How Richard Barnett Could Delay Resourcing of the Trump Investigation

In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.

The Curiosity of Norm Pattis’ Third January 6 Client’s Delayed Arrest

On Wednesday (the time on the screen cap is Irish time), Norm Pattis — the Connecticut lawyer who fucked up and sent texts from his client Alex Jones, along with highly personal discovery from the CT Sandy Hook plaintiffs, to the TX Sandy Hook plaintiffs — tweeted that a head lawyer in CT wants him to serve a six month suspension for that ethical violation.

On Thursday, for a second straight time, the pre-trial hearing in the Proud Boy Leader case, in which Pattis represents Joe Biggs, was sealed to the public. One thing that has been a pressing discussion in that case that might merit sealing is the potential conflict of Biggs’ other lawyer, Daniel Hull, because he briefly represented co-defendant Enrique Tarrio in one of the civil suits against the Proud Boys.

If both Biggs’ lawyers had conflict problems, it might seriously roil the schedule of the trial, which is currently due to start next month. When Jonathan Moseley’s license was suspended, for example, the prosecution of his then-client, Oath Keeper Kelly Meggs, was halted until Meggs found a new attorney.

Meanwhile, Pattis’ other January 6 client, Jones sidekick Owen Shroyer, is supposed to decide by the end of the month whether he’ll take a plea or take his chances with getting superseded with others.

All of which makes it weird that Pattis took on a third January 6 defendant last week. Or perhaps we only learned that Pattis has long been representing one: The defendant is a guy named Douglas Wyatt, who was arrested for assault, civil disorder, and trespassing on the same day as his stepson, Jacob Therres.

It turns out Wyatt has been lawyered up and waiting for arrest since shortly after the attack. As his arrest affidavit describes, there were tips streaming in to the FBI about him starting the day after the attack, with a tip received on January 7, two tips on January 8, and two more tips on January 12, based in part on his social media postings.

The FBI interviewed him at his home in a suburb of Baltimore on January 29, 2021; while he admitted he was at the attack, he managed to get rid of the FBI before he said much more.

By April 2021, Wyatt was represented by some lawyer — Attorney-1 — who basically did DOJ the favor of calling a prosecutor to confirm that his client was the guy identified in one of the FBI’s wanted posters, BOLO 277.

On January 29, 2021, the FBI interviewed WYATT at his residence in Fallston, MD. WYATT admitted he had been present on January 6, 2021 at the U.S. Capitol, which he referred to as “the People’s House,” and felt he had the right to protest. However, WYATT claimed he did not have time to talk but took a business card and agreed to call the FBI in the future. WYATT later retained counsel (“Attorney-1”) and was not interviewed further. On or about April 6, 2021, Attorney-1 sent an email to an Assistant United States Attorney for the District of Columbia. The email stated in relevant part (with emphasis added):

“Mr. Wyatt did not go into the Capital building on January 6, did not assault a law enforcement officer, nor anyone else that day, and was not engaged in the destruction of any property. . . He had no intention nor desire to, nor caused any trouble and is not a member of any group which was involved in causing trouble on January 6. I am sending you this email because I noticed yesterday that my client’s picture is one of the several hundred pictures on the FBI website. That came as a surprise because the FBI has known who he is since early February.” [emphasis original]

The posting of pictures of Wyatt on FBI’s BOLO site, on March 26, 2021, could not have been a surprise, to Attorney-1 or to Wyatt. By February 2021, shortly after the interview, Wyatt had started searching the FBI’s site full of January 6 BOLO posters.

WYATT conducted several searches on Facebook in February 2021 regarding “fbi most wanted capitol riots.”

Wyatt may have been searching FBI’s most wanted Capitol Riot site in February because, on February 2, 2021, FBI had posted pictures of Wyatt’s stepson, Therres, BOLO 180. Therres is alleged to have thrown a plank that hit a cop in the head and did real injury.

So Wyatt was monitoring whether the FBI was onto him in February 2021. Yet it wasn’t until November 14, 2022 when these two men were arrested.

You’ve got to wonder why the government took 21 months to arrest these guys, living an hour away in Maryland, after almost immediately confirming Wyatt’s ID. Especially given Therres’ recent arrest record (Therres’ own detention response says this may not be entirely accurate).

In this case, at least as described by the timeline laid out in the arrest affidavit (which I’ve laid out below), FBI got immediate notice of Wyatt’s participation. But they may not have looked too closely — they may have believed Attorney-1’s denials — until they first started confirming Therres’ identity, with his familial tie to Wyatt, starting in August 2021.

That still doesn’t explain the delay since April, when the FBI had solid IDs on both father and stepson.

Which brings me to a few of the reasons I started looking at this arrest more closely.

His arrest affidavit describes how Wyatt successfully wrestled the Gadsden flag of another rioter away from a cop.

WYATT also helped pull away a protestor’s flag, shouting “get the fuck off that” as an officer attempted to grab the flag away from the protestor:

It also describes how, after the cops on the West Terrace are first overwhelmed he filmed that. That’s interesting because for an hour of the insurrection, he parked himself on an enormous Trump flag (see the significance here) and at times appears to make hand signals.

It’s almost like he was providing others feedback, though Therres’ detention memo says, “there is currently a lack of evidence concerning coordination with others before January 6,” at least regarding Therres. If FBI delayed the arrest to try to see if Wyatt had coordinated with others — besides handing Therres the plank he threw — they may yet to have found evidence before searches done with their arrest.

Which brings me back to Norm Pattis.

When the Sedition Hunters first started focusing on Wyatt’s activities months and months ago, they gave him a hashtag like they do everyone else.

They named him #InfoSprayer, based on his use of spray against cops, and his hat: An InfoWars hat. (Therres was dubbed #NelsonPostThrower.)

I’ve emailed Pattis to see if he would say whether he was the Lawyer-1 described in the affidavit; I have yet to get a response. If he was, though, it would mean around the time Wyatt was given an InfoWars moniker, Wyatt was lawyering up with Alex Jones’ lawyer, a Maryland guy counterintuitively hiring a Connecticut lawyer for legal troubles in DC.

It’s weird enough that Norm Pattis filed as Wyatt’s lawyer last week.

It would be more interesting still if Wyatt hired Pattis back when the FBI first started investigating him.

Update: Hmmm. DOJ charged Therres by himself. Wyatt has, separately waived the preliminary hearing.

Timeline

January 7, 2021: First tip on Wyatt submitted: “Check out his Facebook, too. He has posted videos as well.”

January 7: Wyatt comments on Facebook that “I was there.”

January 8: Wyatt comments on Facebook that Ashli Babbit “was in the wrong for breaking the window” … “I did not enter the capital or engage the police.”

January 8: Second tip on Wyatt: “Pictures of Douglas Wyatt at/in the Capitol on the day in question.”

January 8: Third tip on Wyatt: “I’m simply reporting a former FB friend for his part in the terrorist acts in Washington D.C. on January 6th.”

January 12: Fourth tip on Wyatt: “Saw Suspicious FB comment and checked his page. These were associated with a ‘profile’ attached. Douglas Wyatt lives in Fallston, MD…”

January 12: Fifth tip on Wyatt: “Made suspicious comments on FB post which led me to snoop his profile. Found this and wanted to share. FB pick is from previous ‘protest’ but comments he will be there on Wednesday.”

January 29: FBI interview of Wyatt.

February 2: Therres’ picture posted as BOLO 180.

February: Wyatt searches for “fbi most wanted capitol riots.”

March 26: Wyatt’s photo posted as BOLO 277.

April 6: Attorney contacts DOJ about Wyatt.

August 5: First tip on Therres.

September 20: FBI matches Therres BOLO to Maryland ID.

Late October: FBI searches for now-deleted Facebook content of Wyatt.

October 29: FBI accesses Facebook account for Wyatt’s spouse, matches gloves used at attack.

November 5: Therres’ probation officers confirm BOLO ID.

November 23: FBI reviews video of Therres throwing plank.

November 29: FBI reviews video of Therres’ alleged assaults (this may have been the first that FBI realized Wyatt’s interactions with Therres at the attack, including that he handed Therres the plank with which Therres allegedly injured an officer; thus far Wyatt is not charged with abetting the assault causing injury charged against his stepson.

December 14: Second tip on Therres, reporting he tasered 4 police officers.

April 5, 2022: Close contact of Therres IDs his BOLO, relays that Therres was “very vocal” in social circle about “inflicting violence on police officers, with potentially a taser.”

April 6: FBI access previously obtained Wyatt’s Meta content showing contemporaneous posts about his participation.

April 19: FBI agent who interviewed Wyatt confirms ID.

What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

Merrick Garland Names War Crimes Prosecutor Jack Smith to Oversee Trump Investigations

To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible date for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.

The jurisdictional boundary is of interest: Anyone who crimed at the Capitol will be prosecuted by DC US Attorney Matthew Graves. Anyone who was not physically present at the Capitol would fall under Smith’s investigation.

It’s unclear where Alex Jones would fit in that schema. Roger Stone, though, would be moved under Smith.

My favorite part of the order appointing Smith is this part:

The language authorizing a Special Counsel to investigate anything that “might arise directly from this investigation” is standard Special Counsel language. It generally covers efforts to obstruct the investigation.

Only, usually, it only appears in the subjunctive, covering matters that might arise, in the future.

This authorizes Smith to investigate things that already have. Which would only be necessary if such matters had already arisen.

The order also authorizes Smith to spin off prosecutions.

Again, that’s not boilerplate. It may suggest Garland has already seen evidence of criminality that could and should be spun off.

Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain advantages, two of those named Ginni and Jim.

But otherwise, the investigation continues with — as Garland said — urgency.

Update: Overnight I thought of this: Garland said there were recent developments, plural, that led to this decision. One could be the GOP taking over control of Congress. After all, Scott Perry, head of the Freedom Caucus, must be a subject of this investigation. But it’s not outside the realm of possibility that the incoming House Judiciary Committee Chair is too. And depending on the final split in Congress, it’s also not outside the realm of possibility that enough members are under investigation — with Perry, Jim Jordan, Marjorie Taylor Greene, Andy Biggs, Paul Gosar, and Matt Gaetz — that it could, briefly anyway, alter the majority in Congress.

“An Entire Universe of Malfeasance, Corruption, and Depravity:” Joel Greenberg Promotes the Value of His Snitching

Joel Greenberg — the Roger Stone and Matt Gaetz associate who pled guilty in May 2021 to trafficking a minor, identity theft, wire fraud, stalking, and conspiracy — will be sentenced on December 1.

(h/t to Sandi Bachom for the screen cap of Gaetz’s tweet)

In accordance with a schedule set in July, when Greenberg last extended his sentencing date to expand the time he could cooperate with the government, DOJ submitted its 5K letter (in which it tells the judge how much credit Greenberg should get for his cooperation) on November 10. The government submitted its sentencing memorandum yesterday.

Greenberg’s sentencing memorandum was initially due yesterday as well, but his attorney, Fritz Scheller, got an extension until next Monday, in part so he could submit this response to the 5K letter.

Judge Gregory Presnell set a pre-sentencing hearing for November 30 to hear arguments about the proper guidelines to apply.

The government sentencing memorandum — which repeatedly seems to express amazement at how Greenberg kept criming even as he realized the government was hot on his trail — is worth reading on its own. Here are some highlights:

Greenberg had only just gotten started in his efforts to defraud the Tax Collector’s Office to fund his personal cryptocurrency purchases.

[snip]

In January 2019, Greenberg told one of his family members that he was in “big trouble” and asked for $200,000. Id. at ¶ 102. Rather than repay the Tax Collector’s Office what he had obtained through his fraud, however, Greenberg used those funds to purchase more cryptocurrency for himself.

[snip]

The one thing that Greenberg did not do, however, was stop his fraud. Greenberg continued to defraud the Tax Collector’s Office to obtain funds to purchase cryptocurrency for himself. His only reaction to the federal investigation was to alter his scheme.

[snip]

As part of this scheme, Greenberg continued to sell the cryptocurrency machines that he had purchased with Tax Collector’s Office funds. In addition, Greenberg used some of the machines to mine cryptocurrency for himself. As part of those efforts, Greenberg used Tax Collector’s Office funds to build a server room in his personal office, and he operated some of the machines at the Lake Mary branch. Id. at ¶ 134. Because of how those machines were daisy chained together at the Lake Mary branch, they started a fire that damaged the machines and the branch office.

[snip]

After he was released on pretrial supervision, Greenberg continued with his scheme, executing an SBA loan agreement for $133,000 only a day after he was ordered by a United States Magistrate Judge not to commit any new offenses.

It all feels like a Coen Brothers movie. Sex with minors, ecstasy, rat-fucking, and flaming cryptocurrency servers.

With regards to Greenberg’s cooperation, one of his crimes — stalking — deserves particular attention. When someone filed to run against him as tax collector, Greenberg manufactured a claim that his opponent was sleeping with a student.

In the midst of defrauding the Tax Collector’s Office, Greenberg added stalking to his repertoire of criminal activity. See id. at ¶¶ 138-147. On October 4, 2019, an individual who was a teacher at a school, filed to run for the elected office of Seminole County Tax Collector in 2020, against Greenberg. Id. at ¶ 138. In retaliation, Greenberg caused nine letters to be sent to the teacher’s school. The letters falsely represented that they were being sent by an anonymous “very concerned student” who had information that the teacher had engaged in sexual misconduct with a particular student. Id. at ¶ 139. The following month, in November 2019, Greenberg set up a Facebook account that falsely claimed to belong to a “very concerned teacher” at the school. Using that account, Greenberg made similar false allegations to the ones previously made in his letters. Id. at ¶¶ 143-145. Further, he created an imposter Twitter account, using the name and photograph of his political opponent, without the teacher’s knowledge or consent. Greenberg then published, using that account, a series of racially motivated posts that he falsely represented were being made by the teacher, and representing that the teacher was a racist. Id. at ¶ 142.

This is classic Republican projection and rat-fuckery. But it is also a really damaging confession for anyone who might want to turn snitch in the future.

I’m sure Greenberg knows all sorts of things about what his sleazeball buddies have done and shared some of it with prosecutors. But the fact that Greenberg manufactured false allegations against someone would make him really easy to discredit as a witness about anything for which there wasn’t a whole bunch of independent documentation. Prosecutors use fraudsters as cooperating witnesses all the time, but to do so they need a bunch of corroboration, because otherwise jurors aren’t going to believe the claims of someone who confessed to manufacturing false claims for personal gain in the past.

With that said, I wanted to look closer at the sentencing dispute. Greenberg thinks his cooperation has been more valuable than the government has given him credit for. Partly, that’s because he thinks he should get a 4-level reduction for each of what he says are seven prosecutions he has been a part of (or will be as downstream conspiracy prosecutions progress or would have been had the defendant not died), rather than the 10-level reduction the government says he should get for all his cooperation. Partly, he thinks the mandatory 2-year minimum for the identity theft he pled to, which would be consecutive to his other sentence, should be set aside given his cooperation.

But as Greenberg’s and all other plea agreements make clear, he doesn’t get to decide.

[T]he defendant understands that the determination as to whether “substantial assistance” has been provided or what type of motion related thereto will be filed, if any, rests solely with the United States Attorney for the Middle District of Florida, and the defendant agrees that defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise.

It’s solely up to the government to decide. And here’s what the government thinks of Greenberg’s cooperation:

In summary, the defendant has provided truthful and timely information to the United States which, in part, resulted in the charging of: two individuals involved in a conspiracy to provide bribes and kickbacks to the defendant,2 one individual involved in a conspiracy to submit false claims to the SBA and to bribe an SBA employee,3 and one individual involved in a conspiracy to defraud the Tax Collector’s Office.4 In addition, the defendant has provided substantial assistance on other matters discussed in the sealed Supplemental Memorandum Regarding Defendant’s Cooperation.

The United States has acknowledged the value added as a result of the defendant’s cooperation, and to reflect the significance of his assistance, the United States has moved for a 10-level reduction in his offense level. This is however, where his mitigation and reasons for any type of reduction in offense level should end. Considering all of the above referenced information including (1) the nature and circumstances of the instant offenses, (2) the defendant’s history and characteristics, and (3) the need for the sentence imposed to provide just punishment, adequate deterrence, respect for the law, and protection of the public, the United States respectfully submits that no downward variance is warranted.

It’s the “substantial assistance on other matters discussed in the sealed Supplemental Memorandum Regarding Defendant’s Cooperation” we’re all particularly interested in, what, in Greenberg’s response, he calls “an entire universe of malfeasance, corruption, and depravity.”

I’m sure it is.

I’m sure it is.

This is the stuff, including the Gaetz sex trafficking allegations, that has shown up in the press.

Most recently, it showed up — with an on the record quote from Scheller boosting the import of Greenberg’s cooperation — in a NYT story on multiple January 6 prosecutors’ investigation of the ties between January 6 and the 2018 Stop the Steal effort.

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

Mr. Gaetz, Republican of Florida, participated in the 2018 demonstration, but the extent and nature of his involvement remain unclear.

Fritz Scheller, a lawyer for Joel Greenberg, a local Florida tax collector who is cooperating with the government in an investigation into Mr. Gaetz, declined in response to questions to discuss the specifics of what his client told the authorities about the 2018 incident. Still, Mr. Scheller said, “A significant aspect of Mr. Greenberg’s cooperation has been his assistance in matters involving efforts to subvert the democratic process.” [my emphasis]

What is going on overtly in this sentencing dispute, with Greenberg arguing for the value of his cooperation, likely parallels what has generated a lot of press coverage (particularly about any sex trafficking case against Gaetz) in recent years. We likely got stories about “an entire universe of malfeasance, corruption, and depravity,” including the expectation that Gaetz would be indicted, because those close to Greenberg were trying to raise the value of his cooperation in the public sphere and pressure prosecutors for an indictment of Gaetz, which would have increased the credit he’d get for cooperating, another 4-level sentencing reduction, Greenberg says it would have gotten him.

None of that’s to say that Greenberg’s cooperation hasn’t been corroborated (on some points) or valuable: The government explicitly says he was “truthful” and uses the phrase, “substantial assistance,” that prosecutors use to describe real meat, often meat that they expect will lead to indictments.

It’s just that at this moment, the first time the government has been able to say publicly how valuable they think Greenberg’s cooperation is in the face of all the sex, ecstasy, rat-fucking, and flaming cryptocurrency servers that Greenberg pled guilty to, they say all that truthful and substantial assistance doesn’t outweigh the fraud as much as Greenberg would like it to.

None of that says Gaetz is in the clear, though the report that federal prosecutors won’t charge him for the sex trafficking because, “a conviction is unlikely in part because of credibility questions with the two central witnesses,” accords with what we see in the sentencing memo. Greenberg would have particular credibility problems on that count because Greenberg manufactured a claim of sex crimes in the past.

That said, I find it interesting that Gaetz decided, at the last minute, not to attend Trump’s rally in Florida last night, purportedly because of rain that wasn’t affecting travel in the least. And in Scheller’s motion for an extension, he described five hours of work with federal and state prosecutors (which may or may not relate to Greenberg), but also resolving an unexpected issue that might impact Greenberg’s sentence.

Because of the recent tropical storm (Nicole) and associated federal and state court closures on November 9 and November 10, as well as the federal holiday on November 11, 2022, the undersigned has had multiple case matters continued to this week. Indeed, today the undersigned has already spent five hours in both state court and in an extensive proffer with the Government.

[snip]

Additionally, the undersigned is currently in the process of resolving an unexpected issue (both today and tomorrow) that could impact Mr. Greenberg’s sentence.

So there may be recent developments of interest, developments that had to wait until courthouses could be opened after rain that was affecting travel.

I hope we’ll get a slew of new titillating new stories about Joel Greenberg’s universe of malfeasance, corruption, and depravity when that sealed cooperation memo is unsealed (or, better yet, if it leads to indictments). But for now, the advent of this sentencing dispute is a helpful reminder that the motives that drive reporting often require overselling the value of the testimony of an admitted fraudster.

Spy Versus Spy Amid the Proud Boys, Again

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.

Andy McCarthy Gives Frothers Permission to Approve of a Trump Indictment

This column from Andy McCarthy is one of the most interesting GOP responses I’ve seem to the election on Tuesday.

It starts by saying the former President has jumped the shark because he attacked the two governors — Glenn Youngkin and Ron DeSantis — that in McCarthy’s estimation are the future of the Republican party.

After laying out the former President’s legal jeopardy — January 6, the stolen documents, the Georgia investigation — and getting details wrong throughout, Andy then lays out a conspiracy theory about how Democratic efforts to game the 2024 election would dictate the timing of a Trump investigation.

Still, for as long as it appeared that the Republican presidential primaries would end in Trump’s routing the field, or at least remaining competitive to the end, the Biden administration had an incentive to table any Trump indictment. If the DOJ were to charge Trump while the Republican primaries were ongoing, that would give Republicans — all but the most delusional Trump cultists — the final push they needed to abandon Trump and turn to a different candidate, who could (and probably would) defeat Biden (or some other Democrat) in November 2024. Of course, once Trump had the nomination sewn up, the Biden administration could indict him at any time, whether before or after defeating him in the general election.

Just as this calculus motivates the Justice Department to delay any indictment, it provides a powerful incentive for Trump to run — and, indeed, to launch a campaign early (maybe as early as next week) so he is positioned to claim that a likely future indictment is just a politicized weaponization of law enforcement aimed at taking out Biden’s arch-enemy.

Yet, again, all of these calculations have hinged on one thing: Trump’s remaining a plausible Republican nominee. And he’s not one anymore.

The idea is that Biden is controlling all the prosecutors at DOJ (and it’s not leaking) and all are working in concert to improve Biden’s chance of running against a damaged Trump by indicting Trump at the optimal time. And Trump, in turn, is running precisely to avoid prosecution. It doesn’t make any sense, mind you. It’s batshit crazypants, as Andy usually is these days.

After laying out the devious plots he claims the Democrats and Trump are involved with, Andy repeats, again, that the attacks on Youngkin and DeSantis mean Trump’s toast as a candidate.

Trump is toast after his unhinged tirades against DeSantis and Youngkin. Attacking such unpopular Republicans as Liz Cheney and Adam Kinzinger is one thing, and attacking Mitch McConnell (or was it “Coco Chow”?) is just par for the course. But going after DeSantis and Youngkin, accomplished rising stars who give the disheartened GOP hope that better times may be around the corner, is just flat-out nuts. And nobody who’s not flat-out nuts wants any part of flat-out nuts.

None of that is any more true than Andy’s conspiracy theories about how Biden is directing the actions of about 50 AUSAs.

But then Andy’s insane rant gets interesting. He argues that if DOJ indicts Trump it won’t help Trump politically because, Andy says, the January 6 investigation and the stolen document investigation are meritorious, unlike (he says), “Russiagate” [sic].

[S]ome calculate that an indictment of Trump would revive him politically. There is a certain surface appeal to this view, but it is ultimately wrong. It would be right if we were talking about allegations akin to those at issue in Russiagate — a manufactured political narrative substituting for evidence. Such a baseless case would make Trump stronger, because it would be a patent abuse of prosecutorial power.

But here we are talking about actual, egregious misconduct. A January 6 prosecution of Trump might be a reach legally, but the country was repulsed by the Capitol riot — as compared to being bemused, then annoyed, by the fever dream of Trump–Russia “collusion.” As for the Mar-a-Lago probe, Trump has handed the Justice Department on a silver platter simple crimes that are serious and easy to understand. Beyond that, the DOJ also has a convincing story to tell: The government didn’t want to do it this way; National Archives officials pleaded with Trump to surrender the classified material voluntarily, asking for it back multiple times even after it became clear that he was hoarding it; the DOJ resorted to a search warrant only when Trump defied a grand-jury subpoena (with his lawyers’ falsely representing that there were no more classified documents in Trump’s possession other than the ones they’d returned); even then, prosecutors went through a judge to get the warrant rather than acting on their own; and even after the search, there remain significant concerns that classified information is still missing. Even someone initially sympathetic to Trump who did not want to see a former president get prosecuted would have to stop and ask, “What else were they supposed to do when he was being so lawlessly unreasonable, and when national security could be imperiled if classified intelligence falls into the wrong hands?”

The cases the DOJ is now investigating are nothing like Russiagate.

I don’t think it’s true that either January 6 or the stolen documents are easier to lay out than the actual Russian investigation, as opposed to what Andy calls “Russiagate” [sic]. I’m not much interested in arguing the point either. This whole column is full of shit.

Still.

Andy’s columns are consistently full of shit. But they are important shit, because great swaths of Republican activists look to him to be told what to think and say about legal issues. And in this column, Andy has given those activists a bunch of ways to attack Democrats (the wild conspiracy theory about Biden coordinating 50 AUSAs to weaken a Trump candidacy for 2024) at the same time as telling those activists that after bitching about Biden orchestrating all those AUSAs, the activists have his permission to be outraged about what Trump did on January 6 or, especially, about the stolen documents. What else was DOJ supposed to do but indict Trump, Andy asks, when Trump’s unreasonable lawlessness was imperiling national security.

The cases DOJ is now investigating are very much like “Russiagate” [sic], because Trump coddling up to Russia also was outrageously lawless and imperiled national security. But (as I hope to show before Tuesday), the Russian investigation was used — by Trump, by Russia, by key influencers like Andy — to instill tribalism among Republican activists.

And in this column, Andy is telling the activists who look to him for a script about legal issues that, as tribal Republicans, they can treat January 6 and stolen document indictments as meritorious, whereas as tribal activists, they were obliged to wail about Russiagate [sic] for years.

Andy has told these activists that they can — should even, for the good of the party — support a Trump indictment.

It’s just one column.

Still, it’s precisely the kind of thing I’ve been expecting might happen, as Trump continues to impose greater and greater costs on the Republican Party. For years, Trump used investigations into himself — first Russia, then coercing Ukraine, then attacking the Capitol — as a means to enforce loyalty, all the while ratcheting up his demands on Republicans.

He got the Republican Party, with just a handful of exceptions, to applaud an attack on their workplace, because he demanded they do it as a show of loyalty. That was how he enforced his power and by making Republicans debase themselves in his defense, he made the party his own.

It doesn’t help Trump that that enforcement mechanism — replacing Trump critics with increasingly rabid Trump supporters — just cost Republicans at least the WA-3 and MI-3 House seats, as Democrats beat the Republicans who took out members of Congress who voted to impeach Trump, and thus far two Senate seats (in Arizona and Pennsylvania, with Georgia still up in the air). The cost of these loyalty tests now bear the names of
Marie Gluesenkamp Perez, Hillary Scholten, Mark Kelly, and John Fetterman.

But even without that cost, the legal investigations into Trump are convenient, for Republicans, not only because they provide a way to get Trump out of the way for a Youngkin or DeSantis, but also because by supporting an investigation into Trump — by calling the stolen document investigation meritorious — Republicans have a way to separate themselves from the grave damage on the US they’ve already sanctioned.

By supporting indictments against Trump, now, Republicans can pretend they didn’t already do grave damage to the country because Trump told them to, and they can clear the way for Ron DeSantis to do the same kind of damage in the future.

After a Year of Executive Privilege Fights, Mike Pence Just Tweeted It Out

The WSJ has published an excerpt — the parts relating to January 6 — from the Mike Pence book coming out next week. It includes descriptions of the following conversations with the then-President, at least some of which Pence was the only witness:

  1. Lunch on November 16, 2020, at which Trump said, “2024 is so far off.”
  2. A call on December 5, on which Trump raised the possibility of challenging the vote.
  3. A December cabinet meeting.
  4. A December 19 conversation in which Trump mentioned plans for the January 6 rally (which Pence claims to have thought was a “useful” idea).
  5. A January 1, 2021 phone call in which Pence told Trump he opposed Louie Gohmert’s lawsuit arguing that Pence had discretion to decide which votes to count. Trump accused his Vice President of being “too honest” and informed him that, “People are gonna think you’re stupid,” for choosing not to claim the power to throw out votes.
  6. A call on January 2 on which Trump said that if Pence, “wimp[ed] out,” he would be “just another somebody.”
  7. A meeting involving John Eastman and others on January 4.
  8. A meeting involving John Eastman in the Oval Office on January 5.
  9. The call Trump made to Pence on January 6 where he again called Pence a wimp.
  10. A meeting on January 11, where in response to Trump’s question whether he was scared on January 6, Pence said he was angry, purportedly just about the people “tearing up the Capitol.”
  11. An exchange inside the Oval Office during which Trump told Pence “Don’t bother” to pray for him.

Every one of these conversations are ones that would traditionally have been covered by Executive Privilege. Trump claimed such exchanges were covered by Executive Privilege starting over a year ago. Both Pence’s top aides — Greg Jacob and Marc Short — and three White House Counsels claimed such exchanges were covered by Executive Privilege this summer, and only in recent weeks did Beryl Howell override the claims of Pence’s people.

And yet, all the while, this book was in the works, including just on this topic, eleven conversations directly with the former President, many of them conversations to which Pence was the only witness.

Much of this description is self-serving (as most autobiographies are), an attempt to craft his support for challenging the election but not rioting. The excerpt, at least, does not disclose the advice that led him to reject Trump’s demand that he throw out votes.

This passage, in particular, seems to project any testimony that Eastman knew the request of Pence was illegal onto Greg Jacob, not himself.

On Jan. 4, the president’s chief of staff, Mark Meadows, summoned me to the Oval Office for a meeting with a long list of attendees, including the legal scholar John Eastman. I listened respectfully as Mr. Eastman argued that I should modify the proceedings, which require that electoral votes be opened and counted in alphabetical order, by saving the five disputed states until the end. Mr. Eastman claimed I had the authority to return the votes to the states until each legislature certified which of the competing slate of electors for the state was correct. I had already confirmed that there were no competing electors.

Mr. Eastman repeatedly qualified his argument, saying it was only a legal theory. I asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.

On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.

By context, Pence asked Eastman whether Eastman thought Pence had “the authority to reject or return votes.” Eastman’s response, without qualification that he was addressing just one of those two items, was that, “it’s never been tested in the courts.” Then, by Pence’s telling, he directly told the then-President that Eastman had only said that returning votes to the states would be illegal. But that’s not what Eastman responded to! He responded to both, and did so in front of Trump.

By stating that Eastman later told his general counsel, Greg Jacob, that the Supreme Court would overturn any effort to reject the votes, rather than just return them, Pence is making Jacob the key witness, and he’s telling the story in such a way that Trump was not directly a witness to the conversation.

Maybe it really happened like Pence tells it. Maybe not. There were other attendees (including, probably, Jacob), and some of them have likely already described what they saw to the grand jury.

But this protective telling of the story is particularly interesting given this description of how, on January 1, Pence told Trump he didn’t have the authority to decide which votes to count.

Early on New Year’s Day, the phone rang. Texas Rep. Louie Gohmert and other Republicans had filed a lawsuit asking a federal judge to declare that I had “exclusive authority and sole discretion” to decide which electoral votes should count. “I don’t want to see ‘Pence Opposes Gohmert Suit’ as a headline this morning,” the president said. I told him I did oppose it. “If it gives you the power,” he asked, “why would you oppose it?” I told him, as I had many times, that I didn’t believe I possessed that power under the Constitution.

This is the first, in the excerpt, that he describes telling this to Trump. But he also says he had already told him the same, “many times.” The circumstances of those conversations would be really critical for pinpointing the timeline of Trump’s machinations and the extent that Pence warned him they were illegal.

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

image_print