The Viral Twitter Thread in Which Darrell Cooper Confesses Republicans Were Pawns of Russian Disinformation

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For some reason, this Twitter thread by a guy named Darrell Cooper, purporting to explain why Trumpsters came to attack the US Capitol, went viral.

I resisted several requests to fact check it. Now, after it has gone even more viral (including on Tucker Carlson’s show), Phil Bump has done a good fact check. As Bump notes, while Cooper accurately lays out that Trump supporters have lost confidence in institutions, Cooper offers an explanation that relies on a series of false claims so as to put the blame on Democrats.

It is indisputably the case that Trump supporters accept claims about election fraud in part because of their diminished confidence in institutions such as government and the media. What is subject to dispute, though, is the cause of that lack of confidence. While Cooper suggests that it’s emergent, it isn’t. While Cooper argues that it’s a function of investigations into Trump, it’s actually a function of partisan responses — largely but not entirely on the right — driven by Trump himself. And, most important, what Cooper presents as the indisputable facts undergirding his argument are often misleading or false and a function of partisan defenses of Trump that are common in conservative media.

Bump then debunks Cooper’s claims that:

  • The FBI spied on the Trump campaign using evidence manufactured by the Clinton campaign
  • We now know that all involved knew it was fake from Day 1 (see: Brennan’s July 2016 memo, etc)
  • The Steele dossier was the sole evidence used to justify spying on the Trump campaign
  • The entire Russian investigation stemmed from the Page investigation and not George Papadopoulos and Paul Manafort
  • Protests planned in case Trump overturned the election were a plan for violence
  • There were legitimate concerns about the election

Bump is absolutely right that Cooper makes false claims to be able to blame Democrats and Bump’s fact checks are sound (and really exhausting that they’re still required). Bump is likewise correct that a false claim about the Steele dossier is central to Cooper’s story.

I’d add that Cooper doesn’t mention that his claims about the problems with the Steele dossier matter primarily to the third and fourth FISA orders against Carter Page, and so happened under the Trump Administration and in three cases, were signed by people Trump either kept (in the case of Jim Comey) or put in place (in the case of Dana Boente and Rod Rosenstein).

But according to Cooper’s logic, if the dossier hadn’t existed, a series of events that followed wouldn’t have happened, and so Republicans wouldn’t have attacked their own government. Thus far it’s a typical right wing attempt to disclaim responsibility for their own actions.

What Bump doesn’t mention, though, is that it is now almost universally agreed upon on among Trumpsters that the dossier was the product of Russian disinformation. Lindsey Graham — who conducted an investigation into the circumstances of the Carter Page FISA — thinks it is. Chuck Grassley — who led the investigation into the dossier — thinks it is. Ron Johnson — who also made a show of investigating these things — thinks it is. Chuck Ross — the chief scribe of the dossier on the right — thinks it is. The high gaslighter Catherine Herridge thinks it is. Fox News and all their favorite sources think it is. WSJ’s editorial page thinks it is. None of these people have thought through the implications of that, but they do all appear to believe that the Russians fed disinformation through the Democratic-funded dossier to the FBI.

So, even setting aside the implications of the possibility that the dossier was Russian disinformation, according to Cooper’s narrative, Trump’s supporters wouldn’t have attacked their own government if it weren’t for Russian disinformation that set off a chain of events that led them to lose confidence in American institutions.

But consider the implications of the dossier as disinformation, implications that are evident largely thanks to sources that right wing figures have made great effort to liberate.

In response to a Trey Gowdy question at an interview by a GOP-led investigation into the dossier, Bruce Ohr explained that on July 30, 2016, Christopher Steele shared three pieces of information with him (later in his interview he would add a fourth, Russian doping): Two details from what we now know to be the dossier, as well as a third — that Oleg Deripaska’s attorney had information about Paul Manafort stealing money from Deripaska.

And then the third item he mentioned was that Paul Hauser, who was an attorney working for Oleg Deripaska, had information about Paul Manafort, that Paul Manafort had entered into some kind of business deal with Oleg Deripaska, had stolen a large amount of money from Oleg Deripaska, and that Paul Hauser was trying to gather information that would show that, you know, or give more detail about what Paul Manafort had done with respect to Deripaska.

Byron York provided more background on Steele’s efforts to share information from Deripaska with Bruce Ohr. The IG Report done in response to GOP requests provided still more. For example, the IG Report revealed that Steele had set up a meeting between Ohr and Oligarch 1, whom we know to be Deripaska, in September 2015 (these claims are consistent with the heavily redacted Ohr 302s liberated by Judicial Watch).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location.

[snip]

Ohr and Steele also communicated frequently over the years regarding Russian Oligarch 1, including in 2016 during the time period before and after Steele was closed as an FBI CHS.409 Steele told us his communications with Ohr concerning Russian Oligarch 1 were the result of an outreach effort started in 2014 with Ohr and Handling Agent 1, to approach oligarchs about cooperating with the U.S. government. Ohr confirmed that he and Handling Agent 1 asked Steele to contact Russian oligarchs for this purpose. This effort resulted in Ohr meeting with Russian Oligarch 1 and an FBI agent in September 2015.

The IG Report also revealed that in September 23 (around the same time Deripaska was interviewed by the FBI), Steele passed on a claim that Deripaska wanted to share information about Manafort.

On September 23, 2016, at Steele’s request, Steele met with Ohr in Washington, D.C. Ohr told us they spoke about various topics related to Russia, including information regarding Russian Oligarch 1 ‘s willingness to talk with the U.S. government about Manafort.

Far more consistently than using Ohr as a channel for dossier reports (and for a longer period of time), Steele used his ties with Ohr to advance Oleg Deripaska’s interests. And for the entirety of the time that Steele was feeding the FBI dossier reports, that meant Steele was feeding Ohr claims that not only presented Deripaska as a trustworthy actor, but did so in part by promising Deripaska’s cooperation in a criminal investigation of Paul Manafort. The FBI (and Mueller after that) didn’t investigate Manafort primarily for the stuff Deripaska was trying to feed the FBI, but Deripaska was making great efforts to ensure that the FBI would investigate Manafort. In the aftermath of all this, Trump and Manafort blamed Democrats for all this, but in fact, Deripaska was at least as responsible.

According to footnotes that Graham, Grassley, and Johnson had declassified, before Deripaska first started offering to help DOJ criminally investigate Manafort — before that July 30, 2016 meeting between Steele and Ohr — a Deripaska associate likely learned about the dossier project (the same declassification revealed that two Russian intelligence officers had learned of the project before that meeting which, given the belief that several of Deripaska’s associates were Russian intelligence officers, may be the same report).

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

In fact, the IG Report completed in response to Republicans’ requests makes it clear: if the dossier was disinformation, that disinformation most likely involved Oleg Deripaska, with whom Manafort was using his position on the Trump campaign in an attempt to patch up financial and legal relations.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

Of course, for months before Deripaska first started offering (through Steele) to cooperate with the FBI against Manafort, Manafort had been trying to exploit his position on Trump’s campaign to ingratiate himself with (among others) Deripaska, in part in hopes to paper over precisely the financial dispute that Deripaska was, through Steele, trying to use to increase Manafort’s legal exposure. Weeks before the July 30 Steele-Ohr meeting, for example, Manafort had offered to brief Deripaska on the Trump campaign.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

[snip]

The Office also obtained contemporaneous emails that shed light on the purpose of the communications with Deripaska and that are consistent with Gates’s account. For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaskabacked investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

That is, per both Rick Gates and Manafort himself, how Manafort came to meet with Deripaska aide Konstantin Kilimnik on August 2, just three days after Deripaska tried to increase Manafort’s legal exposure via Steele. That’s how — and why! — he provided a briefing on campaign strategy amid a discussion of resolving the debt to Deripaska (as well as a plan to carve up Ukraine), as described by the SSCI Report completed under Chairs Richard Burr and Marco Rubio.

(U) At the meeting, Manafort walked Kilimnik through the internal polling data from Fabrizio in detail.453 According to Gates, Kilimnik wanted to know how Trump could win.454 Manafort explained his strategy in the battleground states and told Kilimnik about polls that identified voter bases in blue-collar, democratic-leaning states which Trump could swing.455 Manafort said these voters could be reached by Trump on issues like economics, but the Campaign needed to implement a ground game.456 Gates recalled that Manafort further discussed the “battleground” states of Michigan, Wisconsin, Pennsylvania, and Minnesota.457 (U) The Committee sought to determine with specificity what information Kilimnik actually gleaned from Manafort on August 2, 2016. Information suggests Kilimnik understood that some of the polling data showed that Clinton’s negatives were particularly high; that Manafort’s plan for victory called for focusing on Clinton’s negatives as much as possible; and that given Clinton’s high negatives, there was a chance that Trump could win. (U) Patten’s debriefing with the SCO provides the most granular account of what information Kilimnik obtained at the August 2, 2016 meeting:

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll,’ were high. Thus, based on this polling there was a chance Trump could win. 458

(U) Patten relayed similar information to the Committee. In particular, he told the Committee that Kilimnik mentioned Manafort’s belief that “because or Clinton’s high negatives, there was a chance, only because her negatives were so astronomically high, that it was possible . to win.”459

[snip]

(U) In addition to Campaign strategy involving polling data and the Ukraine plan, Manafort and Kilimnik also discussed two financial disputes and debts at the meeting. (U) The first dispute involved Deripaska and Pericles.477 Gates recalled that Kilimnik relayed at the meeting that Deripaska’s lawsuit ha’d been dismissed.478 Gates also recalled that Kilimnik was trying to obtain documentation showing the dismissal.479

In short, even without confirmation the dossier was disinformation, it’s clear that Deripaska was playing a vicious double game, using Steele as a channel to increase Manafort’s legal exposure even while using that legal exposure as a way to get an inside track to Trump’s campaign. But if the dossier is disinformation (as Trumpsters seem to universally agree now), it might help explain the dodgy content of the dossier in ways that aren’t important to this post (for example, it might explain why Steele’s sources falsely claimed that Carter Page was Manafort’s liaison with Russia in the same days when Kilimnik flew to the US to offer a pitch to Manafort on Ukraine involving senior Russians).

Now consider one more detail, given that Trumpsters seem to universally agree the dossier was disinformation and the IG Report’s suggestion that the most likely architect of that disinformation was Oleg Deripaska.

On January 8, 2017, Manafort flew to Madrid to meet with a different Deripaska deputy, Georgiy Oganov. As the SSCI Report explained, while Manafort told investigators they discussed the Pericles lawsuit — the same lawsuit Deripaska was using to make Manafort legally insecure — they also discussed stuff that remains almost entirely redacted, but stuff that includes recreating their “old friendship” which (also per the SSCI Report) involved Manafort conducting influence campaigns for Deripaska.

On January 8, 2017, hours after returning to the United States from a trip to ~ to Madrid, Spain.598 Manafort met with Oganov in Madrid during what he claimed was a one-hour breakfast meeting.599 Manafort told the FBI that, at the meeting, Oganov told him that he needed to meet with Deripaska in person to resolve the Pericles matter.600 Manafort agreed but said he would not travel to Ukraine or Russia for the meeting.601

(U) Manafort provided false and misleading information about the purpose, content, and follow-up to the meeting with Oganov to both the Committee and the SCO. In particular, Manafort told the Committee in a written response through counsel that he attended a meeting on or around January 17, 2017, in Madrid with “Georgy Organov.”602 The written response claimed that the meeting was “regarding a private litigation matter involving Oleg Deripaska.”603 Despite admitting his attendance at the meeting to the Committee in May 2017, Manafort initially denied attending the meeting in his interviews with the SCO in the fall of 2018.604 He eventually admitted to attending the meeting with Oganov, and then repeated what he described in his letter to the Committee-that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.605

Manafort’s claims about the meeting were false. As the above messages show, the meeting was not designed to be about Pericles, but was also about recreating the “old friendship” and “global politics.”

Manafort returned to the US on January 12 and, three days later, tried to set up an in-person meeting with KT McFarland.

She checked with Mike Flynn, who told her that the “perception” of meeting with Manafort, “especially now” (this was after Flynn’s own back channels with Russia were beginning to become public) would not be good, so to hold off until they were in the hot seats.

Manafort didn’t meet with Trump’s national security team, but around the same time, per reporting from Ken Vogel, he reached out to Reince Priebus and suggested the errors in the dossier not only discredited it, but also the FBI investigation.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a person close to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative. [my emphasis]

According to Rick Gates, at some point Manafort asked Kilimnik to obtain more information from his sources about it, including from Deripaska.

Since that suggestion to Priebus — which he made days after his return from a meeting with Deripaska’s associate — Trump has pursued precisely the strategy laid out by Manafort, using the errors in the dossier — the dossier that all Trumpsters now seem to believe was filled with errors by Russian intelligence and possibly by Deripaska associates — to discredit it and with it, the Russian investigation.

That’s the strategy that led Tucker Carlson’s Daily Caller to report on the dossier full time — including forcing the opinion editor at the time to publish a Deripaska column attacking the dossier.

Fusion GPS’s Simpson, in a New York Times op-ed describing his own Judiciary Committee testimony, claimed a neoconservative website “and the Clinton campaign” were “the Republican and Democratic funders of our Trump research.” The Judiciary Committee’s Sen. Dianne Feinstein (D-Calif.) then unilaterally released, over the objection of committee chairman Sen. Chuck Grassley (R-Iowa), Simpson’s testimony to “set the record straight.” Fusion GPS “commended Senator Feinstein for her courage.”

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Invented narratives — not “of the people, by the people, for the people,” but rather just from a couple of people, cloaked in the very same hypocritical rhetoric of “freedom” and “democracy” that those are actively undermining — impede internationally shared efforts on the world’s most pressing, real issues, like global health, climate change and the future of energy. My own “Mother Russia” has many problems and challenges, and my country is still in transition from the Soviet regime — a transition some clearly wish us to remain in indefinitely.

And that’s the strategy that led Chuck Grassley, Lindsey Graham, and Ron Johnson to spend their time discrediting the dossier rather than conducting oversight of Donald Trump.

That’s the strategy that led Darrell Cooper to believe (or claim to believe) several false claims about the dossier and then use those false claims to excuse the way Trumpsters lost faith in institutions and so attacked the Capitol. In short, the likelihood that the dossier is disinformation — indeed, the likelihood that the guy twisting the nuts of Trump’s campaign manager fed the dossier full of disinformation even while using that pressure to obtain his cooperation — means that (at least if you believe Cooper’s narrative) that disinformation led, through a series of steps, Americans to attack the American Capitol.

Trumpsters appear to love Cooper’s narrative, I guess because it doesn’t hold them responsible for their own gullibility or betrayal of the country. There are other problems with it (including the replication of other claims that Republicans have agreed is Russian disinformation). But ultimately, even with Cooper’s errors, what his narrative amounts to (at least for all the Trumpsters who believe the dossier was disinformation) is a claim that Russia’s 2016 disinformation campaign led Trump supporters to attack the US Capitol.

Update: After I posted some folks in the thread questioned what the point of the disinformation would be. This post lays out a possible logic to it all.

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Tucker Carlson Burns FBI or NSA Intercepts Regarding His 30-Month Pursuit of Face-Time with Vladimir Putin

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Last week, I suggested that one possible explanation for Tucker Carlson’s claim to have been spied on by NSA is that he had a back channel with Russian operatives and was trying to get ahead of allegations that he was coordinating with Russian agents.

Particularly if the communications implicating Carlson were damning and potentially illegal, leaking them to him would be an easy way to flip the story, and accuse NSA of spying rather than Carlson of coordinating with Russian agents. Again, that’s all just a hypothetical that might explain Carlson’s claims.

Overnight, Jonathan Swan — who’s a political reporter, not a surveillance reporter — described that sources claimed authorities had obtained communications from Tucker Carlson’s efforts to get an interview with Vladimir Putin. Swan describes that Tucker had two intermediaries with Russia, but they live in the US. (I had hypothesized these might be Ukrainian sources, but Swan suggests they’re Russians.)

Two sources familiar with Carlson’s communications said his two Kremlin intermediaries live in the United States, but the sources could not confirm whether both are American citizens or whether both were on U.S. soil at the time they communicated with Carlson.

Swan doesn’t note that if the surveillance happened in the US, it would have formally been an FBI intercept, not an NSA one (just as the intercepts showing Mike Flynn’s secret back channel with Russia were collected by the FBI). But he does a good job of laying out the most likely ways this happened, which is that the NSA or FBI were surveilling the kind of people they’re supposed to surveil: Russian agents, whether overt or covert.

  • The first — and least likely — scenario is that the U.S. government submitted a request to the Foreign Intelligence Surveillance Court to monitor Carlson to protect national security.
  • A more plausible scenario is that one of the people Carlson was talking to as an intermediary to help him get the Putin interview was under surveillance as a foreign agent.
  • In that scenario, Carlson’s emails or text messages could have been incidentally collected as part of monitoring this person, but Carlson’s identity would have been masked in any intelligence reports.
  • In order to know that the texts and emails were Carlson’s, a U.S. government official would likely have to request his identity be unmasked, something that’s only permitted if the unmasking is necessary to understand the intelligence.

The import of the agency involved — FBI or NSA — is that “unmasking” works quite differently for the FBI, which has a duty to guard against spying in this country. FBI agents tracking a known Russian agent might review such communications to find out if a high profile US journalist was being recruited by a known Russia spy. And if this was the FBI, it might explain how it recently became known: because Merrick Garland’s DOJ is trying to disclose all the tracking of journalists that took place under the Trump Administration.

This entire faux scandal feels just like ones that Devin Nunes has twice sown, first when Republican members of Congress got picked up undermining US policy with Bibi Netanyahu, and then again when Trump’s Transition team set up a secret back channel meeting with UAE. Each time Nunes has done this, it was with the seeming intent of flipping the scandalous efforts of Republicans to undermine US policy.

That’s consistent with Tucker’s claim that his source is “in a position to know.”

The whistleblower, who’s in a position to know, repeated back to us information about a story we are working from that could have only come directly from my texts and emails. There’s no other possible source for that information, period. The NSA captured that information without our knowledge and did it for political reasons.

But it also means that, if true, then Tucker and his source — whom Tucker himself suggests had a need to know — just burned intercepts on legitimate surveillance targets from a hostile country.

Plus, there’s a far bigger problem with Tucker’s currently operative story. Jason Leopold liberated Tucker’s FOIA request to obtain what he claims would be proof of this spying. Whether intentionally or because of incompetence, the FOIA was written in such a way that it is guaranteed to fail to find anything, because it uses language that NSA would understand to mean communications targeting Tucker (and, specifically, communications obtained from physical possession of Tucker’s phone).

More interesting than the failure by design is the scope. Tucker believes these sensitive communications — ostensibly a recent effort to set up an interview with Vladimir Putin — extend from January 1, 2019 until June 28, 2021, the date he first revealed this.

That’s thirty months he has been working with Russian back channels, purportedly to set up a meeting with Putin.

That, by itself, may explain why the communications generated further attention (if indeed they did). Thirty months isn’t the pursuit of an interview, it’s a long term relationship. This would look like a recruitment effort, not journalism.

It also explains why, even though Tucker himself is the person who leaked these details (again, burning what by all accounts are legitimate intercept targets), he claims it was an effort to take him off the air. If the FBI believes that Tucker really was pursuing a long-term relationship with Russian agents, then even Fox News might rethink giving him a platform. But that wouldn’t be the content of the communications, per se, but the fact that they appear to have been going on for thirty months.

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“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

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In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. 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.

2. 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).

3. 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.

4. 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 has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). 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.

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. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. 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. Pierce filed his appearance to represent McGrew on June 16.

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, Hostetter replaced Pierce.

7, 8, 9. 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 are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. 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).

10. 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. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. 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.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: 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.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

16. 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.

17. 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.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire

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“One if By Land, Two if By Sea:” What We Know of the Oath Keepers’ January 6 Quick Reaction Force

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On Twitter yesterday, some folks asked me whether there’s any credibility to the government’s claims that the Oath Keepers had an armed Quick Reaction Force ready to rush to DC in case things devolved to armed battles on January 6.

At first, it appeared that the government might just be unduly crediting the wild boasts of Thomas Caldwell, who spoke repeatedly of arranging such a force in the days leading up to January 6. But over the course of a series of filings, the government has shown that after a sustained discussion about whether Oath Keepers should come armed to DC for the insurrection, it was decided to instead amass guns in (at a minimum) the Ballston, VA Comfort Inn. The evidence thus far submitted shows that multiple participants knew of the stash, called it the QRF, and deposited their own weapons at the stash. The record is less certain about what plans the Oath Keepers had to transport that arsenal to DC, but in a remarkable comment on January 3, Kelly Meggs — who appears to have played a key role in organizing security for Roger Stone, inter-militia negotiations, and The Stack that pushed into the Rotunda on January 6, and who may have paid for two rooms to use for the QRF — suggested two rally points to receive the weapons: “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !!”

This post will pull together the evidence shown to date.

On December 25, according to the Fourth Superseding indictment and other filings, Kelly Meggs noted on Facebook what a lot of other militia members were at the time: guns are prohibited in DC. “We are all staying in DC near the Capitol we are at the Hilton garden inn but I think it’s full. Dc is no guns. So mace and gas masks, some batons. If you have armor that’s good.”

But within days, on December 30, Thomas Caldwell (who is not a member of the Oath Keepers but who coordinated closely with, at least, contingents from Ohio and North Carolina) told Jessica Watkins that an Oath Keeper from North Carolina had committed to serve as the Quick Reaction Force in Virginia — he was aiming to get reservations at the Comfort Inn in Ballston. The idea was he’d bring weapons into Virginia in his truck.

As we speak he is trying to book a room at Comfort Inn Ballston/Arlington because of its close-in location and easy access to downtown because he feels 1) he’s too broken down to be on the ground all day and 2) he is committed to being the quick reaction force anf bringing the tools if something goes to hell. That way the boys don’t have to try to schlep weps on the bus. He’ll bring them in his truck day before

Over the course of that same conversation, Caldwell updated Watkins that the North Carolina Oath Keeper had indeed gotten reservations at the Ballston Comfort Inn. “Just got a text from him he WAS able to book a room in that hotel I recommended which is on Glebe Road in Arlington.”

The next day, Meggs seems to have come to the same understanding. On December 31, he asked someone else if they were bringing weapons to DC. “You guys Gonna carry?” After the other person said, “No,” they weren’t, Meggs explained that the Oath Keepers had a Quick Reaction Force 10 minutes away. “Ok we aren’t either, we have a heavy QRF 10 Min out though.”

The Comfort Inn in Ballston would be a 7-minute drive without traffic.

That same day, December 31, someone offered up to Joshua James assistance from friends close to DC if the Oath Keepers got in trouble. “i have friends not far from DC with a lot of weapons and ammo if you get un trouble i ca. Coordinate help.” James suggested they might not need it on account of the QRF, “That might be helpful, but we have a shitload of QRF on standby with an arsenal.” The next day an Oath Keeper asked James how to get the guns to VA if the Alabaman Oath Keepers were staying in DC. “Hey we told to bring guns and maybe stage them in VA?? But you are showing hotels in DC for Alabama. Are we bring guns or no if so how will that work?” James suggested a farm might still be in play. “Were working on a Farm location Some are bringing long rifles some sidearms… I’m bringing sidearm.” By that point, then, it appears the Oath Keepers had committed to keeping weapons in VA with a QRF. But the logistics of it remained uncertain.

On January 2, Kelly Meggs texted a Leadership Signal chat with those two proposed meeting points for the QRF in DC: the Lincoln Memorial if the bridge was still open, and south of there at Ohio and West Basin if the bridges did get shut. “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !! QRF rally points Water of the bridges get closed.” The next day, Caldwell sent out a text message to a Three Percenter looking for a boat to ferry weapons.

Can’t believe I just thought of this: how many people either in the militia or not (who are still supportive of our efforts to save the Republic) have a boat on a trailer that could handle a Potomac crossing? If we had someone standing by at a dock ramp (one near the Pentagon for sure) we could have our Quick Response Team with the heavy weapons standing by, quickly load them and ferry them across the river to our waiting arms. I’m not talking about a bass boat. Anyone who would be interested in supporting the team this way? I will buy the fuel. More or less be hanging around sipping coffee and maybe scooting on the river a bit and pretending to fish, then if it all went to shit, our guy loads our weps AND Blue Ridge Militia weps and ferries them across. Dude! If we had 2 boats, we could ferry across and never drive into D.C. at all!!!!

But the next day, January 3, Caldwell sent an email with maps to the person in charge of the QRF with the subject line, “NEW MAPS RELATIVE TO HOTEL AND INGRESS FOR QRF,” that seemed to assume he would drive from the hotel to “the target area,” via a route that went nowhere near the Lincoln Memorial. “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

Similarly, it remained unsettled whether or not individual participants would contribute their own weapons to the stash. On January 2, for example, Mark Grods asked Joshua James if he should bring weapons to insurrection. “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” James instructed him to leave his weapons home, because the QRF would have weapons. “Yeah full gear… QRF will have weapons Just leave em home.”

On January 3, Jessica Watkins told Bennie Parker that they didn’t need to bring weapons because the QRF would be there. “We are not bringing firearms. QRF will be our Law Enforcement members of Oathkeepers.”  But then that same day she reversed the instruction. “Weapons are ok now as well. Sorry for the confusion.”

On January 4, Stewart Rhodes made the Oath Keepers’ plan to have a QRF nearby public.

As we have done on all recent DC Ops, we will also have well armed and equipped QRF1 teams on standby, outside DC, in the event of a worst case scenario, where the President calls us up as part of the militia to to assist him inside DC. We don’t expect a need for him to call on us for that at this time, but we stand ready if he does (and we also stand ready to answer the call to serve as militia anytime in the future, and anywhere in our nation, if he does invoke the Insurrection Act).

Both Watkins and Grods appear to have brought their own weapons. On January 4, before she got to the Comfort Inn, Watkins asked the Florida Signal list where to drop weapons off before any operations. “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.” According to Mark Grods’ Information, he “brought firearms to Washington, D.C.” — which may have exposed him to further criminal liability — “and eventually provided them to another individual to store in a Virginia hotel.”

Kenneth Harrelson also appears to have dropped guns at the Ballston Comfort Inn. On the 5th, Harrelson asked for the location of the “QRF hotel.” Kelly Meggs responded by asking for a DM. Three hours later, Harrelson showed up at the Comfort Inn for an hour.

Caldwell, too, appears to have dropped off a weapon to the QRF room, as this surveillance video from mid-afternoon on January 5 suggests (the government alleges he is holding the long sheet-wrapped item).

After Caldwell returned from the Capitol on January 6, the North Carolina Oath Keeper brought a similarly blanket-wrapped long item to Caldwell’s room.

The newly accused alleged Stack participant David Moerschel also appears to have left a gun at the Comfort Inn. Early on January 7, according to his complaint, Moerschel made two comments on the Oath Keepers’ “OK FL DC OP Jan 6″ Signal chat about leaving stuff for others at the QRF — the Ballston Comfort Inn.

“We have your bag, We will leave it with Kane at the QRF. We are en route there now.”

“Anyone else leave anything in the white van? We can leave it for you at QRF.”

Moerschel sent the first text, saying “we are en route” at 6:35AM. Twenty-four minutes later, a person that the government alleges is Moerschel appeared in Comfort Inn surveillance video carting a gun case around.

According to a detention memo for Joseph Hackett, he and Kelly Meggs, along with another person, showed up shortly thereafter.

Kenneth Harrelson got a later start than the others. At 8:55 on January 7, he texted to the Florida Signal chat, asking where his “shit” was at.

So we’re just leaving DC and I would like to know where my shits at since it seems everyone’s gone already.

In response, someone replied,

We are headed out now. Did you leave it [his shit] at Comfort Inn in that room?

Starting twenty minutes later, Harrelson was at the Comfort Inn along with Jason Dolan, with whom Harrelson drove in a rental car.

In Moerschel’s complaint, the North Carolinians alleged to have watched this QRF room while others were at insurrection are described without comment as co-conspirators. None have been charged (at least not publicly). But if and when they are, I imagine we’ll see still more video of weapons being moved around the Ballston Quality Inn.

Again, the precise plan for all these weapons remains unclear. But the government has provided evidence that at least six people already charged (Caldwell, Watkins, Moerschel, Harrelson, Grods, and Dolan) dropped off weapons. Given that Kelly Meggs paid for two hotel rooms there even though he stayed in DC, the implication may be that the same guy planning, “1 if by land, 2 if by sea,” paid for the rooms in question.

Update, August 18: Added footage with Hackett and Meggs.

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The Grand Jury Secrets Hiding the Proud Boys’ East Door Activities

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By my very quick review, there have just been a handful of January 6 defendants charged individually via indictment, without first being charged by complaint.

Lewis Cantwell was arrested in February for civil disorder and obstruction, but whose actions on January 6 are not laid out in any public court documents.

Richard Harris was arrested via indictment in March for resisting arrest and obstruction. A motion supporting detention revealed that Harris persuaded cops to back down at one of the entrances and picked up a phone and purported to threaten Nancy Pelosi; he had assaulted a journalist at a protest in December in Oregon and — though this is contested — lived out of his car after that time.

Daniel Rodriguez was arrested via indictment in March for tasing Michael Fanone, among other things. A HuffPo article, which in turn relied on the work of various volunteer Sedition Hunters, had already provided ample introduction on Rodriguez.

The Klein brothers — Matthew and Jonathanpeter — probably count as one unit. They were charged via conspiracy indictment in March. Their drawn out detention fight showed one or both have ties to the Proud Boys, they followed Dominic Pezzola in the Senate side door, and then later successfully breached the North Door.

Other than that, people have been initially charged via indictment in group or conspiracy indictments: Verden Nalley got indicted along with William Calhoun a month after Calhoun was first charged. Albuquerque Cosper Head and Kyle Young were indicted for assault along with Thomas Sibick, who had already been charged. Taylor Johnatakis and Isaac Sturgeon were indicted on assault charges with Craig Bingert, who had already been charged. A now sprawling assault indictment including Jack Whitton, Clayton Mullins, and Michael Lopatic started with complaints against Jeffrey Sabol and Peter Stager. Another sprawling assault indictment including Tristan Stevens, David Judd, Christopher Quaglin, Robert Morss, and Geoffrey Sills built off a Patrick McCaughey complaint.

When some of the militia members got added to one or another indictment — Matthew Greene to one of the Proud Boys indictment, and several Oath Keepers to that omnibus indictment — they were indicted without a complaint first.

Which is to say, in this investigation, it has been very rare for an individual to be initially charged via indictment.

That’s why it’s notable that the government arrested Ricky Willden yesterday, a Proud Boy from Northern California, on assault and civil disorder charges via an indictment obtained a week earlier. The government issued a press release that describes that Willden was on the East side cheering as a bunch of Marines and one co-traveller opened the door, then sprayed some stuff at cops guarding the door.

The Proud Boys is a group self-described as a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.” In publicly available videos recorded on Jan. 6, Willden can be seen in a crowd near the east door of the Capitol at 2:24 p.m. (according to time stamps in one of the videos) wearing a dark jacket, beanie cap and gloves, and cheering as the doors to the Capitol opened. At 2:35 p.m., he can be seen raising his hand and spraying an unknown substance from a green can toward police officers who were standing guard at the east door.

But because the government arrested Willden via indictment, they don’t have to release a public explanation of their probable cause to arrest him. Indeed, the press release pointedly cites “publicly available videos” to back the only allegation it makes.

One reason to charge someone on indictment rather than complaint is to hide the identity of witnesses who have testified. I find that particularly interesting, in part, because there were several people who posed in Joe Biggs’ picture on the East side, but thus far, just Paul Rae and Arthur Jackman have been identified from the picture (though Biggs surely knows who the others are). While the government has ostentatiously rolled out one after another Oath Keeper cooperator — first Jon Schaffer, then Graydon Young, and yesterday Mark Grods — aside from an unindicted co-conspirator identified in some of the Proud Boy indictments (UCC-1), whose identity those charged also know, the government has hidden the cooperators it has surely recruited from the notoriously back-stabbing group.  The hybrid approach the government has used — charging five overlapping conspiracies but also charging a bunch of Proud Boys who worked in concert with others individually — has (surely by design) made it harder for both participants and observers to understand what the government has in hand. There have been a few inconclusive hints that one or another person has flipped (or that Judge Tim Kelly, who has presided over most of the Proud Boys cases, had a sealed hearing that might reflect a plea deal), but nothing concrete.

For weeks it has been clear that unpacking how it happened that two militias and a bunch of Marines converged on the East Door as if all had advance warning would be one key to demonstrating the larger conspiracy behind the January 6 insurrection.

But just as DOJ has rolled out a new player in those events, they’ve moved everything to a grand jury to hide its secrets.

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Charlie Savage Plays with His Magic Time Machine To Avoid Doing Journalism

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Charlie Savage just did something astonishing in the name of press freedom. He said that the truth doesn’t matter now, in 2021, because he reported a different truth eleven years ago.

He took issue with my headline to this piece, noting that he was obfuscating the facts about the Julian Assange prosecution so as to shoehorn it into a story about actual journalists.

Charlie made several obfuscations or clear errors in that piece:

  • He didn’t explain (as he hasn’t, to misleading effect, in past stories on Assange) the nature of the 2nd superseding indictment and the way it added to the most problematic first superseding one
  • He said the 2019 superseding indictment (again, he was silent about the 2020 superseding indictment) raised the “specter of prosecuting reporters;” this line is how Charlie shoehorned Assange into a story about actual journalists
  • He claimed that the decision to charge Assange for “his journalistic-style acts” arose from the change in Administrations, Obama to Trump (and specifically to Bill Barr), not the evidence DOJ had obtained about Assange’s actions over time

Charlie presented all this as actual journalism about the Assange prosecution, but along the way, he made claims that were either inflammatory and inexact — a veritable specter haunting journalism — or, worse, what I believe to be false statements, false statements that parrot the propaganda that Wikileaks is spreading to obscure the facts.

The “specter” comment, I take to be a figure of speech, melodramatic and cynical, but mostly rhetorical.

The silence about the 2020 superseding indictment is a habit I have called Charlie on before, but one that is an error of omission, rather than of fact.

It’s this passage that I objected to at length:

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

As presented, this passage made several claims:

  1. “Obama-era officials” had considered charging Assange for publishing activities, but “Obama-era officials” did not do so because it might damage “mainstream news outlets” like the NYT
  2. The reason that the Trump administration was willing to charge Assange for publishing was because they were “undeterred” from the prospect of doing damage to the NYT
  3. DOJ under Billy Barr expanded a hacking conspiracy “to treat his journalistic-style acts of soliciting and publishing classified information as crimes”

I believe the last claim is largely factual but misleading, as if the operative issue were Barr’s involvement or as if Barr deliberately treated Assange’s “journalistic-style acts” — as distinct from that of actual journalists — as a crime. There may be evidence that Barr specifically had it in for WikiLeaks or that Barr (as distinct from Trump’s other Attorneys General) treated Assange as he did out of the same contempt with which he treated actual journalists. There may be evidence that Barr — whose tenure as AG exhibited great respect for some of the journalists he had known since his first term as AG — was trying to burn down journalism, as an institution. But Charlie provides no evidence of that, nor has anyone else I know. (Indeed, Charlie’s larger argument presents evidence that Barr’s attacks on journalism, including subpoenas that may or may not have been obtained under Barr in defiance of guidelines adopted under Eric Holder, may only differ from Obama’s in their political tilt.)

Of course, one of the worst things that the Trump Administration did to a journalist, obtaining years of Ali Watkins’ email records, happened under Jeff Sessions, not Barr.

The first and second claims together set up a clear contrast. Obama-era officials — and by context, this means the entirety of the Obama Administration — did not prosecute Assange for publication because of what became known — based off a description that DOJ’s spox Matthew Miller gave publicly in 2013 — as the NYT problem, the risk that prosecuting WikiLeaks would endanger NYT. But the Trump Administration was willing to charge Assange for publication because they didn’t think the risk that such charges posed to the NYT were all that grave or damaging or important.

There’s no way to understand these two points except as a contrast of Administrations, to suggest that Obama’s Administration — which was epically shitty on leak investigations — wouldn’t do what the Trump Administration did do. It further involves treating the Department of Justice as an organization entirely subject to the whims of a President and an Attorney General, rather than as the enormous bureaucracy full of career professionals who guard their independence jealously, who even did so, with varying degrees of success, in the face of Barr’s unprecedented politicization of the department.

It’s certainly possible that’s true. It’s possible that Evan Perez and three other CNN journalists who reported in 2017 that what actually changed pertained to Snowden simply made that report up out of thin air. It’s certainly possible that under a President who attempted to shut down the Russian hacking investigation to protect Assange even after his CIA Director declared war on Assange, who almost blew up the investigation into Joshua Schulte, who entertained pardoning Assange in 2016, in 2017, in 2018, and in 2020, at the same time viewed the Assange prosecution as a unique opportunity to set up future prosecutions of journalists. It’s certainly possible that Billy Barr, who sabotaged the Mike Flynn and Roger Stone prosecutions to serve Trump’s interests, went rogue on the Assange case.

But given the abundant evidence that this prosecution happened in spite of Trump’s feelings about WikiLeaks rather than because of them, you would need to do actual reporting to make that claim.

And, as noted, I asked Charlie whether he had done the reporting to sustain that claim before I wrote the post…

… just as I — months earlier — asked Charlie why he was falsely claiming Assange was charged in 2018 rather than within a day of a Russian exfiltration attempt in 2017, something that probably has far more to do with why DOJ charged Assange when and how they did than who was Attorney General at the time.

After his bullshit attempt to explain that date error away, Charlie removed the date, though without notice of correction, must less credit to me for having to fact check the NYT.

Anyway, Charlie apparently didn’t read the post when I first wrote it, but instead only read it yesterday when I excused Icelandic journalists for making the same error — attributing the decision to prosecute Assange to Billy Barr’s animus rather than newly discovered evidence — that Charlie had earlier made. And Charlie went off on a typically thin-skinned tirade. He accused me (the person who keeps having to correct his errors) of being confused. He claimed that the thrust of my piece — that he was misrepresenting the facts about Assange — was “false.” He claimed the charges against and extradition of Assange was a precedent not already set by Minh Quang Pham’s extradition and prosecution. He accused me of not grasping that this was a First Amendment argument and not the journalism argument he had shoehorned it into. He suggested my insistence on accurate reporting about the CFAA overt acts against Assange (including the significance of Edward Snowden to them) was a “hobbyhorse,” and that I only insisted on accurate reporting on the topic in an effort to, “us[e] something [Charlie] said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit.” He then made a comment that still treats the prosecution of Assange as binary — the original indictment on a single CFAA charge or the first superseding indictment that added the dangerous Espionage Act charges — rather than tertiary, the second superseding indictment that, at least per Vanessa Baraitser, clearly distinguished what Assange did from what journalists do.

That’s when things went absolutely haywire. Pulitzer prize winning journalist Charlie Savage said that his repeated claim that the charges against Assange arose from a change in Administration rather than a changed understanding of Assange did not rely on what Miller said, because he had “been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL,” linking to this story.

 

That is, Charlie presented as a defense to my complaint that he was misrepresenting what happened in 2016 and 2017 by pointing to reporting he did in 2010, which — I pointed out — is actually before 2013 and so useless in offering a better reason to cling to that 2013 detail rather than rely on more recent reporting. Because DOJ did not have the same understanding of WikiLeaks in 2010 as they got after Julian Assange played a key role in a Russian intelligence operation against the United States, obtained files from a CIA SysAdmin after explicitly calling on CIA SysAdmins to steal such things (in a speech invoking Snowden), attempted to extort the US with those CIA files, and then implicitly threatened the President’s son with them, Charlie Savage says, it’s okay to misrepresent what happened in 2016 and 2017. Charlie’s reporting in 2010 excuses his refusal to do reporting in 2021.

Given his snotty condescension, it seems clear that Charlie hasn’t considered that, better than most journalists in the United States, I understand the grave risks of what DOJ did with Assange. I’ve thought about it in a visceral way that a recipient of official leaks backed by an entire legal department probably can’t even fathom. But that hasn’t stopped me from trying to understand — and write accurately about — what DOJ claims to be doing with Assange. Indeed, as someone whose career has intersected with WikiLeaks far more closely than Charlie’s has and as someone who knows what people very close to Assange claim to believe, I feel I have an obligation to try to unpack what really happened and what the real legal implications of it are, not least because that’s the only way to assess where DOJ is telling the truth and whether they’re simply making shit up to take out Assange. DOJ is acting ruthlessly. But at the same time, at least one person very close to Assange told me explicitly she wanted me to misrepresent the truth in his defense, and WikiLeaks has been telling outrageous lies in Assange’s defense with little pushback by people like Charlie because, I guess, he thinks he’s defending journalism.

As I understand it, the entire point of journalism is to try to write the truth, rather than obfuscate it in an attempt to protect an institution called journalism. It does no good to the institution — either its integrity or the ability to demonstrate the risks of the Assange prosecution — to blame it all on Billy Barr rather than explore how and why DOJ’s institutional approach to Assange has changed over time.

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WikiLeaks and Edward Snowden Champion Sociopathic Liars and Sloppy Thinking

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WikiLeaks boosters have embraced a really bizarre new entry in the propaganda case to support Julian Assange this weekend: An article by two Icelandic journalists that purports to prove that, “The veracity of the information contained [in the June 2020 superseding indictment against Julian Assange] is now directly contradicted by the main witness, whose testimony it is based on.” This is an article about Sigurdur Ingi Thordarson, AKA Siggi, the sociopath that Assange chose to hang out with for a period in 2010 to 2011, who does have a role but by no means the “main” role in the case against Assange. The journalists who wrote the article present as credible Siggi’s claim, from someone that everyone agrees is a pathological liar, that he’s telling the truth now, rather than when he testified to US authorities in 2019.

The journalists who wrote the article and all the WikiLeaks boosters who have embraced it are arguing that the article somehow proves that an avowed liar is telling the truth now about lying in the past. Even as WikiLeaks boosters are pointing to the Icelandic legal judgment that Siggi is a sociopath, they are once again welcoming him into the WikiLeaks fold because the avowed liar claims to have lied.

This is what Assange’s boosters are now staking his defense on: convincing you to accept the words of liars as truth.

Except, Siggi retracts nothing substantive that is alleged in the indictment, so this drama is instead a demand that you accept the word of a liar rather than read the documents to show that the liar’s claims are irrelevant to the charges against Assange.

The article proves it doesn’t understand US law

Before I get into how little of what the article presents even relates to the indictment, let me show how badly the authors misunderstand (or misrepresent) US law. The last eight paragraphs of the article insinuate that, because US prosecutors gave Siggi immunity for testimony in 2019, he exploited that immunity to commit new crimes in Iceland. The suggestion starts by claiming that the outdated NYT Problem remained true in 2017 and parroting the WikiLeaks claim that therefore what must have changed was the appointment of Bill Barr (who was confirmed after the initial complaint and first indictment had already been obtained).

Although the Department of Justice had spent extreme resources attempting to build a case against Julian Assange during the Obama presidency, they had decided against indicting Assange. The main concern was what was called “The New York Times Problem”, namely that there was such a difficulty in distinguishing between WikiLeaks publications and NYT publications of the same material that going after one party would pose grave First Amendment concerns.

President Donald Trump’s appointed Attorney general William Barr did not share these concerns, and neither did his Trump-appointed deputy Kellen S. Dwyer. Barr, who faced severe criticism for politicizing the DoJ on behalf of the president, got the ball rolling on the Assange case once again. Their argument was that if they could prove he was a criminal rather than a journalist the charges would stick, and that was where Thordarson’s testimony would be key.

I don’t fault journalists in Iceland from repeating this bit of propaganda. After all, even Pulitzer prize winning NYT journalists do. But the NYT problem was overcome when WikiLeaks did something in 2013 — help Edward Snowden get asylum in Russia — that the journalists involved at the time said was not journalism. What’s novel about this take, however, is the claim that career prosecutor Kellen Dwyer was “Trump-appointed.” Dwyer has been an EDVA prosecutor through four Administrations, since the George W Bush administration.

I assume that the reason why it’s important for this tale to claim that Dwyer was appointed by Barr is to claim the immunity agreement under which Siggi — and several other known witnesses to this prosecution — testified did something it didn’t.

In May 2019 Thordarson was offered an immunity deal, signed by Dwyer, that granted him immunity from prosecution based on any information on wrong doing they had on him. The deal, seen in writing by Stundin, also guarantees that the DoJ would not share any such information to other prosecutorial or law enforcement agencies. That would include Icelandic ones, meaning that the Americans will not share information on crimes he might have committed threatening Icelandic security interests – and the Americans apparently had plenty of those but had over the years failed to share them with their Icelandic counterparts.

All the agreement does is immunize the witness against prosecution for the crimes they admit during interviews with prosecutors they were part of, so as to avoid any Fifth Amendment problem with self-incrimination. This is not about hiding Siggi’s role in WikiLeaks; it has been public for a decade. Moreover the article even described the US sharing just the kind of security threat information this paragraph claims they did not.

Jónasson recalls that when the FBI first contacted Icelandic authorities on June 20th 2011 it was to warn Iceland of an imminent and grave threat of intrusion against government computers. A few days later FBI agents flew to Iceland and offered formally to assist in thwarting this grave danger. The offer was accepted and on July 4th a formal rogatory letter was sent to Iceland to seal the mutual assistance.

All that immunity did was provide DOJ a way to ask Siggi about his role at the time. It didn’t immunize future crime in Iceland, nor did it give him any incentive to claim Assange asked him to hack things he hadn’t.

That’s the extent to which these journalists are spinning wildly: getting the facts about the prosecutors and the law wrong in a piece claiming to assess how Siggi recanting what they assume he told prosecutors in 2019 would affect the indictment.

Siggi’s purportedly retracted claims in several cases don’t conflict with the indictment

And, even beyond claiming Siggi is the “main witness” against Assange, they seem to misunderstand the indictment, in which Siggi’s actions play a role in a limited set of overt acts in a Computer Fraud and Abuse Act charge. Because there are so many ways that Assange allegedly engaged in a long-ranging effort to encourage hackers, jurors could find Assange guilty even if none of the Siggi events were deemed credible, and he is central (though his testimony may not be) to just a portion of the overt acts in the CFAA charge.

In fact, this piece never once cites the indictment directly.

Instead, they cite Judge Vanessa Baraitser’s ruling on Assange’s extradition. They cite fragments though, not the single paragraph about Siggi’s role in the CFAA charge that is relevant (indeed, was key) to her decision:

100. At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted” and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking. [italics and bold mine]

Baraitser includes the overt acts involving Siggi — that Siggi gave Assange “stolen banking documents,” may have been his source for “a list of things he wanted” including recordings from Parliament, and provided Assange access to an Icelandic police website — not for Siggi’s role in the action, but for Assange’s representations to Chelsea Manning about them. “Mr. Assange told Ms. Manning … Mr. Assange told Ms. Manning … Mr. Assange told Ms. Manning” certain things about Siggi, and what mattered most is that Assange made the claims, not whether what Assange claimed to Manning was true or not, because it was part of getting her to leak more documents.

The two times Stundin does cite Baraitser’s judgment, they cite it misleadingly, particularly with regards any claims made about the indictment. The sole citation to the critical paragraph of Baraitser’s ruling I cited above appears this way:

More deceptive language emerges in the aforementioned judgment where it states: “…he [Assange] used the unauthorized access given to him by a source, to access a government website of NATO country-1 used to track police vehicles.”

This depiction leaves out an important element, one that Thordarson clarifies in his interview with Stundin. The login information was in fact his own and not obtained through any nefarious means. In fact, he now admits he had been given this access as a matter of routine due to his work as a first responder while volunteering for a search and rescue team. He also says Assange never asked for any such access.

As noted above in bold, in the critical paragraph pertaining to Siggi of the ruling, this topic matters solely for how it related to Assange’s interactions with Manning. And where she introduces the allegation earlier in her ruling, Baraitser makes no claim that Siggi’s access was unauthorized, only that Assange’s was.

It is alleged that Mr. Assange kept Ms. Manning informed about these hacking activities: on 5 March 2010, he told her that he had received stolen bank documents from a source (Teenager); on 10 March 2010, he told her that, in response to a “list of things we wanted”, a source had provided him with four months of recordings from phones located within the Parliament of a “NATO country 1”; on 17 March 2010, he told her that he had used the access, given to him by a source, to obtain unauthorised access a government website used to track police vehicles, in “NATO country 1”. [italics and bold mine]

No one is claiming that Siggi obtained the access via nefarious means. Rather, Baraitser claims only that Assange’s — who was not an Icelandic first responder — was unauthorized, to which Siggi’s purported retraction is irrelevant.

And the indictment provides further context — context that addresses another of Stundin’s claims.

41. In early 2010, a source provided ASSANGE with credentials to gain unauthorized access into a website that was used by the government of NATO Country-1 to track the location of police and first responder vehicles, and agreed that ASSANGE should use those credentials to gain unauthorized access to the website.

42. On March 17, 2010, ASSANGE told MANNING that ASSANGE used the unauthorized access to the website of the government of NATO Country-1 for tracking police vehicles (provided to ASSANGE by a source) to determine that NATO Country-1 police were monitoring ASSANGE.

43. On March 29, 2010, WikiLeaks posted to its website classified State Department materials regarding officials in the government of NATO Country-1, which Manning had downloaded on February 14, 2010.

Again, what is key here is that the credentials were unauthorized for Assange (which they were), that Assange went on to tell Manning about it, and that those things happened when Manning was leaking documents pertaining to Iceland as well. Nothing in Siggi’s supposed recantation is even relevant to that.

Similarly, Stundin complains that Baraitser referred to a file from an Icelandic bank as “stolen,” when Siggi says that he understood the file to have been leaked by whistleblowers, not stolen.

One is a reference to Icelandic bank documents. The Magistrate court judgement reads: “It is alleged that Mr. Assange and Teenager failed a joint attempt to decrypt a file stolen from a “NATO country 1” bank”.

Thordarson admits to Stundin that this actually refers to a well publicised event in which an encrypted file was leaked from an Icelandic bank and assumed to contain information about defaulted loans provided by the Icelandic Landsbanki. The bank went under in the fall of 2008, along with almost all other financial institutions in Iceland, and plunged the country into a severe economic crisis. The file was at this time, in summer of 2010, shared by many online who attempted to decrypt it for the public interest purpose of revealing what precipitated the financial crisis. Nothing supports the claim that this file was even “stolen” per se, as it was assumed to have been distributed by whistleblowers from inside the failed bank.

As noted above, in the key paragraph in Baraitser’s judgment, she described that, “Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks.” The inclusion of whistleblowers here makes it clear that she understood some of this to be leaked rather than hacked.

Moreover, in the indictment, the claim is about how Siggi’s actions tie to requests Assange made of Manning and (presumably) David House (both of whom were also given immunity to testify, though Manning refused to do so), both of whom took steps to access Icelandic files.

35. In early 2010, around the same time that ASSANGE was working with Manning to obtain classified information, ASSANGE met a 17-year old in NATO Country-1 (“Teenager”), who provided ASSANGE with data stolen from a bank.

[snip]

39. On March 5, 2010, ASSANGE told MANNING about having received stolen banking documents from a source who, in fact, was Teenager.

[snip]

44. On July 21, 2010, after ASSANGE and Teenager failed in their joint attempt to decrypt a file stolen from a NATO Country-1 bank, Teenager asked a U.S. person to try to do so. In 2011 and 2012, that individual, who had been an acquaintance of Manning since early 2010, became a paid employee of WikiLeaks, and reported to ASSANGE and Teenager.

The indictment doesn’t source the claim that the file was stolen to Siggi (certainly, the FBI has other ways of finding out what happens to financial files, and in many contexts, a whistleblower leaking them would amount to theft). Nor does it say Siggi stole it. Nor does Siggi’s understanding of whether it was leaked or stolen matter to the conspiracy indictment at hand, not least given its import to Assange and Manning’s alleged attempts to hack a password so she could leak documents, just what Siggi claims he believed bank employees had done. What matters, instead, is the joint shared goal of accessing it. Nothing Siggi says in his supposed recantation of this story undermines that claim.

Stundin’s third specific denial — that Siggi didn’t himself hack the phone recordings of MPs, but instead received them from a third party — is the single denial of a specific claim made in the indictment.

Thordarson now admits to Stundin that Assange never asked him to hack or access phone recordings of MPs. His new claim is that he had in fact received some files from a third party who claimed to have recorded MPs and had offered to share them with Assange without having any idea what they actually contained. He claims he never checked the contents of the files or even if they contained audio recordings as his third party source suggested. He further admits the claim, that Assange had instructed or asked him to access computers in order to find any such recordings, is false.

The indictment does claim that Siggi obtained these files after Assange requested that Siggi hack things.

In early 2010, ASSANGE asked Teenager to commit computer intrusions and steal additional information, including audio recordings of phone conversations between high-ranking officials of the government of NATO Country-1, including members of the Parliament of NATO Country-1.

[snip]

On March 10, 2010, after ASSANGE told Manning that ASSANGE had given an “intel source” a “list of things we wanted” and the source had agreed to provide and did provide four months of recordings of all phones in the Parliament of the government of a NATO Country-1, ASSANGE stated, “So that’s what I think the future is like ;),” referring to how he expected WikiLeaks to operate.

Siggi denies he hacked anything to get these files, but he does say he got them. He got them, instead, from a third party, unasked. Even if that’s true (and even if the third party wasn’t the intel source), the key point here is that Assange enticed Manning to keep providing requested documents by claiming he had successfully requested and obtained the recorded calls.

The specific denials in this story, even if true, don’t actually deny anything of substance and in one case is completely consistent with the indictment. More importantly, none of these denials are relevant to the way in which Baraitser used them, which is to discuss how Assange’s interactions with Siggi, Manning, and House were part of a unified effort; that unified effort is the only reason Iceland (but not Siggi alone) is key.

The story is silent about or confirms the more serious allegations about Siggi

And the parts of the indictment where Siggi’s role is key, which pertain to Assange’s alleged entry into a conspiracy with Lulzsec to hack Stratfor and to hack a Wikileaks dissident, are unaddressed in this story. For example, Stundin describes reading chat logs Siggi provided — which is not the full set of chatlogs available to the US government, though Stundin claims they must be comprehensive — and finding no proof in the chatlogs that anyone at Wikieaks ordered him to ask other hackers to hack websites. But their focus is on why Siggi asked other hackers to hack Icelandic sites. There’s no mention of hacking US sites.

The chat logs were gathered by Thordarson himself and give a comprehensive picture of his communications whilst he was volunteering for Wikileaks in 2010 and 11. It entails his talks with WikiLeaks staff as well as unauthorized communications with members of international hacking groups that he got into contact with via his role as a moderator on an open IRC WikiLeaks forum, which is a form of live online chat. There is no indication WikiLeaks staff had any knowledge of Thordarson’s contacts with aforementioned hacking groups, indeed the logs show his clear deception.

The communications there show a pattern where Thordarson is constantly inflating his position within WikiLeaks, describing himself as chief of staff, head of communications, No 2 in the organization or responsible for recruits. In these communications Thordarson frequently asks the hackers to either access material from Icelandic entities or attack Icelandic websites with so-called DDoS attacks. These are designed to disable sites and make them inaccessible but not cause permanent damage to content.

Stundin cannot find any evidence that Thordarson was ever instructed to make those requests by anyone inside WikiLeaks. Thordarson himself is not even claiming that, although he explains this as something Assange was aware of or that he had interpreted it so that this was expected of him. How this supposed non-verbal communication took place he cannot explain. [my emphasis]

More bizarre still, Stundin describes Siggi admitting that “Assange was aware of or that he had interpreted it so that this was expected of him.” This actually confirms the most important key allegation pertaining to Lulzsec, that when Siggi was negotiating all this, he claimed to DOJ and still claims now, Assange knew and approved of it. And in fact the indictment alleges that Siggi proved to Topiary he was working with Assange by filming himself sitting with Assange, a non-verbal communication that — because Siggi deleted it — would not have been included in the chatlogs that Stundin insists had to be comprehensive.

To show Topiary that Teenager spoke for WikiLeaks so that an agreement could be reached between WikiLeaks and LulzSec, Teenager posted to YouTube (and then quickly deleted) a video of his computer screen that showed the conversation that he was then having with Topiary. The video turned from Topiary’s computer screen and showed ASSANGE sitting nearby.

In fact, the only specific denial regarding LulzSec in this piece pertains to Sabu, not any of the people that Siggi is alleged to have spoken with.

Thordarson continued to step up his illicit activities in the summer of 2011 when he established communication with “Sabu”, the online moniker of Hector Xavier Monsegur, a hacker and a member of the rather infamous LulzSec hacker group. In that effort all indications are that Thordarson was acting alone without any authorization, let alone urging, from anyone inside WikiLeaks.

There’s no allegation in the indictment pertaining to Siggi’s conversations with Sabu. It alleges he was part of the conspiracy, but not that he spoke with Siggi.

Finally, the one other key allegation involving Siggi in the indictment — that Assange asked him to hack a WikiLeaks dissident — is actually sourced independently to an Assange comment. Nothing in this article denies it specifically, but it’s not even necessarily sourced to Siggi.

There’s no there there in this article. Moreover, all the claims in it — most notably, that Siggi is a sociopath and a liar — have been long known. What the article misunderstands is where Siggi’s testimony may be important, where it served to explain existing documentary files, and the many ways in which DOJ ensured it didn’t rely on such an easily discredited witness. The article also doesn’t understand how co-conspirator statements — statements that have already been made — get entered at trial.

You go to trial with the sociopaths that a target like Julian Assange has chosen to associate with, not with the Boy Scouts you’d like to have as witnesses. But this indictment relies on that sociopath far less than Stundin would have you believe, and Siggi’s purported retractions do very little to rebut the indictment or Baraitser’s ruling about the case. More importantly, the article claims that the DOJ’s purported reliance on a sociopath is fatal, but their argument is based on the claims of that same sociopath.

WikiLeaks boosters claim it exonerates Julian Assange that someone they claim is a liar claims he lied

Admittedly, this is what WikiLeaks always does with their shoddy propaganda claims. They did it with their misrepresentations about a pardon dangle delivered by suspected Russian asset Dana Rohrabacher, they did it with the admission that former Sputnik employee Cassandra Fairbanks personally ferried non-public information about Assange’s prosecution from Don Jr’s best friend to Assange, and they did it with unsupported allegations about UC Global.

They don’t care what the actual evidence is or supports, so long as they have a shiny object that their army of boosters can point to to claim the indictment says something other than it does.

But this one is particularly remarkable because of shit like this.

Edward Snowden, who explained his theft of vast swaths of secret documents based on a claim that he had the judgment to know what he was seeing was abuse, claims to believe that this article “is the end of the case against Julian Assange.” That is, Ed Snowden has displayed for all the world that his critical reasoning skills are so poor that he doesn’t understand that — even if every single thing Siggi is reported to say in this article were true (including his claim that Assange knew and approved of his efforts to forge ties with LulzSec) — it would do little damage to the indictment against Julian Assange.

It amounts to Ed Snowden putting up a sign saying, “Oh sure, I knew better than the entire NSA, but I have such poor critical thinking skills I can’t read through a misleading headline.”

Worse still, what Ed Snowden is telling you to do is to trust the word of someone that — everyone agrees! — is a lying sociopath!! Ed and the entire WikiLeaks booster community here are endorsing the truth claims of someone they acknowledge in the same breath is a liar and a sociopath. What matters for them is not any critical assessment of whether Siggi could be telling the truth, but that the liar is saying what will help them.

Finally, the craziest thing is that Edward Snowden, who not only is personally named in five of the fifty CFAA overt acts, but whose own book confirms key allegations in those five overt acts, pretends that someone else is the star witness. Snowden’s own book, itself, could result in a guilty verdict on the CFAA claim, and the only way to prevent his book from serving that role is for Ed Snowden to claim he himself is a liar. This indictment could only be “poisoned top-to-bottom with false testimony” if Snowden came out tomorrow and claimed he was lying in his own book.

Ed Snowden’s own claim to be telling the truth distinguishes him as a whistleblower rather than a spy. But here, he affirmatively asks you to believe someone everyone agrees is a liar. And based on the belief that that liar was this time telling the truth, Ed asserts that an indictment that implicates his own truth claims is “poisoned top-to-bottom with false testimony.”

Update: One more thing I didn’t stress enough. This story doesn’t claim that prosecutors lied to the UK. Rather, they claim (without evidence about the full set of witnesses and evidence that DOJ relied on), that Siggi misled DOJ about two claims that don’t affect most of the CFAA charge.

Update: I’ve added language making it clear that the claim that Assange knew Siggi was negotiating ties with Lulzsec is still apparently based on what Siggi told DOJ and what he maintains now. That overt act is not the only one showing Assange entering into an agreement before they hacked Stratfor though.

Update: Subtropolis has convinced me to drop the references to Siggi as a child rapist, as he was underage too at the time.

Update: Corrected that the W administration was four Administrations ago.

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The Crimes of Violence Ashli Babbitt’s Mob Allegedly Committed

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In the Oversight Hearing on January 6 the other day, Paul Gosar suggested that Ashli Babbitt, who was shot while jumping through the last door protecting House members, had been executed.

Paul Gosar: Do you know who executed Ashli Babbitt? … The Capitol Police officer that did that shooting, Ashli Babb — appeared to be hiding, lying in wait, and he gave no warning before killing her.

As it happens, the day after Gosar made these comments, yet another insurrectionist who was standing with Babbitt when she was killed, Kurt Peterson, was arrested in Abraham Lincoln’s birthplace of Hodgenville, KY. According to his arrest warrant, prior to the insurrection, Peterson had accused Democratic lawmakers of treason that should be penalized with death. Peterson claimed to have been at the insurrection with three former Special Forces guys, all in their sixties.

After the insurrection, on January 10, Peterson posted an account on Facebook almost certainly intended to minimize his actions. He claimed, for example, to have entered through a back door that had been opened, and further claimed that when he entered, he told people not to hurt anyone or anything. (He recorded this on voice recognition software so the bracketed corrections are my own.)

When at the back door that we were at open[ed] and there and there were no police to restrain the crowd many people entered at that time. I stood at the door and told everyone that we were not there to hurt anybody or damage anything but as a show of solidarity to right the wrongs of the past election.

In fact, a video cited in his arrest warrant shows someone the government alleges to be him breaking an exterior window to the Capitol screaming, “This is our house. Let us in.”

Peterson is accused of breaking that window, which cost $2,700 to repair. Causing more than $1,000 of damage under 18 U.S.C. §1361 can (and has been invoked to, in this investigation) carry a terrorism enhancement under 18 U.S.C. §2332(b)(g)(5). While it’s unlikely the government will do so with Peterson (they have done so primarily with militia members), given his politicized threats of violence in advance of the insurrection, Peterson could be charged with terrorism for breaking that window.

In the same self-serving account of the day, Peterson gave this account of witnessing Ashli Babbitt’s death.

I did stop men from trying to break down the large wooden doors to the house chamber. Then I saw chairs being brought into the corridor going to the speaker’s lobby. They also grabbed a large sign with a heavy metal base stating no photography. I pushed into the corridor yelling for them to stop trying to break through the doors into the speaker’s lobby. The woman who was shot used the leg of a chair to hit a glass panel on in the door. There were numerous police officers in the stair tower and hallway that I was in.

Before I could get to her the shot rang out from behind the doors in the speaker’s lobby through the glass which shattered hitting many [police] officers and people there. It was a young man in a suit who was supposedly a bodyguard for Chuck [S]chumer.

The bullet hit the woman in the neck which caused her to fall backwards [im]mediately. It could have hit numerous [police] officers that were there. Non lethal force could have been use[d] with out the lethal shot that was made by this body guard in the speaker’s lobby.

I had my 1st aid [gear] with me and asked numerous times to be allowed to render 1st aid to this woman. I was told that they were waiting for the fire department to [respond] and they would not let me give her 1st aid. She died on the floor within 10 minutes of the shot being made.

On the John Sullivan video, there’s no sound of Peterson warning anyone. Rather, there are cries of “Break it down!” with multiple calls before the shot that there was a gun just behind the door the mob was threatening to break down. Everyone in the front line, including Babbitt, should have heard warnings about, if not seen, the gun carefully aimed at the mobsters at the door.

Had non-lethal force been used, the mob might have become more inflamed than they already did. Indeed, many January 6 defendants excuse their behavior, including multiple people accused of assault, as retaliation to the use of non-lethal force.

Peterson suggests that police attending to Babbitt weren’t already giving her First Aid even as they were trying to clear the mob. It appears that another of the rioters, someone with a camera, responded even more quickly than Peterson, along with some of the cops. It is true that Peterson fumbled in his chest as if grabbing for gear. It’s also true that even before that, police were yelling at him to clear out so first responders could get to her. Another video shows that even more closely — as a long line of rioters were clearing a path, Peterson kept talking to the cops.

If the government’s accusations are true, one of the people accusing cops was, himself, dramatically understating his own involvement that day, including his alleged assault on the Capitol that could be (but has not) charged as terrorism.

Breaking down the door

But Peterson is not the only one. While DOJ has thus far charged only a relative handful of people who made up the mob screaming “Break it down!” who were present when Babbitt died, those present range from people accused of trespass to others whose damage to the Capitol could be charged with a terrorism enhancement.

Zach Alam: Zach Alam was the most determined of several men who broke the glass in the door through which Babbitt was trying to enter. Like Peterson, he is accused of damaging the building and obstructing the vote count. In addition, he is charged with assaulting police and civil disorder. A filing opposing his pre-trial release describes his action of the day as “agitated” and rightly notes he stood out among the mob during multiple confrontations with police (including one minutes earlier at the doors to the House Chamber). The video from the Speaker’s Lobby door shows him punching and then kicking the door, then using Christopher Grider’s helmet to hit the panes.

Alam went on the run after January 6 because — as he told a family member — he didn’t want to go back to jail again (he has some recent arrests in DC). During this period on the lam, Alam used at least one assumed name, stolen license plates, and false identification.

Lawfully obtained records show that the defendant has provided multiple false names to service providers, including at least one false name – “Zachary Studabaker” – for services since the events of January 6, 2021.

In addition, according to the government’s information, the defendant was at the time of his arrest driving a vehicle that he had purchased around September 2020 but never registered, and for which the defendant had used multiple license plates, including in recent months. These include a Washington, D.C. license plate, found inside the defendant’s vehicle in Pennsylvania, which was reported stolen in 2018 by an individual who indicated that the front license plate was taken off his vehicle while parked in Northwest D.C. D.C. traffic cameras captured a black Chevy truck matching the description of the defendant’s vehicle bearing this license plate as recently as January 4, 2021. Moreover, when agents located the defendant at the motel in Pennsylvania, they observed the defendant’s black Chevy truck parked outside and noted that it bore Pennsylvania license plates for a Mazda vehicle.

Upon arrest, moreover, the defendant had multiple identification cards in his wallet, including a D.C. driver’s license and a D.C. identification card for one male, a Permanent Resident card for a second male, and University student identification card for a female. Among the items agents seized from the defendant’s motel room nightstand, moreover, were two mobile phones – a Verizon flip phone as well as an iPhone.

Per the same filing, Pennsylvania state authorities are also investigating Alam in conjunction with the January 29, 2021 burglary of an antique store.

This is the kind of defendant whose violence Babbitt was part of. Had Babbitt survived, she might have been on the hook for abetting Alam’s actions at the Speaker’s Lobby.

Chad Jones: Along with Alam, Chad Jones helped to break the panes of the Speaker’s Lobby door. In his case, he hit the window with a flag pole holding a wrapped up Trump flag. Jones was charged with resisting officers and civil disorder on top of the damage to the door.

Christopher Grider: Like Alam, Christopher Grider ran to the Speaker’s Lobby after being turned back at the House Chamber. Like Alam, he is charged helping to break through the Speaker’s Lobby doors through which Babbitt jumped. He handed Alam his own helmet, which Alam used to continue beating on the doors. Even after handing Alam the helmet, Grider allegedly pushed and kicked on the doors himself.

Grider backed away from the door when people started to call out about the gun. But like Peterson, he didn’t leave the scene to let officers respond.

Grider is charged for the destruction to the door, obstruction, and trespassing.

Assault

Brian Bingham: Brian Bingham was arrested June 22 in Alabama (which is neither of the states in which he was known to be living in his arrest warrant, Florida and New Jersey). He had been IDed by people who knew him from the Army with days after the insurrection and posted this photo from minutes after Babbitt’s death to his Facebook account (it’s unclear from the arrest warrant how Bingham’s attempts to shut down his Facebook account failed; possibly they obtained a preservation order).

Bingham appears to have been loitering around the East door as if knowing it would open before it did.

Minutes after Babbitt’s shooting, Bingham got in a tussle with two cops trying to expel him (the best footage of which was captured from another rioter’s phone, which may explain the delay in arresting him).

He yelled at them,

“You won’t hurt ANTIFA, but you’ll murder innocent girls!” “Where do you want me to move? Push me again!”

He bragged about the interaction later in the day.

Individual-5: Are you ok?

BINGHAM: I got to manhandl[e] 5 cops and live to tell

Individual-5: Lol… All of this does not surprise me! Stay safe. Trump2020

Bingham is not charged with obstructing the vote (which is surprising for a number of reasons, but may be consistent with an approach of undercharging those present at Babbitt’s death). But he is charged for the interaction with police.

Obstruction

Alex Sheppard: Like many others, Alex Sheppard ran from the stand-off at the House Chamber to the Speaker’s Lobby door, where he was picked up on Sullivan’s video. Presumably because he explained on social media he was driving from Ohio to DC to protest the RIGGED election, he was also charged with obstruction.

Trespass

Most of the others who directly witnessed Babbitt’s death have been charged with trespass, even though several badgered cops in ways that has gotten others charged with civil disorder or took affirmative steps to halt the vote count that has gotten others charged with obstruction.

Thomas Baranyi: Unlike some others, Thomas Baranyi (who was standing just behind her when she died) admitted that Babbitt died while attempting to breach a heavily guarded door.

We had stormed into the chambers inside and there was a young lady who rushed through the windows. A number of police and Secret Service were saying get down, get out of the way. She didn’t heed the call and as we kind of raced up to try to grab people and pull them back, they shot her in the neck, and she fell back on me.

Like many of the people at the door of the Speaker’s Lobby, he had recently been part of a mob that tried to storm the House side itself, only to try the Speaker’s Lobby next. Baranyi is charged with misdemeanor trespassing.

Ryan Bennett: Bennett was shouting “Break it down” while live-streaming the event as Babbitt was shot.

In Live Video 2, shot from inside the Capitol Building, at approximately the 1:40 minute mark, Bennett seemingly yells “no!” in the direction of a banging noise. In Live Video 4, Bennett seemingly yells “no destruction!” at approximately the 0:40 second mark when someone is seen kicking a door. However, in Live Video 3, Bennett seemingly chants “break it down!” along with the crowd at approximately the 2:47 and 3:54 minute marks. Based on my knowledge of the investigation and the events at the Capitol building, I believe the “break it down” chant was in relation to a door located in the Speaker’s Lobby that was barricaded by USCP and where a woman was later shot. A gunshot can be heard at approximately the 2:42 minute mark of Live Video 4.

Though he wore a Proud Boys hat the day of the riot, which was found when the FBI searched his home, he was charged only with misdemeanor trespass.

Phillip Bromley: According to his arrest affidavit, Bromley witnessed the shooting, and then appeared in a video posted to Parler describing it and stating he was 8 feet away.

In his narrative of events on Video 1, BROMLEY states: “listen…everybody needs to know the truth.” BROMLEY proceeds to describe how he “breached the right side,” “went in,” and “came to two large glass doors.” When he reached the doors, BROMLEY continues by stating he was talking with SWAT officers and reminding them “of their oath,” at which time “a gunshot went off” and a woman was “shot her in the neck.” BROMLEY continues by stating it “did not look like a survivable wound” and that “she [the woman who was shot] was eight feet in front of me on a line.” BROMLEY further describes the clothing he observed the woman to be wearing when she was shot and states “they shot her and she is dead.”

He was charged with misdemeanor trespass.

David Mish: David Mish called cops himself, on January 7, to describe what he knew about Babbitt’s shooting.

According to Mish, Babbitt was telling the cops to open the door before she died.

On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.”

[snip]

In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach.

That said, perhaps because he reached out to cops himself, perhaps because he claims to have tried to talk others out of damaging the Capitol, DOJ only charged Mish with misdemeanor trespass.

The videographers

Brian McCreary: Brian McCreary self-reported his presence in the riot by sharing video he had taken of the day, including from the Babbitt shooting.

After taking this picture; I decided to leave the building. Walking around the building, found a place to take a nice overhead shot of the crowd. Shortly after I made my way there and managed to take one clip of the crowd; people broke into that very side – so I followed them to see what they were doing. -Clip 20210106_144223 Following said crowd. -Clip 20210106_144434 Crowd breaks glass to Speakers Library, hear a shot fired. -Clip 20210106_144544 Crowd begins a game of telephone with Shot and killed a girl over here. At that point; I decided to leave the site. Walked to parking garage; jumped in my car and drove home. Im now just noticing that I am limited to 4 uploads; I will call and follow-up to provide the rest.

Perhaps because he reentered the building after leaving once, the government charged him with obstruction as well as trespassing.

Sam Montoya: Like John Sullivan, Infowar’s Sam Montoya’s video leads up to the Babbitt shooting. Like John Sullivan, Montoya eggs on the crowd as he films it. “We have had enough! We’re not gonna take your fucking vaccines! We’re not gonna take all your bullshit! The people are rising up!” But unlike Sullivan (and perhaps because of his tie to an actual media outlet), Montoya was charged only with misdemeanor trespass.

John Earle Sullivan: John Sullivan, whose name came up in texts between his brother and Rudy Giuliani, is the most enigmatic of January 6 defendants. Banned by lefty activists as a provocateur in the months leading up to the insurrection, Sullivan showed up on January 6 and caught key confrontations on video, while he could be heard egging on rioters in his own recording. At first, he was charged with trespass and civil disorder. His first indictment added obstruction and abetting. A second indictment enhanced his charges for carrying a knife during the protest (which he repeatedly asserted on his own video), false statements for denying it to the FBI, and a forfeiture allegation tied to the $90K he made by selling his video of the day (including Babbitt’s shooting). While Sullivan has been given a damage estimate in discovery — possibly tied to a window he seems to describe himself breaking in an office — he has not yet been charged for doing that damage.

The defendant approaches a window and states, “We did this shit. We took this shit.” The defendant also appears to break a window and says, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.”

Sullivan used his knife — which the government claims he showed publicly in the mob before the House Chamber — both in that mob and later the Speaker’s Lobby to get others to let him up near the front of the mob.

In the moments before Babbitt’s shooting, Sullivan was, just as Babbitt was, cajoling the police to step away from their posts.

After Babbitt’s death, according to the government’s support of seizure of Sullivan’s funds, Sullivan repeatedly boasted both of riling up the mob and of having video he could — and in fact did — monetize.

The defendant also spoke to someone on speakerphone, stating, “I brought my megaphone to instigate shit. I was like, guys we’re going inside, we’re fucking shit up…. I’m gonna make these Trump supporters f—all this shit up…. But I mean you’ll see. I have it all, I have everything, everything on camera, everything I just told you, and I mean everything. Trust me when I say my footage is worth like a million of dollars, millions of dollars. I’m holding on to that shit.”

So while Sullivan has not been charged for breaking a window — which if he were, would make a fifth person present who could be charged with a terrorism enhancement — he was charged with wielding a knife, lying about it, and inciting those around him to riot.

Update, June 24: I’ve added Bingham.

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Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange Is a Journalist

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Everyone is fighting for press freedoms again, and therefore lots of people are misrepresenting the facts about Julian Assange’s prosecution in purported defense of press freedom again.

These are the paragraphs with which UK Judge Vanessa Baraitser distinguished what Julian Assange is accused of from what “ordinary investigative journalists” entitled to protection in the UK or European Union do.

99. As part of his assistance to Ms. Manning, [Assange] agreed to use the rainbow tools, which he had for the purpose of cracking Microsoft password hashes, to decipher an alphanumeric code she had given him. The code was to an encrypted password hash stored on a Department of Defence computer connected to the SIPRNet. It is alleged that had they succeeded, Ms. Manning might have been able to log on to computers connected to the network under a username that did not belong to her. This is the conduct which most obviously demonstrates Mr. Assange’s complicity in Ms. Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist.

100. At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted” and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking.

101. Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Assange is not an “ordinary investigative journalist,” according to the judge who ruled that his extradition would not violate journalistic protections, because he allegedly:

  • Tried to help Manning hack a password
  • Solicited hacks of Iceland
  • Identified a vulnerability in a US server and encouraged people to use it
  • In a speech invoking WikiLeaks’ role in helping Edward Snowden to flee to what ended up being Russia, allegedly encouraged people to join the CIA with the express intent of stealing files from it

A key point for Baraitser is this was all happening at the same time, Assange was allegedly soliciting hacks in Iceland even as he attempted to help Manning crack a password, and Manning knew about the other hacking.

Charlie Savage mentions none of this in a story explaining that Julian Assange’s extradition and prosecution, “raised the specter of prosecuting reporters.” He doesn’t even mention the second superseding indictment at all, the one that lays out (among other things) the allegation that Assange entered in a conspiracy to hack Stratfor, a hack that at least six people on both sides of the Atlantic already did time for.

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

From there, Charlie tells a narrative that WikiLeaks has been pushing as part of Assange’s extradition defense, a claim that because DOJ Public Affairs head Matthew Miller said, in November 2013, that DOJ could not distinguish Julian Assange from what the NYT does, that means that the Obama Administration continued to face that challenge for the remaining three years of the Obama Administration, long after Miller left, and right through the time WikiLeaks played a key role in a Russian intelligence-led attack on American democracy. As Charlie presents it — citing no sources or public records, and I asked him if he was relying on any and he didn’t respond — the decision to prosecute Julian Assange arose not so much from a subsequent investigation that came to distinguish Assange’s actions from those of journalists, but instead because the Trump Administration “was undeterred” about the prospect of damaging “mainstream news outlets.”

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

For now, the First Amendment issues are on hold as Mr. Assange fights extradition from Britain. Soon after the Biden administration took office, the Justice Department pressed forward with that extradition effort in British court, leaving the charges in place.

But that was before Mr. Garland was sworn in — and before the latest uproar about the escalating aggression of the Justice Department’s leak investigation tactics prompted him to focus on drafting a new approach that, he testified, will be “the most protective of journalists’ ability to do their jobs in history.”

It’s Trump’s doing, not the result of further investigation, Charlie reports, as news.

The WikiLeaks narrative that Charlie repeats unquestioningly is inconsistent with an April 2017 report — one Assange’s journalism professor expert witness claims to have been unable to find with the magic of Google — that what came to distinguish Assange from other journalists was his role in helping Edward Snowden.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

We now know, four years later, that not just DOJ but even “mainstream news outlets” considered what WikiLeaks did to help Snowden something other than journalism.

Bart Gellman’s book (which was published before the most recent superseding indictment) not only lays out how WaPo’s lawyers told Gellman that he and Laura Poitras could not safely, under the law, play the role (which is referenced in the superseding indictment against Assange that Charlie doesn’t mention) that WikiLeaks would end up playing, helping Snowden get asylum in what ended up be an adversarial nation. Gellman even cites communications he and Poitras sent to Snowden in real time explaining that taking steps to help Snowden get asylum in what might be, and as it happens turned out to be, a hostile country was not journalism.

We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

In other words, WaPo’s own lawyers made it clear that helping an intelligence source obtain asylum in another country is not journalism and might, instead, be viewed by the US government as abetting espionage.

Given Charlie’s focus on the transition from the Trump to Biden Administration, there’s something else glaringly absent from his story: the official record on the government response to WikiLeaks’ role in the 2016 election attack. Admittedly, great swaths of that discussion remain redacted (which suggests there’s stuff we may not know), but the Senate Intelligence Committee’s report the Obama Administration’s response to the 2016 Russian interference campaign discussed how part of that process involved “develop[ing] a complete understanding of WikiLeaks.”

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

In other words, in 2016 — three years after the Miller quote that WikiLeaks has trained obedient journalists to parrot unquestioningly — the government came to some new “complete” understanding of WikiLeaks. One of the most important players in this process was then White House Homeland Security Advisor, Lisa Monaco. Her interview with the committee is cited repeatedly in the unredacted passages of the report.

Admittedly, Monaco’s views on how or whether her own understanding of WikiLeaks changed as part of that process do not appear in the report. The SSCI report redacts what those Obama officials came to understand about WikiLeaks in the waning days of the Obama Administration. But, in a story presented as “news,” it seems important to consider how that process might influence Monaco’s understanding of the case against Assange, given that one of the last things she did when last in government was struggle to respond to an attack on American democracy in part because the government treated WikiLeaks as a journalistic outlet for far too long during the attack. Whatever she believes, Monaco knows far more than Matthew Miller, or us, for that matter. We might not agree with her thus far non-public understanding of WikiLeaks, but even the four year old understanding of WikiLeaks she brought to her position as Deputy Attorney General surely will have a bigger influence on DOJ’s decisions about Assange going forward than what the Public Affairs guy said eight years ago.

It’s not that I disagree that some of the charges against Assange — particularly for publishing the names of US and Coalition informants — present a dangerous precedent. They do, and those risks are important to talk about, accurately and honestly. On that note, though, it’s again worthwhile to see how Baraitser distinguishes Assange (note, the circumstances of the release of the informant names is the area where Assange presented the most evidence to challenge the government’s evidence).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[snip]

Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

[snip]

The New York Times published the following condemnation on 25 July 2012:

“The Times and the other news organizations agreed at the outset that we would not disclose —either in our articles or any of our online supplementary material — anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site.”

This is a distinctly European decision. That’s true because in Europe, unlike the US, such protections are tied to being a journalist. Plus Baraitser argued that under EU law, Assange’s release violated privacy protections that simply don’t exist in the US. Mind you, it’s one thing to say the NYT won’t publish details that might endanger military operations and another thing to say such revelations shouldn’t be protected by the First Amendment. Even if WikiLeaks is a “hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests,” (as SSCI described), that should not, itself, surpass the First Amendment consideration.

But it underscores the point. There are First Amendment problems with the publication charges and, to a lesser extent, the other Manning-focused ones. But Assange actually wouldn’t be the first person extradited from the UK significantly for publication activities, the same thing happened to Minh Quang Pham for the few months he spent as AQAP’s graphic designer. That precedent has not only gone virtually unnoticed, but did little to harm the press freedom of others in the US. Not only are the First Amendment risks of Assange’s prosecution not tied to whether or not Assange is a journalist, but the effort to reinvent both the history of his prosecution and what he is accused of to turn him into a journalist has led a bunch of journalists and press freedom advocates to violate the principles that are supposed to distinguish journalism.

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Joshua Schulte Attempts to Hack the Court System

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Joshua Schulte attempted to complete a hack of the court system yesterday.

I don’t mean that Schulte used computer code to bring down the court systems. His laptop doesn’t connect to the Internet, and so he does not have those tools available. Rather, over the 3.5 years he has been in jail, he has tested the system, figured out which messages can be used to distract adversaries, and which messages have an effect that will lead the system to perform in unexpected ways. He identified vulnerabilities and opportunities — SDNY arrogance, the pandemic and related court delays, Louis DeJoy’s postal system, and even the SAMs imposed on him — and attempted to exploit them.

As a reminder, a jury hung on the most serious charges against Schulte in March 2020. Afterwards, the government moved to retry Schulte quickly, but his defense attorneys said they needed more time, in part because their expert, Steve Bellovin, was for health reasons unwilling to serve as an expert during COVID. Last November, Judge Paul Crotty scheduled a trial to start June 7, 2021, which would have been a week ago Monday. In March, Schulte’s superb attorney, Sabrina Shroff, moved to delay the trial once more, to October, still citing Bellovin’s withdrawal.

Meanwhile, starting in January, Schulte started submitting pro se filings, some filed through Shroff, and some sent directly. The government responded to a motion for habeas corpus (basically, to point out he needs to file suit against the Warden of MCC, not the prosecution), but did not respond to his motion to suppress evidence seized from the MCC jail. When Schulte filed to request direct access to Lexus Nexis, the government responded, in part, by asking Judge Crotty to force Schulte to decide whether he was representing himself, pro se, or, if not, then to solely allow Shroff and her team to make filings on his behalf.

The defendant’s request appears to be an attempt to further his pattern of engaging in inappropriate, quasi-pro se litigation. The Court should not consider the defendant’s instant letter for that reason. “A defendant has a right either to counsel or to proceed pro se, but has no right to ‘hybrid’ representation, in which he is represented by counsel from time to time, but may slip into pro se mode for selected presentations.” United States v. Rivernider, 828 F.3d 91, 108 (2d Cir. 2016). Although the Court has “discretion to hear from a represented defendant personally,” id. at 108 n.5, “the interests of justice will only rarely be served by a defendant’s supplementation of the legal services provided by his . . . counsel,” United States v. Swinton, 400 F. Supp. 805, 806 (S.D.N.Y. 1975). To the extent the defendant has any colorable claims for relief, his attorneys can present them to the Court, and the Court should reject the defendant’s attempts to “slip into pro se mode,” Rivernider, 828 F.3d at 108, whenever it suits him. See, e.g., United States v. Crumble, No. 18 Cr. 32 (ARR), 2018 WL 3112041, at *4 (E.D.N.Y. June 25, 2018) (“As Markus has not elected to represent himself, he does not have a right to make a motion on his own behalf, nor does he have a right to insist that the district court hear his applications. While I have previously exercised my discretion to entertain Markus’s pro se submissions, I will do so no longer. If Markus wishes to file any further motions, he is directed to ask his trial counsel—or appellate counsel— to adopt this motion. I trust that assigned counsel will file any motions that they do not view as frivolous on Markus’s behalf. Any pro se motions made by Markus, however, will be summarily denied.” (cleaned up)).

In any event, even if the Court considers the defendant’s submission, it is without merit. As his letter acknowledges, he has access to legal databases (a fact confirmed by the volume of his recent pro se filings), but additionally he demands special access to “filings, briefs, modern search, and the ability to print.” The defendant’s claims about the purported deficiencies of the databases to which he does in fact have access do not support such demands or establish a basis for relief. “[A]n inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). The defendant identifies no reason he should be afforded special access beyond that which the facility provides in the normal course, and at bottom, he is represented by counsel who have the ability to make well-researched and thoroughly prepared legal claims on his behalf.

Crotty denied Schulte’s request for Lexus Nexis, but didn’t address the pro se request.

Meanwhile, two of the three prosecutors on the team, Matthew LaRoche and Sidhardha Kamaraju, withdrew from the case, both because they’ve left government. LaRoche was involved in a prosecution that collapsed because the government committed a Brady violation, but Kamaraju was not. Kamaraju, however, probably has the most computer expertise of the original three.

Yesterday there was a remarkable status hearing. Crotty started by asking the remaining prosecutor, David Denton, when replacement prosecutors will file an appearance. Imminently, Denton said, though it sounded like he didn’t believe that.

Crotty asked whether Shroff has found an expert. Curiously, she explained that Bellovin still can’t do it, even with the waning risk of COVID, because of his schedule at Columbia University. Crotty noted that it is her responsibility to find an expert (she had said in a November status conference that it would amount to ineffective assistance not to have one).

But the real stunner came at the end, when Shroff said that Schulte wanted her to tell the court that he had told the government back in November that he was proceeding pro se. Denton responded that this was the first he had heard of such a thing, and Shroff responded that he was incorrect; Schulte had informed the government in November.

The hearing ended with a commitment to brief whether Schulte can proceed pro se.

It is almost without exception an insanely bad idea for a defendant to represent themselves, and this is probably not that exception. Still, there are advantages that Schulte would get by representing himself. He’s brilliant, and clearly has been studying the law in the 3.5 years he has been in prison (though he has made multiple errors of process and judgment in his own filings). He has repeatedly raised the Sixth Amendment problems with Special Administrative Measures, notably describing how delays in receiving his mail make it impossible for him to respond to legal developments in timely fashion. So I imagine he’d prepare a Sixth Amendment challenge to everything going forward. He’d be able to demand access to the image of the server he is alleged to have hacked himself. By proceeding pro se, Schulte could continue to post inflammatory claims to the docket for sympathetic readers to magnify, as happened with a filing he submitted earlier this year. And after the government has made clear it will reverse its disastrous strategy from the first trial of making the trial all about Schulte’s conflicts with the CIA, by questioning witnesses himself, Schulte would be able to make personality conflicts central again, even against the government’s wishes. Plus, by not replacing Bellovin, Schulte would serve as expert himself. In that role, Schulte would present the false counter story he has been telling since he was jailed, but in a way that the government couldn’t cross-examine him. So it would probably be insanely detrimental, but less so than for most defendants that try it. It certainly would provide a way to mount the defense that Schulte clearly wants to pursue.

But I think that’s just Schulte’s fall-back plan.

I think his current plan is to argue that, because anything his attorneys did in his name after he purportedly informed prosecutors he was proceeding pro se would be a legal nullity, then two things have happened since that allegedly occurred that will permit him to demand immediate release. First, if his attorneys’ agreements to exclude time from the Speedy Trial clock were not valid, then it would mean the government has run out of time to prosecute Schulte. Additionally, if a request that Shroff made in March to reschedule the trial was not valid, then the trial would have still been scheduled for last week. I suspect Schulte will try to argue that the government forgot to hold their trial and so must be released.

Mind you, there’s no evidence in the docket that Schulte informed prosecutors, much less the court, that he was proceeding pro se. There’s a filing he made in April 2020 that claimed he had no lawyers and made requests as if he was proceeding pro se, one that everyone ignored. But according to Shroff, that’s not the notice; the notice took place in November. Still, given how Schulte has carefully tested how the mail system works with SAMs and COVID, I don’t rule out him sending a letter directly to prosecutors.

The other problem with his claim to be proceeding pro se is that in a May filing, Schulte referred to the October trial (meaning, he recognizes the validity of both that request and Shroff’s exclusion of time under the Speedy Trial Act) and complained that his attorney-client mail was being opened. If he were proceeding pro se without Crotty formally appointing Shroff as standby counsel, their communications would have no privilege. So he has said two things in a pro se filing that are inconsistent with really proceeding pro se.

Certainly, Shroff has said things — in multiple venues — that indicate she believed she remained Schulte’s lawyer.

Given that Schulte claims everything his legal team has done since November was done without his sanction, though, the government would seem to have cause to ask Crotty to assign entirely different lawyers to serve as Schulte’s stand-by counsel, if indeed he does proceed pro se going forward. Which would make his plan for the actual trial, if it ever happens, untenable.

To be sure, I’m not saying this is going to work. But the government — what’s left of the prosecution team, anyway — had better understand that Schulte has been treating the court system with the same adversarial approach as he allegedly did the CIA’s servers. Schulte is claiming to have entered a command into his prosecution back in November that hacked the system, effectively changed the effect of everything that has happened since. Just trusting that such a possibility cannot happen under the legal system is probably a bad idea given where the CIA’s trust that Schulte wouldn’t hack the system turned out.

Update: Via InnerCity Press, there’s the transcript of the hearing.

April 12, 2020: Schulte claims he has no attorneys, claims only a few months remain on Speedy Trial

May 31, 2020: Shroff asks for a week extension to respond to government scheduling motion

June 8, 2020: Schroff requests a status conference for August or September 2020, acting as if Schulte’s request did not exist

June 15, 2020: Shroff initiates White Plains grand jury challenge

June 19, 2020: SDNY extends Speedy Trial to July 1, 2020

July 16, 2020: Shroff informs Judge Crotty Schulte will not reply to Rule 29 motion

July 27, 2020: Shroff asks for extension on grand jury challenge

July 28, 2020: Shroff asks for ESXi server (basically a repeat of Schulte’s April request)

July 30, 2020: Shroff asks for two week delay on status hearing citing (in part) Steve Bellovin’s withdrawal

August 14, 2020: Shroff asks for two week extension on reply to request for ESXi server

September 15, 2020: Shroff reply on ESXi laptop

September 16, 2020: SDNY proposes schedule, with January 2021 trial date

September 21, 2020: SDNY responds to Bellovin submission of ex parte declaration

October 14, 2020: SDNY asks for 30 day exclusion

October 30, 2020: Shroff requests Schulte appear remotely

November 4, 2020: Status conference, trial set for June 7, 2021, with time excluded; Shroff maintains it would be ineffective counsel to go to trial without expert

THE COURT: Are you entitled to an expert?

MS. SHROFF: In a case like this, yes. I’m quite certain I’m entitled to an expert. I think it would be clear error and ineffective assistance of counsel to try this case without an expert, without a doubt.

November 16, 2020: Shroff-submitted motion to dismiss on White Plains grand jury

November 19, 2020: Shroff submits request for VTC meeting with Schulte’s family

January 1, 2021: Schulte motion to suppress MCC evidence (docketed February 24)

January 7, 2021: Shroff requests 2 week extension on White Plains grand jury reply

January 19, 2021: Shroff files Schulte pro se motion for writ of habeas corpus regarding SAMs, dated December 25, 2020

January 22, 2021: Shroff requests two week extension on January 21 deadline for reply on White Plains grand jury reply

January 22, 2021: Shroff requests funds for new laptop for Schulte

January 27, 2021: Civil Division AUSA asks Crotty to dismiss motion for writ so it can be refiled naming Warden as defendant

February 22, 2021: Shroff submits reply on White Plains grand jury challenge

February 24, 2021: Schulte files motion to reconsider decision on habeas (docketed March 4)

March 19, 2021: Schulte calls on Crotty to decide his motion to suppress on the merits, given government non-response (docketed April 5)

March 22, 2021: Shroff moves, with consent of Schulte, to reschedule trial to last quarter of 2021

March 24, 2021: Crotty denies motion to dismiss; Crotty reschedules trial for October 25, excludes time

April 12, 2021: Schulte asks for Lexus Nexis (docketed April 29)

May 5, 2021: Schulte complains about mail delays (docketed May 19); among other things it reflects an October trial date and references attorney-client mail

May 7, 2021: Matthew LaRoche withdraws

May 11, 2021: SDNY submits opposition to Lexus Nexis request, including request for order that Schulte not submit pro se

June 3, 2021: Sidhardha Kamaraju withdraws

June 7, 2021: Date of trial scheduled in November 2020

June 15, 2021: Status hearing at which Schulte claims to have been representing himself pro se since November

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