SOLE INTENTION of needing to write 20-30 disciplinary reports against Jan 6ers, which adversely effects our chances of release and causes loss of privileges, phone time and commissary. Masks need to be covering both the nose and mouth AT ALL TIMES or we are threatened and locked down in our cells. Jan 6ers are always respectful to the employees around us, but C.Os maintain the need to invent reasons for discipline.

[snip]

If it’s a legal visit, we are placed in a 14 day quarantine, with no out of cell time; EVEN IF your attorney is VACCINATED and tests NEGATIVE for Covid.

Visits with friends or family members, for unvaccinated inmates, are NEVER ALLOWED. As a result, many people have skipped critical meetings with their council, and NEVER get an opportunity to see friends or family.

Mostly though, DeGrave is angry that after participating in an attack on the Capitol, including two alleged assaults on cops, he is being detained as a threat to the community and flight risk, which — it turns out — has consequences, including being kicked off social media by private corporations that don’t want to host seditious content.

And the jail MUST PAY for what they are doing to this country’s citizens. As a result of this unlawful detainment the last 9 months, I have lost everything. The successful business I spent 13 years of my life working on, my apartment in Las Vegas, social media accounts with a lifetime of memories…you name it. The government has essentially CANCELLED ME. Not only that, but following the arrest, my best friend of 12 years robbed my apartment, stole my cat, and hacked my personal Instagram with 100,000+ followers.

At the end of the letter comes the grift — the ask for financial help, in part to pay for commissary so he doesn’t have to eat baloney sandwiches, in part for what he deems, “legal expenses.”

If there’s anything you can do to help, I would appreciate anything at all.

Inmates here are being extorted with lack of nutrition, forcing me to spend most of what’s left on commissary which I can no longer afford. I need desperate help with my legal expenses and just help staying alive in here with commissary and all the expenses I still have on the outside as my livelihood and life has been stripped away from me. Thank you for any her you can afford, even if it is a few dollars it goes a long way in here.

It’s possible what DeGrave really wants is funding to profit off this grift — that has been the case in the past with John Pierce’s other indentured defendants.

But since DeGrave is suggesting that he needs money for his legal expenses — suggesting he needs money to pay John Pierce — it’s worth noting that DeGrave (like an growing number of Pierce’s clients) had good public defenders (like Shroff) or CJA counsel, like Joanne Slaight, who represented DeGrave from when he was arrested in January until Pierce took over in July. Slaight’s the one, not Pierce, who made a sustained effort to get DeGrave released on bail. Pierce has done little since he took over (hampered, no doubt, by his bout with COVID and the fact that one of his key assistants is not permitted to practice law). He has joined Ronnie Sandlin’s challenge to the application of 1512, but his efforts are among the more frivolous in what is otherwise a legitimate challenge to this application, arguing as it does that the entire vote certification is unconstitutional and that the means by which “corruptly” has been adjudged is “legal sophistry.”

But the solemn and formal proceedings relied upon by the government are on their face unconstitutional and following through with those proceedings was an unlawful act.

[snip]

A system of laws cannot function on the government’s proffered mechanism for distinguishing lawful from unlawful obstruction in this circumstance — “The jury will figure it out.” It is legal sophistry to claim that the defects in the statute raised by this motion will be solved by this Court fashioning instructions for a lay jury to distinguish “corrupt” obstruction from “noncorrupt” obstruction.

In other words, Pierce appears to have done more to encourage DeGrave to disseminate false claims about his own actions than what the taxpayer funded lawyer who preceded him did. And DeGrave at least claims that gaslighting serves, in part, to pay Pierce.

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Donald Trump Would Withhold Evidence about Whether Enrique Tarrio Really Did Visit the White House Last December

November 1, 2021/34 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

One of the most dramatic events of 9/11 came when Dick Cheney authorized the shootdown of United flight 93, and only afterwards contacted President Bush to confirm the order.

At some time between 10:10 and 10:15, a military aide told the Vice President and others that the aircraft was 80 miles out.Vice President Cheney was asked for authority to engage the aircraft.218 His reaction was described by Scooter Libby as quick and decisive, “in about the time it takes a batter to decide to swing.” The Vice President authorized fighter aircraft to engage the inbound plane. He told us he based this authorization on his earlier conversation with the President.The military aide returned a few minutes later, probably between 10:12 and 10:18, and said the aircraft was 60 miles out. He again asked for authorization to engage.TheVice President again said yes.219

At the conference room table was White House Deputy Chief of Staff Joshua Bolten. Bolten watched the exchanges and, after what he called “a quiet moment,”suggested that theVice President get in touch with the President and confirm the engage order. Bolten told us he wanted to make sure the President was told that the Vice President had executed the order. He said he had not heard any prior discussion on the subject with the President.220

The Vice President was logged calling the President at 10:18 for a two-minute conversation that obtained the confirmation. On Air Force One, the President’s press secretary was taking notes; Ari Fleischer recorded that at 10:20, the President told him that he had authorized a shootdown of aircraft if necessary.221

The revelation was an early warning about Cheney’s willingness to assume the power of the President. But identifying it also allowed the government to consider tweaking presidential authorities and improving communications for such moments of crisis.

We know this happened, as laid out in the 9/11 Report, based on Switchboard Logs that recorded Cheney’s call to Bush, the Presidential Daily Diary recounting the President’s and Vice President’s actions, and Press Secretary Ari Fleischer’s notes.

218.White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

219. For Libby’s characterization, see White House transcript, Scooter Libby interview with Newsweek, Nov. 2001. For the Vice President’s statement, see President Bush and Vice President Cheney meeting (Apr. 29, 2004). For the second authorization, see White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

220. Joshua Bolten meeting (Mar. 18, 2004); see also White House notes, Lewis Libby notes, Sept. 11, 2001 (“10:15–18:Aircraft 60 miles out,confirmed as hijack—engage?VP:Yes.JB [Joshua Bolten]:Get President and confirm engage order”).

221. For the Vice President’s call, see White House record, Secure Switchboard Log,Sept.11,2001; White House record, President’s Daily Diary, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001. Fleischer’s 10:20 note is the first mention of shootdown authority. See White House notes, Ari Fleischer notes, Sept.11,2001; see also Ari Fleischer interview (Apr. 22, 2004).

These are precisely the kinds of records that, according to a declaration from the White House Liaison with the National Archive, Donald Trump wants to withhold from the January 6 Select Committee, including from Committee Co-Chair Liz Cheney. The declaration was submitted in support of a filing opposing Trump’s effort to invoke privilege over such files. Politico first reported on the filing.

According to NARA’s Liaison John Laster, Trump is attempting to invoke privilege over precisely the analogous records from during the January 6 terrorist attack: presidential diaries, switchboard records, and Press Secretary Kayleigh McEnany’s records.

32. First Notification: The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows, (ii) the files of Senior Advisor to the President Stephen Miller, (iii) the files of Deputy Counsel to the President Patrick Philbin, (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities, (v) the White House Office of Records Management, and (vi) the files of Brian de Guzman, Director of White House Information Services.

31. President Trump made particularized assertions of executive privilege over 46 of these 136 pages of records (including seven pages of records that, as noted above, had been removed as non-responsive). He asserted privilege over: (i) daily presidential diaries, schedules, appointment information showing visitors to the White House, activity logs, call logs, and switchboard shift-change checklists showing calls to the President and Vice President, all specifically for or encompassing January 6, 2021 (30 pages); (ii) drafts of speeches, remarks, and correspondence concerning the events of January 6, 2021 (13 pages); and (iii) three handwritten notes concerning the events of January 6 from Mr. Meadows’ files (3 pages).

32. Second Notification: The Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

33. President Trump made particularized assertions of executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

34. Third Notification: The Third Notification includes 146 pages of records transferred to NARA from (i) the White House Office of the Executive Clerk and (ii) the files of Deputy White House Counsel Patrick Philbin.

35. President Trump made particularized assertions of executive privilege over 68 of these 146 pages of records. He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages), an email chain originating from a state official regarding election-related issues (3 pages), talking points on alleged election irregularities in one Michigan county (3 pages), a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and notes apparently indicating from whom some of the foregoing were sent (2 pages). [my emphasis]

While the (very good) DOJ filing describes that Trump is withholding documents that prior Presidents had shared, it doesn’t provide examples of the how useful this information had been in understanding past terrorist attacks.

And these documents aren’t even the potentially most damning documents, either.

Because the committee request asks for communications referring to the Proud Boys’ and election results and includes Enrique Tarrio on a list of enumerated individuals covered by the request, the response from NARA might reveal whether the Proud Boys’ leader was telling the truth when he claimed to visit the White House on December 12, or whether the White House truthfully reported that he had simply joined a tour of the building.

All documents and communications referring or relating to QAnon, the Proud Boys, Stop the Steal, Oath Keepers, or Three Percenters concerning the 2020 election results, or the counting of the electoral college vote on January 6, 2021.

From April 1, 2020, through January 20, 2021, all documents and communications concerning the 2020 election and relating to the following individuals:

[snip]

Enrique Tarrio,

[h/t miladysmama for this observation]

The attempt to withhold basic White House documents about who showed up when is not, just, an obvious attempt by Donald Trump to cover up his own crimes. It’s not just an attempt to hide how, in contrast to Dick Cheney, he did nothing as the nation’s capital was attacked.

It’s also an attempt to hide whether Trump invited the terrorists inside the White House to plot the event.

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After Describing DOJ’s January 6 Language as “Schizophrenic,” Judge Beryl Howell Imposes a Sound Baseline Sentence

October 29, 2021/23 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

In the sentencing hearing for Jack Griffith yesterday, Beryl Howell spent several hours berating the government for the way they’ve charged the January 6 cases. Here’s Zoe Tillman’s coverage of the hearing.

Howell repeatedly expressed puzzlement at how the Justice Department was managing the Jan. 6 cases, especially for defendants charged solely with misdemeanor crimes. She questioned prosecutors using “scorching” rhetoric to describe the severity of the attack on the Capitol while also using words like “trespass” to describe what some defendants, including Griffith, did that day. She described the government’s brief as “almost schizophrenic.”

She also pressed prosecutors to explain why the government was offering plea deals for low-level charges that limited judges’ options at sentencing, especially when prosecutors had articulated that one goal of these cases was to prevent a similar postelection attack on the peaceful transfer of power in the future.

“This is a muddled approach by the government,” she said. It is “no wonder,” she said, that some people “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”

Howell’s complaint about the seeming inconsistency between DOJ’s rhetoric on the attack itself and the charges being filed may stem, in part, from the fact that Howell has a greater proportion of misdemeanor defendants than other judges, and so doesn’t see how there’s a continuum among defendants. Of the 30-some defendants whose cases she has, Grady Owens and James McGrew are two of her only more serious cases, plus Nick Ochs and Nick DeCarlo from the Proud Boys.

But her complaint about the way DOJ has tied judges’ hands on sentencing raises an important point. She worried about whether DOJ will really be able to collect restitution payments, given that that normally happens as part of supervised release and these class B misdemeanors don’t permit that (something discussed at length yesterday). And ultimately, she decided that because that’s all Griffith was asked to plead to, she wouldn’t sentence him to jail time, as DOJ had requested.

That said, several minutes after she issued her ruling for a 3 month probationary period, she added a term of supervised release that confused me and others covering it. I think the sentence she did impose — three months in home confinement with a GPS, as part of three years of probation — is not a bad one for those DOJ charges with misdemeanors.

Defendant sentenced on Count 5 to serve a term of thirty-six (36) months Probation which includes a special condition of 90 days of home confinement; Defendant ordered to pay a $10.00 special assessment and restitution in the amount of $500.00; imposition of a fine waived. Government’s oral motion for the dismissal of Counts 2, 3, and 4, granted as to Defendant JACK JESSE GRIFFITH. Bond Status of Defendant: Defendant placed on Probation.

Howell focused closely on deterrence — and argued that sentences without jail time will not adequately deter further events. But Griffith will still face a three month period where his conditions of release are more harsh than they currently have been, outfitted by a GPS. And by sentencing him to an extended probationary period, Howell has limited the degree to which Griffith can engage in armed insurrection.

As it is, the courts are overwhelmed with the number of January 6 defendants. Even without the legitimate challenges to the way DOJ has used obstruction in this case, it’s unlikely they would have been able to charge more felonies. This sentence is a way to limit the possibility Griffith will rejoin an insurrection without submitting him to radicalization in prison.

And as of right now, between Tanya Chutkan’s jail terms and Trevor McFadden’s brief probation terms, the misdemeanor sentences are disconcertingly all over the map. I’m hopeful that this sentence will serve as a better guideline going forward.

There’s one more detail of yesterday’s hearing worth noting. James Pearse, the AUSA in charge of most of the legal issues in this investigation, gave Judge Howell a detailed explanation of how DOJ had come up with the $500 restitution amount (with $2,000 for felony defendants). He described that the Architect of the Capitol came up with a damages amount in May, and DOJ spread that over the estimated number of people who had entered the Capitol. He described their estimate at that point was 2,000 to 2,500.

This means DOJ has come up with the same estimated number as the Sedition Hunters did (as described in this Ryan Reilly piece; click through for links), working off an estimate of flow rate of people coming into the Capitol.

In the weeks after the attack, law enforcement officials estimated that 800 people had entered the Capitol. That number stuck around in media coverage for months, becoming a benchmark against which the FBI’s progress has been measured. The 800 figure has been mentioned in stories as recently as this week.

In reality, as online sleuths have discovered over the past several months, that’s only a fraction of the scope of criminal activity that day. A HuffPost analysis of public-facing data on the Capitol attack, combined with the findings of online investigators working under the #SeditionHunters moniker, shows that the total number of Jan. 6 participants who could face charges if identified tops 2,500.

Federal investigators have quietly ticked up their own estimate. In a budget request earlier this year, the FBI told Congress that “approximately 2000 individuals are believed to have been involved with the siege.” Law enforcement officials did not dispute HuffPost’s 2,500 figure.

That means federal authorities have charged about 25% of the suspects who could face criminal charges for their conduct on Jan. 6. At the current pace, it would take federal authorities until early 2024 to bring cases against 2,500 defendants. And some of the easiest cases to bring, the “low-hanging fruit,” have already been charged.

Online investigators, who have been responsible for identifying countless Jan. 6 defendants and will play a role in dozens of forthcoming FBI cases, have counted more than 2,000 individuals they say breached the Capitol building. These sleuths refer to the people they say they spotted inside the Capitol as “Sedition Insiders,” and have collected the highest-quality image they’ve found of each rioter (even if that photo was snapped while the suspect was outside the Capitol).

When Pearse offered this number, he explained that DOJ didn’t want to explain how it came up with this number — which led me to quip that maybe they had used the Sedition Hunter number. That’s not possible, though, as the calculation predates it. It’s likely, then, that this number relies (at least partly) on the number of trespassers identified using cell tower dumps, which reflect all the phones and Google access, less those who had a legal reason to be in the Capitol.

Ultimately, of course, this means that restitution won’t pay for all the damage to the Capitol, as prosecutors seem to be limiting further misdemeanor arrests to those who serve an investigative purpose (such as to obtain their cell phone for evidence against others).

Unless, of course, prosecutors ultimately move towards holding organizers accountable for the damage their mob incited.

Whatever the case, DOJ continues to fall short of providing compelling explanations of how all the parts of the riot fit together in either public statements or court filings. And on that level, Judge Howell’s complaint deserve closer attention from DOJ.

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[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated

October 22, 2021/18 Comments/in 2020 Presidential Election, emptywheel, Leak Investigations /by emptywheel

DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.

The hiring process

As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.

In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.

After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.

The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.

As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.

After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.

The Eisenberg and Cipollone calls

The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.

Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.

When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”

The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.

That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.

Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.

I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.

Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.

Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.

In the days after January 6, Ellis was discovered to have two security violations

After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.

In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:

And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.

Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.

Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.

DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.

The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.

The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.

It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.

That said, that seems reason enough to chase down why he did those things.

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Ryan Grim’s “Gibberish” about Co-Conspirator Statements

October 19, 2021/118 Comments/in emptywheel, WikiLeaks /by emptywheel

Something remarkable happened the other day when I was debunking (again) Ryan Grim for (again) misrepresenting the Siggi Thordarson story that I debunked long ago.

Ryan twice claimed the Federal Rules on Evidence are “gibberish.”

To be sure, these legal rules are gibberish, especially for those, like Ryan, whose beat has nothing to do with reporting on legal cases and so might not recognize the reference to the hearsay exception.

But Ryan also, obviously, not only didn’t recognize that I was making a factual observation about the way the indictment against Assange was charged and the rules under which evidence against him would be introduced at trial (if one ever happens), but responded based on an apparent assumption I was denying that co-conspirators flip on each other (Siggi did that ten years ago, not this year).

There’s an apparent belief that there would be a dramatic moment at trial where Siggi would take the stand as the single witness testifying that Assange did certain things with LulzSec and Assange’s lawyer Barry Pollock will get Siggi to explain that everything he told first the FBI and then prosecutors about Assange’s knowledge of his efforts to solicit hacks against US targets was a lie at the time, that in fact, Siggi really masterminded all of that and (more importantly for Assange) that Assange knew nothing about it and actively opposed it.

That scenario simply doesn’t understand the significance of the way DOJ charged the hacking, especially, as a conspiracy.

I’ve written about the significance of the parallel conspiracy charges in the Assange indictment before, but for the purposes of explaining the hearsay exception and other reasons it’ll be harder to discredit Siggi (who I agree is a liar) than people think, I’ll try again. Elizabeth de la Vega once provided a succinct eight-point description of how conspiracies get prosecuted that cuts through a lot of the legal gibberish.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

The bold rule, seven, is actually rule 801(d)(2)(E) in the Rules of Evidence describing out of court statements by co-conspirators that aren’t treated as hearsay.

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

[snip]

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

That means, most basically, that anything Siggi said, “in furtherance of the conspiracy … during the course of the conspiracy” (for example, to recruit others to steal documents that WikiLeaks could publish) can be introduced at any hypothetical Assange trial without Siggi having to take the stand. Several of the statements about which (Assange boosters claim) Siggi has retracted his testimony might well come in as evidence against Assange without Siggi ever having to show up. And the way DOJ has constructed this indictment makes it less likely that he would show up to retract his testimony.

There are five kinds of Siggi statements relevant to the hacking charge against Assange. First, the statements he made online, largely in the chatlogs he provided to the FBI, as a member of WikiLeaks before he left WikiLeaks and sold them out to the FBI on August 23, 2011. Those are what would come in under a hearsay exception.

Then there are statements Siggi made in that initial period as an FBI informant in 2011, and then separately, the statements he made under an immunity agreement before DOJ charged this indictment. As I understand it the terms of those discussions are different, as a confidential human source in the first case but as a co-conspirator testifying with immunity in the second. Assange would undoubtedly point to the terms under which he cooperated with US prosecutors to impeach Siggi’s credibility, using them to say he said what he did only to avoid legal liability himself. But the most useful stories to tell about those two interactions conflict (for example, to undermine Siggi’s motive for sharing chatlogs with the FBI, it serves to claim that Siggi was trying to dodge his own prior crimes in Iceland, but to undermine the second, WikiLeaks is now claiming, Siggi never committed those crimes in Iceland).

Importantly, however, what Siggi told the FBI in 2011 and DOJ in 2019 (as distinct from the legal terms under which he did so) will only be introduced as evidence if he does testify, and in that case, to force him to hew to his earlier stories.

I fail to see any evidentiary basis for Siggi’s more recent comments to Stundin to come in unless he testifies; they’re hearsay. To present evidence that Siggi told FBI and DOJ what they wanted to hear and then went to two Icelandic journalists who hadn’t read the indictment to brag about doing so, you’d have to call Siggi as a witness and get him to say that under oath.

This brings me to what I presume is a prosecutorial strategy; it appears that DOJ gave the opportunity (and went to great lengths in an attempt to coerce, in the case of Chelsea Manning and Jeremy Hammond) for all people described as co-conspirators in the indictment to testify, with immunity, before trial. I suspect they attempted to do so to lock in their testimony in advance of any trial, exposing the witness to perjury charges if the testimony changed (as Assange boosters claim Siggi’s has). I assume that, if prosecutors had a choice, zero of these co-conspirators would be called as witnesses at trial, but instead their co-conspirator statements would be introduced under the hearsay exception (though I expect that Manning would get subpoenaed to appear at any hypothetical trial, but possibly not called, by both sides given that she didn’t testify).

But if Siggi shows up (or anyone else who already provided presumably sworn testimony) as an Assange witness, he would be on the hook for the earlier statements he made to investigators that deviated from his new statements. That is, if Siggi testified contrary to what he already told FBI and DOJ, that would normally entail him being present in the US and therefore readily available for prosecution for a crime — perjury, at least — committed as an adult.

To be fair, Siggi’s arrest by Iceland improves Assange’s chance of calling Siggi as a witness. That’s because he would be otherwise unavailable to Assange (because he’s in prison), so Assange could ask to take a Rule 15 pre-trial deposition of Siggi in jail. While that would still allow prosecutors to demonstrate that Siggi’s hypothetically changed sworn testimony conflicts with his past sworn testimony, his current arrest and the need for extradition would lessen the legal risk for Siggi of reversing his past statements. Still, that that would require Assange wanting to focus even more attention on why he chose to associate with a serial fraudster and convincing a judge his statements were material.

There’s one more rule that bears notice to that explains why not a lot of co-conspirator witnesses are going to want to show up and testify to help Julian Assange, if their truthful testimony would help him. De la Vega’s rule six explains that, “once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.” That means early co-conspirators who did not take steps to leave the conspiracy are on the hook for any of the later overt acts currently charged or the ones DOJ might charge. It would be child’s play to extend the parallel conspiracies — which currently extend through 2015 — through Assange’s 2016 publication of files GRU stole and through Joshua Schulte’s alleged hacking of the CIA, just the SysAdmin hacking the CIA that Assange used Edward Snowden’s example to solicit in 2013. Because Schulte declared an “Information War” on the US and attempted to leak more classified information from jail, the conspiracy could credibly be claimed to have extended through October 2018, meaning statutes of limitation might not toll until 2023.

The sustained hoax that that Stundin article shows Siggi retracting his testimony which (the claim goes) undermines the CFAA charge against Assange depends on several assumptions: first, that he actually did reverse his testimony (he did, but only on one small issue, and he also reaffirmed the most important claim he made about Assange), second, that there aren’t a slew of more credible witnesses (like Edward Snowden, and even more credible people the indictment doesn’t name) against Assange. But most importantly, the Assange boosters believe that this article — or some other kind of proof that Siggi retracted (a small but not the most damning part of) his testimony against Assange — will be introduced as evidence at the trial.

It’s hard to imagine how this article would. It’s hearsay. The reason claims made by pathological liars (or even more credible witnesses) to journalists can’t be introduced at trial via the article a journalist writes is because those claims can’t be tested in court. Unless Assange wants to argue that he and Siggi remained in a conspiracy when Siggi made the claims to Stundin, and the claims made to Stundin were part of that conspiracy, but that’s probably not going to help Assange.

DOJ has built the indictment against Assange such that they won’t have to rely on many uncooperative witnesses who already pled guilty under oath to participating in the conspiracy. And if those uncooperative witnesses appear as witnesses for Assange, they face the risk of new legal jeopardy, whether perjury charges or renewed exposure to the conspiracy.

I’m not celebrating that fact. I’m observing it. Julian Assange is in no way unique on this front.

But virtually none of the people claiming Siggi’s purported retraction helps Assange are even familiar with the content of the indictment, and fewer still seem to understand that Siggi is highly unlikely to be the dramatic witness at trial they want him to be. If those details appear to be “gibberish” to you, it’s probably a caution against accepting claims you want to be true without first understanding the legal rules behind the gibberish.

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Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

October 15, 2021/27 Comments/in Department of Justice, emptywheel, Mueller Probe /by emptywheel

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;

[snip]

Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President — “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution — DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.

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Jenny Cudd’s Pre- and Post-Riot Endorsement of a Revolution

October 14, 2021/50 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Jenny Cudd and Eliel Rosa were charged with trespassing together by complaint on January 12 and arrested on January 13. The arrest affidavit tracked how the two of them walked together through the Capitol.

At approximately 2:35 p.m., Jenny Louise Cudd and Eliel Rosa, enter the U.S. Capitol via Upper West Terrace Door.

At approximately 2:36 p.m., Jenny Louise Cudd and Eliel Rosa are observed inside the Rotunda of the U.S. Capitol from the west side doorway that leads into the Rotunda. They are observed remaining inside the Rotunda until approximately 2:39 p.m. They are further observed taking pictures of the Rotunda and the surrounding area.

At approximately 2:39 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking across the Statuary Hall area of the U.S. Capitol.

At approximately 2:40 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking the Statuary Hall Connector and moves off camera at approximately 2:42 p.m.

At approximately 2:43 p.m., Jenny Louise Cudd and Eliel Rosa are observed departing from a large crowd inside the U.S. Capitol in front of the Main Door of the House Chamber and walks east toward the staircase.

Jenny Louise Cudd and Eliel Rosa are subsequently observed walking past the staircase and is further observed walking past the Upper House Door, going toward the other entrance to the House Chamber

Jenny Louise Cudd and Eliel Rosa are observed at approximately 2:54 p.m. at the Upper House Door and further observed departing the U.S. Capitol.

It described how Cudd filmed a video at the Willard after she returned, boasting that she was present when, “the new revolution started at the Capitol.”

Jenny Cudd stated on the Facebook video that she was at the Willard Hotel, located on 1401 Pennsylvania Ave. NW, Washington D.C. 20004. During the course of the video she made the following comments to confirm the location and date of the video recording, “I am sitting in front of the Willard Hotel, as I always do when I am in DC protesting,” and “I was here today on January 6th when the new revolution started at the Capitol.”

It further described an interview Cudd did a few days later, boasting of her actions.

On January 8, 2021, Jenny Louise Cudd participated in an interview with a local news station in which she describes her actions on January 6, 2021, in Washington D.C., to include her admission of entering the U.S. Capitol on the same date. Specifically, Jenny Louise Cudd states during her interview she stated the following, “we walked up the steps and walked inside an open door (referring to the U.S. Capitol).” Jenny Louise Cudd further stated, “we the Patriots did storm the U.S. Capitol.” She added in reference to entering the U.S. Capitol, “Yes, I would absolutely do it again.”

As the arrest affidavit notes, the FBI also interviewed Rosa before arresting the two of them. He confirmed that the two of them had, indeed, entered the Capitol on January 6.

On January 8, 2021, Eliel Rosa was interviewed by the FBI in Midland, Texas. During the interview, Eliel Rosa admitted that he and Jenny Louise Cudd had entered the U.S. Capitol on January 6, 2021.

The arrest affidavit focused entirely on events of January 6 and thereafter. And while both Cudd and Rosa were implicated in trespassing, the most damning evidence in the affidavit came from Cudd’s own description of their activity.

On February 3, they were both indicted with their original trespassing charges, as well as obstruction of the vote count and abetting such obstruction.

In March, Cudd moved to sever her case from that of Rosa, arguing in part that by charging them together, the government was attempting, “to create the appearance of a conspiracy or plan.” Specifically, though, Cudd wanted to sever her case from Rosa’s both to prevent his voluntary statement to the FBI from being presented against her, but also to ensure she could cross-examine him to get him to verify that she had no corrupt plan to disrupt the vote count.

Ms. Cudd will seek Mr. Rosa’s exculpatory testimony to show that there was no advance plan for Ms. Cudd to walk into the Capitol, that Ms. Cudd was not aware they were breaking the law by walking around inside, that Ms. Cudd did not act “corruptly,” that Ms. Cudd did not “picket,” that Ms. Cudd was not “disorderly,” that Ms. Cudd did not have the intent to commit any of the offenses alleged, and, more generally and most importantly, to show that Ms. Cudd did not commit any of the offenses of which she is accused. Mr. Rosa’s testimony would support reasonable doubt for each count of the Indictment. Furthermore, Ms. Cudd would be able to examine Mr. Rosa on redirect, to place any government cross examination into context for the fact finder.

In the government response, they largely recited the same facts shown in the arrest affidavit, then noted that Cudd and Rosa traveled from Midland, TX, stayed at the same hotel, and traveled through the Capitol together.

Cudd and Rosa both live in Midland, Texas, and they knew each other prior to January 6, 2021. They checked into the same hotel in Washington, D.C. on January 5, 2021, and checked out on January 7. On January 6, they went to the U.S. Capitol together.

In her reply, Cudd cited from Rosa’s 302, describing that he did not travel to the riot with anyone, and added more details based on the receipts obtained in discovery to make it clear they had not traveled together.

Contrary to the government’s implication that the two traveled together or planned to be at the Capitol together, Mr. Rosa’s interview with the FBI shows they did not. This is further supported by the hotel receipts, which the government obtained and shared with the defense. The Willard Hotel receipts show that rooms for the two co-defendants were booked on different dates and for different prices. (Ms. Cudd paid $143 more for her stay. If they coordinated, she would have surely chosen to save that money and would not have used Expedia for that booking.) The two stayed on different floors and had dinner separately and at different times, according to meal receipts. These were not the only two Trump supporters staying at the Willard Hotel from January 5-7. A large number of other Trump supporters shared those booking dates at the Willard. And, while the two may have known each other from back home and shared political views, that is not a basis for joinder. The entire crowd of Trump supporters, many of whom stayed at the Willard Hotel, were present at the Capitol. They are not charged together.

After the government had provided some discovery, including the contents of two phones, the government response to a request from Cudd that it identify all the exhibits it would use in its case in chief repeated the same facts laid out in the original arrest affidavit, all focused on January 6 and thereafter. The response also said it was far too early for Cudd to demand a list of exhibits that would be used against her at trial.

Shortly after Cudd’s request to learn precisely which exhibits the government would use at trial, Eliel Rosa entered into a plea agreement with an expiration date of July 29, pleading guilty to 40 USC 5104, the lesser of the two trespassing charges used with January 6 defendants. His statement of offense narrated what he and Cudd saw and heard as they wandered through the Capitol together. Specifically, he described hearing gunshots and seeing a bunch of people banging on doors, possibly the doors to the Speaker’s Lobby.

While inside of the U.S. Capitol, Mr. Rosa heard two gunshots and saw 15 to 20 men banging on assorted doors. These men were wearing “MAGA” gear.

In addition to implicating Cudd in his own trespassing, Rosa also noted that he did not have any evidence as to Cudd’s intent when she entered the Capitol.

Mr. Rosa has reviewed the allegations in the indictment that relate to his codefendant, Jenny Cudd, and admits that the allegations are true, or that he does not have sufficient information to dispute or disprove those allegations set forth the indictment. Specifically, this includes that Mr. Rosa does not have information as to Ms. Cudd’s motive and intent when she entered the U.S. Capitol on January 6, 2021 or whether Ms. Cudd had the intent to corruptly obstruct, influence, or impede an official proceeding before Congress – to wit: Congress’s Electoral College Certification on that date.

This might be seen as exculpatory for Cudd, precisely the kind of testimony she hoped to elicit from Rosa at any trial. But it also protected Rosa from any implication in whatever intent Cudd did have when she went to the Capitol.

The government’s sentencing memo for Rosa provided more details about the friendship between Rosa and Cudd, which Rosa described to be a recent friendship.

In an interview with the FBI, Mr. Rosa explained his relationship to his co-defendant Jenny Cudd. Mr. Rosa and Ms. Cudd are new friends, who met at an event in November 2020. Mr. Rosa explained that he and his co-defendant Jenny Cudd held similar beliefs. Although the two were not travel companions, they both discussed their plans to travel to Washington, D.C. and stayed in the same hotel in separate rooms.

It also describes how both returned to the Willard after Trump’s speech, and only then did Rosa decide to go to the Capitol (this detail was used against him at his sentencing).

In the afternoon on January 6, 2021, after listening to President Trump’s speech, Mr. Rosa returned to his hotel, however, he decided he would follow others heading toward the Capitol after learning that Vice President Pence was not going to take action. Mr. Rosa met with his friend Ms. Cudd at the hotel and together they marched toward the United States Capitol where he knew the Congressional certification was taking place.

Rosa’s own sentencing memo explains that the gunshot referred to in his statement of offense was probably the fatal shot of Ashli Babbitt, thereby seemingly confirming that he witnessed a bunch of people in MAGA hats banging on a door before Babbitt was shot.

When he got to the Capitol he walked in through an open door and followed the flow of people going through the rotunda and towards the East gate. He heard what he believes to have been the shot that killed Ms. Babitt. After being asked to stand against the wall for a short period of time while officers dealt with that situation, he (and others) were asked to leave out the East door, and he complied immediately.

Rosa’s sentencing memo also makes clear that he posted nothing positive about the riot after he attended it; a photo he posted to Facebook stating, “And we fight,” was posted at 5:22AM that morning.

On Tuesday, Judge McFadden sentenced Rosa to a year of probation, less than the month of home confinement the government requested (I thought I heard McFadden impose more community service than the government had asked for, 100 hours instead of 60, but no reference to community service appears in the docket).

Hours later, the notice that Cudd would plead guilty posted to the docket. Her plea offer was dated September 27, with a deadline of acceptance of October 11, a day earlier (and indeed, the signatures on the plea agreement are dated October 11). Because Cudd pled guilty to the more serious trespassing misdemeanor than Rosa, it meant that language permitting the government to ask for a terrorism enhancement was included as boilerplate in her plea agreement and given Marina Medvin’s complaints at the plea colloquy, nothing Medvin tried to do managed to get it removed.

Cudd’s statement of offense included a detail that may not appear anywhere else. Not only did she admit under oath she knew the vote was going to be certified (something Rosa also attested to), but she admitted under oath that at the the Stop the Steal rallies on January 5, she heard people calling for revolution and then stated that she was “all for it.”

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.”

It’s not clear whether Rosa knew of this video or saw it before he stated that he had no evidence about her intent on the day of the riot.

Cudd’s statement of offense admits that she was in the vicinity of the Babbitt shooting (without specifying it as such), but doesn’t describe (as Rosa’s did) being held up while police dealt with the aftermath.

The government produced to the defense evidence that showed that Ms. Cudd and Mr. Rosa continued walking through the Statuary Hall area of the U.S. Capitol, until 2:43 p.m., when they moved toward the House Chamber and connecting hallways; the defense does not dispute this evidence.

Thus, while Cudd’s statement of offense notes that she did not, herself, enter Pelosi’s office, the statement she recorded after the riot stating that, “we did break down the Nancy Pelosi’s office door,” would have taken place after those with Ashli Babbit had done more than $1,000 of damage to the doors to the Speaker’s lobby, something charged against at least three of those present, and something that could carry a terrorist enhancement for those who did the damage.

We did break down the Nancy Pelosi’s office door and somebody stole her gavel and took a picture sitting in the chair flipping off the camera. . . . they had to evacuate it before we charged the Capitol. . . . Fuck yes, I am proud of my actions, I fucking charged the Capitol today with patriots today. Hell yes I am proud of my actions.” Despite Ms. Cudd’s statement, there is no evidence that Ms. Cudd entered Nancy Pelosi’s office and no evidence that Ms. Cudd stole any property from the Capitol.

The next day, January 8, Cudd explained why she used the collective “we” in her statement from the day of the riot, seemingly trying to distance herself from some of the violence yet still describing that “the patriots [collectively] stormed the Capitol” and asserting she would do the same again, even after she was (at least per Rosa’s statement of offense) present in the vicinity of the Babbitt killing.

So if you watch the entire video [referring to her January 6 social media video] and you watch any of my videos you know that the way that I speak is that I always say we. So I say we the patriots, we . . . whatever. I always say we so those things did happen by other people but I was not a part of that. But in reference to it that umm we the patriots stormed the Capitol and some people went into different offices and different things like that . . . . I would do it again in a heartbeat because I did not break any laws.

The new language in Cudd’s statement of offense — describing the speakers calling for revolution — will help DOJ make a case (one they’ve already started to lay out) about the premeditation reflected in those who gave speeches on January 5.

But it also shows that she responded to calls for revolution the day before the riot by endorsing the idea, and then after the riot, she returned to the Willard and bragged she had been present when the revolution was started, ““I was here today on January 6th when the new revolution started at the Capitol.”

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Marina Medvin’s Client Signs a Plea with the Potential of a Terrorism Enhancement

October 14, 2021/8 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Terrorism /by emptywheel

Marina Medvin is the sweet spot of January 6 lawyers. She’s a legit lawyer, doing particularly good work trying to challenge the asymmetrical access defendants get to security video of the attack. She clearly serves the interests of her clients rather than grifting or focusing more on scoring political points, as some other January 6 defense attorneys appear to do. But she’s also a right wing activist in her own right.

As such, she spends a great deal of time calling people she doesn’t like “terrorists.”

She uses debunked claims about (foreign) terrorists to try to sow fear about immigration.

She spends a great deal of time demanding that the 9/11 attackers be called terrorists.

She calls the evacuation of Afghans who helped the US fight terrorism the importation of terrorists.

She labels Joe Biden’s effort to craft a positive outcome out of Donald Trump’s capitulation to the Taliban as negotiating with terrorists.

She holds protestors accountable for those they affiliate with who call for violence.

She even complains when those held as — and those guarding — terrorists get treated humanely.

Yesterday, with the benefit of Medvin’s able counsel, her client Jenny Louise Cudd pled guilty under a plea agreement that permits the government to ask for a terrorism enhancement under U.S.S.G. § 3A1.4 at sentencing.

To be sure, I agree with Medvin’s assessment yesterday that it is unlikely the government will actually push for this enhancement with Cudd (and I think it even more unlikely that Judge Trevor McFadden would side with such a government request). This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; one thing cooperators are getting — especially those in militia conspiracy cases — is an assurance they won’t been deemed terrorists at sentencing.

Still, Cudd won’t be sentenced until March, and the government may have a far more complete story to tell about the attempted revolution that Cudd applauded by then, a story that will likely incorporate some of the facts to which Cudd admitted under oath yesterday. You never know what DOJ will do or Judge McFadden might find plausible by then.

I raise the terrorism enhancement language in Cudd’s plea agreement not because I think she’ll be treated as one come sentencing (thus far, I think Scott Fairlamb is at greatest risk of that, because his statement of offense admitted both to using violence and to his intent to intimidate those certifying the vote). Rather, I raise it to show that even a right wing activist like Medvin agrees with my reading of the language in these plea agreements. The government is reserving the right to treat these defendants, even someone who pled down to a trespassing misdemeanor like Cudd, as terrorists at sentencing. To be clear: Medvin doesn’t think this will work legally nor does she think her client is implicated in the violence of those with whom she chose to affiliate on January 6, but that is what she described the language effectively means in Cudd’s plea hearing.

Such terrorism enhancements are how domestic terrorists get labeled as terrorists. Because domestic terrorist groups like the Proud Boys or Oath Keepers aren’t labeled as (foreign) terrorist groups by the State Department, affiliation with or abetment of those groups is not per se illegal (as it might be under material support statutes for foreign terrorist organizations). It’s not until sentencing, then, that the government can argue and a judge might agree that the specific crime a person committed involved acts dangerous to human life, and (in the case of January 6) an attempt to intimidate or coerce the policy of government. If the judge does agree, a terrorist enhancement could expose the defendant to a much longer sentence as a result, a guidelines range of 121 to 151 months for someone with no criminal history.

This is a detail that has gone almost entirely unreported elsewhere: that DOJ is building in an ability to treat these defendants as terrorists when it comes to sentencing, sentencing that may be five months in the future.

Mind you, since this would be domestic terrorism, the government could not just wildly label someone as a terrorist for attending a protest at which others present espouse violence, as Medvin has done of Muslims. They’d have to lay out a specific intent on the part of the defendant to threaten force to coerce some political outcome. But if they do so with these January 6 defendants, then they may be legally branded as terrorists for their actions on January 6.

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DOJ Was Still Working to Access Joshua Schulte’s Phone in September 2019

October 12, 2021/33 Comments/in 2016 Presidential Election, Cybersecurity, emptywheel, WikiLeaks /by emptywheel

Glenn Greenwald is making factually unsupported defenses of Russia on Twitter again.

Yesterday, he made an argument about what he sees as one of the most overlooked claims in the Yahoo piece suggesting there was an assassination plot against Julian Assange and then, 100-something paragraphs into the thing, admitting that discussions of killing Assange were really regarded in the CIA as, “a crazy thing that wastes our time.”

Glenn doesn’t, apparently, think the overlooked detail is that the timeline in the story describing the changing US government understanding towards Assange, including Edward Snowden’s central role in that, shows that Assange’s defense lied shamelessly about the timeline in his extradition hearing.

Nor does Glenn seem interested that DOJ didn’t charge Assange during the summer of 2017 after Mike Pompeo started plotting against the Australian, but only did so on December 21, 2017, as the US and UK prepared for what they believed to be an imminent exfiltration attempt by Russia.

Intelligence reports warned that Russia had its own plans to sneak the WikiLeaks leader out of the embassy and fly him to Moscow, according to Evanina, the top U.S. counterintelligence official from 2014 through early 2021.

The United States “had exquisite collection of his plans and intentions,” said Evanina. “We were very confident that we were able to mitigate any of those [escape] attempts.”

[snip]

Narvaez told Yahoo News that he was directed by his superiors to try and get Assange accredited as a diplomat to the London embassy. “However, Ecuador did have a plan B,” said Narvaez, “and I understood it was to be Russia.”

Aitor Martínez, a Spanish lawyer for Assange who worked closely with Ecuador on getting Assange his diplomat status, also said the Ecuadorian foreign minister presented the Russia assignment to Assange as a fait accompli — and that Assange, when he heard about it, immediately rejected the idea.

On Dec. 21, the Justice Department secretly charged Assange, increasing the chances of legal extradition to the United States. That same day, UC Global recorded a meeting held between Assange and the head of Ecuador’s intelligence service to discuss Assange’s escape plan, according to El País. “Hours after the meeting” the U.S. ambassador relayed his knowledge of the plan to his Ecuadorian counterparts, reported El País.

What Glenn thinks is important is that, on April 13, 2017, when Mike Pompeo labeled WikiLeaks a non-state hostile intelligence service, the CIA did not yet have proof that “WikiLeaks was operating at the direct behest of the Kremlin,” though of course Glenn overstates this and claims that they had “no evidence.”

Glenn then claimed that CIA’s lack of proof on April 13, 2017 is proof that all claims about Assange’s ties with Russia made in the last five years — that is, from roughly October 7, 2016 through October 12, 2021 — lacked (any!) evidence. In other words, Glenn claims that CIA’s lack of proof, before UC Global ratcheted up surveillance against Assange in June 2017 and then ratcheted it up much more intensively in December 2017, and before US intelligence discovered the Russian exfiltration attempt, and before they had enough evidence to charge Joshua Schulte in 2018, and before they seized Assange’s computer in 2019, and before Snowden wrote a book confirming WikiLeaks’ intent in helping him flee, is proof that they never acquired such proof in the 1600 days since then.

At the time Pompeo made his comments, FBI was just five weeks into the Vault 7 investigation. They were chasing ghosts in the Shadow Brokers case, which also implicated Assange. Robert Mueller had not yet been appointed and, perhaps a month after he was, Andrew Weissmann discovered that, “the National Security Division was not examining what the Russians had done with the emails and other documents they’d stolen from those servers.” Pompeo’s comments came four months before Mueller obtained the first warrant targeting Roger Stone. They came seven months before Mueller obtained a warrant targeting Assange’s Twitter account. They came sixteen months before Mueller obtained a warrant describing a hacking and foreign agent investigation into WikiLeaks and others. They came 25 months before Mueller released his report while redacting the revelation that multiple strands of the investigation into Stone were ongoing (though also stating they did not have enough admissible evidence to prove Assange knew that Russia continued to hack the DNC). They came three years before DOJ kept the warrants reflecting the foreign agent investigation into WikiLeaks and others largely redacted, presumably because that investigation remained ongoing. They came three and a half years before the government withheld almost all of WikiLeaks lawyer Margaret Kunstler’s two interviews with Mueller’s team because of an ongoing investigation.

And all that’s separate from the long-standing WikiLeaks investigation at EDVA that led to Assange’s charges, which Rod Rosenstein has said never fully moved under Mueller.

On April 13, 2017, the investigation into Assange’s activities in 2016 had barely begun. Yet the fact that CIA couldn’t prove Assange was a Russian agent before most investigation into these things had started, Glenn claims, is proof that Assange is not a Russian agent.

It’s a logically nonsensical argument, but because certain gullible WikiLeaks boosters don’t see the flaws in the argument, I’d like to point to something fascinating disclosed just recently in the Joshua Schulte case: as late as September 2019, DOJ was still trying to get a full forensic image of the the phone Schulte was using when he was first interviewed on March 15, 2017.

That was revealed in the government’s response to a Schulte motion to suppress evidence from the Huawei he used at the time, in the early stages of the FBI’s investigation. We saw many of these warrants from Schulte’s first attempt to get these early warrants suppressed (in which his attorney noted that the government got a second device-specific warrant). But Schulte is challenging the search on a basis that even Sabrina Shroff didn’t raise two years ago.

As the government tells it, FBI agents used a subpoena to get Schulte to hand over his phone during the interview on March 15 before they all returned to his apartment where they had a warrant for all his devices, then got a separate warrant at 1:26AM that night to search the phone specifically. They were unable to do so because it was locked, so in an interview on March 21 — at which time the search warrant was still valid — they got Schulte to open his phone (something his attorney at the time boasted he did voluntarily during a 2017 bail hearing).

Someone must have lost their job at FBI, though, because after Schulte opened the phone, it rebooted, preventing them from obtaining a full forensic copy of the device.

On March 20 and 21, 2021, the defendant, accompanied by his attorneys, was interviewed by the Government and law enforcement agents at the U.S. Attorney’s Office. At the interview on March 21, 2021, the defendant, in the presence of counsel, consented to a search of the Cellphone and entered his password to unlock it. (Id. ¶ 13(b)). When the Cellphone was unlocked, however, it rebooted, and FBI was able to obtain only a logical copy of the Cellphone rather than a complete forensic image. (Id. ¶ 13(c)).

However, in its response to Schulte, the government is relying on two documents that it released for the first time. First, a location warrant/pen register targeting three different phones, which the government submitted to show that Schulte’s Google history obtained on March 14 showed that he searched for ways to delete files in the time period he is accused of stealing the CIA files and deleting evidence of doing so. The affidavit is useful for explaining how Schulte was using phones in that period of 2017. In addition to the Huawei, for example, Schulte had a phone with a Virginia number he used to call at least one of his CIA colleagues between March 7 and when he canceled the phone on March 12. Then, after he gave the FBI his Huawei phone, he bought one that night he used to call Bloomberg (his employer), and another on March 17.

More importantly, the government released the affidavit and warrant from September 9, 2019, providing more explanation why they weren’t able to fully exploit the phone in 2017.

After Schulte unlocked the phone, FBI personnel attempted to forensically image the Subject Device so that the FBI could review its contents. However, because the Subject Device rebooted during that process, the FBI was able to obtain only a logical forensic image of the Subject Device (the “Logical Forensic Image”). Although the Logical Forensic Image contains some content from the Subject Device, the Logical Forensic Image does not contain all data that may be on the Subject Device, including deleted information and data from applications. The data and information from the Subject Device that is missing from the Logical Forensic Image would likely be captured on a complete forensic image of the phone (“Complete Forensic Image”). However, in March 2017, the FBI was unable to obtain a Complete Forensic Image of the Subject Device because the Subject Device locked after it rebooted and the FBI did not know the password to unlock the phone again to attempt to obtain a Complete Forensic Image.

On or about August 12, 2019, FBI personnel involved in this investigation successfully unlocked the Subject Device using a portion of a password identified during the course of the investigation (“Password-1”). Forensic examiners with the FBI believe that they will be able to obtain a Complete Forensic Image of the Subject Device using Password-1.

After unlocking the Subject Device using Password-1, an FBI agent promptly contacted the Assistant United States Attorneys involved in this investigation to inform them of this development, and the decision was made to seek a warrant to search the Subject Device for evidence, fruits, and instrumentalities of the Subject Offense.

The affidavit explains, among other things, that Schulte first obtained the phone on September 21, 2016 and logged into Google right away (somewhere in the vast paperwork released in the case, Schulte admitted that Google was his big weakness — and how!).

In the government response, they describe that the government did search the phone. They say the phone contains images of a woman Schulte lived with that he was charged, in Virginia, with assaulting in 2015.

The FBI searched the Cellphone pursuant to that warrant. The Cellphone contains, among other things, images of an individual identified as Victim-1 in the Government’s prior filings.

It’s an interesting defense of the import of the warrant. As the government explained in 2017 when it first informed Judge Paul Crotty of the Virginia assault charge, the incriminating photos had already been found on one of Schulte’s phones (it’s unclear whether these were found on the Huawei or the phone shut down on March 12), so the State of Virginia presumably doesn’t need any images discovered after 2019 to prosecute him on the assault charge.

As relevant here, the Government discussed several photographs recovered from the defendant’s cellphone that depicted an unknown individual using his hands to sexually assault an unconscious female woman (the “Victim”). (See Exhibit A, Aug. 24, 2017 Tr. at 12-13). At the time, the Government was aware that the Victim knew the defendant and had lived in his apartment as a roommate in the past. (Id.) Magistrate Judge Henry B. Pitman, who presided over the presentment, did not consider the information proffered by the Government regarding the Victim, explaining that “facts have [not] been proffered that . . . tie Mr. Schulte to the conduct in that incident.” (Id. at 48-89). Nevertheless, Judge Pitman detained the defendant concluding that the defendant had not rebutted the presumption that he was a danger to the community. (Id. at 47-49).

[snip]

On or about November 15, 2017, the defendant was charged in Loudoun County Virginia with two crimes: (i) object sexual penetration, a felony, in violation Virginia Code Section 18.2-67.2; and (ii) the unlawful creation of an image of another, a misdemeanor, in violation of Virginia Code Section 18.2-386.1. The Government understands that these charges are premised on the photographs of the Victim. Specifically, the Loudoun County Commonwealth’s Attorneys Office has developed evidence that the defendant was the individual whose hands are visible in the photographs sexually penetrating the Victim.

But whatever they found on the phone, the government made an effort to make clear that even this 2019 search — which might have obtained deleted WhatsApp or Signal texts, both of which Schulte has used — was covered by a search warrant, something Schulte is currently trying to suppress only on a poison fruit claim.

This wasn’t the only evidence the government obtained years after Schulte became the primary suspect, though. They didn’t obtain full cooperation from Schulte’s closest buddy from when he was at the CIA, Michael, until January 2020, just before his first trial (which is one of the reasons the government provided fatally late notice to Schulte that the friend had been placed on leave at CIA). Michael helped Schulte buy the disk drives the government seems to suspect Schulte used in the theft, he also knew of Schulte’s gaming habits, and the CIA believed he might know more about Schulte’s theft from CIA.

So it’s clear that for most of the time that Glenn says the investigation as it stood in April 2017 must reflect all the evidence about Schulte, Assange, and Russia, the government continued to investigate.

None of that says DOJ obtained information from Schulte in that time implicating Assange in ties with Russia (though, as I’ve noted, someone close to WikiLeaks told me Schulte reached out to Russia well before ambiguous references to Russia showed up at Schulte’s trial). But to suggest all the evidence the government might now have was already in their possession on April 13, 2017, requires ignoring everything that has happened since that time.

Timeline

October 7, 2016: In statement attributing DNC hack to Russia, DHS and ODNI include documents released by WikiLeaks; an hour later WikiLeaks starts Podesta release

January 6, 2017: Intelligence Community Assessment assesses, with high confidence, that GRU released stolen documents via exclusives with WikiLeaks

March 7, 2017: First Vault 7 release, including unredacted names of key CIA developers

March 13, 2017: Affidavit supporting covert warrant approving search of Schulte’s apartment, including the devices found there

March 14, 2017: Affidavit supporting overt warrant approving search of Schulte’s apartment, including devices

March 14, 2017: Search warrants for Schulte’s Google account and other electronic accounts

March 15, 2017: 302 from interview with Schulte and testimonial subpoena and cell phone subpoena handed to him at interview

March 16, 2017: Affidavit supporting search warrant authorizing search of Schulte’s Huawei smart phone

March 31, 2017: Warrant and pen register for three different Schulte phones — one serviced by Sprint that he had used through all of 2016 but canceled on March 12, 2017, one he obtained after his phone was seized on March 15, 2017 serviced by Virgin, another he bought on March 17, 2017 serviced by AT&T

April 13, 2017: Mike Pompeo declares WikiLeaks a non-state hostile intelligence service

May 17, 2017: Robert Mueller appointed

August 7, 2017: Mueller obtains first warrant targeting Stone, covering hacking

August 23, 2017: Schulte charged with possession of child pornography

September 6, 2017: Schulte indicted on child pornography charges

September 26, 2017: Roger Stone testifies before HPSCI, lies about source for advance knowledge

October 19, 2017: Stone falsely claims Credico is his intermediary with WikiLeaks

November 6, 2017: Mueller obtains warrant targeting Assange’s Twitter account, citing hacking, conspiracy, and illegal foreign political contribution

November 8, 2017: Schulte claims to have been approached by foreign spies on Subway between his house and court appearance

November 9, 2017: WikiLeaks releases source code, billing it Vault 8

November 14, 2017: Assange invokes CIA’s source code (Vault 8) in suggesting Don Jr should get him named Ambassador to the US

November 16, 2017: Schulte tells FBI story about approach on Subway, accesses Tor

November 17, 2017: Schulte accesses Tor

November 26, 2017: Schulte accesses Tor

November 30, 2017: Schulte accesses Tor

December 5, 2017: Schulte accesses Tor

December 7, 2017: Schulte detained pursuant to charges of sexual assault in VA and violating release conditions

December 12, 2017: Randy Credico invokes the Fifth

December 21, 2017: Assange first charged with CFAA charge

March 6, 2018: Assange indicted on single CFAA charge

June 18, 2018: Superseding Schulte indictment adds Vault 7 leak charges

June 19, 2018: WikiLeaks links to Schulte diaries

August 20, 2018: Mueller obtains warrant describing investigation of WikiLeaks and others into conspiracy, hacking, illegal foreign contribution, and foreign agent charges

September 25, 2018: Schulte posts diaries from jail

October 31, 2018: Second Schulte superseding indictment adds charges for leaking from MCC

April 11, 2019: Assange seized from Embassy

May 23, 2019: Superseding Assange indictment adds Espionage Act charges

August 16, 2019: After FBI interview, CIA places Schulte buddy, “Michael” on leave

September 9, 2019: Affidavit in support of warrant authorizing search of Huawei phone

February 4, 2020: Schulte trial opens

February 12, 2020: Schulte attorneys reveal “Michael” was put on paid leave in August 2019

March 6, 2020: In effort to coerce Jeremy Hammond to testify, AUSA twice tells Hammond that Julian Assange is a Russian spy

March 9, 2020: Judge Paul Crotty declares mistrial on most counts in Schulte case

April 28, 2020: DOJ continues to redact Foreign Agent warrants targeting WikiLeaks and others because of ongoing investigation

June 8, 2020: Third superseding Schulte indictment adds clarification to the charges

June 24, 2020: Second superseding Assange indictment extends CFAA conspiracy through 2015, citing efforts to use Snowden to recruit more leakers

November 2, 2020: BuzzFeed FOIA reveals that Mueller referred “factual uncertainties” regarding possible Stone hacking charge to DC US Attorney for further investigation, but also finding that it did not have admissible evidence that Assange knew Russia continued to hack the DNC

September 3, 2021: Schulte submits motion to suppress cell phone content

September 31, 2021: Schulte’s motion to suppress docketed

October 1, 2021: Government response to Schulte motion to suppress

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FBI Searches the Home of the Guy Who Said, “I want to see thousands of normies burn that city to ash” on January 6

October 10, 2021/99 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021

According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.

As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”1

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

[snip]

47. UCC-1 the At 9:09 p.m., broadcast a message to New MOSD and Boots Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

UCC-1 also warned the others not to write their criminal plans in Telegram texts.

Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”

2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.

The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.

DONOHOE: Are you here?

…

UCC-1: No I started a new job, don’t want to fuck it up yet

DONOHOE: Well fuck man

UCC-1: There will be plenty more I’m sure lol

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors

Person-2 Fuck it let them loose

Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic

A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” UCC-1 immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.

The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.

In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”

A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.

Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.

Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.

“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”

Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”

In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.

The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.

[snip]

The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.

But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.

Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.

Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.

On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.

[snip]

In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.

The FBI took all of his computer and computer devices and phones, including an old broken phone.

However, Whallon-Wollkind was not arrested or charged.

[snip]

They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.

Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.

The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.

The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).

[snip]

The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:

a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.

* * *

d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.

* * *

f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.

* * *

h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….

Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.

Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.

It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.

Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.

Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.

Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.

Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.

If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.

Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.

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