DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.

Merrick Garland’s Dodges on Investigating Former Presidents

In the oversight hearing today, Eric Swalwell tried to grill Attorney General Garland on whether DOJ would reconsider the OLC memo holding that a sitting President cannot be indicted. Garland dodged answering any specific question. But along the way he laid out some principles that he might apply regarding the investigation of a former President.

Swalwell: General Garland, in 1973, an Office of Legal Counsel memo outlined the parameters for indicting a sitting President and said that you cannot do that. Twenty-seven years later, that memo was updated to reaffirm that principle. Twenty-one years later, we have seen a former President test the bounds of Presidential authority, and I’m wondering, would you commit to revisiting that principle, whether or not a President, while sitting, should be indicted?

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

Merrick Garland Explains that the January 6 Investigation Isn’t Taking All that Long

A lot of people here and elsewhere complain about how long it is taking to bring January 6 perpetrators to justice. In response to a question from Pramila Jayapal this week, Merrick Garland explained that, in his view, it actually isn’t taking so long. He adds some details (in this clip and elsewhere in the exchange with Jayapal) about the investigation, including how DOJ is attempting to standardize plea deals.

On the question you asked, which is why this is taking so long? This is really not long at all. I’ve been in lots of criminal investigations that took way longer. We’ve arrested 650 people already, and keep in mind that most of them were not investig–arrested on the spot, because the Capitol Police were overwhelmed. So they were people who had to be found, they had to be found by sometimes looking at our own video data, sometimes from citizen sleuths around the country identifying people, then they have to be brought back to Washington DC,  then discovery of terabytes of information has to be provided, and then all this was occurring while there was a pandemic and some of the grand juries were not fully operating, and some of the courtrooms were not fully operating. So I’m extremely proud of the work that prosecutors are doing in this case, and the agents are doing in this case. They’re working 24/7 on this.

“Civil War Started:” Zach Rehl’s Blow-by-Blow of the Riot

Since Jonathon Moseley has taken over as Zach Rehl’s defense attorney, he has filed a series of really ridiculous motions.

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

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

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

The government responded to these motions in two different filings yesterday. One motion opposed Rehl’s request for a Bill of Particulars, for discovery that (a table in the motion shows) DOJ has already provided, and for a Parler post that DOJ says doesn’t appear to exist. Another motion opposed Rehl’s bid to reopen his pre-trial detention.

The latter basically argues that all the ridiculous gaslighting Moseley is doing has not presented anything that was not known to Rehl when Tim Kelly last denied his motion for bail.

In his motion and the three supplements, the defendant raises no information that was both unknown to him at the time of the original detention litigation before this Court and that would have a material bearing on the detention decision. The Court should accordingly decline to reopen the detention hearing and should deny the defendant’s motion.

Along the way, the motion makes a point I keep making: the Proud Boy leaders keep excusing their actions by claiming some tie to Trump’s speech or a protest, except that they never went to his speech, heading instead to the Capitol to kick off a riot.

The defendant focuses on what the videos show of the Proud Boys’ activity prior to the breach of the Capitol grounds, and it focuses on two videos that were explicitly made for public consumption. The defendant’s reliance on the videos mentioned in the First Supplement moreover ignores the evidence of the conspirators’ coordinated actions immediately prior to, and again after the breach of the First Street barriers. The defendants arrived near the site of the Ellipse—where speeches were to occur—and then immediately marched to the Capitol away from the demonstration. The defendants were not there for a peaceful demonstration; they went to the Capitol to participate in a violent protest.

[snip]

The Court should not accept Rehl’s invitation to conclude that the fact that the Capitol Police issued some permits negates his mens rea. See Mem. at 10-12. The defendant has not proffered that he knew of any permits issued or that he believed he was participating in a permitted demonstration when he rushed past trampled police barriers. If that is the defendant’s subjective memory, he certainly knew that on June 30. But setting that aside, any claim he makes now—for the first time nine months after the riot—that be believed he was participating in a permitted protest should carry no weight in the Court’s analysis, as those claims are belied by the fact that the defendant entered the grounds not at the site of any permitted protest, but through trampled police barriers.

[snip]

The best proof of what defendants planned is what they did—and did not do—on January 6. They did not attend the demonstration at the Ellipse; they marched to the Capitol. And the defendant celebrated the group’s accomplishments and characterized it for what it was—violence and threatened violence to corruptly influence the vote of the American people.

The government motion scoffs at Rehl’s claim to support the cops, noting that a fundraiser Moseley pointed to in a supplement supporting his renewed bail request had been started the day he submitted the filing, and had raised no funds.

The defendant also proffers that he is the son and grandson of police officers and is a longtime supporter of the “back the blue” movement. E.g., Second Supplement at 3. This information, even if true, was known to him at the time of the June 30 hearing, and thus does not provide a reason to reopen the hearing. The fundraiser that the defendant allegedly set up “to raise money for any injured police officers,” see id., is not material to the Court’s detention analysis. According to an ICANN9 lookup, the domain name healcapitolpolice.com was registered on October 6, 2021—the same day that defendant filed the First Supplement referencing that website and the alleged fundraiser. As of October 15, 2021, that website redirects anyone who clicks on it to a GiveSendGo crowdfunding page that states that the campaign has raised $0 and “is currently disabled and can not receive new donations.”

It shows that because of the way Rehl’s lawyer submitted a Reuters article that (I’ve shown) misunderstood the investigation, it cut off a reference to Rehl and his co-conspirators.

The passage Moseley failed to include affirms that FBI had discovered the Proud Boys had a goal of breaking into the Capitol.

Stone, a veteran Republican operative and self-described “dirty trickster”, and Jones, founder of a conspiracy-driven radio show and webcast, are both allies of Trump and had been involved in pro-Trump events in Washington on Jan. 5, the day before the riot.

FBI investigators did find that cells of protesters, including followers of the far-right Oath Keepers and Proud Boys groups, had aimed to break into the Capitol. But they found no evidence that the groups had serious plans about what to do if they made it inside, the sources said.

But the most interesting part of the motion includes citation of multiple texts Rehl sent during the riot, which (the government claims) not only proves that Rehl lied in a previous filing about texting only his spouse from the riot, but shows he was providing a blow-by-blow account of the riot to four other people in which he stated, before Dominic Pezzola broke into the Capitol but after they had surged onto Capitol grounds, that “everyone raided the Capitol.”

In addition to the post-election rhetoric the Court cited in granting the government’s motion to revoke the magistrate’s release order, many of the defendant’s statements from January 6 and 7 underscore the government’s assertion that he possessed a criminal mens rea on January 6. For example, in contrast to defendant’s claim that “gathering at the U.S. Capitol was specifically authorized” by permit (Mem. at ¶ 55), shortly after defendant and his coconspirators had surged onto Capitol grounds, Rehl texted four other contacts, “Everyone raided the Capitol.” At the time that text was sent, 1:15 p.m., the defendant and his coconspirators had pushed into the West Plaza, but they were still approximately 30 minutes from beginning to push up the stairs to the Upper West Terrace. At 1:34 p.m., Rehl texted the same group, “We’re at a standstill, cops are dropping concussion bombs and pepper spraying, people are pepper spraying back and fighting riot cops.” At 2:29 p.m., after hordes of rioters had entered the building, defendant texted the same group, “Civil war started.”4 He followed at 2:48 p.m. with “They just broke all the doors and windows open, people are pouring in.”

The defendant’s statements after January 6 further underscore that the defendant’s focus on that day was not Antifa. On January 7, 2021, he texted the same group mentioned in the previous paragraph, “Trump basically conceded. We lost our country, we shoulda held the capital” and “Once Pence turned his back he was fucked, but was hoping we all sent a message yesterday, I guess that was the message to ben [sic] the knee, its depressing.” In a different Telegram chat on January 7, Rehl stated, “Looking back, it sucked, we shoulda held the capital. After [T]rump conceding today, it all seemed like a waste.” He continued, “The reason why it feels like a waste is because instead of all these politicians getting scared and realizing they need to answer for this fraud, they are all turning on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back the right way,” and “I imagine the next time people aren’t showing up unarmed. I’m not trying to fed post, I’m just stating facts, normies turned on the cops man, we didn’t start any of the violence, all we did was a couple of chants.”

4 These text messages stand in contrast to the defendant’s assertion that he only texted his wife to let her know he was safe and that he only knew of the full scale of the attack at the time of the impeachment trial. See First Supplement at 8.

Zach Rehl described the riot on the Capitol that he and his co-conspirators kicked off as a “civil war.” That expresses a mens rea that goes well beyond simply trying to obstruct the vote count.

Schrödinger’s Capitol: Three Things Owen Shroyer Neglects to Mention

Owen Shroyer has filed a motion to dismiss his trespassing case claiming that FBI left out material information in the arrest warrant against Shroyer. Basically, he argues that the FBI arrest affidavit neglected to describe that Jones and his entourage were begging the cops to let them go de-escalate the crowd.

Burns, however, omits that nothing in the video shows where the restricted area was, what its boundaries were, or warns Shroyer that he was in the restricted area. Burns also omits that, over the course of the 20-minute video, Shroyer’s bodyguard talked to multiple United States Capitol police officers, including on the United States Capitol steps, and expressed that Shroyer and his colleagues wanted to follow the law and help the United States Capitol police deescalate events. Burns conveniently omits the fact that a United States Capitol police officer – identifiable by his name tag as “C. Atkinson” – directs Shroyer and his colleagues to the opposite side of the Capitol building as being where the crowd is the worst when Shroyer’s bodyguard asks where the United States Capitol police needs help the most instead of telling them to leave a restricted area or not to go in one.

Shockingly, Burns hides from the Court that, when Shroyer and his colleagues went where Officer Atkinson directed them to go, Shroyer’s bodyguard had several more conversations with United States Capitol police officers right in front of what appears to be the United States Capitol steps. In these conversations, Shroyer’s bodyguard, Shroyer, and his colleagues interact with both rank-and-file Capitol police officers forming a line to guard the Capitol steps and a Capitol police commander who placed a phone call to his superiors asking whether they could allow Shroyer and his colleagues to assist in deescalating the crowd. Burns fails to tell the Court that, in these interactions, not a single Capitol police officer asked Shroyer or his colleagues to leave or told them that they were unlawfully in a restricted area. Burns also does not tell the Court that the United States Capitol police officers pled with their superiors to allow Shroyer and his colleagues to help them deescalate the crowd.

Shroyer additionally claims that the restricted area for every participant who didn’t already have a legal restriction on being on the Capitol grounds (as Shroyer did) changed after cops moved some barricades.

But Shroyer leaves out three key details that make it clear this filing is a bunch of propaganda.

Alex Jones invited the crowd to add to the mob on the East side even before a cop said there was a problem there

First, he’s lying about what the video shows. It starts with the interaction he describes in the motion, with a timestamp of 13:00. Except then it reverts to earlier footage, time stamped beginning 12:52, where Jones already makes the decision to move to the East front, promising viewers that Trump will speak and explaining they have a permit and a stage. The cop had nothing to do with their decision to go to the East side, and (as I noted here), Jones clearly suggested he was taking his mob to a place where he had legal permission to be, where he had a stage and a permit. That wasn’t the top of the steps; it was an area away from the Capitol that he never used.

Furthermore, the interaction in question captures the cop saying that “you” (meaning the rioters) had breached the East side barricades, undercutting their claim that the cops let rioters in or that the restricted area (for people not named Shroyer, who had a pre-existing one) had changed. Another cop describes that the stairs had been breached, again emphasizing that everyone was trespassing. The video shows Jones’ handlers attempting, but failing, to get legal coverage for Jones to mount the steps. That is, it pointedly shows that the cops never did sanction Jones’ trespassing (though one female cop said if he made it there on his own he could try).

And the video doesn’t show what happened when Jones did climb the steps.

This video (h/t @gal_suburban) shows that amid a mob of people Jones already knew had illegally “breached” the steps, Jones and Shroyer both yelled into blowhorns, “1776” amid an inflamed mob.

Only after that did Jones ask people to be peaceful, then shifted to a “Fight for Trump” chant, again inflaming the crowd (as he began to walk away).

That is, once they got the top of the steps claiming they were going to de-esecalate, they did the opposite, they used the language of Revolution.

Shroyer never denies he knew that his incitement throughout this video was illegal

Shroyer’s filing admits a key detail used to arrest him: less than a year before January 6, he had entered into a deferred prosecution agreement that prohibited him from making a ruckus anywhere at the Capitol, including the grounds of the Capitol.

The DPA defines the “Capitol Buildings” as the “United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all subways and enclosed passages connecting 2 or more of such structures, and the real property underlying and enclosed by any such structure.” Id. at p. 4. It the provides a map delineating what are considered to be the U.S. Capitol Grounds. Id. at p. 5. FBI Special Agent Clarke Burns insinuates that Shroyer violated this agreement even though federal prosecutors have left that decision to D.C. prosecutors.

DC prosecutors are AUSAs.

What Shroyer doesn’t mention is that the map he references includes all the places he was during the video he says exonerates him.

the term “United States Capitol Grounds” was defined to include an area delineated in a map attached to the DPA spanning the Capitol grounds from 3rd Street NW on the west side of the Capitol building, to 2nd Street SE on the east side of the Capitol building

And that’s it. He doesn’t deny his inflammatory speech was a violation of his DPA. He doesn’t say he didn’t have special notice and special prohibition to be on the Capitol grounds riling up a mob.

Having admitted to the DPA, he just ignores the import of it.

Shroyer neglects to mention the import of Ali Alexander’s presence

The video Shroyer says he exonerates him often doesn’t show who is in the entourage (it doesn’t even show his presence), though other videos clearly show who was with Shroyer and Jones as they made a public announcement they were moving to the East side even before speaking to a cop, then moving to the East side and chanting “1776” from the midst of the mob.

But one short clip shows that Ali Alexander was there (as, again, other videos confirm he was throughout).

The significance of Alexander’s presence is that — as BuzzFeed and others have shown — he used a series of front organizations to obtain permits at various locations around the Capitol. And those getting the permits on Alexander’s behalf were clearly told that their permits — the permit Jones used to lure people to the East side, only to ignore once he got there — were limited to 50 people.

Martin, an Iraq War veteran who serves on his local city council, directed the officer to speak with Stephen Brown, a sound and lighting technician who was listed as a “spokesperson,” because Martin said he “only deals with the logistics and the hotel bookings for the event.”

Brown, according to the officer’s notes, said he was “shocked” Martin would say that “because he is in daily communication with Mr. Martin for information regarding the event. He does not understand why he would say that or not give me the information I requested.”

A screenshot of the text from the documents

Obtained via Capitol Police

Brown, who did not respond to emails and phone calls requesting comment, told the officer Martin “is associated with Stop the Steal and travels with Ali Alexander.” Martin “does not seem to have an official title but he deals with the daily operations to include hotel books and car rentals.”

Alexander did not respond to a request for comment.

The officer reported advising Brown “of my concerns of not being able to regulate their numbers to 50 persons or less,” he wrote. “I explained that once information is on social media it is hard to regulate the number of participants. If his event is in fact one in the same Capitol Police will not be able to accommodate his event to the participant numbers being out of regulations and a public safety issue.”

Even the mob that Jones led to the East side exceeded what were allowed under the permit, and he (accompanied all the time by Alexander) didn’t lead them to the permitted area, which might have had the effect of drawing people away from (or at least prevented further accumulation on) the steps.

Shroyer didn’t need cops to tell him what was permissible for everyone who, unlike him, didn’t already have a prior prohibition tied to the Capitol grounds. He was steps away from Alexander the entire time in question.

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

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

  • At approximately 2:35 p.m., Jenny Louise Cudd and Eliel Rosa, enter the U.S. Capitol via Upper West Terrace Door.
  • At approximately 2:36 p.m., Jenny Louise Cudd and Eliel Rosa are observed inside the Rotunda of the U.S. Capitol from the west side doorway that leads into the Rotunda. They are observed remaining inside the Rotunda until approximately 2:39 p.m. They are further observed taking pictures of the Rotunda and the surrounding area.
  • At approximately 2:39 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking across the Statuary Hall area of the U.S. Capitol.
  • At approximately 2:40 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking the Statuary Hall Connector and moves off camera at approximately 2:42 p.m.
  • At approximately 2:43 p.m., Jenny Louise Cudd and Eliel Rosa are observed departing from a large crowd inside the U.S. Capitol in front of the Main Door of the House Chamber and walks east toward the staircase.
  • Jenny Louise Cudd and Eliel Rosa are subsequently observed walking past the staircase and is further observed walking past the Upper House Door, going toward the other entrance to the House Chamber
  • Jenny Louise Cudd and Eliel Rosa are observed at approximately 2:54 p.m. at the Upper House Door and further observed departing the U.S. Capitol.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Royce Lamberth Refers DC Jail to DOJ for Civil Rights Investigation

Judge Royce Lamberth, a 78-year old Reagan appointee with a libertarian streak, just held the Warden and the Director for the DC Jail in civil contempt for not providing the medical records of Christopher Worrell in timely fashion as he ordered. He further found that DC Jail had abridged the civil rights of Worrell and referred the jail to Merrick Garland for investigation for general civil rights violations.

Worrell’s medical issues — both pre-existing non-Hodgkins lymphoma and a hand he broke while in jail — have been pending for some time. For a time (back when John Pierce was his lawyer), Worrell was himself delaying treatment by refusing to go to medical appointments. The government had been regularly submitting Worrell’s medical records to the docket. Last week, Judge Lamberth ordered the jail to include the doctor’s notes from a hand specialist who reviewed Worrell’s hand injury ASAP.

According to their claims today, they recognized these notes weren’t in the electronic file on Tuesday morning, and scanned them in before Lamberth ordered a show cause hearing (they did not, however, offer to share metadata proving that point). Lamberth didn’t buy that — and was already steaming about DC Jail’s decision to limit how many video conference rooms are available (which has made it almost impossible to schedule last minute hearings).

In judging that DOC had violated Worrell’s civil rights, Lamberth raised the possibility that he was treated this way because he’s a Jan 6 defendant. I’m not sure there’s any evidence to support that.

It’s still too early to understand what will happen as a result of this, both to Worrell’s case, and to the January 6 investigation generally. There’s not much evidence that this treatment is because these guys are Jan 6 defendants. But neither is there any evidence that the jail has done what it has needed to do to respond to the increased demands created by the January 6 investigation.

Hopefully, at the very least, this will serve as a wakeup call that the DC Jail needs to do better.

Brandon Fellows Demands Positive Reinforcement as an Accused Criminal, Before Confessing to More Crimes

In a bond hearing yesterday, January 6er Brandon Fellows explained that he was on a mountain where he went to pray when the FBI came looking for him, but then his bus (in which he lived at the time) got stuck in a ditch. True or not, the claim is an apt metaphor for Fellows, who seems to be little more than a big-Trump narcissist stuck in a little-Trump life.

Fellows kept repeating a number of phrases to blame others for his woes in the hearing. “Not to throw anyone under a bus,” he’d say as he introduced some new claim about someone — all women as far as I could tell — who did him wrong. “It’s unfair,” he said over and over, as he offered some implausible excuse for why he was unable to meet release conditions that hundreds of other January 6 defendants, to say nothing of those prosecuted at disparate rates, could manage. He has made, “constant improvement,” in compliance with his release conditions he claimed, describing that by the time bail was revoked he was breaking fewer requirements at a lesser rate. He responds better to “positive reinforcement.”

Part way into the hearing, he even introduced that observation by citing what Fellows vaguely remembered was an article on Canada’s positive policing approach, and said he thought the US should adopt that approach. “I respond a lot more positively to positive reinforcement.”

He surely didn’t know it, but he was effectively adopting the goals of the Defund the Police movement, which he had seemed to attack in a partisan screed with which he launched his statements and returned to during his close. “January 6 has been a gaslighting tool by the opposition,” he said of an Administration supported by both the Electoral College and Popular Majority, though the claim seemed to arise from a belief there are two tribes in the US locked in combat. “I’m not like the Taliban and neither are other January 6ers.” He almost immediately moved on to ask to be treated like people sent to Gitmo since, he claimed, Joe Biden had freed all of them.

Along the way, though, Fellows admitted to virtually all the allegations that got his bail revoked. “Yeah, I did question [the pretrial service officers] rudely, are your hormones okay, disrespectfully,” he admitted. Yeah, he did call the mother of his pretrial services officer rather than the probation office.

Yes, he did indeed contact the wife of a judge presiding over a New York State case. He explained he was told there was a “loophole,” such that if a defendant had contact with a judge’s family, the judge had to recuse, resulting in a new judge taking the case. Fellows not only admitted doing that in New York, but he admitted he had proposed doing the same with Judge McFadden, only to have his then defense attorney, Cara Halverson, tell him that would get him arrested.  “You did not find a loophole, Brandon,” Fellows relayed what had been a privileged discussion,”I promise you, if you do this with Judge McFadden, you will be arrested.”

Sure enough, when McFadden announced his decision denying Fellows’ motion, the Trump appointee observed that it sounded like Fellows had obstructed justice in New York and had considered doing so in DC to disqualify him, McFadden.

After admitting to trying to game the process to pick his own judges, Fellows made a bigger mistake. He claimed, first, that he had a Tik Tok video proving — and later claimed there must be CCTV video not yet turned over to him showing — that a police officer had told him it was okay to enter the Capitol, so long as he “stopped at the statues.” In doing so, Fellows predictably opened himself to cross-examination about his actions on January 6.

On cross-examination, Mona Furst started and ended by getting him to accede that he had, in fact, committed the violations that had gotten his bail revoked, though most times, Fellows claimed that, “you’re missing lots of context” (citing things like his attempt to test the judge loophole and his inoperational phone), claiming that Furst was “lying by omission” every time she didn’t include his excuses for his own actions. After getting him to concede to virtually all the allegations that had gotten his bail revoked, Furst then turned to his claims he made about his arrest and the riot itself. The lawyer whose advice he claimed he followed when he wrapped his phone in tinfoil and put it on a candy rack next to the Kit Kats, was someone whose name he didn’t remember, who claimed to be a Constitutional lawyer and who had a radio show, his conversations with whom were filmed by a French film crew. Furst asked about his claimed jailhouse interactions with Zach Alam (the guy who broke the window through which Ashli Babbitt jumped) and whether Fellows was, in fact, claiming that Alam was Antifa. Furst got the name of Tighe Berry on the record, so she could compare Fellows’ claims about Berry’s serial Code Pink protests with the actual record.

Then Furst drilled down on Fellows’ claim that a cop told him he could enter the Capitol, so long as he didn’t go past the statues. After getting Fellows to describe precisely where he remembered that conversation happened, she then asked who told Fellows it was okay to climb into the Capitol through a broken window. Fellows responded by saying a longer camera angle would prove he was worried about going in. “What officer told you it was okay to climb in a broken window,” Furst persisted in response.

Furst closed her cross-examination by getting Fellows to, again, concede that the reason his bail had been revoked was that he missed a mental health appointment.

It was even worse than all that. Check out my live tweet for details of how Fellows attempted to call his former defense attorney, Halverson, to attest to his wishes to provide more of the excuses that he had in this hearing. Fellows made up some conspiracy theory about the CIPA filing he is getting, claiming that a National Security Advisor (really, an AUSA) was secretly charging him; McFadden assured Fellows that he had not gotten additional secret charges. Fellows admitted he cried when he got his GPS bracelet put on. He explained, “I smile because I don’t like to show my weaknesses.”

Predictably, Fellows even admitted that he thought it was a stupid decision to go pro se, but he felt at the time it would offer a way to get out of jail.

I did not want to go pro se. I feel like it was a stupid decision. I felt like I had to get out. A lot of ill treatment in jail [from people] who are not Jan 6ers. I would like opportunity to show the court, positive reinforcement, that I can follow the rules.

It was a stupid decision.

McFadden confirmed Furst’s contention that he had given Fellows this hearing even though he was not legally entitled to it, but that he had been permitted to do what, on afterthought, he had wanted to do earlier, testify. McFadden predictably denied Fellows’ motion to reconsider the bail determination, and established a record to note that he has detained defendants — naming Timothy Hale-Cusanelli — who (like Fellows) did not engage in violence on January 6. He described having given Fellows three chances to avoid jailing, which (McFadden claimed) he had never done before. Most importantly, McFadden mocked Fellows’ expressed preference for “positive reinforcement” and judged that Fellows had shown “contempt” to the criminal justice system and the court.

I understand it would have been nicer to get positive reinforcement. This is not community college. You’re facing serious felonies.

[snip]

You engaged in pattern that shows contempt to criminal justice system, to the court. I have no confidence you would follow my orders.

McFadden went on to opine that, in fact Fellows probably had obstructed justice in New York and considered doing so in this case.

The performance of Brandon Fellows yesterday exhibited every single one of Donald Trump’s worst traits. Consistently, he has tried to con his way both into and out of problems. When his own actions were described to be illegal or improper, he claimed it was fake news, and attacked others for failing to present his preferred “context.” And ultimately, he believed that if he could just tell his story himself, he’d be able to con his audience that he was just unfairly accused.

While McFadden has recognized how the January 6 attack has delegitimized democracy, he has also expressed a good deal of skepticism about the equity of the treatment of defendants as compared to other rioters. As he noted, he gave Fellows three chances to fuck up.

But McFadden also takes the authority of the court very, very seriously. And Brandon Fellows just made a mockery of it. This was an instance where McFadden saw, in his courtroom, how much bullshit is flying about January 6 and the aftermath.

What is the appropriate sanction for a “pawn” who participated in a coup attempt?

One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).

I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).

Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.

January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.

I raise all that as background to the sentencing memo for Jack Griffith submitted overnight by Heather Shaner, the same defense attorney who convinced Anna Morgan-Lloyd to do some book reports before sentencing (after which Morgan-Lloyd went straight to Fox News to disclaim her stated remorse).

Shaner doesn’t really address the government’s request for a three month jail term.

Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity  of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power

Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.

What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.

It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.

I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.

Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.

We should not make pariahs or martyrs of these men and women.

But also to provide a period in which more education can occur.

To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.

This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.

Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.

Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.

I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.

Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.

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