“Darkened Plazas with Throngs of People:” The Government Debunks the Portland – January 6 Comparisons

The government just responded to January 6 defendant Garret Miller’s claim of selective prosecution. Miller is charged with assault and civil disorder, obstruction, and — for threats against AOC and the officer who shot Ashli Babbit — interstate threats.

On January 15, 2021, MILLER admitted in a Facebook chat that he is “happy to make death threats so I been just off the rails tonight lol,” and is “happy to be banned now [from Twitter].” When asked whether the police know his name, he responded, “[I]t might be time for me to …. Be hard to locate.”

Last month, Miller filed two motions claiming selective prosecution (for discovery, to dismiss). He argued that Portland defendants were treated differently than he is being treated, because many of the Portland cases involving (some but not all of) the same crimes he was charged with are being dismissed or resulting in plea deals.

UndersignedCounsel has undertaken an extensive review of pleadingsfiled on PACER, press releases issued by the United States Attorney’s Office for the District of Oregon, and various news accounts as they relate to the Portland riots. From that review, it appearsthat approximately 74 persons were charged with criminal offenses arising out of the riots. 5 Of those 74 persons, to date, approximately 30 persons have had their cases dismissed (often with prejudice) upon motion of the government, 12 persons appear to have been offered dismissals upon completing a pre-trial diversion program, and at least 3 persons have been allowed by the government to plead guilty to significantly reduced charges.6

Most of the Portland rioters were charged with a violation of 18 U.S.C. § 231(a)(3) (civil disorder) and/or a violation of 18 U.S.C. § 111 (assault on a federal officer). These are the same charges brought against Mr. Miller in Counts One, Two and Four of the Superseding Indictment based upon his participation in the Washington, D.C. riots.

Given the right wing efforts to compare the two events, this was an inevitable legal challenge. And as such, it will be one of the few times where the government is asked to compare their prosecutorial decisions between the two events.

The government responded to the motion for discovery today. It argues, generally, that Miller hasn’t presented any similarly situated people.

Miller fails this showing. A selective-prosecution claim requires the defendant to identify “similarly situated” individuals who “have not been prosecuted,” Irish People, Inc., 684 F.2d at 946 (citation omitted), and Miller has pointed to no such individual. He instead cites 45 cases (from a sample of 74) where the government charged the defendant with federal offenses arising from riots around the federal courthouse in Portland, Oregon, and where the government subsequently dismissed the charges, entered a deferred-prosecution agreement, or acceded to the defendant’s guilty plea on reduced charges. Doc. 32, at 7.2

2 Miller’s motion further references pleadings from 31 of these cases where, in his view, the defendant’s conduct in Portland mirrored his actions on January 6, 2021. Doc. 32, at 8-16; see also Doc. 32-1 (Attachments 1-31).

This is how most selective prosecution claims die: the precedents require coming in with proof of an almost exactly similar case getting differently treated, and then proving it was differently treated for some kind of bias.

It then points out the obvious: Miller is not claiming selective prosecution, he’s claiming that the outcomes of those prosecutions are different than his is likely to be.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment.

You can’t claim selective prosecution when those other defendants were also charged, especially not after you, yourself, have been offered the same “significantly reduced charges” you’re complaining Portland protestors got.

But then the government goes into specifics about what distinguishes Miller: generally, there’s far better evidence against Miller, and, specifically, he committed other crimes as well.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted)

More importantly (and a point that Trevor McFadden made when Couy Griffin tried to claim he was being picked on because he got charged with the same trespassing charge virtually everyone else got charged with), the government notes that Miller hasn’t been treated differently than any of the 500 others who’ve been charged in January 6.

[H]e is one of more than 500 defendants already charged for participating in the riot, and he does not suggest that he has been treated differently than any of those similarly situated defendants.

This is a response to a guy who, though his assault charges are not as serious as the assaults charged against others, then went on Twitter and bragged about committing crimes, and then threatened several people, including a Congressperson. Other January 6 defendants might raise more interesting selective prosecution challenges, which will likely fail for the general comments laid out about the quality of evidence involved. But this challenge was doomed from the start. Miller’s alleged crimes were so well documented — on camera and in his own words — that he was never the person to bring this challenge.

More importantly, the government raises one big reason why the January 6 defendants will be prosecuted and some Portland defendants will not (setting aside the 29 cases Miller tried to pretend didn’t exist), even assuming their alleged crimes are just as bad: because there weren’t tens of thousands of others filming their actions, because they didn’t try to occupy a building full of CCTV, and because they didn’t brag about their crimes after the fact.

This may not end the comparisons between January 6 and Portland. But it does lay out for the court very practical reasons why throwing the book at January 6 defendants is easier to do than Portland defendants: because January 6 defendants committed alleged crimes in bright spaces covered by CCTV and then went on social media and bragged about doing so, whereas many Portland defendants did so in “darkened plazas.”

Invoking the Great Task of Ensuring “the Government of the People Shall Not Perish from the Earth,” Judge Moss Sentences Paul Hodgkins to Eight Months Sentence

Judge Randolph Moss just sentenced Paul Hodgkins to eight months in prison for his role in the January 6 riot. Hodgkins will face two years of probation and pay the $2,000 restitution agreed on in his plea agreement (though will not be fined). The sentence was about what I expected, and a fair sentence for someone who pled guilty first and engaged in no violence (and even tried to calm other rioters).

As I noted here, the important part of this sentence is how Moss got to the sentence. Moss treated January 6 as a grave danger to democracy, and set a sentence to send a message to deter others from engaging in similar behavior. But he also noted that Hodgkins pled guilty first, and did not engage in violence. He even noted that Hodgkins had not engaged in inflammatory speech online, as virtually all January 6 defendants charged with obstruction have. That is, Moss sentenced Hodgkins roughly according to this hypothetical I laid out:

Judge Randolph Moss might explain that he finds Hodgkins’ behavior to be a grave threat to democracy and say that with any other similarly situated defendant, he would sentence him to the maximum sentence in his guideline, 21 months, but because Hodgkins went first, Moss will give him a significant downward variance; that would allow him and all other DC judges to sentence hold-outs more severely than Hodgkins.

Moss emphasized two things about Hodgkins’ conduct that worked against him. First, that he wore goggles, indicating that he came prepared to defend his position. More tellingly, Moss noted that Hodgkins brought a Trump flag and waved it around in the well of the Capitol, an expression of loyalty to a single individual, not loyalty to the American flag.

This is not the baseline sentence for all January 6 rioters accused of obstruction. It is a sentence that was available to Hodgkins and few others, at least in Judge Moss’ courtroom.

Hodgkins made a statement, one that was more effective than the pleas of his attorney. He started by saying, “I can say without a shadow of a doubt that I am remorseful, because of the damage that has been caused that the country I love has been hurt.” He noted that he did not place blame on any politician. He emphasized that he recognizes that Joe Biden is the lawfully elected President. He noted that on a few occasions, he tried to get people to stop trashing the joint. He stated he put passion before principle.

As noted, LeDuc’s comments were less powerful, at times claiming he was the only one whose job it was to protect the country, and denying that January 6 had been a terrorist attack. He invoked Lincoln’s effort to heal the country after the Civil War.

Judge Moss retorted that people were prowling the halls of Congress looking to target Nancy Pelosi. He asked LeDuc why he hadn’t quoted Lincoln invoking, “the great task remaining before us,” to ensure the government, “by the people, for the people, shall not perish from the earth.”

Before Moss imposed the sentence, he reiterated how much damage this attack did to democracy, when members were forced to flee for their safety.

That is chilling, for many reasons. To start, democracy requires cooperation with the govt. When a mob threatens Capitol, democracy is in trouble. Damage is way beyond several hour delay. Damage will persist for decades.

He cited Reagan describing our peaceful transfer of power as a miracle. He noted that it “will be harder to convince children that democracy stands as immutable foundation of nation.”

And he emphasized, throughout, that this was a sentence for Paul Hodgkins, not a sentence for all the defendants.

As noted, I think this is a reasonable sentence for Hodgkins. And the way Moss got to the sentence leaves himself and other judges plenty of room to impose harsher sentences to defendants who did more to threaten democracy.

On the Upcoming Sentencing for the First January 6 Felony Defendant, Paul Hodgkins

On Monday, Paul Hodgkins will become the first felony defendant to be sentenced for his role in the January 6 riot.

Before I explain what the parties have said about that sentencing, some background is in order. The government has used obstruction, 18 USC §1512(c)(2), to charge virtually every January 6 defendant who in one way or another (often on social media before and after the riot), expressed the intent to prevent the certification of the vote, as distinct from simply wandering into the Capitol to express some support for Trump. Such an approach has a lot of upsides: it (thus far) avoids the inflammatory step of charging defendants with seditious conspiracy or insurrection (though that remains a possibility, particularly for militia defendants), while accessing the same kind of steep sentences for the most serious defendants. Because of sentencing enhancements built into obstruction, including “substantial interference,” “extensive scope or planning,” and “threatening injury or violence,” using it allows DOJ to make clear distinctions even among the defendants found guilty of obstruction. Just as an example, while Hodgkins’ sentencing range treated his occupation of the Senate Chamber as substantial interference (which resulted in a sentencing range of 15-21 months), he did not get dinged with enhancements that Graydon Young did for all his pre-planning, the Oath Keepers’ threats of violence, and Young’s attempt to destroy his Facebook account (which resulted in a sentencing range, for obstruction and conspiracy, of 63-78 months).

That said, it is an unprecedented application of the obstruction statute (of course, the January 6 insurrection was an unprecedented event). And a number of defendants have active, non-frivolous challenges to that application, some of which I explained here. Hodgkins pled guilty before all that litigation plays out, giving DOJ a significant first endorsement of this charging approach (which may be why Deputy Attorney General Lisa Monaco sat in on Hodgkins’ guilty plea).

But Monday will be overdetermined because Hodgkins’ sentence, whatever it is, will be taken as setting some kind of standard that over a hundred defendants may be able to point to when it comes to their own sentencing (if DOJ’s application of 1512 is upheld through what is sure to be a number of decisions and appeals). Just as three hypotheticals, Judge Randolph Moss might explain that he finds Hodgkins’ behavior to be a grave threat to democracy and say that with any other similarly situated defendant, he would sentence him to the maximum sentence in his guideline, 21 months, but because Hodgkins went first, Moss will give him a significant downward variance; that would allow him and all other DC judges to sentence hold-outs more severely than Hodgkins. Alternately, Moss might decide that the “significant interference” enhancement shouldn’t apply to Hodgkins and on that basis sentence Hodgkins using a lower guideline (it would give Hodgkins a sentencing range of 8 to 14 months), a judgment that would likely be invoked by a wide range of similar defendants and so would be more binding to other judges and Moss himself in the future. Finally, Moss might rule that what Hodgkins did is barely distinguishable from what he is seeing in some of the trespass cases before him, and so sentence Hodgkins to what would be the max range for one of those trespass charges, six months; such a decision might or might not extend to other obstruction defendants based on factors like whether they told the truth about their actions. Again, those are all just hypotheticals intended to illustrate that why Moss sentences Hodgkins to a particular sentence will be as important going forward as what he sentences him to.

The possibility that Moss might be thinking about what distinguishes Hodgkins from misdemeanor trespass defendants or other defendants charged with obstruction would not be surprising. Because all DC judges have a bunch of January 6 cases, they often express a comparative understanding of them in hearings. So, as Moss prepares to sentence Hodgkins, he might be comparing Hodgkins’ conduct with what has been charged against other defendants over whose cases he is presiding. Moss has a wide range of defendants before him (the Klein brothers, who have ties to the Proud Boys, are his only militia defendants), but the most useful comparisons with other defendants charged with obstruction include:

  • Brady Knowlton and Patrick Montgomery, who were also in the Senate Chamber and who are among the defendants challenging the application of 1512; Montgomery was charged with resisting a police officer after having claimed on Facebook not to have stormed the Capitol violently
  • Bruno Cua, who was charged with assault and civil disorder on top of obstruction and sat in Pence’s chair in the Senate Chamber even as others there told him not to
  • Ryan Suleski, who is also charged with stealing some papers from a member of Congress, who hinted at more to come in an interview after the riot, and who may not have been entirely forthright when interviewed by the FBI
  • Melody Steele-Smith, who boasted of entering Nancy Pelosi’s office and storming the Capitol on Facebook before she deleted those posts

In other words, Judge Moss’ sentencing decision may be as influenced by what he thinks of Knowlton’s similar conduct and fully-briefed challenge to 1512 as it will be by the memoranda before him. It may be influenced by a belief that Hodgkins didn’t do what other defendants did — including misrepresenting their own behaviors either to the FBI or in his own courtroom — while getting charged for the same crime.

That comparative approach may be Hodgkins’ best argument for a lenient sentence. Hodgkins’ sentencing memo makes a sustained and not very convincing pitch for the effort to forgive sedition after the Civil War and throws in some bullshit language about “cancel” culture, then asks for probation (as most defense attorneys do for obstruction). But it then argues that, given how little separates Hodgkins from defendants charged with misdemeanor trespass (significantly, that he entered the Senate Chamber itself), he should benefit from a minimal participation variance.

We contend that when one’s role is similar to the several hundred Defendant’s found inside the same building as Mr. HODGKINS who are being offered misdemeanors, and whose conduct is the same as the totality of the misconduct that is alleged in the instant case, as noted in the PSR paragraphs 10-19, that Mr. HODGKINS’ role was only minimal and deserving of a variance. Because Mr. HODGKINS is accepting a felony, giving him the minimal role variance creates a just result for sentencing purposes. Importantly, this argument is about sentencing. The Defendant has pled to a felony offense because of his presence on the Senate floor. Those being offered misdemeanors offense for being inside the Capitol could also arguably have been compelled to plead to the same felony count as Mr. HODGKINS, but for the distinction of their location within the building. While for findings purposes, Mr. HODGKINS presence inside the Senate chambers vice the Rotunda is an important consideration, for purposes of sentencing there is zero space between Mr. HODGKINS conduct and that of the several hundred others who entered the United States Capitol who are being sentenced for a misdemeanor offense. Mr. HODGKINS should be treated likewise. One surmises that had Mr. HODGKINS simply stopped at the Senate door, he also would be facing a misdemeanor charge rather than this felony offense.

This is a fairly convincing argument, not least because of the defendants who were in the Senate Chamber (notably including Cua), Hodgkins engaged in far less obstructive behavior while there.

The government, meanwhile, seems to have taken an approach that hopes to leave itself maximal flexibility after this first January 6 obstruction sentencing, one that really doesn’t credit Hodgkins all that much for being the first to plead guilty.

The defendant, Paul Hodgkins, participated in the January 6, 2021, attack on the United States Capitol—a violent attack that forced an interruption of the certification of the 2020 Electoral College vote count, threatened the peaceful transfer of power after the 2020 Presidential election, injured more than one hundred law enforcement officers, and resulted in more than a million dollars’ worth of property damage. Hodgkins entered the Capitol wearing a backpack containing protective eye goggles, rope, and white latex gloves, among other items. He made his way to the heart of the proceeding that he has pleaded guilty to obstructing – the Senate chamber – where he took “selfie-style” photographs and saluted others who were shouting and cheering from a nearby raised platform in the well of the chamber. The government nonetheless recognizes that Hodgkins did not personally engage in or espouse violence or property destruction, he accepted responsibility early and in a fulsome manner, and he has taken significant steps toward his rehabilitation. Accordingly, the government recommends that the Court sentence Hodgkins to 18 months in custody, which is the mid-point of the Sentencing Guidelines as calculated by the U.S. Probation Office and as contemplated in the parties’ plea agreement. An 18-month, within Guidelines sentence is also supported by the U.S. Probation Office’s conclusion that neither a downward departure nor a downward variance is warranted in this case.

[snip]

The government recognizes that Hodgkins did not personally destroy property or engage in any violence against law enforcement officers. But he was surrounded by others who were doing both, and he entered the Capitol as others had paved the way with destruction and violence. Time and time again, rather than turn around and retreat, Hodgkins pressed forward until he walked all the way down to the well of the Senate chamber. Hodgkins came to D.C. preparing to encounter violence around him. He was a rioter, not a protester, and his conduct shows that he was determined to interfere with the vote count and the peaceful transition of power in the 2020 Presidential election. Hodgkins entered the Senate chamber, where he joined the chanting and ranting at the dais. This was precisely where, only 40 minutes earlier, the Vice President had been sitting at the desk on the elevated platform, surrounded by Senators who were considering a procedural issue related to the certification of the Electoral College vote.

In the end, Hodgkins, like each rioter, contributed to the collective threat to democracy, physical safety, emotional well-being, and property on January 6, 2021.

Keep in mind, the same way defense attorneys always ask for probation, prosecutors always ask for harsh sentences, knowing the judge will usually find some happy medium, and in doing so here, they’re not starting at the top of the sentencing range. But ultimately, by asking Judge Moss to apply a medium range sentence to a defendant facing a range that a large number of defendants might likewise face, they’re trying to set a standard sentence and have it start reasonably high. They’re really not fully accounting for what it took Hodgkins to decide to be the first to plead guilty; they seem to be thinking as much about the over a hundred defendants coming down the pike and so trying to frame how they’re conceiving of this obstruction crime generally as they’re thinking about Hodgkins himself.

Curiously, Judge Moss (possibly with the input of other DC District judges) afforded himself an extra range of flexibility by inviting the Sentencing Commission to review average sentences for the sentencing guidelines that Hodgkins faces. Significantly, the Sentencing Commission found that of those facing the same guidelines sentence as Hodgkins, almost a quarter — 22.6% — got a probation sentence, though it appears all but one of those probation sentences involved a defendant who provided prosecutors “substantial assistance,” and a goodly number got closer to six months after variances below range.

MINUTE ORDER as to PAUL ALLARD HODGKINS (1): In connection with the sentencing of Defendant, the Court has requested and obtained, via email, from the U.S. Sentencing Commission the following information regarding the sentencing of offenders with similar records who have been found guilty of similar conduct to Defendant in this case. The Sentencing Commission reports as follows:

“In the case before you the defendant pled guilty to obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). The guideline that applies is USSG 2J1.2. Your Probation Office has calculated the guideline range as follows: BOL 14, a 3-level increase for substantial interference with the administration of justice, and a 3-level adjustment for acceptance of responsibility, resulting in a final offense level (FOL) of 14. The offender is assigned to Criminal History Category I. The applicable guideline range is 15-21 months.

“We examined our records from fiscal year 2014 through 2020, and found 31 cases that match this guideline calculation. None of these cases were reported from the District of Columbia. In only nine cases was 18 U.S.C. § 1512(c)(2) a statute of conviction.

“For the 31 cases matching the guideline calculation under USSG § 2J1.2, in 16 cases (51.6%) the offender received a prison only sentence, in six cases (19.4%) the offender received prison with an alternative, in two cases (6.4 %) the sentences was probation with some condition of confinement, and in seven cases (22.6%) the sentence was probation only.

“Of the 31 cases, in seven (22.6%) the sentence was within the guideline range. The average sentence in those cases was 19 months (median = 21 months). Two cases (6.5%) were above range: one upward departure to 36 months and one upward variance to 48 months. The remaining 21 cases (71.0%) were below range. Thirteen cases were below range variances. The average sentence in those cases was seven months (median = six months). One case was downward departure to 14 months, another was a government departure to probation, and the remaining case was a government variance to six months. The remaining six cases were substantial assistance cases.

“In order to provide a more narrowly-tailored analysis, we then limited our analysis to the nine cases in which section 1512(c)(2) was one of the statutes (or the only statute) of conviction. Of those nine cases, in two the sentence was within the guideline range. The sentences were 15 and 21 months. There was one upward departure to 36 months. Three cases were below range variances. The average sentence in those cases was 10 months (median = 12 months). One case was a downward departure to 14 months. The remaining two cases were substantial assistance cases.” Signed by Judge Randolph D. Moss on 07/13/2021. (lcrdm3)

While this table is a rough estimation of what this language says, basically it says a group of people were sentenced to a guidelines sentence, another bigger group were sentenced to around six months, and a third group were sentenced to probation — but never without government agreement (either for a departure or for cooperation).

What Moss has done by obtaining this information and publishing it was, first, to go into Monday’s sentencing hearing with proof that whatever he does will be fair as compared to what has happened to others. Obtaining the guidelines also gives Moss some flexibility. He could, to recognize Hodgkins’ first guilty plea, give him a significant downward variance (and/or sentence him to some alternative to prison, such as weekend confinement), pointing out that the largest group of defendants similarly situated to him got around six months. Alternately, he could explain why he wasn’t giving Hodgkins the probation he requested by pointing out that almost everyone who got a probation sentence in recent history cooperated with prosecutors against others.

Whatever Judge Moss decides (I would be unsurprised by a four to six month sentence, possibly with the opportunity to serve it on weekends or something similar), Hodgkins went first because he has a legitimate argument to make that, aside from his presence on the Senate floor, his behavior really was less culpable than many of the defendants charged with the same crime. Which means — again assuming this novel application of obstruction is upheld going forward — this is just the beginning of a long series of similar horse trading over sentences going forward.

Update: Josh Gerstein reminded me that Judge Moss used a similar approach to George Papadopoulos’ sentencing and — believing that Papadopoulos felt remorse — sentenced him to fourteen days rather than the thirty days he had been considering. Papadopoulos’ guidelines were 0 to 6 months.

Meet Johnny Pollock: The Anti-Social [Media] Cell Leader of January 6 Lakeland Insurrectionists

On January 17, I wrote a post warning that while many January 6 insurrectionists would be easy to find because they boasted on Facebook or other social media sites, the most dangerous insurrectionists would be harder to find.

I get the sense of schadenfreude that the seeming certainty among insurrectionists that they would not only be victorious but their victory celebrations would be risk-free has instead led to their arrests. I’m especially sympathetic to communities of color for whom similar behavior might have gotten them killed.

But with a few exceptions, notably the identification of “zip tie guys” Larry Rendall Brock (by his ex-wife) and Eric Munschel, as well as the identification of Proud Boys member, “Spaz,” as the retired Marine Dominic Pezzola (the latter of whom was arrested with the help of two seeming insider cooperating witnesses), few of the arrests so far have been of the most dangerous insurrectionists.

Four days after that, according to an arrest affidavit for Jonathan (Johnny) Pollock and other members of a group that assaulted multiple cops on January 6, the FBI first released a Be On the LookOut for photo of Pollock.

Days later, Pollock stopped coming to work, citing a “family emergency.” When a co-worker went to his home to pick up keys and other items belonging to their employer, Pollock’s father claimed he didn’t know where his son was.

Pollock allegedly committed the following crimes on January 6 [because the affidavit explicitly uses just a male gender, I’m using “their” here rather than he or her]:

At 1:56, he attacked cops with a pole, then charged them, dragging officers AM and ML to the ground. He then kneed ML close to their face, then attempted to choke another officer:

At 2:04, Pollock grabbed the riot shield from an officer at the next set of barricades, then charged the line.

At 2:11, he took a swing at officer BR, then seized another riot shield, shoving it into officer JG.

At 2:58, he Jumped AS and attempted to pull them over the barricade:

At 4:29, he used a stolen riot shield to pin officers within the tunnel for about 15 minutes so they couldn’t defend against attacks (this may also have prevented them from assisting Roseanne Boyland).

Altogether, Pollock has been indicted for 7 counts of assault and 3 counts of stealing shields. And yet he remains at large, even after his sister Olivia and three other associates charged along with him were arrested last week.

These people were not charged with conspiracy or even attempting to obstruct the election.

A detention memo for his co-defendant, Michael Perkins, suggests Pollock’s group walked to the Capitol as part of a larger group that assembled at the Washington Monument, suggesting there may be some tie to the Proud Boys.

Perkins, his codefendants, and others who engaged in the attacks were part of a larger group of individuals who appear to have traveled together from the Washington Monument to the Capitol grounds on the afternoon of January 6, 2021. Many members of this group are related and/or from the same area of Florida and likely planned their travel both to and from Washington, D.C. and within the district in concert with each other.

Yet there’s no mention of any Proud Boy affiliation either.

Perhaps the government hasn’t charged these five as a conspiracy because they’re hiding their case from Pollock. But the arrest affidavit suggests the group left relatively few digital tracks for investigators (or had thoroughly scrubbed them by March 17, when the FBI conducted its first overt interview relating to Pollock). Of the five arrested, only Olivia gets mentioned as carrying a cell phone that placed her at the Capitol. The arrest affidavit describes Johnny boasting and sharing cell phone pictures of his role in the insurrection with co-workers, but it describes no social media use by him (and the affidavit may suggest that Pollock left his phone at his home before he left). Two of the other defendants, Joseph Hutchison and Josh Doolin, were tied to the Pollocks in part by their tie to the Pollock family gun shop, but also through a social media post that a Pollock family member (perhaps a sibling that also attended the riot) had posted. A different Pollock relative posted images of Jonathan and Olivia on social media. Perkins’ wife, who also attended the riot, also appears in social media.

Mostly, though, the FBI suggests that this is a case built off the Body Worn Cameras of the cops the group assaulted and surveillance footage, not social media clues so typical of other insurrectionists.

And that was all before Johnny managed to avoid FBI capture during at least three months on the lam.

Update: One of the online researchers who tracked this group told me that Pollock had an iPhone 8 with him and the group did little more than nod at the Proud Boys. It was a much larger group, and included Pollock’s father.

Blind Spots in the Ashli Babbitt Panopticon

In a status hearing for Thomas Baranyi yesterday, AUSA Candice Wong explained why she hadn’t finished discovery for Baranyi, who stood right behind Ashli Babbitt when she was shot: because new discovery from “other investigations” keeps coming in. By “other investigations,” she likely means content recorded by other defendants when they were storming the Capitol.

For example, in the most recent (laudably detailed) discovery notice to Baranyi’s attorney, Wong included 17 files, six sets of which were designated by “D” — probably defendants — and three sets of which designated by “W” — probably uncharged witnesses.

MARKED SENSITIVE: Videos obtained via legal process and otherwise from other Capitol investigations (17 files):

a. D-2 – 3 photographs, 1 video

b. D-3 – 3 videos

c. D-4 – 1 video

d. D-5 – 1 video

e. D-6 – 1 video

f. D-7 – 1 video

g. W-4 – 2 videos

h. W-5 – 1 video

i. W-6 – 3 videos

In the hearing, Wong explained that incoming discovery might be important for either the defense or the government. It significantly consisted of activity that CCTV hadn’t captured. Wong also explained that as important as the video itself, new discovery has recorded the words of rioters that weren’t otherwise recorded.

Wong’s comments confirm something I’ve pointed out before. Even with the flood of video that captured the events of January 6, there are gaps in that coverage, gaps that the government has seemingly attempted to fill by targeting the arrests of those known to have taken their own video.

That there are gaps in the case against Baranyi, who was in one of the most important locations of the entire riot, suggests something else: that there may be limited CCTV coverage from that hallway. Certainly, Wong seems to be saying that prosecutors are relying, in part, on other defendants’ footage to understand what the key defendants were doing.

Here are all the discovery notices for Baranyi, with a description of the types of material provided:

  • February 24: Arrest materials and 302s, T-Mobile and WhatsApp subpoena returns, plus ten open-source videos.
  • April 19: Extracts of Baranyi’s phone, social media posts about Baranyi, two more open-source videos, plus 20 zipped USCP surveillance videos
  • June 1: MPD body cam footage
  • June 24: Bates-stamped discovery, probably significantly replicating earlier discovery
  • July 1: MPD footage from “Upper House Door exit,” CCTV from Crypt East, two officer interview transcripts, four open-source videos described as, “CSPAN; Storyful; two of shooting,” plus, the 17 files described above.

As noted below, Wong gave the four other defendants who were also at the door — Zach Alam, Chad Jones, Christopher Grider, and John Sullivan –a similar discovery notice in the last week or so. That suggests the MPD footage and the “D” and “W” videos cover that confrontation that is common to all five cases.

Some of the USCP video provided to those four defendants may be common. But Alam, the most boisterous of the lot, only received eight of them (and most of these defendants were all over the Capitol). For most of these defendants, then, the government seems to be relying on open-source video and, increasingly, on the video taken by other defendants.


Zach Alam (one, two, three, four): Eight files from USCP surveillance and ten open-source videos. Many of the same files disclosed to Baranyi.

Chad Jones (one, two, three, four, five): Ten open source, 22 USCP videos, MPD body cam, many of the same files as disclosed to Baranyi on July 1, as well as an extra YouTube of Jones outside.

Christopher Grider (one, two, three, four, five): 20 USCP videos, ten open-source videos, two of his own videos, many of the same filings disclosed to Baranyi.

Brian Bingham: No discovery docketed.

Alex Sheppard No discovery docketed.

Kurt Peterson: CCTV footage of the building exit and some BWC, as well as 17 open-source videos.

Ryan Bennett (one, two): only his own videos from Facebook and his phone.

Phillip Bromley: Unclear whether all discovery docketed, though a set of files marked Highly Sensitive (as CCTV would be), including four videos and two images, are included.

David Mish: Discovery mentions video clips but does not detail them.

Brian McCreary: No discovery docketed.

Sam Montoya: 20 USCP videos, 16 MPD BWC videos, nine open-source videos

John Sullivan (one, two, three): Sullivan’s own video, 24 USCP videos plus 2 screenshots, 17 MPD BWC videos.

Proud Boy UCC-1’s Work Ethic Saved Him from a Felony Charge

The other day the government released Powerpoint presentations (Zach Rehl, Charles Donohoe) from detention hearings for the two Proud Boys, as well as the Telegram chats one or the other side used as part of those detention disputes. (The times on the chats are UTC-8, probably because they came from Ethan Nordean’s phone after it was seized in Washington; add three hours to get the time in DC.)

January 4 5:17 to 5:42PM

January 4 5:50 to 7:06PM

January 5 8:58PM to January 6 12:03AM

January 6 1:00 to 4:07PM

January 30 to February 1, Nordean and Donohoe

In general, the texts show how, in the wake of Enrique Tarrio’s arrest on January 4, Donohoe took the lead in attempting to set up two new Telegram chats — New MOSD, with just a few leaders, and Boots on the Ground, with around 60 Proud Boys (not all of whom were present, it seems) — so the Feds wouldn’t have access to their organizational efforts via Tarrio’s phone, which they correctly assumed the government had seized (though it’s not clear when the phone was exploited). The Proud Boys struggled to figure out what to do with Tarrio, with Donohoe seemingly warning not to add Tarrio back into a chat until they had confirmed he was free and using an uncompromised phone, to prevent the FBI from logging on under Tarrio’s credentials.

They seem to know that Tarrio also spoke with someone outside their circle about his flag-burning, and considered warning that person. They interspersed that conversation with discussions about how to get more Proud Boys to the riot, perhaps picking them up in Philadelphia or Greensboro. For several hours, Donohoe kept adding names, begging for help, explaining what he was doing as he went.

Because of the time crunch, Donohoe added everyone as Admins (I’m not familiar enough with Telegram to understand potential repercussions of that, with regards to FBI’s ability to get more of these chats as they arrested more Proud Boys).

On January 5, their communication plans were still in flux, with one apparent cell leader — who, on account of the redaction, appears not to have been arrested yet — communicating with his cell separately.

Nordean was supposed to be in charge, but he was AWOL for several hours leading up to 9PM (rather interesting hours on January 5 to be unreachable).

There are texts about adding someone to the MOSD leadership channel that might be consistent with Tarrio rejoining the chats after his release (the government redacted his name in some places but not all of them).

Whether or not they added Tarrio to the thread, Biggs — who was with the AWOL Nordean — seems to have been in contact with Tarrio.

Great swaths of the texts from January 6 — almost 10 full pages — are redacted. What’s left are seemingly one after another Proud Boy (not all present) claiming to be storming the Capitol right at 1:02 PM.

At 3:38 PM Donohoe says the Proud Boys will regroup, only to express shock that Trump[‘s Administration] would call out the National Guard against rioters.

The exhibits with just texts are actually far more redacted than the Donohoe Powerpoint — the latter of which includes damning details like Donohoe acknowledging, in advance, that they could face gang charges.

In addition, in the Donohoe Powerpoint, the government lays out a discussion from after the insurrection where someone — perhaps Biggs — expresses some kind of regret, something to make Donohoe push back.

REHL: Ah shit forgot you [Biggs] had to roll, was hoping to have some celebratory beers with yall after this epic fuckin day, I’ll drink one for ya

BIGGS: We will one day. This day lives in infamy or [sic] the ages

DONOHOE: Yeah I feel like a complete warrior. . . .I stood on that front line the entire time and pushed it twice . . . Thank God we were not wearing colors . . . We should never wear colors ever again for any event . . . Only for meetups . . .

[Approximately 12 Minute Gap with No Messages in Message Thread]

DONOHOE: Stop right there . . . All of what you said doesn’t matter . . . We stormed the capitol unarmed . . . And took it over unarmed . . . The people are fucking done . . . Wait when joe biden tells us we are all criminls [sic] [emphasis original]

The gap is interesting, however, because every Telegram text involving Nordean from the key days amounted to a deleted attachment to a text.

We know Nordean would text, though, because he did later in January, when he and Donohoe were discussing Nordean’s plan for a temporary move to North Carolina.

Note, if texts involving Nordean were deleted, they may not be deleted in phones seized from other participants.

Which leads me an obscure detail revealed in that Powerpoint that nevertheless explains something that has been out there for some time: the logic behind an unindicted Proud Boy co-conspirator’s status.

By March 1, prosecutors had details about all these Telegram texts. Yet in a detention hearing for Nordean on March 3, they backed off providing proof, leading to claims that prosecutors had gotten over their skis on Nordean’s prosecution. But the government rolled out the texts themselves — as well as the existence of an unindicted co-conspirator, referred to as UCC-1, in the Proud Boy Leadership conspiracy indictment on March 15. In a sealed filing before unsealing the indictment, the government had asked Judge Tim Kelly to hide all that until Rehl and Donohoe could be arrested. At the time, it seemed that UCC-1 was the likely source for the Telegram texts.

It turns out that was wrong, however. At a hearing on May 4, Nordean’s attorney Nick Smith revealed that the government had obtained all the texts from Nordean’s phone, a password for which his wife shared with the FBI (which explains the time zone and may explain why Nordean’s content was deleted when his that of co-conspirators was not).

Texts from early on January 6, not replicated (or left redacted) in the full exhibits explain that UCC-1 was not at the insurrection because he had just gotten a new job that he didn’t want to fuck up, yet.

DONOHOE: Are you here? …

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

DONOHOE: Well fuck man

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

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

Person-2: Would be epic

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

That provides a ready explanation for why DOJ might seek to get UCC-1 to cooperate: he wasn’t present, and any role had had in decision-making leading up to the insurrection pales in comparison to Tarrio’s role. Plus, maybe he was telling the truth about trying to keep that new job. As soon as investigators saw why this guy didn’t show, they would understand a motive he might have to cooperate.

If that’s right, that not only would provide a direct witness to these leadership chats, but it might provide an even fuller set of Telegram chats than what the charged co-conspirators know about.

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

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

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

John Pierce got fired by Kyle Rittenhouse

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

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

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

[snip]

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

[snip]

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

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

Pierce assembles a collection of characters for his screen play

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

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

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

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

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

7. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

8. Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally.

9, 10, 11. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

12. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

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

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

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

16. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Or maybe this is a MyPillow defense?

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

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

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

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

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

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

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

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

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

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

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

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

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

This post will pull together the evidence shown to date.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In response, someone replied,

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

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

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

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

The Oath Keepers Dilemma: The Government Has Threatened Yet Another Indictment

The remaining 15 Oath Keeper conspiracy defendants have a status hearing today.

A lot has happened since the last status hearing the bulk of them had on June 1, 2021. Most notably, Graydon Young — co-defendant Laura Steele’s brother — pled guilty on June 23, just over a week ago. His cooperation with prosecutors will implicate the entire Stack, especially Joseph Hackett, Jessica Watkins, his sister, as well as the participants on a OK FL DC OP Jan 6 listserv (in addition to Watkins and Hackett, Kelly Meggs, Kenneth Harrelson, Jason Dolan, and William Isaacs).

Then, on Wednesday, Mark Grods pled guilty. His cooperation will implicate fellow Alabaman Joshua James (who got Grods to delete some files), Meggs, Watkins, Robert Minuta, Stewart Rhodes, and others who were on chats Grods was part of, as well as everyone involved in the Golf Cart chase and prior events at the Willard Hotel, adding Jonathan Walden to the mix.

Yesterday (or today, depending on which defendant you ask) was a deadline that Judge Amit Mehta set on June 1 for all motions unrelated to discovery (with the expectation that the late added defendants would probably need more time).

Thomas Caldwell (who can be implicated primarily by the Ohioans, the still unindicted Person Three, Grods, and possibly some other VA militia members not charged in this conspiracy) has been filing motions. He filed a marginally serious motion to dismiss everything on June 15, and filed a frivolous motion to transfer venue yesterday.

Yesterday, the deadline, both Joshua James and Kenneth Harrelson filed some motions. The former filed a motion to dismiss an assault charge and an obstruction charge against himself, as well as for a Bill of Particulars. The latter filed a motion to dismiss the counts of the indictment charged against him. The Meggses had earlier filed a motion for a Bill of Particulars.

But thus far, almost everyone is asking for an extension to file their own motions. Here’s a summary of what’s on the books thus far (Dolan, Hackett, Isaacs, and Walden would have an extension in any case, on account of their late addition):

  1. Thomas Caldwell: Motion to Dismiss, Motion to Change Venue, Motion for Extension
  2. Dominick Crowl: Motion for 60 Day Extension, Motion to Adopt
  3. Jason Dolan: Motion for Extension
  4. Joseph Hackett
  5. Kenneth Harrelson: Motion to Adopt Caldwell and James Motions, Motion for Extension, Motion to Dismiss Charges against Him
  6. William Isaacs
  7. Joshua James: Motion to Adopt, Motion to Dismiss Counts 8 and 13, Motion for Bill of Particulars, Motion for Extension
  8. Connie Meggs: Motion to Join Caldwell’s Motion, Motion for 60 Day Extension
  9. Kelly Meggs: Motion to Adopt Caldwell’s Motion (including a cursory adoption of his obstruction charge)
  10. Roberto Minuta (Minuta’s attorney has had some health limitations so would need an extension anyway): Motion for 30 Day Extension
  11. Benny Parker: Motion for at least 60 Day Extension, Motion to Adopt Harrelson and Caldwell, though not adopting Caldwell’s “partisan surplusage”
  12. Sandi Parker: Motion to Join Caldwell Motion, Motion for Extension
  13. Laura Steele: Motion to be able to go on vacation, Motion to Join Caldwell, Motion for at least 60-Day Extension
  14. Jonathan Walden
  15. Jessica Watkins: Motion to Join Caldwell’s Dismissal, Motion for 60 Day Extension

Between these requests, the government has gotten defendants to waive Speedy Trial for at least 30 more days as they contemplate the legal dilemma they’re facing.

It’s true that most defendants cite the voluminous discovery before them. A few claim they have not yet had an adequate tour of the Capitol. Harrelson’s motion quotes several paragraphs of boilerplate from the government.

But a comment from James’ Motion for Extension is perhaps the most telling. It asserts that defendants have been told there’s still yet another indictment on the way.

Because the government has made clear that an additional indictment (which could include more charges or more defendants) is possible, and because Mr. James is unaware of which, if any, currently charged defendant will be proceeding to trial, it is impossible to assess, prepare, and file motions regarding severance of counts or defendants at this time.

It also suggests that it’s possible none of the currently charged defendants will actually proceed to trial.

Short of adding Stewart Rhodes, there are few places this indictment will go except to make the terrorism or insurrection claims more explicit.

Which may explain why James, one of the remaining key players who would be able to trade a lesser sentence for a cooperation deal, suggests no one may go to trial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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